of the company Graphite Materials GmbH (hereinafter referred to as “Graphite Materials”)
Status: 31.05.2022
(1) These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (hereinafter: “Buyer”). The GTCS shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). The GTCS shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Buyer, without us having to refer to them again in each individual case; in this case, we shall inform the Buyer immediately of any changes to our GTCS.
(3) Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTCS. A written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of withdrawal or reduction) must be made in writing to be effective. Written form within the meaning of these GTCS includes written and text form (e.g. letter, e-mail, fax).
(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTCS.
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership and copyrights.
(2) The order of the goods by the Buyer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 4 weeks of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation), in text form or by delivery of the goods to the Buyer.
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. If this is not the case, the delivery period shall be approx. 12 weeks from conclusion of the contract. The delivery period shall commence upon order confirmation.
(2) Only delivery deadlines confirmed by us in writing shall be binding.
(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall be entitled to extend the delivery deadline by the duration of the hindrance. We shall inform the Buyer of this without delay and at the same time inform him of the expected new delivery period. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part
; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense is in particular the failure of our supplier to deliver to us on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case. The same applies to cases of force majeure, labor disputes or other disruptions in our own operations.
(4) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right
to prove that the buyer has not suffered any damage at all or only a significantly lower damage than the above lump sum.
(5) The Buyer’s rights pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
(1) Partial deliveries are permissible, provided they are not unreasonable for the Buyer.
(2) Delivery shall be made from our warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request and expense, the goods shall be shipped to another destination (sales shipment). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. Insofar as
acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(4) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a lump sum compensation of EUR 200 per calendar day, starting with the delivery deadline or – in the absence of a delivery deadline – with the
notification that the goods are ready for dispatch.
(5) Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have suffered no loss at all or only a significantly lower loss than the above lump sum.
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
(2) In the case of sale by dispatch (§ 4 para. 1), the Buyer shall bear the actual transport costs incurred ex warehouse, as well as any customs duties, fees, taxes and other public charges and the costs of any transport insurance requested by the Buyer. We shall invoice the Buyer for these aforementioned items accordingly. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the Buyer, with the exception of pallets.
(3) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, for contracts with a delivery value of more than EUR 1,000, we are entitled to demand a down payment of 50% of the purchase price. The down payment is due and payable within 14 days of invoicing. The crediting of the amount owed to one of our accounts shall be decisive.
(4) The Buyer shall be in default upon expiry of the above payment period. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTCS.
(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardized by the Buyer’s inability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if and insofar as third parties have access to the goods belonging to us.
(3) If the Buyer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not at the same time include the declaration of withdrawal; we are rather entitled to merely demand the return of the goods and reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) Until revoked in accordance with letter (c) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
(c) The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer’s request.
(5) Ownership of the goods subject to retention of title and the assigned claims shall pass to the Buyer upon settlement of all claims of the Buyer arising from the business relationship.
(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse pursuant to Sections 478, 445a, 445b BGB) shall remain unaffected, unless an equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
(2) The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were made public by us (in particular in catalogs or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (3) BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the goods, shall take precedence over statements made by other third parties.”
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (§ 434 Para. 1 S 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) In principle, we shall not be liable for defects which the Buyer is aware of or is grossly negligent in not being aware of when the contract is concluded (§ 442 BGB). The Buyer’s claims for defects presuppose that he has complied with his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). Upon delivery of the goods, the Buyer must immediately carry out an initial visual and quantity inspection. In the case of building materials and other goods intended for installation or other further processing, an inspection must always be carried out immediately before processing. If a defect is discovered during delivery, inspection or at any later time, we must be notified immediately in writing. In any case, obvious defects as well as incorrect and short deliveries must be reported in writing within five working days of delivery and defects not recognizable during the inspection within the same period from discovery, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of the first visual and quantity inspection, the buyer shall have a total of four months after delivery in the case of graphite electrodes or two weeks after delivery in the case of special graphite to carry out a proper inspection in order to detect and report defects. A proper inspection shall include, among other things, trial processing of the goods. When larger quantities are delivered, at least meaningful random samples must be taken. If the buyer fails to give notice of defects in due time, our liability for the defect not notified in due time shall be excluded, unless there is a defect which could not be detected despite proper inspection. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, in particular, the Buyer shall have no claims for reimbursement of corresponding costs (“removal and installation costs”).
(5) If the goods are delivered in several partial deliveries, each partial delivery shall be inspected separately.
(6) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
(7) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(8) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the item. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, attachment or assembly of a defect-free item if we were not originally obliged to perform these services; the Buyer’s claims for reimbursement of corresponding costs (“dismantling and assembly costs”) shall remain unaffected.
(9) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any dismantling and installation costs, in accordance with the statutory provisions and these GTCS, if a defect actually exists. However, if the Buyer’s request to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the Buyer.
(10) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand compensation from us for the expenses objectively necessary for this purpose. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(11) If the subsequent performance has failed or if a reasonable deadline to be set by the Buyer for the subsequent performance has expired without success or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
(12) Claims of the Buyer for damages or compensation for futile expenses shall only exist in accordance with § 8 and are otherwise excluded.
(1) Unless otherwise stated in these GTCS, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage. In particular, there is no liability for claims for consequential damages.
(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions. The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be 12 months from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) However, if the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period remain unaffected (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 445b BGB).
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer’s claims for damages pursuant to § 8.
(1) These GTCS and all legal relationships between Graphite Materials and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title shall be governed by the law of the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
(2) If the buyer is a merchant within the meaning of the German Commercial Code. Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of performance for all disputes arising from the contractual relationship shall be our registered office in Zirndorf. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, we shall also be entitled to take legal action at the Buyer’s place of jurisdiction.
Any questions?
Graphite Materials GmbH
Rothenburger Straße 76
90522 Oberasbach
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