Terms and Conditions

TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT

as of 01 August 2012

1. Scope

1.1.The following general terms and conditions apply exclusively to all contracts between a company of the GEDORE Group (“us” or “we”) and the purchaser of tools (“goods” or “goods delivered”) and other services. Any differing terms and conditions of the purchaser shall not be accepted by us unless expressly acknowledged by us in writing, even if we do not expressly object to them.
1.2.The following general terms and conditions apply only with respect to companies in accordance within the meaning of Section 14 of the German Civil Code (Bürgerliches Gesetzbuch - BGB).

2. Quotations and Conclusion of a Contract

2.1.Our quotations are not binding. A contract will only come into existence when we have confirmed your order in writing or through delivery of the ordered product.
2.2.Unless expressly confirmed in writing, technical details such as dimensions, weights, illustrations and drawings shall not be binding for the execution of the order. Gross weights and packaging dimensions are, at the quotation stage, estimated to the best of our knowledge but given without any obligation.

3. Products made to Customers’ Specifications

 For bespoke products individual conditions shall apply. We reserve the right to an excess or short delivery of
up to 10% of the order quantity.

4. Prices

4.1.Unless otherwise agreed, all prices for goods, transport, dispatch, packaging and other services provided by us are as given in our price list in effect at the time the contract is entered into. Deliveries to third parties will not be made.
4.2.All prices are net prices. Costs for dispatch, transport and packaging as well as any installation services are excluded and are subject to an additional charge as per our price list. For deliveries of less than €100.00 net, a handling charge of €10.00 will be added to your invoice (other EC countries €15.00, non-EC countries €25.00).
4.3.We are entitled to make reasonable price increases if delivery of the goods does not take place within a period of four calendar months after the contract was entered into, delivery does not take place at the request of the purchaser within this period, or if costs we incur for advance performance of the contract should increase. The right to make reasonable price increases does not exclude the assertion of further claims against the purchaser.

5. Conditions of Payment and Default

5.1.Payment shall be due at the latest within 30 days following receipt of the invoice by the purchaser. The purchaser shall be entitled to a 2% discount for payments made within 14 calendar days following receipt of the invoice. In other cases, in accordance with the payment note on our pro-forma invoice or specifically agreed terms of invoice.
5.2.We only accept bills of exchange and cheques pending full discharge of the debt. All costs of discounting and collection of bills of exchange and cheques are to be borne by the purchaser.
5.3.In the event of any late or deferred payment, we shall be entitled to charge interest at the legal rate.

6. Delivery and Dispatch

6.1.Delivery within Germany takes place at the risk of the purchaser upon dispatch, and with delivery of the goods at the latest. This applies also to partial deliveries or for other costs we incur, e.g. dispatch costs, transport or installation. If dispatch is delayed for reasons for which the purchaser is responsible, the risk is passed to the purchaser when ordered products are ready for dispatch. Unless otherwise agreed, we shall choose the type of dispatch that is the most suitable in our opinion.
6.2.Delivery is effected ex works; it is free within Germany with a minimum net order value of €500.00 including packaging, and takes place at the risk of the purchaser. This also applies to carriage performed by our company’s own vehicles.
6.3.Unless otherwise agreed, we shall choose the type of dispatch that is the most suitable in our opinion and pass on the costs.
6.4.Insurance against transport damage will only be taken out at the request and expense of the purchaser.

7. Time of Delivery and Delivery Possibilities

7.1.The delivery dates stated in our confirmation of your order are only binding if expressly agreed.
7.2.We reserve the right to make partial deliveries or provide partial services if deemed reasonable for the purchaser. Claims for late delivery can be made within the provisions of clause 11 only. The time period for delivery will begin on the day on which the written confirmation of the order is sent off, but not before all material and technical details with respect to the goods have been clarified.
7.3.All deliveries to you are subject to any deliveries to us being received in time.
7.4.If we are unable to deliver on a date agreed as binding for reasons of force majeure (e.g. labour disputes, strikes, lock-outs, material procurement problems occurring after a contract is entered into, unforeseeable operational disturbances or other circumstances for which we are not responsible), the time for deliveries and services shall be extended for the duration of the hindrance plus an appropriate adjustment period, even if the hindrance is due to our suppliers or their subsuppliers. In the event that deliveries and services cannot be provided within a period five weeks, both parties shall be entitled to withdraw from the contract. In these events you shall not be entitled to any claim for costs, expenses, damages or compensation.

8. Purchaser’s Duty to Inspect Goods and Report Defects

 The purchaser is obliged to inspect the delivered goods within ten calendar days after delivery. Any discovered or apparent defects found during the inspection must be reported in writing within a further ten calendar days. Any defects not detected during inspection of the delivered goods must be reported in writing within 15 calendar days after their discovery. If the purchaser does not fulfil this obligation to inspect and report defects in accordance with these conditions, the delivered goods will be regarded as having been approved.

9. Service Provision, Acceptance

9.1.If, in addition to the delivery of goods, we provide further services, in particular installation services, the purchaser is obliged to declare acceptance of the contractually agreed service. The purchaser cannot refuse acceptance due to insignificant defects.
9.2.If the purchaser does not provide us with a declaration of acceptance within seven calendar days after being requested to do so by us, or does not notify us of any specific defects in writing, the delivery or service provided shall be regarded as accepted.
9.3.The conditions for installation must be fulfilled prior to the provision of installation services and the location must allow the work to be carried out unhindered. Failing this, the purchaser shall be liable for any additional costs incurred subject to our price list valid at the time the contract was entered into. In the event of installation interruptions for reasons beyond our control, we shall be entitled to immediately charge for any deliveries and services provided up until that time. The purchaser herewith authorises us and our representatives to enter his property and execute the work contracted even in his absence.

10. Defects

10.1.The condition of the goods depends exclusively on the agreed technical delivery specifications or on the descriptions contained in our catalogue in effect at the time the contract is entered into.
10.2.We are not liable for defects resulting from improper or unsuitable use, faulty assembly by the purchaser or a third party, fair wear and tear, negligent treatment, or for the consequences of any maintenance or repair work carried out by the purchaser or a third party in an inexpert manner and without our agreement. In this case the purchaser is liable for any costs incurred as a result of his complaint, in particular costs for examining the defects, subject to our price list in effect at the time of the complaint being made. Clause 2 of this provision shall also apply if the delivery item does not show the defects under complaint by the purchaser, if the warranty period has expired, or if no rights arising from the product defects exist.
10.3.The period of limitation for claims for faulty products is one year after delivery of the goods or after acceptance of the service provided.
10.4.We must be given the opportunity to examine the defects under complaint. Goods that are the subject of complaint must be returned to us without delay upon our request against reimbursement of the necessary costs.
10.5.In the case of a defect in the goods, we have the option to repair the faulty goods or to supply you with a defect-free replacement (supplementary performance). If we do not fulfil these obligations within a reasonable time, the purchaser may set us a reasonable final deadline in writing for the fulfilment of our obligations. If this period has expired without success, the purchaser is entitled to demand a reduction of the price, to rescind the contract or, at our expense and risk, make the necessary repairs himself or instruct a third party to undertake such repairs. In the case of insignificant defects, the purchaser is entitled only to demand a reduction. If we should be responsible for any defect, the purchaser is entitled to claim for compensation as set out under clause 11.
10.6.The purchaser shall only be entitled to have statutory recourse against us insofar as the purchaser does not have any agreements with its customers that are in excess of the statutory warranty claim provisions. The previous paragraph applies accordingly to the amount of any such recourse.

11. Liability/Limitation of Liability

11.1.We are liable for compensation for damages irrespective of the legal reason only if this is expressly stipulated in the following.
11.2.We are liable without limitation for damage caused by our legal representatives, employees or vicarious agents as a result of intentional or gross negligence or for damage arising from violation of warranties or injury to life, body or health. This applies similarly to product liability under product liability law as well as to a breach of contractual obligations, the fulfilment of which renders the proper performance of the contract possible and on the fulfilment of which the purchaser usually relies and may rely (essential contractual obligations).
11.3.In the event of a breach of material contract obligations through slight negligence, we shall be liable only for any damage that is reasonably foreseeable and typical for the contract.
11.4.The extent of liability in case of damage or financial loss caused due to slight negligence by our legal representatives is limited to the amount paid to us by the purchaser based on the respective delivery.
11.5.In the cases of clause 11.3 and clause 11.4, compensation for consequential damage, loss of profit and for the consequences of operational interruptions are excluded if these were not foreseeable.
11.6.If both we and the purchaser should be responsible for any damage caused, the purchaser must make allowance for any claims for damages due to contributory negligence.
11.7.Insofar as our liability is excluded or limited, this exclusion limitation also applies to the personal liability of the owner, our employees, workers, colleagues, legal representatives and vicarious agents. The clause does not affect any statutory regulations in relation to the burden of proof.

12. Extended Retention of Title

12.1.We will retain title to all of our delivered goods until payment in full has been made in relation to all outstanding debts including any costs and interest resulting from our business relationship with the purchaser.
12.2.The purchaser or recipient of the goods is entitled to dispose of the goods in the normal course of business subject to our retention of title rights as long as he is not in default. Any disposal of the goods by pledging or transfer of title as security is not permitted. In the event of access of third parties to goods subject to the retention of title, the purchaser must make reference to our ownership and immediately notify us, if necessary with the enclosure of a copy of the report of assets seized.
12.3.The purchaser shall assign to us in advance by way of security all claims arising from the resale of the goods subject to retention of title in the amount of the invoice value (purchase price) of the delivered goods. We authorise the purchaser, under right of revocation, to collect all receivables assigned to us for our invoice on behalf of the purchaser. We shall remain entitled to collect the receivables ourselves. We shall not collect the receivables ourselves as long as the purchaser does not default on payment and specifically if no application for opening insolvency proceedings is made.
12.4.In the event of late payment by the purchaser, we shall be entitled to demand immediate surrender of the goods subject to retention of title within a certain period. All deferred claims against the purchaser will become due immediately, received bills of exchange shall concurrently be converted into cash payments irrespective of their due date. We may also, as far as necessary, predicate fulfilment of ongoing contracts on advance payment or additional security.

13. Offsetting, Right of Retention

 Offsetting by the purchaser is excluded unless the counterclaim is legally established or undisputed. A right to withhold performance or right of retention by the purchaser is excluded, unless the claim on which the right to withhold services or right of retention is based is legally established or undisputed.

14. Place of Performance, Jurisdiction and Applicable Law

14.1.Unless otherwise agreed, the place of performance for delivery and payment is the principal place of business of the company making the deliveries. The exclusive place of jurisdiction for disputes of any kind and in relation to the contract is the District Court or Regional Court for principal place of business of the supplying company. We shall be entitled to take legal action at the place of general jurisdiction of the purchaser.
14.2.The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

15. Contract Transfer, Sub-contractor

 We are entitled to transfer the contract with all rights and obligations to third parties or to employ third parties for the purpose of fulfilment of the contract.

16. Saving Clause

 The invalidity of any individual clause contained in these terms and conditions shall not affect the validity of the remaining clauses. The invalid clause shall be replaced with a legal provision.

17. Amendments, Supplements

17.1.Amendments and supplements to these general terms and conditions require the written form. This applies also to waiver of the written form.
17.2.We are entitled to make amendments to the contract that are reasonable for the purchaser, in particular amendments to performance specifications or the general terms and conditions. Amendments to the contract require the approval of the purchaser. Approval is regarded as given if the purchaser does not object to any amendments to the contract in writing within four calendar weeks after receipt of the notice of amendment in writing. A declaration of objection can be made in writing to the following address:
 

GEDORE Werkzeugfabrik GmbH & Co. KG
Remscheider Straße 149 . 42899 Remscheid . GERMANY

GEDORE Tool Center GmbH & Co. KG
Remscheider Straße 149 . 42899 Remscheid . GERMANY


 
17.3.We undertake to inform the purchaser in the notice of amendment of the consequences of failure to make an objection.