GENERAL TERMS AND CONDITIONS OF BUSINESS:
ONLINE SALES TRANSACTIONS (GRAL SYSTEME GMBH - WEB SERVICE)


 

1. General / Scope of application

1.1

The following General Terms and Conditions of Business constitute the basis for any contractual relationship concluded between Gral Systeme GmbH (hereinafter referred to as gral), domiciled in Germany, and the contractual partner (hereinafter referred to as CP) via the Gral Systeme GmbH Web Service.

 

1.2

Terms and conditions of purchasing/business issued by the CP at variance with these present General Terms and Conditions of Business shall only be valid where gral has expressly agreed in writing to their application. Contractual performance by gral shall not supersede this requirement for written confirmation, even where such performance has been made in knowledge of contrary or deviating terms and conditions of the CP.

 

1.3

These General Terms and Conditions of Business shall only apply to companies as defined in Section 310 (1) BGB (German Civil Code).

 

2. Conclusion of and amendments to a contract of sale

2.1

Offers, quotations and price notifications are non-binding and without obligation. We expressly reserve the right to submit a specific price calculation at any time, taking into account in particular administrative costs incurred in respect of small order values. Unless otherwise indicated in the offer/quotation/order confirmation, price information relates to supply ex works from Rietberg, Germany (EXW, INCOTERMS 2000), excluding packaging which will be separately invoiced.

 

2.2

Drawings, illustrations, dimensions, weights or other performance data may only be regarded as binding where expressly agreed. The information and illustrations provided in the gral Shop, catalogues, brochures and other documents are offered as non-binding product information and do not constitute contractually agreed technical or quality-related data; all such information is at all times subject to change without notice.

 

2.3

A contractual relationship shall arise only and exclusively with acceptance of the order by gral. The order shall be regarded as accepted where the CP receives an electronic order confirmation from gral. In cases where internal clarification is required with regard to the order, for example with respect to delivery dates, the CP shall initially receive an electronic confirmation of receipt; this merely confirms receipt of the order and does not constitute acceptance of the order. In these cases, the order shall only be regarded as having been accepted where gral sends the CP an order confirmation by post/fax. No special or additional declaration of acceptance is required.

 

2.4

Reasonable amendments to the contractual content are permissible at any time without prior notification. Reasonable amendments are such involving technical modifications, adaptations to the current state of the art and improvements in design or in the usage of materials and components that essentially consolidate the contractual content.

 

2.5

Conclusion of the contract is subject to the correct and timely supply of components from subsuppliers. However, this shall only apply in cases where non-supply, delayed supply or incorrect supply is outside gral’s control, and in particular where a congruent hedging transaction has been concluded with the component supplier. In this case, the CP will be informed immediately of the non-availability of the service or product. Any counterconsideration already made will be returned immediately.

 

2.6

Verbal declarations by employees require the written form to be legally binding; this also applies to additions or amendments to the contract, collateral or ancillary agreements, and also any waiver of the written form requirement itself.

 


3. Planning software / Configurator

3.1

The planning software is a protected package available for use free of charge subject to the provisions detailed hereinafter. The planning software supports the CP in determining the dimensions of an individual project and calculates all the data relevant for glass production. Subject to correct application of the planning software, the CP receives corresponding files that can be used to order the required product.

 

3.2

The planning software has been created with the greatest possible care. However, gral shall not be held liable for the correctness of, freedom from defects of, and accuracy of the dimensions determined by the CP or an agent working on its behalf, or of the file generated with the aid of the software.

 

3.3

In order to avoid any configuration errors, gral recommends that the data be checked by an expert prior to submission of the binding order.

 

3.4

The usage free of charge of the planning software is only permitted for the aforementioned purpose. Any further commercial application is expressly forbidden.

 

4. Transfer of risk

4.1

Unless otherwise contractually agreed, delivery shall be ex-works Rietberg, Germany (EXW, INCOTERMS 2000), excluding packaging which will be invoiced separately. Part deliveries are permissible and may be separately invoiced.

 

4.2

Particularly in the case of purchases to a specific destination and/or installation of the contractual goods at a different location, the transfer of risk occurs in accordance with Section 446 BGB, and at the latest on departure of the goods from the works/company site in Rietberg, Germany; this also applies if gral is itself providing the transport service. The risk of accidental loss or accidental deterioration of the purchased product is transferred to the CP prior to this, where the CP delays acceptance or is otherwise at fault in contravening duties of cooperation.

 

4.3

In the event that gral, at its discretion, occasionally takes back returned goods, which action is subject to its express written consent, the CP shall pay a processing fee of at least 20% of the value of those goods in accordance with the price lists currently applicable in each case; in addition, the costs necessarily incurred by gral in order to reinstate and remarket the goods shall also be payable as incurred. Gral shall grant the CP a credit note in respect of the returned goods accepted after deduction of such costs; no repayment in cash will be provided.

CP shall be provided with an opportunity to demonstrate that the costs incurred by gral as a result of taking back such goods are negligibly small to minor.

 

5. Delivery period and default

5.1

Unless otherwise indicated in the order confirmation or otherwise agreed in writing, delivery dates indicated shall be regarded as non-binding, with no guarantee implied or inferable.

 

5.2

A contractually agreed delivery period shall commence on the day of final order confirmation in accordance with section 2.3 above, but not before receipt of an agreed payment on account due on contract conclusion and clarification of all technical questions. Compliance with the delivery period/delivery date is also reliant on the CP fulfilling all its contractual duties; gral reserves the right to plea non-performance of contract. Any subsequent request by the CP to amend the order shall extend the delivery period or postpone the delivery date accordingly.

 

5.3

In the event of a non-binding delivery date, delivery within 4 weeks after the indicated delivery period shall be deemed in time.

 

5.4

The delivery period shall be deemed as having been complied with when, if the CP has a duty of collection, the goods to be supplied are ready for despatch and this has been notified in writing to the CP, or, in the event of an agreement for sale to a specific destination, the contractual goods have departed from the works in Rietberg, Germany, by the time of its expiration.

 

5.5

The CP shall not be entitled to transfer of the goods where any advance payments or payments on account prior to transfer have not been made or have not been made in full.

 

5.6

If goods are sold on call, the CP shall be required to submit the call request within a reasonable time. If requested by gral, the CP shall be obliged to specify a binding call date within 10 days. The call date must not be delayed later than six weeks after such specification. If the specification or the call request is not made within the aforementioned periods, gral shall, following an extension of one week, be entitled to partially or entirely rescind the contract. All losses incurred by gral as a result of delayed stipulation/delayed call requests, and in particular the costs for storage of the goods, shall be reimbursed by the CP.

 

5.7

The delivery period shall be appropriately extended in the event of measures being taken as a result of legal industrial action, in particular strikes and lock-outs, involving gral’s own works and, irrespective of the legality of industrial action, in third-party works, provided that gral is not subject to any obligation of provision, transfer or prevention, and similarly in the event of unforeseen occurrences arising, in particular scarcity of raw materials or fuels, fire, closures to traffic or acts of God, insofar as such obstacles have a demonstrable influence on production or shipment of the delivery items and affect gral, a subsupplier, subcontractor or transporter, and over which gral has no control, with liability for mild negligence attaching to gral. If the aforementioned events make performance by gral of the contractual duties impossible, gral shall be entitled to rescind the contract.

 

5.8

In the event of delays in delivery resulting from wilful conduct or gross negligence on the part of gral, the CP shall be entitled to compensation for any verifiable losses arising from such delay. Where the delay is due to negligence, the liability shall be limited to 0.5% per full week of delay up to a maximum of 5% of the order value.

 

5.9

Where, in the event of delayed delivery, a reasonable period of grace to be granted to gral of at least four weeks expires, the CP shall be entitled to rescind the contract. The CP may also claim compensation in lieu of performance on expiry of the delivery period where the delay is the result of wilful conduct or gross negligence on the part of gral. If, in exceptional cases, a claim arises for compensation in lieu of performance due to mild negligence, this shall be limited to 50% of the foreseeable loss up to a maximum of 10% of the order value.

 

5.10

If the shipment is delayed at the request of a CP or for reasons over which the CP has control, gral shall, after a period starting with expiration of the written notice of readiness for shipment, be entitled to put the goods in store and to charge the costs arising from such storage at a rate of at least 0.5% of the invoice value per month or part thereof, and in the event of storage by third parties, to invoice the costs actually incurred. Other rights arising from such delay shall remain unaffected. The CP shall be afforded an opportunity to prove that any costs incurred by gral are negligibly small to minor.

 

5.11

Gral shall also be entitled on expiry of said period to dispose of the contractual goods in some other way and to supply the CP with new goods subject to an appropriate delivery period, or to rescind the contract and to claim compensation in lieu of performance.

 

6. Terms and conditions of payment, and payment default

6.1

Unless otherwise agreed, the payment for each consignment shall be due without deductions on receipt of the goods. Payment shall only be deemed made once a gral bank account has been duly credited and the amount is available for its free disposal.

 

6.2

Where invoices arising from supplies and services are paid for using the SEPA Core Direct Debit Scheme and the SEPA Business to Business Direct Debit Scheme, the CP shall receive advanced notification of the direct debit at least one day prior to the due date, indicating the amount to be debited, the due date, gral’s creditor identification number and the mandate reference of the CP. This advanced notification may be made separately in the form of a letter, fax or email, or may also be provided with submission of the invoice subject of the direct debit order.

 

6.3

The CP shall only be entitled to deduct a cash discount where this is expressly agreed in writing and where all payments due to gral – including any instalment payments – are received in full by gral within the discount period.

 

6.4

Any approved cash discounts, rebates or other deductions shall be extinguished in the event of payment default and in the event of judicial or extra-judicial composition, insolvency or bankruptcy proceedings pertaining to the CP.

 

6.5

The CP shall be in default if it fails to make payments within 30 days of the due date. Depending on the agreement, default may also occur prior to expiry of 30 days where a corresponding reminder has been sent by gral. Unlike as stated in sentences 1 and 2, the CP shall also be in default where it is agreed that the contractually due price is to be paid by a certain calendar date and the CP fails to make such payment by this date.

 

6.6

In the event of payment default, gral shall be entitled to charge default interest amounting to 8% above the basic interest rate (Section 247 BGB). In addition, gral shall be entitled to withhold supplies and services relating to all contracts with the CP until payment in full has been made. This right of retention can be averted by the CP by arranging an unlimited, directly enforceable bank guarantee with a major German bank covering the total of all due payments.

On futile expiration of a payment deadline set with the CP, gral may rescind all contracts not yet executed while reserving the right to make further claims for compensation.

 

6.7

In the event of circumstances arising after conclusion of the contract that adversely affect the credit standing of the CP, e.g. non encashment of cheques, withdrawal of or limitations to the credit insurance cover of the CP by the gral credit insurer, gral shall be entitled to demand payments in advance, securities or payments in cash within a reasonable period irrespective of contrary earlier agreements, and to refuse performance until such payments have been made. In the event that the CP refuses to comply or is unable to provide security within the allotted period, gral shall be entitled to rescind the contract and to demand compensation in lieu of performance.

 

7. Copyright and intellectual property rights

Gral reserves all copyright and intellectual property rights with respect to illustrations, drawings, calculations and other documentation provided. This applies in particular to documents marked as confidential. The CP is required to obtain consent from gral before transferring such information to third parties.

 

8. Claims for defects submitted by the CP under sale of goods legislation

8.1

For contractual relationships subject to sale of goods legislation, where the content of such contracts relates exclusively to the supply of goods, the CP shall be entitled to submit claims for defects to gral as detailed in the following. In the case of claims for defects and deficiencies submitted by the CP relating to contracts for work and contracts for labour and materials, the special regulations applicable to contracts shall take precedence.

 

8.2

Unless otherwise expressly agreed in writing, gral does not provide any guarantee for the quality of the contractual goods according to Section 443 BGB.

 

8.3

Goods transferred to or supplied to the CP – whether in whole or in part – shall be carefully inspected by the CP immediately on delivery or transfer for defects and deficiencies. The inspection of random samples shall not be deemed sufficient, even in the case of large consignments. Obvious or identified defects must be notified in writing to gral by the CP immediately (within seven days at the latest) on receipt of the goods. Obvious defects should – as far as possible – also be confirmed in writing by the person delivering them.

Complaints relating to defects made after seven days shall be regarded as late and shall therefore be excluded from claims for defective supply submitted by the CP.

 

8.4

The CP bears the burden of proof in respect of satisfying all prerequisites underlying guarantee and warranty claims, for the time of defect discovery and for the timeliness of complaint notification.

 

8.5

The CP is obliged to provide gral with an opportunity to verify the presence of defects and, in particular, to make the goods concerned immediately available – where expressly requested to do so by gral – at its own costs for examination at the place of performance. Gral is not obliged to inspect goods returned unsolicited for defects and may at its discretion reject acceptance of such goods.

 

8.6

The CP’s claim for defective supply shall initially prioritise remedial work by gral at the place of performance. Additional costs such as transport costs, for example in order to transport the goods to a location other than the place of performance, and also installation and dismantling costs, will not be assumed by gral. The remedial work carried out by gral may, at the discretion of gral, take the form of reworking or improvement work or supply of defect-free goods, at/to the place of performance in each case.

In the event that an inspection by gral of goods returned reveals the absence of defects, such goods will be reshipped to the CP at the CP’s cost. Gral shall also be entitled to invoice the CP for costs arising from the inspection. This applies particularly where, exceptionally, gral has carried out an inspection on goods returned unsolicited.

 

8.7

Where the legal requirements are satisfied, the CP shall, supplementary to claims for defective supply, be entitled to rescind the contract and/or demand a reduction in the payment due. In the event of minor defects, however, withdrawal from the contract is not permissible. Compensation or reimbursement of futile expenditures shall be granted exclusively in accordance with the prerequisites detailed under Section 9 (Liability).

 

8.8

Claims shall not be accepted for defects for which gral is not responsible, namely those arising from incorrect usage, assembly, installation or commissioning by the CP or third parties, natural wear and tear, and unusual external influences. Similarly excluded are claims for defects arising due to a lack of maintenance or incorrect maintenance (e.g. non-compliance with the maintenance intervals specified by gral as the manufacturer, maintenance carried out by non-expert personnel [verification by gral – certification]) and also as a result of incorrect storage (in particular, glass doors must be stored upright on a surface which is clean, dry and capable of protecting glass [i.e. not stone, metal or similar]). Minor colour deviations, particularly where these lie within the tolerance range for RAL and other coatings in accordance with the current state of the art, shall not be treated as defects within this context.

 

8.9

All claims for defects by the CP shall expire within 2 years starting from the date of receipt of the goods by the CP.

 

8.10

Recourse actions by the CP against gral in accordance with Section 478 et seq. BGB are excluded. Compensation for any recourse claims by the CP is deemed to have already been taken into account in the pricing of the goods. The parties regard this compensation in the form of a flat-rate deduction as entirely appropriate and fair settlement.

 

8.11

In the event of defects in the purchased goods, the CP shall not be entitled to claim non-performance of the contract nor to claim any right of retention in respect of the purchase price, unless the defect claim on which the right to refuse performance is based is uncontested, has been declared legally binding or the subject of a pending final decision, or gral has been found to have acted wilfully or with gross negligence.

 

9. Liability

In the event of the legal interests of the CP being infringed and in cases of consequential damage, excluding any damage or loss arising due to the absence of an attribute that should have protected the CP against the risk of such damage, and which is warranted as being present, gral shall only be held liable – irrespective of legal cause – if guilty of wilful conduct or gross negligence. This does not apply to losses arising from damage to life, limb or health. Mildly negligent behaviour on the part of gral shall only give rise to liability in the event of the infringement of significant contractual duties where the damage was foreseeable on conclusion of the contract or on infringement of the duty. Significant contractual duties are those for which compliance is indispensable to achievement of the contractual purpose.

In the event of default, the provisions made in Section 4 shall take precedence.

 

10. Reservation of title

10.1

Gral reserves title on the goods supplied by it and also on any items arising from their processing or combination, until all its claims arising from the business relationship with the CP, whether present or future, conditional or of limited period – irrespective of legal cause – are satisfied.

 

10.2

The CP undertakes to treat with care, separately store and mark goods supplied under reservation of title. Any additional processing or combination by the CP on behalf of gral takes place without any obligations arising from this for gral. If the CP processes goods supplied by gral under reservation of title together with articles under its own ownership, gral shall assume sole ownership of the new item. If the CP processes goods supplied under reservation of title with other articles that it does not own, gral shall become the co-owner of the new item in accordance with the ratio of the value of the processed reserved-title goods to the other articles at the time of processing or combination. The CP hereby transfers to gral with immediate effect its own co-ownership shares arising from the combination, mixing and intermingling of the goods supplied with other items. The CP shall possess such items as their keeper.

The CP shall only be permitted to sell the goods supplied and the items arising from their processing and combination, mixing and intermingling, by way of normal business for cash or subject to reservation of title. Chattel mortgaging, pledging as surety, assignment as collateral and all other availments jeopardising the rights of gral are not permitted.

 

10.3

The CP undertakes herewith to assign to gral in the full amount claims relating to the reservation of title arising from transfer to third parties for whatever legal reason, including claims for compensation due to damage or destruction of the reserved-title goods, irrespective of whether these are contractual or legal claims against the tortfeasor, insurance companies or other third parties.

 

10.4

If the reserved goods are sold by the CP together with its own goods or goods of third parties in their unprocessed condition, the CP hereby assigns the claim arising from the resale to gral in the amount of the value of the reserved-title goods.

 

10.5

In the event that gral gains co-ownership to a new item arising from the processing and combination of the reserved-title goods with goods of other suppliers, such assignment on resale shall encompass the portion of the claim corresponding to gral’s co-ownership share where this can be calculated, and in other cases shall correspond to the invoice value of the processed reserved-title goods of gral.

 

10.6

In the event that processing and combination take place as part of a contract for work or contract for labour and materials, the CP assigns to gral in advance the share of the claim for payment corresponding to the value of the reserved-title goods processed.

 

10.7

In the event that the aforementioned claims are included by the CP in a current account agreement, the current account claims are herewith assigned in full to gral. After the account has been balanced, these are replaced by the balance which is deemed as having been assigned up to the amount corresponding to the original current account claim. On termination of the current account relationship, the same applies to the closing balance.

 

10.8

Provided that the CP meets its obligations, such assignment shall be treated as undisclosed, with the CP authorised to collect the claims. The CP shall separately record or keep separate the amounts received in respect of the assigned claims.

 

10.9

In the event of payment default, gral shall, after setting a reasonable extension period of grace, be entitled to demand return of the reserved-title goods at the cost of the CP even without rescinding the contract. The CP hereby authorises gral to enter its premises for collection purposes.

 

11. Permissibility of offsetting and retention against counterclaims

11.1

The CP shall only be permitted to offset claims against counterclaims where the claims concerned are uncontested or declared legally binding.

 

11.2

The CP shall not be permitted to withhold payments against counterclaims from a different contractual relationship. If the counterclaim arises from the same contractual relationship, the withholding of payment is permissible where the counterclaims are uncontested or declared legally binding.

 

12. Claims asserted by gral


12.1

In the event that gral is entitled to claim compensation from the CP due to the partial or entire non-performance of the contract, this shall amount to at least 25% of the payment due on non-delivered goods. The CP shall be granted an opportunity to prove that no loss or impairment has occurred or any such loss or impairment is of a significantly lower level. Gral reserves the right to claim additional, higher damages.

 

12.2

In the event that gral withdraws in part or entirely from the contracts concluded with the CP, the CP shall, inter alia, pay compensation for loss of profit, wear and tear, impairment, and also reimbursement of benefits of use. The CP shall agree with gral the orderly provision of the goods ready for transport, and return of the goods in appropriate packaging at its cost and its risk. 

 

 

13. Applicable law, place of jurisdiction, partial invalidity

13.1

The legal relationships between gral and the CP are exclusively governed by the law of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply in any circumstances.

 

13.2

The place of performance and place of jurisdiction for all disputes – whether actions against gral or actions initiated by gral – arising from any legal transaction subject to these General Terms and Conditions of Business shall, where legally permissible, be the domicile of gral. Gral shall also be entitled to take action against the CP at its domicile.

 

13.3

Should individual provisions of these General Terms and Conditions of Business become partly or wholly invalid, this will not affect the validity of the other provisions or agreements. In lieu of the invalid provisions, an appropriate provision shall be substituted that shall, insofar as possible in law, reflect the economic purpose pursued by the invalid provision. The same applies in the event of omissions requiring regulation.

 

(Version date: 25.04.2017)

Gral Systeme GmbH, Rietberg