General Terms and Conditions of GRINTECH GmbH
§ 1 Scope of application, scope of limitations, language
1.1 These terms and conditions govern the conclusion (offer, acceptance of offer, order confirmation and sale) and the processing of orders placed with GRINTECH, unless contrary provisions have been expressly agreed in writing up on contract conclusion, and to the extent the customer of GRINTECH is not a consumer. They shall apply to all future business relations, even if not expressly agreed. These terms and conditions shall be considered accepted at the latest date upon the receipt of goods. Any contrary provisions agreed shall only apply however to the transaction for which they were implemented, and may require re-confirmation of acceptance by GRINTECH for each new order.
1.2 Any other provisions – including particularly any purchasing terms and conditions – of customers of GRINTECH, whether they amend or supplement the contract, are hereby expressly rejected, and shall only be binding upon GRINTECH if GRINTECH has provided its prior written consent.
1.3 The negotiation and contract language is German.
1.4 GRINTECH submits a non-binding, no-obligation offer to the ordering customer based on the customer‘s specifications (application-specific requirements outlined by the customer). Declarations of acceptance and all orders must be confirmed in writing by GRINTECH to be legally effective.
1.5 Drawings, illustrations, dimensions, weights, technical specifications and other requirement-, performance- or specification-related data shall only be binding if expressly agreed in writing with GRINTECH.
1.6 Our sales staff and representatives are not authorized to enter into verbal collateral agreements or provide verbal assurances going beyond the content of the written contract and conditions outlined herein.
§ 2 Prices, payment terms, interest on arrears, due dates, counterclaims
2.1 Prices are quoted in EURO. The prices stated in the GRINTECH order confirmation apply. Unless otherwise agreed in writing, prices are ex works plus sales tax at the applicable rate.
2.2 Should price quotes in our web-shop catalogue deviate from those in our printed catalogue, the web-shop prices override those in the printed catalogue.
2.3 Unless specified otherwise in the order confirmation, invoiced amounts are due in full within fourteen days of date of invoice. In the event of payment arrears, GRINTECH may charge default interest at the base rate plus eight percent. The assertion of further damage claims is not hereby excluded.
2.4 The ordering customer may only set off counterclaims that have been upheld by legal judgment or are undisputed or acknowledged by GRINTECH. Customer shall be entitled to exercise a right of retention insofar as his counterclaim relies on the same contractual relationship or the counterclaim is admitted or legally binding or ripe for decision.
2.5 If circumstances come to our knowledge which must lead to the conclusive assumption that the customer’s pecuniary situation is deteriorating or threatens to deteriorate and therefore endangers contract fulfillment, we reserve the right to immediately revoke previously agreed upon payment periods or deferrals and to retain our own services until the customer has effected payment or a security deposit and has proven that contract fulfillment is actually not endangered. If the payment or the security deposit is not effected within 12 workdays, we reserve the right to withdraw from the contract and to demand damages instead of contract fulfillment.
§ 3 Order changes
Subsequent changes to products/services specified and agreed are not possible due to the particularities of glass processing, without exception. The customer in such case must conclude any new contract implementing any desired order changes.
§ 4 Delivery deadlines/periods, operational disruptions, partial deliveries
4.1 The start of the delivery period quoted by us is set with the general proviso that the customer meets his contractual obligation to cooperate and is conditional upon prior clarification of all technical questions. Furthermore, the fulfillment of our delivery obligation is conditional upon the customer meeting his obligations properly and in due time.
5.2 In case of default of acceptance or any grossly negligent violation of cooperation obligations we are entitled to demand compensation for any detriments, including additional expenditures, resulting from such violation. We reserve the right to claim further damages. Our right to withdraw from the contract and to demand compensation for damages incurred instead of contract fulfillment remains unaffected.
5.3 GRINTECH is entitled to render partial delivery/performance to the extent reasonable for the customer.
§ 5 Place of performance, passing of risk, packaging and transport
5.1 The place of fulfillment is Jena. If not stated otherwise in the order confirmation, it is understood that delivery “ex works” (EXW, according to Incoterms in the respectively valid version) has been agreed upon.
5.2 If GRINTECH ships goods at the customer‘s request, risk passes to the ordering customer as soon as the consignment is handed over to the individual performing transport or the shipment has left the place of performance. If the goods are ready for dispatch and shipment or acceptance is delayed for reasons attributable to the ordering customer, risk passes to the customer upon receipt of notice of readiness for dispatch.
5.3 GRINTECH is entitled to package the product in a manner customary for the industry and provide appropriate moving equipment and tools for shipping. GRINTECH charges a flat fee priced approximately at its own cost for packaging, shipping, transport equipment and other tools. Goods are shipped at the ordering customer´s expense and risk.
§ 6 Liability, warranty, expiration of claims
6.1 GRINTECH may test products prior to delivery to verify conformance with the technical data which are specified in the product documentation. Test results are logged and one or more testing reports may be provided to the customer upon request, for which GRINTECH may charge a reasonable fee for expenses. The customer has no claim to demand testing reports be provided.
6.2 The ordering customer must immediately inspect delivery to ascertain proper execution of the contract. Notification of any customer complaints for evident defects must be provided within one-week time. The date/time of delivery and receipt date of the compliant shall apply for determining this deadline. Defects that cannot be discovered within this period despite careful inspection must be reported to us immediately upon their discovery.
6.3 In the event of a justified complaint, GRINTECH may at its option either remedy the defect or render replacement delivery, thereby ruling out other claims, not exceeding the value of the contract unless a warranted characteristic is missing, willful intent or gross negligence is in evidence on the part of GRINTECH or the defect was caused by culpable violation of other primary contract obligations. Should GRINTECH be late in remedying a defect or rendering replacement delivery, or fail to successfully perform such, the ordering customer may demand an appropriate price reduction or voiding of the contract. Defects affecting the portion of delivered goods do not entitle the customer to reject the entire delivery, unless a partial delivery is without interest to the customer. Defective goods may only be returned with the express consent of GRINTECH. § 9 remains unaffected.
6.4 Defects claims cannot be asserted on the basis of only minor deviation from a contractual characteristic, of minor impairment of usability, regular wear and tear or damage incurred after the passing of risk caused by improper or negligent handling, overuse, unsuitable equipment, incorrect construction or special external influences not addressed in the contract. In particular, it is not an agreed or contractually stipulated characteristic of GRINTECH products that they can have films of any kind applied to and/or removed from them without the films or products suffering damage. The same applies accordingly to product labeling. The ordering customer shall likewise have no defect claims in connection with improper repairs or alterations made by the ordering customer, or the consequences of such.
6.5 Warranty claims expire one (1) year from the passing of risk.
6.6 Warranties and guarantees shall only be given effectively if GRINTECH grants them explicitly and in writing or in text form. In particular, GRINTECH is not liable that the purpose/result (e.g. savings) occurs which is desired by the Customer unless GRINTECH has confirmed this in writing or in text form.”
Guarantee for the following is ruled out:
a) Products which are identified by GRINTECH as a prototype or pre-production product, or any product offered on a “best effort basis”.
b) Specials, modifications, or customized items (including custom patch cables) meeting the specifications provided by the customer;
c) ESD sensitive products whose protective packaging has been opened or items that are fragile to the touch, once removed from its packaging;
d) Products which were exposed to inappropriate mechanical, thermic, or electrical stress;
e) Products damaged by inappropriate installation, usage, storage, or malpractice;
f) Products damaged by accident or negligent usage, storage, transport, or handling.
6.8 To the extent the product is incorporated into any other instrument or device, we make no representation with respect to the safety, efficacy, accuracy, reliability, use, or fitness for intended purpose of the product in such integrated product or in such application. To the extent so incorporated into any other instrument or device, or used in such application, customer hereby agrees to indemnify and hold GRINTECH harmless from any claims, suits, liabilities, losses, damages, expenses (including reasonable attorneys’ and experts’ fees and expenses) and costs arising from or relating to any defects in and/or the use of the product and such integrated product, and/or the failure of the product or such integrated product to comply with any applicable laws or regulations. Major sub-systems manufactured by other firms but integrated into our product are covered by the original manufacturer’s warranty and we make no warranty, express or implied regarding such sub-systems.
§ 7 Extended retention of title, processing
7.1 The goods remain the property of GRINTECH until payment of all amounts due on any legal basis whatsoever until the irrevocable clearing of any bank drafts or checks presented to GRINTECH for payment, even if the invoiced amount for specially designated receivables has been paid. When payments on account are outstanding, amounts due GRINTECH are secured by retention of title to the goods.
7.2 Any refinement or processing of goods subject to retention of title is done on behalf of GRINTECH, at no charge and without obligation to GRINTECH, such that GRINTECH qualifies as a manufacturer per § 950 BGB, thereby retaining ownership of the goods at all times, irrespective of any processing thereof. For processing involving the use of other products not made by GRINTECH, co-ownership thereof accrues to GRINTECH in proportion to the invoice value of the goods to the other processed goods at the time of processing. New items created through processing are otherwise subject to the same provisions as goods subject to retention of title. Such items constitute retained-title goods per these terms and conditions.
7.3 The ordering customer is only entitled and authorised to sell retained-title goods under a purchase, plant, plant supply or similar agreement, may not be in default and the receivables from the resale must be assigned to GRINTECH – proportionately as per 7.2 as applicable. Customer receivables from the resale of retained-title goods are thus hereby assigned to the applicable extent to secure all GRINTECH accruing from transactions with GRINTECH. GRINTECH accepts such assignment. The customer must escrow proceeds from such sales separately from its own assets and third-party assets for the benefit of GRINTECH. Upon demand by GRINTECH the customer must notify the third-party buyer of assignment, instructing payment to be directed to GRINTECH. If the value of the collateral held by GRINTECH exceeds 20% of GRINTECH‘s total claim, upon request by the customer or third party affected by over-collateralisation GRINTECH must release such excess collateral, GRINTECH determining at its discretion which assets to release. The customer has no other entitlement to disposal over the retained-title goods.
7.4 Pledging and assignment are prohibited. The customer must notify GRINTECH immediately of any distrainment, seizure or other third-party attachment to allow GRINTECH to file an action per § 771 ZPO. The customer shall be liable to GRINTECH for any losses arising from the former‘s failure to promptly meet this obligation. In the event action per § 771 ZPO is successful, the customer shall be liable to GRINTECH for assessed costs that cannot be recovered in three collection attempts from the party against which action was enforced.
7.5 If the customer is in arrears, GRINTECH may upon expiration of a reasonable grace period set repossess retained-title goods at the customer´s expense or demand assignment of the customers claim against third parties to handover of the goods as applicable. After GRINTECH provides withdrawal notice on a justified basis, GRINTECH may with two (2) weeks advance notice sell the repossessed or seized goods at its discretion.
§ 8 Intellectual property rights and know-how
8.1 Production methods, manufacturing know how and any patentable inventions made in the production process remained the exclusive intellectual property of GRINTECH; the customer has no claim to the transfer or sharing of patentable results, intellectual property rights derived from such or GRINTECH‘s operational know-how.
8.2 GRINTECH retains all ownership rights and copyrights to drawings, sketches, specifications, samples, offers and other documents prepared by or on behalf of GRINTECH. Express written permission from GRINTECH is required before forwarding such documents to third parties. The ordering customer may only use documents provided for their intended purpose; these must be returned immediately upon request by GRINTECH, including all copies and reproductions thereof.
8.3 GRINTECH does not research whether the ordering the customer´s specification violate any third-party rights. For the event GRINTECH should receive an injunction or be sued by third parties for damages as a result of implementing contractual specifications, the ordering customer hereby agrees to hold GRINTECH harmless from any third-party claims and indemnify GRINTECH for associated legal costs.
8.4 GRINTECH and the ordering customer agree that payment is due exclusively for the manufacture of the produced goods. By rendering payment, the ordering customer obtains no ownership or claim to acquire ownership of tools, fixtures, methods, documentation, descriptions produced or modifications/expansions of existing programs, documentation, descriptions etc. The ordering customer waives any rights accruing despite this clause by virtue of laws or other agreements, and GRINTECH accepts such waiver.
§ 9 General limitations of liability
9.1 GRINTECH may only be liable for damages for pre-contractual actions, contract violations and other non-contractual claims – including particularly tort actions – in cases of willful intent or gross negligence on the part of GRINTECH or its employees. Liability for slight negligence is only excluded to the extent neither damages for loss of life or bodily injury/harm or claims under the Product Liability Act are concerned. Liability for non-fulfilment of obligations whose fulfilment is essential for proper execution of the contract, on which the ordering party may at all times rely. The same applies to non-fulfilment of obligations by agents or contractors.
9.2 Any liability is limited to losses foreseeable at contract conclusion.
9.3 GRINTECH is not liable in case of slightly negligent violations of minor contractual obligations.
§ 10 Place of jurisdiction
10.1 The place of jurisdiction for any lawsuits or legal disputes arising from the contractual relationship, including summary proceedings on bills of exchange and proceedings based exclusively on documentary evidence, shall be the competent Jena county or district court if the customer is a business entity within the meaning of HGB, a legal entity under public law or a public law fund.
10.2 If GRINTECH is sued by the ordering customer, the place of jurisdiction per paragraph 10.1 shall exclusively apply. GRINTECH may at its discretion instead file suit against the ordering customer with the court of jurisdiction at the location of its registered office.
§ 11 Written form, severability, applicable law (International Sale of Goods)
11.1 Collateral agreements, contract amendments and additions must be confirmed in writing or by fax. This applies likewise to suspension of this written form requirement.
11.2 Should provisions of these terms and conditions be or subsequently become wholly or partially invalid or unenforceable, the validity of the remaining provisions shall be thereby unaffected. The same applies in the event loopholes are discovered in these terms and conditions. Unenforceable or invalid provisions and loopholes shall be remedied by implementing appropriate provisions approximating to the closest possible extent allowed by law the original economic intent, or what the parties would have implemented if aware of the loophole in question upon contract conclusion. The parties mutually agree to implement such provisions in writing.
11.3 The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods shall be disapplied.
Last update: April 2019