GRAFENTHAL® - IT PRODUCTS GTC

General Terms and Conditions

§ 1 Scope of application – General

  1. The contract is concluded between GRAFENTHAL GmbH – hereinafter referred to as GRAFENTHAL – and the customer.
  2. All deliveries and services are provided exclusively on the basis of the following General Terms and Conditions. They shall apply to all future business relationships even if they are not expressly referred to again. Deviating or supplementary agreements – in particular conflicting terms and conditions of business or purchase – as well as ancillary agreements shall require the express written consent of GRAFENTHAL. GRAFENTHAL’s employees shall not be authorized to make verbal collateral agreements or give verbal assurances which go beyond the content of the written contract.
  3. Customers within the meaning of these General Terms and Conditions are exclusively entrepreneurs.

§ 2 Offer and conclusion of contract

  1. Declarations of acceptance and all orders must be confirmed by GRAFENTHAL in writing or by telex in order to be legally valid. The same shall apply to supplements, amendments or ancillary agreements. In the event of immediate delivery, the written confirmation may also be replaced by an invoice.
  2. Drawings, illustrations, dimensions, weights and other services are only to be understood as approximate values and in particular do not constitute a guarantee of properties unless they are expressly designated as binding in writing.
  3. GRAFENTHAL’s sales staff are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contract.
  4. If a customer exceeds his credit limit through his call-off, GRAFENTHAL shall be released from its delivery obligation. However, the customer shall be offered the opportunity to purchase goods against cash payment if his credit limit is exceeded.
  5. If these General Terms and Conditions are subsequently incorporated, a contract shall be deemed to have been terminated if the requirements of § 2 clause 1 are not met.

§ 3 Prices

  1. Unless otherwise stated, GRAFENTHAL shall be bound by the prices contained in its offers for 7 days from their date. The prices stated in the order confirmation by GRAFENTHAL shall be decisive. Additional deliveries and services shall be invoiced separately.
  2. GRAFENTHAL’s offers are subject to change and non-binding. Price increases as a result of currency fluctuations shall be passed on to the customer for goods not yet delivered.
  3. Unless otherwise agreed, the prices do not include packaging, environmental flat rate, cash on delivery if applicable, transportation, tolls, freight insurance, plus the VAT applicable on the day of delivery ex warehouse GRAFENTHAL or, in the case of direct shipment, ex German border or German port of import.

§ 4 Delivery and performance time

  1. Dates and delivery periods shall not be binding unless expressly agreed otherwise in writing. The specification of certain delivery periods and delivery dates by GRAFENTHAL shall be subject to the correct and timely delivery to GRAFENTHAL by suppliers and manufacturers.
  2. Delays in delivery and performance due to force majeure and due to other unforeseeable events which make delivery significantly more difficult or impossible for GRAFENTHAL and for which GRAFENTHAL is not responsible (this includes in particular war, warlike events, official orders, non-issuance of export, import or transit permits, national measures to restrict trade, strikes, lockouts and other operational disruptions of any kind, traffic disruptions, natural disasters, regardless of whether these events affect GRAFENTHAL or not), import or transit permits, national measures to restrict trade, strikes, lockouts and other operational disruptions of any kind, traffic disruptions, natural disasters, irrespective of whether these events occur at GRAFENTHAL, its suppliers or their subcontractors) shall entitle GRAFENTHAL to postpone the delivery or service for the duration of the hindrance. GRAFENTHAL shall be entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part – insofar as it has not yet been fulfilled.
  3. If the hindrance lasts longer than 3 months, the customer shall be entitled to withdraw from the contract in whole or in part – if not fulfilled – after setting a reasonable grace period in writing (at least 14 days). If the delivery period is extended in application of clause 2 or if GRAFENTHAL is released from its obligation, the customer may not derive any claims for damages from this. GRAFENTHAL may only invoke the aforementioned circumstances if the customer has been notified immediately.
  4. If GRAFENTHAL is responsible for non-compliance with bindingly agreed deadlines and dates and is in default, the customer shall be entitled to compensation for default in the amount of 1/4 % for each full week of default, but not more than a total of 5 % of the net invoice value of the deliveries and services affected by the default. Any further claims shall be excluded unless the delay is at least due to gross negligence on the part of GRAFENTHAL.
  5. GRAFENTHAL shall be entitled to make partial deliveries and render partial services. In the case of supply contracts, each partial delivery and partial performance shall be deemed an independent performance. The delivery period shall also be extended by the period during which the customer itself is in default with the fulfillment of its contractual obligations. 6 If the date of our delivery or service is not stated separately on the GRAFENTHAL invoice, it shall correspond to the invoice date.

§ 5 Delivery quantity / incorrect delivery

  1. Visible differences in quantity must be reported to GRAFENTHAL and the carrier in writing immediately upon receipt of the goods, concealed differences in quantity within 4 days of receipt of the goods. Acceptance of the goods by the forwarder or carrier shall be deemed proof of correct quantity, proper packaging and loading.
  2. Furthermore, the customer undertakes to notify GRAFENTHAL in writing within 14 days at the latest of any goods delivered in error by GRAFENTHAL without the customer’s order and to have the goods ready for collection by a forwarding agent or carrier to be commissioned by GRAFENTHAL. If such written notification of a wrong delivery is not made or not made in due time, it shall be deemed to have been approved, so that the customer shall be obliged to pay the usual and reasonable purchase price for the goods to GRAFENTHAL.

§ 6 Transfer of risk

  1. The risk shall pass to the customer as soon as the consignment has been handed over to the person carrying out the transportation or has left GRAFENTHAL’s warehouse for shipment. If shipment is delayed or becomes impossible through no fault of GRAFENTHAL, the risk shall pass to the customer upon notification of readiness for shipment. Any assumption of transportation costs by GRAFENTHAL agreed in individual cases shall have no influence on the transfer of risk.

§ 7 Liability for defects

  1. Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 HGB (German Commercial Code).
  2. If there is a defect in the purchased item, the customer is obliged to make use of the manufacturer’s warranty of the respective manufacturer if a manufacturer’s warranty exists. GRAFENTHAL shall support the customer in this respect. Otherwise, the customer’s warranty claims shall remain unaffected.
  3. If the purchased item is defective, the customer shall be entitled to demand subsequent performance. GRAFENTHAL may choose whether to remedy the defect or deliver a defect-free item. In the event of rectification of the defect, the necessary expenses shall only be reimbursed to the extent that these have not been increased by the fact that the purchased item has been moved to a place other than the place of performance.
  4. GRAFENTHAL may refuse subsequent performance if it is de facto impossible or unreasonable or involves disproportionate costs.
  5. If the subsequent performance fails, the customer shall be entitled to demand withdrawal or a reduction in price at his discretion.
  6. GRAFENTHAL shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of GRAFENTHAL’s representatives or vicarious agents. Insofar as GRAFENTHAL is not accused of intentional breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
  7. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
  8. Unless otherwise stipulated above, liability is excluded.
  9. The limitation period for claims for defects is 12 months, calculated from the transfer of risk.
  10. The limitation period in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.
  11. Claims for defects shall not exist in the event of only insignificant deviation from the agreed quality, only insignificant impairment of usability, function-related wear and tear, if the serial number, type designation or similar markings are removed or made illegible or if the product is modified, improperly installed, maintained, repaired, used or exposed to environmental conditions by the customer or third parties.

§ 8 Joint and several liability

  1. Any further liability for damages other than that provided for in § 7 (5.) is excluded, regardless of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage pursuant to Section 823 BGB. In particular, GRAFENTHAL shall not be liable for damage that has not occurred to the delivery item itself, for loss of profit or other financial losses of the customer.
  2. The limitation according to paragraph 1 also applies if the customer demands compensation for useless expenses instead of a claim for damages.
  3. Insofar as GRAFENTHAL’s liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of its employees, workers, staff, representatives and vicarious agents.
  4. Any further liability for damages than provided for above is excluded, regardless of the legal nature of the asserted claim. This shall not apply to claims for injury to life, body or health, claims pursuant to §§ 1, 4 of the Product Liability Act or for claims in tort or in the event of impossibility for which we are responsible.
  5. In the case of the sale of second-hand goods, any warranty is excluded unless it concerns damages resulting from injury to life, body or health or the damages are based on an intentional or grossly negligent breach of duty.
  6. All warranties and guarantees are excluded for the sale of software. GRAFENTHAL does not guarantee that the functions of software products will meet the customer’s requirements and that the contractual products will work together as selected by the customer. The parties are aware that, given the state of the art, it is not possible to rule out software errors under all possible application conditions. Liability, in particular for the functionality, technical data and descriptions in the product information alone do not constitute a guarantee of specific properties. A guarantee of properties in the legal sense is only given if the respective details are confirmed in writing by GRAFENTHAL.

§ 9 Returns/supplementary performance processing

  1. Defective products must be sent or delivered to GRAFENTHAL GmbH, stating the model and serial number and a copy of the delivery or invoice documents with a precise description of the defect. The replacement of individual parts, assemblies or entire devices shall not result in any new warranty periods regarding claims and rights due to defects. Excluded from this is the limitation period for parts affected by the removal of defects. The customer is obliged to make regular and proper data backups and must ensure that the data is backed up before the goods are sent. GRAFENTHAL shall not accept any liability for lost data and any consequential damage resulting therefrom. The costs of backing up data or reinstalling software or the devices themselves with regard to the devices to be repaired shall not be assumed.

§ 10 Retention of title

  1. GRAFENTHAL shall retain title to all goods delivered by it to the contractual partner until full settlement of its total claim arising from the ongoing business relationship with the contractual partner (goods subject to retention of title). This also applies if the purchase price for certain deliveries of goods designated by the contractual partner has been paid, as the retention of title secures all current outstanding balance claims. The contractual partner may sell the goods subject to retention of title in the ordinary course of business. He is not authorized to dispose of the goods in any other way, in particular to transfer them by way of security or to pledge them. The contractual partner shall assign to GRAFENTHAL as security all claims (including any ancillary rights) to which it is entitled from any resale of the goods subject to retention of title up to the amount of GRAFENTHAL’s outstanding total claim in each case. GRAFENTHAL accepts the assignment. If the goods subject to retention of title are resold together with other goods at a total price, the assignment shall be made in accordance with the invoice value of the goods subject to retention of title also sold in the transaction.

§ 11 Payment

  1. If a credit limit has been granted and no deviating payment agreements have been made, payments are due 14 days after the invoice date without any deductions. Delivery is always freight collect, i.e. at the customer’s expense by parcel service, forwarding agent or own vehicle, unless otherwise agreed in writing.
  2. GRAFENTHAL shall be entitled to offset payments against the customer’s older debts, despite any provisions of the customer to the contrary. If costs and interest have already been incurred, GRAFENTHAL shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal performance.
  3. Payment shall only be deemed to have been made when GRAFENTHAL can dispose of the amount. Checks shall only be accepted on account of performance and shall only be deemed payment after they have been finally cashed.
  4. Any discounts granted may only be deducted if all due invoices have been paid on time. Receipt of payment by GRAFENTHAL shall be decisive.
  5. All claims shall become due immediately if the customer is in default of payment, culpably fails to comply with other material obligations under the contract or if circumstances become known which are likely to reduce the creditworthiness of the customer, in particular suspension of payments and/or the pendency of insolvency proceedings. In such cases, GRAFENTHAL shall be entitled to withhold outstanding deliveries or to perform them only against advance payment or securities.
  6. The customer is only entitled to offset or exercise a right of retention if the counterclaims have been legally established or are undisputed.

§ 12 Prohibition of assignment

  1. The assignment of claims against GRAFENTHAL to third parties is excluded unless GRAFENTHAL has expressly consented to the assignment. Unless the claims in question are generally non-assignable claims pursuant to Section 8 (8) of these GTC (warranty claims), consent shall be granted if the customer proves material interests which outweigh GRAFENTHAL’s interests in maintaining the prohibition of assignment.

§ 13 Use of the products

  1. The products are intended for normal commercial use in accordance with the operating instructions and are not intended for use in critical safety systems, nuclear power plants, military facilities or medical devices with a life-support function or for the manufacture of weapons. No liability is assumed for use in these areas.

§ Section 14 Industrial property rights

  1. All existing industrial property rights for the products are and remain the property of the suppliers. Any use requires the approval of the relevant supplier. Insofar as software is included in the scope of delivery, it is provided to the commercial customer solely for one-time resale and to the end customer for sole use, i.e. it may neither copy nor modify it, nor provide it to others for use. A multiple right of use requires a special written agreement. The software shall be supplied in accordance with the suppliers’ license agreements, compliance with which the customer hereby warrants. GRAFENTHAL accepts no liability for the infringement of industrial property rights if the products are exported from the “country of sale” intended by GRAFENTHAL to another country, as it cannot be guaranteed that all rights are protected there.

§ 15 Secrecy

  1. The customer shall be obliged to keep confidential for an unlimited period of time all information which becomes accessible to it in connection with GRAFENTHAL’s deliveries and which is clearly recognizable as GRAFENTHAL’s business or trade secrets due to other circumstances and which is to be kept confidential and – unless this is necessary to achieve the purpose of the contract – neither to record it nor to pass it on to third parties or to exploit it in any way.

§ Section 16 Data protection and data storage

  1. GRAFENTHAL shall be entitled to process the data about the customer received with regard to the business relationships or in connection with these, regardless of whether these originate from the customer itself or from third parties, in accordance with the German Federal Data Protection Act. Customer data shall be stored in accordance with § 33 BDSG.

§ 17 Export

  1. Re-export from the Federal Republic of Germany is subject to German, EU and US export regulations. The customer is responsible for obtaining export licenses from the Federal Export Office in Eschborn. He is responsible for compliance with the relevant regulations up to the final consumer.
  2. Without prior official authorization, the customer is not permitted to deliver contractual products directly or indirectly to countries that are subject to a US embargo or to natural or legal persons in these countries or to natural or legal persons who are on US, European or national prohibited lists (e.g. “Entity List”, “Denied Nationals List” and “Blocked Persons List”): “Entity List”, “Denied Persons List”, “Specifically Designated Nationals and Blocked Persons”). Furthermore, it is prohibited to supply contractual products to natural or legal persons who are in any way connected with the support, development, production or use of chemical, biological or nuclear weapons of mass destruction.
  3. The customer shall be fully liable in the event of non-compliance with the relevant provisions.

§ 18 Purchase tax / import sales tax

  1. When purchasing the products, a customer based outside Germany must comply with the purchase tax/import sales tax regulations of the relevant economic area, in particular to disclose the sales tax identification number without being requested to do so and to willingly provide the necessary information. In the event of non-compliance, the customer shall reimburse the expenses/damage incurred as a result.

§ 19 Applicable law

  1. The law of the Federal Republic of Germany shall apply to the Terms and Conditions and the entire legal relationship between GRAFENTHAL and the customer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the customer is a registered trader within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Kleve. GRAFENTHAL shall, however, be entitled to sue the customer at any other place of jurisdiction. Furthermore, Goch shall be the place of performance and place of delivery within the meaning of the German Packaging Ordinance.
  2. Should one or more provisions of these General Terms and Conditions be or become invalid or contain a loophole, the contracting parties undertake to enter into negotiations with the aim of replacing or supplementing the invalid or incomplete provision with an appropriate individual agreement that corresponds as far as possible to the economic purpose of the intended provision. The validity of the remaining provisions shall remain unaffected.

§ 20 Advertising

  1. The customer agrees to receive advertising from GRAFENTHAL by e-mail or fax without prior request.