I. Formation of the contract

  1. The terms of delivery and payment of Gramß shall apply exclusively to the present contractual relationship, including all future followup transactions, even if Gramß has not explicitly objected to the purchaser’s terms and conditions or if Gramß has made a delivery while being aware of the purchaser’s terms and conditions. The purchaser’s terms and conditions are absolutely not binding on Gramß and can only become a part of the contract if acknowledged by Gramß explicitly in writing.
  2. The purchaser is bound to its purchase order for a period of four weeks. The purchase contract comes into force if Gramß accepts the purchaser’s purchase order within four weeks from receipt or performs the delivery. Any offers of Gramß are subject to confirmation until conclusion of the contract and can be withdrawn at any time.
  3. In the event of any differences between the purchase order and the order confirmation, the order confirmation of Gramß shall be decisive if the customer has not objected to it in writing within ten days from receipt of the order confirmation. Any qualities of the contractual object are only deemed to be warranted by Gramß if they have been designated explicitly as warranted qualities. Gramß reserves the ownership and the copyright in and to all contractual documents such as quotation, cost estimate, drawings, etc. 

    If no contract is concluded, the aforementioned documents are to be returned by the purchaser promptly. Any right of retention of the purchaser is herewith explicitly excluded. The contracting parties agree upon a duty of confidentiality regarding the aforementioned documents.
  4. If the purchaser’s financial situation deteriorates following conclusion of the contract, Gramß shall be entitled to demand security from the purchaser by giving a deadline of 14 days. If the purchaser fails to fulfil such a demand, Gramß shall be entitled to cancel the contract and claim damages due to non-performance, including indirect damages.
  5. Any oral agreements between the contracting parties must be confirmed by Gramß in writing to become effective.
  6. Gramß reserves the right of prior sale in all cases in the event of warehouse offers.

II. Content of the contract

  1. The contractual relations between Gramß and the purchaser shall apply in the following order: 

    a) Written and oral agreements, if the latter have been confirmed by Gramß in writing
    b) Gramß order confirmation
    c) The present terms and conditions of sale and delivery
  2. Any upward or downward deviations of up to 20% in deliveries are permissible. In addition, usual production-related deviations in measures, contents, weights and tints are permitted where tolerable by the purchaser. Technical changes in tools and items that improve the performance of injection moulding tools and/or the resulting items can be made at any time.
  3. The costs of production, procurement, modification, repair or provision of manufacturing moulds and tools shall be borne by the purchaser. Gramß remains the owner of such moulds and tools as well as the related copyrights, including after payment to Gramß has been made, unless the purchaser provides its own production moulds or tools for executing an order and if these have not been modified significantly by Gramß. An exclusive right of delivery with the moulds and tools produced by Gramß has to be agreed upon explicitly between the parties.
  4. Gramß undertakes to retain the production moulds and tools paid by the purchaser for the period of normal wear and tear, but for a maximum period of two years from the last delivery.
  5. All catalogues, sample books, price lists and other sales documents received by the purchaser remain the property of Gramß and are to be returned to Gramß at its request.
  6. The purchaser shall be liable to ensure that the ordered goods do not encroach on the property rights of third parties. If this is the 
    case, the purchaser shall indemnify Gramß from and against all resulting claims.

III. Periods, deadlines and shipment

  1. As a rule, the delivery periods and deadlines are not binding and are only to be complied with if they have been specified by Gramß in writing and as being binding. 

    If a deadline or period that has been specified by Gramß as binding is exceeded, the purchaser is obliged to grant Gramß an adequate grace period for delivery, but at least a period of three weeks. After the expiry of this period to no avail, the purchaser may cancel the contract or claim damages due to non-performance; however, the latter option is only granted in the event of intent or gross negligence on the part of Gramß or its assistants. Reimbursement of indirect losses is herewith excluded as a rule. If a period which has been specified as not binding is exceeded, the purchaser has to grant Gramß an accordingly longer grace period. After the expiry of this period to no avail, the aforementioned provisions shall apply accordingly. 

    In the event of any losses incurred by the purchaser due to non-compliance with a delivery period or deadline, the parties agree upon reimbursement of 0.5% of the contractual amount, but a maximum of 5% of the entire delivery for each complete week, in the cases of intent of gross negligence as well. If Gramß’s non-compliance with periods or deadlines is due to the fact that Gramß’s subsuppliers have failed to deliver in time, both parties may cancel the contract following non-compliance with a delivery period or deadline if the agreed deadline or period has been exceeded for more than four months. The parties do not have any mutual claims in this case. In the event of force majeure such as strike, fire or other impossibility to comply with periods or deadlines not due to Gramß, the delivery period or the delivery deadline shall be extended by the period of impairment. However, the purchaser shall be entitled to cancel the contract after six months from expiry of the original period. The parties do not have any mutual claims in this case.
  2. If a planned deadline or period cannot be complied with due to the fault of the purchaser, Gramß may cancel the contract after having 
    granted a grace period of two weeks and claim damages from the purchaser due to non-performance, as minimum damages an 
    amount of 15% of the contractual value. Gramß may give proof of higher losses, the purchaser may give proof of lower losses.
  3. Deliveries are always effected at the cost and risk of the purchaser, irrespective of whether delivery has been made prepaid, ex works or ex warehouse. This also applies if Gramß has made the delivery with its own vehicles. The risk regarding the goods shall pass to the purchaser upon loading of the goods, including if Gramß has sent a completion notice to the purchaser including a request to collect the goods and if the period specified by Gramß for collecting the goods has passed to no avail. The cost of transportation of the goods shall be borne by the purchaser unless Gramß has agreed in writing to pay the cost of transportation. 

    The purchaser is obliged to insure the contractual goods against theft, breakage, transportation and fire damage. Such an obligation of Gramß is deemed to be accepted only if this has been agreed between the parties in writing. In the event of damage, the purchaser herewith assigns its claims against the insurer to Gramß, which accepts the assignment.

IV. Prices and payment conditions

  1. The prices of Gramß are always ex works, excluding packaging. Any additional services are charged additionally. Furthermore, the purchaser has to pay applicable value added tax. If the goods are not accepted, Gramß is entitled to charge a storage fee. Packaging is charged at the cost price. Unless agreed otherwise, payment is to be made following receipt of the goods, but at the latest within 14 days from delivery, net cash.
  2. The contractual price agreed between the contracting parties is to be paid by the purchaser if the contractual object is delivered within four months from receipt of Gramß’s order confirmation. When the four-month period is exceeded, Gramß reserves the right to make an adequate price increase in the event of any increases in production costs, which are to be evidenced by Gramß. In the event of such a price increase, the purchaser may cancel the contract if the price increase is more than 10%. However, the purchaser has to declare cancellation of the contract within two weeks from a written notice of the price increase. If the purchaser is in delay with payment, it shall pay interest on arrears of 8 percentage points above the relevant applicable base interest rate. Gramß is entitled to demand further interest losses against evidence.
  3. Each partial delivery is deemed to be a transaction to be settled separately. If Gramß delivers the contractual object on a Euro exchange pallet, the customer is obliged to return an equivalent pallet to Gramß at its own expense or to pay an equivalent reimbursement for each pallet not returned.
  4. If part payments have been agreed, the entire residual debt is due and payable if the purchaser is late with payment of an instalment for more than 14 days, suspends its payments or if insolvency proceedings have been applied or opened on its assets. Payment orders, cheques and bills of exchange are accepted by Gramß only after special agreement and by charging all resulting expenses to the purchaser.
  5. Gramß is entitled to demand dunning charges of € 5.00 for each reminder.
  6. If the event of late payment, Gramß is entitled, following a prior written notice, to sell the contractual goods as well as possible. In this case, the purchaser waives exercising a possible property right.

V. Acceptance

  1. The purchaser is obliged to accept any goods notified as ready for delivery within 14 days and, in the event of delivery, immediately. In the event of non-acceptance, Gramß will grant the customer a grace period of eight days. After the expiry of this grace period to no avail, Gramß may cancel the contract and claim damages due to non-performance. Number III.) 2. shall apply correspondingly.
  2. The purchaser is obliged to inspect the delivered goods immediately for any defects and to notify Gramß of any defects identified in full detail in writing. If the goods are delivered by the purchaser to third parties, this is regarded as unconditional acceptance of the goods. 

    In the event of hidden defects, clause 2, sentence 1 shall apply correspondingly.

VI. Warranty

  1. Gramß warrants that the contractual object is suitable for the use as intended under the contract. Gramß grants a warranty for a period of one year from the delivery or from the notice of readiness for delivery.
  2. Initially, the purchaser only has a right to rework carried out by Gramß. The purchaser has to grant Gramß an adequate period of at least three weeks for carrying out rework. Should reworking fail finally following three rework attempts, the purchaser may request reduction of remuneration or cancellation of the contract. Damages due to non-performance are excluded, unless Gramß, its legal representatives or other assistants are liable for intent or gross negligence or if a material contractual duty has been violated. Gramß is not liable if the defect in goods produced is due to defective materials, tools, equipment or incorrect plans etc., which have been provided by the purchaser, or due to a fault of the customer or any of its assistants.  If the customer rectifies any defects itself or using third parties, any warranty claim against Gramß shall lapse. If a quality warranted by Gramß is missing, the customer is entitled to damages. Deliveries subject to certification do not constitute a warranted quality regarding an item; the provisions of number II are also explicitly applicable to deliveries subject to certification. In the event of defects in the contractual object, which are due to any parts supplied, Gramß shall be liable to the customer only to the extent as the subsupplier is liable to Gramß. In this case, the warranty granted to the customer is limited to cancellation of the contract or reduction of the purchase price; damages are explicitly excluded, unless Gramß, its legal representatives or any of its assistants is/are liable for intent or gross negligence or Gramß has violated any of its main duties.
  3. No warranty period is granted for any rework provided by Gramß.
  4. Any parts exchanged become the property of Gramß.
  5. The costs of rework, travel expenses, travel allowances, spare parts, etc. are borne by Gramß.

VII. Liability

Gramß shall not be liable for slight or medium negligence, unless it is due to a violation of a material contractual duty. In the event of gross negligence on the part of an employee or other assistants who are not organs or executive staff of Gramß, Gramß shall not be liable unless it is due to a violation of a material contractual duty. 

The aforementioned limitation of liability does not apply in the event of a violation of life, limb and health. 

If Gramß, on the merits, is liable to pay damages, this liability is excluded in respect of remote damage and for damage not foreseeable by Gramß as well as for damage solely under the customer’s control. 

Claims under the Product Liability Act shall not be affected. The aforementioned provisions shall also apply to losses resulting from the fulfilment of warranty obligations. The customer is obliged to notify Gramß immediately of any damage and losses and to specify the amount of losses.

VIII. Reservation of title

  1. a) Until the payment of its claims under the contract concluded, Gramß reserves the title to the contractual object delivered against the customer. The reservation of title also applies to all claims Gramß has against the purchaser in connection with the contract, e.g. due to repairs, supplementary and/or substitute deliveries, ancillary services, etc. 

    b) If the purchaser resells the contractual object, the purchaser herewith assigns its claims under the resale to Gramß to the extent of Gramß’s claims against the purchaser. Gramß accepts this assignment. 

    c) If the purchaser is a legal person under public law, special funds under public law or a merchant where the contract concluded is part of the operations of its trade, the reservation of title also applies to all claims Gramß has against the purchaser under the ongoing business relationship.
  2. As long as a reservation of title exists to the benefit of Gramß, the purchaser is entitled to pledging, transfer by way of security, renting or any other disposition of the contractual object, impairing the interests of Gramß, only with the prior written consent of Gramß. This does not affect the purchaser’s right to process or resell the contractual object in the course of its normal business operations. If the purchaser fails to fulfil its payment obligations under the contract, Gramß is entitled, following a prior notice to the customer, to disclose the aforementioned assignment of claims and to collect the goods or claims itself.
  3. The contractual object may only be used by the purchaser itself. Transferring the contractual object requires the prior written consent of Gramß. The customer is obliged to disclose the relevant whereabouts of the contractual object. In the event of any violations of this provision, Gramß is entitled to demand premature return of the contractual object; any right of retention of the purchaser is herewith explicitly excluded.
  4. If any third parties access the contractual object during the period of reservation of title, in particular by way of pledging, the purchaser shall notify Gramß immediately thereof and inform the third party of Gramß’s title to the contractual objects. The purchaser has to bear all costs that are incurred by Gramß in the event of such an access and in order to recover the contractual object, unless they can be claimed from third parties.
  5. For the period of the reservation of title, the contracting parties agree upon a loan relationship, which gives the purchaser the right to possess and use the contractual object, as long as it fulfils its obligations under the contract. If the purchaser fails to fulfil its payment obligations to Gramß or if it violates any other obligations under this contract, Gramß may request the purchaser to return the contractual object. Any right of retention of the purchaser is herewith explicitly excluded, unless the purchaser has a right of retention which results from the contract relating to the contractual object.
  6. When the goods delivered by Gramß are combined or commingled with other objects within the sense of sections 947, 948 of the German Civil Code (BGB), Gramß shall have a co-ownership share in the entire object in proportion to its claim under the contract. The contracting parties herewith agree on the passing of ownership and also agree that the purchaser will possess Gramß’s coownership share on loan for the period of the co-ownership of the contracting parties. This also applies to processing the contractual object as defined in section 950 BGB. If the contractual object is combined, commingled or processed by a third party within the meaning of the provisions of sections 947, 948, 950 BGB with the consent of the purchaser and if the purchaser has agreed upon a co-ownership right with such a third party, the purchaser herewith transfers its co-ownership share to Gramß. The contracting parties herewith agree on the passing of ownership, whereby the purchaser will possess the co-ownership share on loan in this case as well and transfer possession thereof to Gramß in line with section 930 of the BGB.
  7. If the value of the securities existing in favour of Gramß due to the aforementioned provisions based on a simple, extended or expanded reservation of title exceeds the total claim of Gramß, not temporarily, by more than 20%, Gramß will agree at the request of the purchaser to release the securities exceeding this amount in favour of the purchaser. The value of the securities shall be determined by the realisable value of the collateral.

IX. Certificate of origin

Gramß declares that the goods produced by it are preferential goods of EEA origin. The goods produced by Gramß are in compliance with the provisions of origin, which apply to preferential goods transactions between the EC and the EFTA countries. The country of origin is the EU (Germany). If the goods are not in line with the rules of preferential goods transactions, they are identified explicitly with “no certificate of origin”.

X. General provisions

  1. The contracting parties agree on Spechtsbrunn as the place of performance. The Sonneberg Local Court (Amtsgericht)/Meiningen Regional Court (Landgericht) are agreed as the places of jurisdiction. German law shall apply exclusively; the provisions of the UN Sales Convention (C.I.S.G.) are excluded.
  2. The contracting parties agree explicitly upon the written form. This also applies to any ancillary agreements and representations as well as to subsequent changes and supplements to the contract, unless the parties agree that oral arrangements shall be valid.
  3. The transfer of rights and duties as well as of claims under the contract concluded from the purchaser to third parties requires the prior written consent of Gramß. However, consent shall not be withheld unreasonably. The purchaser has a right of offsetting against a claim of Gramß only if the relevant claim either is legally enforceable or has been acknowledged by Gramß. The purchaser may only exercise a right of retention in respect of claims under the present contract. An extended right of retention under other contractual relationships is herewith explicitly excluded.
  4. If a provision of the contract is or becomes invalid or unenforceable, the validity of the remaining provisions shall not be affected. In this case, the parties undertake to replace the invalid or unenforceable provision by a valid, enforceable provision which comes closest to the regulating purposes of the invalid or unenforceable provision. The same applies accordingly to any loopholes in the contract.