General Terms and Conditions

This English translation is provided for convenience. Only the German version is legally binding.

Note

1. This English translation is provided for convenience. Only the German version is legally binding.

I. Scope

1. Our sales, deliveries and services (hereinafter collectively referred to as ‘Deliveries’) are made solely in accordance with the following terms and conditions. They apply to entrepreneurs, legal entities under public law and special funds under public law (Buyer). By accepting these terms without objection, the Buyer agrees that they apply exclusively to the respective Delivery and to all subsequent transactions.
2. We do not recognise any terms and conditions of the Buyer that conflict with or deviate from our terms and conditions unless we have expressly agreed to their validity in writing. Our terms and conditions also apply if we carry out the Delivery to the Buyer without reservation in the knowledge of terms and conditions of the Buyer that conflict with or deviate from our terms and conditions.

II. Offer, samples, guarantees, conclusion of contract

1. Our offers are subject to change with regard to price, quantity, delivery period and availability. Offers can only be accepted within 30 days.
2. The information and data contained in data sheets, brochures and other advertising and information material serve only as a guideline and only become a binding part of the contract if we have expressly agreed to this in writing.
3. The contract only becomes binding on us once we have issued the order confirmation in writing. Verbal agreements require our written confirmation.

III. Prices, payment, default

1. Prices are exclusive of statutory value added tax, outer packaging and shipping costs.
2. All prices are based on the cost factors at the time of the order confirmation. If significant increases in the costs of raw materials, energy, freight and packaging materials subsequently occur for us or our supplier and these lead to a significant increase in our purchase prices or prime costs, we are entitled to demand immediate negotiations with the Buyer on a price adjustment, unless the price has been expressly confirmed as a fixed price. If no agreement is reached within a reasonable period, we are released from our obligation to deliver with regard to any outstanding Deliveries.
3. Our invoices are to be paid within the agreed payment period, at the latest 30 days from the invoice date. Compliance with payment deadlines is determined by receipt of payment in our accounts. Cheques are only accepted on account of performance. Any charges incurred are borne by the Buyer.
4. In the event of default in payment, interest of 8 percentage points per annum above the applicable base rate (§ 247 BGB) becomes due. We reserve the right to prove further damage caused by default.
5. We are not obliged to perform the contract for as long as the Buyer fails to meet its obligations, including those arising from other contracts with us, as agreed, in particular if it does not pay invoices that are due.
6. The Buyer may only set off claims, or withhold payment on account of claims, that are undisputed in writing or have been finally established by a court.
7. We are entitled to carry out outstanding Deliveries only against payment in advance or to make them dependent on the provision of security if the Buyer is in default with agreed payment terms even after the expiry of a reasonable grace period, or if circumstances exist which, applying standard banking criteria, give rise to doubts about the Buyer's solvency.

IV. Delivery and delivery times, packaging, transfer of risk

1. Our written order confirmation is decisive for the type and scope of the Delivery. We are entitled to make partial deliveries insofar as these are reasonable for the Buyer.
2. Delivery periods are only approximate unless they have been expressly confirmed in writing as binding. The delivery period begins when our order confirmation is sent, but not before all questions essential to the performance of the contract in connection with actions to be taken by the Buyer have been clarified. In particular, the delivery period does not begin before we have received from the Buyer or its representative all information required for the Delivery, or before the Buyer proves that, where necessary, it has opened a letter of credit or made an advance payment or provided security in accordance with the contract.
3. The delivery period is deemed to have been met if, by its expiry, the subject matter of the Delivery has left our office or we have given notice that it is ready for dispatch.
4. All cases of force majeure, strikes, lockouts, insufficient supply of materials, raw materials or energy, lack of transport options and other similar events or causes beyond our control release us from our obligation to perform the contract for the duration and to the extent of such impediments. This also applies if these circumstances occur at our suppliers. We are also not responsible for the aforementioned circumstances if they occur during an existing delay. We will inform the Buyer in writing of the beginning and end of such impediments as soon as possible.
5. We determine the type of packaging and shipping.
6. Risk passes to the Buyer at the latest when the subject matter of the Delivery is dispatched, even if we have agreed to provide additional services such as loading, transport or unloading. If the Delivery is delayed as a result of circumstances for which the Buyer is responsible, the price risk passes to the Buyer on the day on which notice of readiness for dispatch is given. At the Buyer's request, we will insure the respective consignment at the Buyer's expense against theft, breakage, transport, fire and water damage.
7. The Buyer must immediately assert complaints regarding transport delays, missing items or transport damage against our forwarding agent and carrier and must inform us of this immediately.
8. Nor are we obliged to deliver to third parties at the Buyer's request.

V. Warranty, obligations of the Buyer in the event of notification of defects by its customers, reimbursement of expenses, liability

1. Warranty claims by the Buyer require that it has duly complied with its statutory obligations to inspect the goods and give notice of defects. In the case of obvious defects or incompleteness of the goods, complaints must be notified to us in writing within 2 weeks of the arrival of the Delivery at its destination, stating the precise nature of the defect and the order or invoice number. At our request, the documents relating to the Delivery, samples and/or the defective goods must be returned to us. Claims by the Buyer due to defects or incompleteness of the Delivery are excluded if it fails to comply with this obligation.
2. Should the goods be defective, we may, at our discretion, remedy the defects or deliver defect-free replacement goods by way of subsequent performance. Only if this has repeatedly failed or is unreasonable, and the defects are not merely insignificant, is the Buyer entitled to withdraw from the contract or reduce the price in accordance with the statutory provisions. § 478 BGB remains unaffected. The Buyer is entitled to claims for damages in accordance with clause V.6. With regard to any replacement deliveries and rectification work, a warranty period of 3 months from delivery or completion applies, which however runs at least until the expiry of the warranty period for our original performance (cf. clause V.9.).
3. The Buyer must inform us immediately of any notification of defects by its customer relating to the items we have delivered. If the Buyer fails to comply with this obligation, it has no claims for defects against us, including no claim for reimbursement of expenses under § 478 BGB. The Buyer must also secure evidence in a suitable form and, on request, give us the opportunity to examine it.
4. There are no claims for defects in the case of only insignificant deviation from the agreed quality and/or only insignificant impairment of usability.
5. Claims for compensation for damage of any kind arising as a result of improper handling, modification, installation and/or operation of the delivered items, or through incorrect advice or instruction by the Buyer, are excluded unless we are responsible for them. In addition, the Buyer bears full responsibility for the use of any design, trade mark or trade name appearing on the goods at its request.
6. If the Buyer is entitled to demand damages in lieu of performance or to withdraw from the contract, it must, at our request, declare within a reasonable period whether and how it will exercise these rights. If it does not make a declaration in due time or insists on performance, it is only entitled to exercise these rights after a further reasonable grace period has expired without result.
7. Claims for defects become time-barred 12 months after the transfer of risk. The same applies to defects of title. The statutory limitation periods apply in the case of intentional breaches of duty, claims arising from tort, the absence of warranted characteristics, the assumption of procurement risks and injury to persons.
8. Any liability for damages beyond that provided for in the preceding paragraphs of this clause V is excluded, irrespective of the legal nature of the claim asserted.
9. The preceding paragraphs of this clause V do not apply to used goods. Unless otherwise agreed in writing, these are supplied with the exclusion of any warranty.

VI. Retention of title

1. We retain title to all goods delivered until the Buyer has fully met all present and future obligations arising from the business relationship with us. This also applies if payments are made on specifically designated claims. In the case of a current account, the goods subject to retention of title serve as security for the balance claim.
2. The customer is obliged to insure the purchased item at its own expense against theft, breakage, fire, water and other damage and to provide proof of this on request. If proof is not provided within 14 days of the request, we are entitled to take out the aforementioned insurance ourselves at the customer's expense.
3. If third parties seize the goods subject to retention of title, for example by way of attachment, the customer must inform us immediately and hand over all documents necessary for legal defence.
4. Insofar as the Buyer has itself registered a business as a construction machinery dealer, it is entitled to resell the purchased item in the ordinary course of business. The Buyer hereby assigns to us in advance all resulting claims against third parties. The Buyer remains entitled to collect the claims. On request, the Buyer must disclose the respective debtors and provide all information required to collect the claims. In addition, the customer must, on request, notify the debtors of the assignment.
5. If the value of the goods subject to retention of title serving as security for GAM Baumaschinenteile GmbH exceeds the outstanding claims by more than 20 %, we are obliged, at the customer's request and at the customer's choice, to release security until the aforementioned value limit is reached.
6. Transfer of ownership by way of security or pledging of the purchased item is only permitted insofar as this takes place in the context of financing the purchase price and we are irrevocably and unconditionally designated in the loan agreement as the payee of the loan amount.
7. If the Buyer is in default of payment, we are entitled, after the unsuccessful expiry of a grace period set by us, to take back the goods subject to retention of title even if we have not withdrawn from the contract.

VII. Limitation of liability

1. Insofar as liability is based on fault, GAM Baumaschinenteile GmbH is liable only for intent and gross negligence. This does not apply if an essential contractual obligation is affected. Nor does it apply in the case of injury to life, body or health.

VIII. Final provisions

1. The exclusive place of jurisdiction for all agreements and disputes is the local court (Amtsgericht) at the registered office of GAM Baumaschinenteile GmbH in Nuremberg.
2. Amendments to a contract must be made in writing, as must any amendment to this written form clause. A signed document sent by fax satisfies this contractual written form requirement.
3. Should these provisions be wholly or partially invalid or incomplete, this does not affect the validity of the remaining provisions. The missing or invalid provision is to be replaced by a provision that comes closest to the intention of the contracting parties, or otherwise by the statutory provision.