AGB

 

 

General Terms and Conditions (GTC)
of Gustav Gerster GmbH & Co.KG, Memminger Straße 18, 88400 Biberach an der Riss

 

§ 1 Scope of application
1. The terms and conditions apply exclusively between merchants.

2. The following terms and conditions apply exclusively to all deliveries and services provided by the seller. The seller does not recognize the buyer's general terms and conditions unless the seller has expressly agreed to their validity in writing. This also applies if the seller performs the services without reservation in the knowledge of conflicting terms and conditions.

§ 2 Place of performance, delivery, and acceptance
1. The place of performance for all services under the delivery contract is the location of the seller's commercial establishment.

2. The goods are delivered from the domestic factory. These shipping costs are borne by the buyer. The buyer may designate the carrier. The goods are to be shipped uninsured. A delivery notice may be agreed upon.

3. Packaging costs for special packaging shall be borne by the buyer.

4. We reserve the right to certain delivery tolerances of plus/minus 10% compared to the order.

5. Sorted and, in the case of combinations, sales-ready partial shipments must be made promptly and must be announced in advance. Unsorted shipments are only permitted with the buyer's consent.

6. If, through the fault of the buyer, acceptance does not take place on time, the seller shall be entitled, at its discretion, after expiry of a grace period of 4 weeks to be set, either to invoice the goods with immediate effect (backlog invoice) or to withdraw from the contract or to claim damages.

§ 3 Place of jurisdiction
The place of jurisdiction (also for cheque claims) shall be, at the plaintiff's discretion, the location of a German commercial branch of one of the parties or the registered office of the trade or cartel organisation responsible for the seller (Stuttgart). The court first seized shall have jurisdiction.

§ 4 Contract content
1. The scope of delivery shall be determined by the contract, framework agreement, or our binding offer concluded with the customer, provided that it has been accepted in due time. If the framework agreement and/or our binding offer does not contain any information about the scope of delivery, the scope of delivery shall be determined by the customer's written delivery calls, unless we object to them within one week.

2. The goods shall be delivered on specific dates (working day or a specific calendar week). All sales shall only be concluded for specific quantities, items, qualities, and fixed prices. Both parties are bound by this. Commission transactions shall not be carried out.

3. Block orders are permissible and must be limited in time when the contract is concluded. The acceptance period may not exceed 12 months.

4. Our delivery obligation is subject to timely and proper delivery to us.

§ 5 Interruption of delivery
1. The framework supply contract concluded with the customer or our binding offer, if accepted in due time, shall be decisive for delivery dates and deadlines. If the framework supply contract and/or our binding offer do not contain any information on delivery dates and deadlines, the delivery dates and deadlines shall be based on the customer's written delivery calls, unless we object to them within one week.

2. Agreed delivery periods shall commence upon conclusion of the contract, but not before the details of the desired design to be specified by the customer and the technical questions to be answered by the customer have been fully clarified. The delivery period shall not include the period during which the customer is in arrears with an agreed payment, i.e., the delivery period shall be extended by the period during which the arrears existed. Compliance with the delivery period always requires the timely and proper fulfillment of the customer's obligations. If the customer initiates a contract amendment that makes it impossible to comply with the original delivery period, the delivery period shall be extended by a reasonable amount.

3. The delivery period shall be deemed to have been met if the circumstances causing the transfer of risk in accordance with clause 1 have occurred within the period.

4. In the event of force majeure, industrial action for which one of the contracting parties is not responsible, and other operational disruptions for which neither party is responsible, which have lasted or are expected to last longer than one week, the delivery or acceptance period shall be extended automatically by the duration of the hindrance, but by no more than 5 weeks. The extension shall only take effect if the other party is immediately informed of the reason for the hindrance as soon as it becomes apparent that the delivery or acceptance period cannot be met.

 

5. If the customer defaults on acceptance of the delivery items or payment of the purchase price, we may withdraw from the contract and/or claim damages in lieu of performance after the fruitless expiry of a reasonable grace period required by law and set by us. If we assert a claim for damages in lieu of performance, we may, without providing evidence, demand compensation
• 20% of the purchase price to compensate for lost profits, provided that the delivery item is a series or standard product, or
• 100% of the purchase price, provided that the delivery item is a custom-made product according to the customer's specific requirements and we have incurred the expenses necessary to prepare the delivery.

6. The contracting parties remain free to prove that the actual damage was higher or significantly lower. The rules for determining damages resulting from the law shall also remain unaffected if we have already fulfilled the contract in full. In addition, we shall be entitled to charge the customer for any expenses incurred, in particular storage costs, in the event of default of acceptance on the part of the customer. If storage takes place on our own premises, the customary local storage costs shall be charged.

7. If delivery or acceptance in the cases specified in clause 1 has not taken place within the extended delivery or acceptance period, the other contracting party may withdraw from the contract after expiry of a grace period of 12 calendar days to be set.

8. Claims for damages are excluded in the cases specified in clause 1 if the respective contracting party has fulfilled its obligation in accordance with clause 1.

 

§ 6 Additional delivery period
1. After expiry of the delivery period, an additional delivery period of 4 weeks shall commence without notice. After expiry of this period, the buyer may withdraw from the contract by written declaration. The buyer may not assert any claims for damages in the event of late delivery or non-performance, unless liability is mandatory by law due to intent or gross negligence.

2. Before the expiry of the additional delivery period, claims by the buyer for late delivery are excluded, unless § 8 (2) and (3) apply.

§ 7 Notice of defects and other complaints
1. Notices of defects must be sent to the seller within 12 calendar days of receipt of the goods at the latest in the case of obvious defects. The buyer must notify the seller of hidden defects immediately after their discovery.

2. Once the delivered goods have been cut to size or otherwise processed, any complaints regarding obvious defects shall be excluded.

3. Minor, technically unavoidable deviations in quality, color, width, weight, finish, or design may not be objected to. This also applies to customary deviations, unless the seller has declared in writing that the delivery will be true to sample. Samples are considered non-binding.

4. Natural wear and tear and damage resulting from improper handling are excluded from liability for defects.

5. Returns of goods require our express consent. Custom-made products and short lengths are generally excluded from return.

6. In the case of delivery of remnant and special items and second-choice goods sold at reduced prices, complaints are excluded.

7. In the case of justified complaints about obvious defects, the buyer has the right, at the seller's discretion, to have the goods repaired or to receive a replacement delivery free of defects within 12 calendar days of receipt of the goods. In this case, the seller shall bear the freight costs. If the subsequent performance has failed, the buyer shall only have the right to reduce the purchase price or withdraw from the contract, unless § 8 (2) and (3) apply.

8. In the event of a hidden defect, the buyer shall only be entitled to reduce the purchase price or withdraw from the contract, unless § 8 (2) and (3) apply.

9. If the notice of defects is not given in due time, the goods shall be deemed to have been approved.

10. The limitation period for material defects is one year, subject to sentence 2. In the event of injury to life, limb, or health for which the seller is responsible, as well as in cases of intent and gross negligence, the limitation period for claims for material defects is two years.

§ 7a Product liability and compliance
1. The seller guarantees compliance with the relevant legal regulations at the time of delivery.

2. The seller assumes no responsibility for the further processing, combination, or other use of the goods by the buyer.

§ 8 Damages
1. Claims for damages by the buyer are excluded, unless otherwise specified in these terms and conditions.

2. The exclusion in clause 1 shall not apply in the event of liability under the Product Liability Act, in the event of intent, gross negligence on the part of owners, legal representatives, and executive employees, in the event of malice, in the event of non-compliance with an assumed guarantee, in the event of culpable injury to life, limb, or health, or in the event of culpable breach of essential contractual obligations; Essential contractual obligations are those whose fulfillment characterizes the contract and on which the buyer may rely. However, a claim for damages due to breach of essential contractual obligations is limited to the foreseeable damage typical for this type of contract, unless one of the other cases mentioned in sentence 1 applies.

3. The above provisions do not imply a change in the burden of proof to the detriment of the buyer.

§ 9 Payment
1. The invoice shall be issued on the date of delivery or provision of the goods. A postponement of the due date (value date) is generally excluded. Invoices are payable in accordance with the respective agreements.

2. Payments can be made by bank transfer or direct debit.

3. Payments shall always be used to settle the oldest outstanding debt items plus any accrued default interest.

4. The final credit entry on the seller's account shall be decisive for the timeliness of the payment.

5. After the payment deadline has expired, default occurs without the need for a reminder.

§ 10 Payment after due date
1. For payments after the due date, interest of 9 percentage points above the respective base interest rate within the meaning of § 247 BGB (German Civil Code) will be charged. In all other respects, § 288 BGB applies.

 

§ 11 Offsetting and retention
Offsetting and retention of due invoice amounts is only permissible with undisputed or legally established claims, provided that these are not claims for damages that are closely related to the buyer's claim for defect-free performance of the contract.

§ 12 Retention of title
1.      The goods remain the property of the seller until all claims arising from goods deliveries from the entire business relationship, including ancillary claims, claims for damages, and the cashing of checks, have been paid in full. The retention of title shall also remain in force if individual claims of the seller are included in a current account and the balance is struck and acknowledged.

2.      If the goods subject to retention of title are combined, mixed, or processed by the buyer to form a new movable item, this shall be done on behalf of the seller without the seller being obligated as a result. The buyer does not acquire ownership of the new item in accordance with §§ 947 ff. BGB (German Civil Code) through the combination, mixing, or processing. In the event of combination, mixing, or processing with items not belonging to the seller, the seller shall acquire co-ownership of the new item in proportion to the invoice value of its reserved goods to the total value.

3.      If a central clearing agency is involved in the business transaction between the seller and the buyer and assumes the del credere, the seller transfers ownership to the central clearing agency upon dispatch of the goods, subject to the condition precedent of payment of the purchase price by the central clearing agency. The buyer is only released from liability upon payment by the central clearing agency.

4.      The buyer is only entitled to resell or further process the goods subject to retention of title under the following conditions:

a)      The buyer may only sell or process the goods subject to retention of title in the ordinary course of business, provided that its financial circumstances do not subsequently deteriorate significantly.

b) The buyer hereby assigns to the seller the claim with all ancillary rights arising from the resale of the goods subject to retention of title, including any balance claims. The seller accepts this assignment.

c)      If the goods have been combined, mixed, or processed and the seller has acquired co-ownership thereof in the amount of its invoice value, it shall be entitled to the purchase price claim in proportion to the value of its rights to the goods.

d) If the buyer has sold the claim within the scope of genuine factoring, the buyer assigns the claim against the factor replacing it to the seller and forwards the proceeds of the sale to the seller in proportion to the value of the seller's rights to the goods. The buyer is obliged to disclose the assignment to the factor if he is more than 10 calendar days overdue with the payment of an invoice or if his financial circumstances deteriorate significantly. The seller accepts this assignment.

e) The buyer is authorized to collect the assigned claims as long as it meets its payment obligations. The collection authorization expires in the event of default of payment by the buyer or in the event of a significant deterioration in the buyer's financial circumstances. In this case, the seller is hereby authorized by the buyer to inform the customers of the assignment and to collect the claims itself. In order to assert the assigned claims, the buyer must provide the necessary information and allow this information to be verified. In particular, upon request, the buyer must provide the seller with a detailed list of the claims to which it is entitled, including the names and addresses of the customers, the amount of the individual claims, the invoice date, etc.

5. If the value of the security existing for the seller exceeds its total claims by more than 10%, the seller shall be obliged, at the buyer's request, to release securities of its choice to this extent.

6.      Pledging or transfer by way of security of the goods subject to retention of title or the assigned claims is not permitted. The seller must be informed immediately of any seizures, stating the name of the seizure creditor.

7.      If the seller takes back the delivery item in exercise of its right of retention of title, this does not automatically constitute a withdrawal from the contract. The seller may satisfy its claims from the repossessed goods subject to retention of title by selling them on the open market.

8. The buyer shall store the goods subject to retention of title for the seller free of charge. The buyer shall insure the goods against the usual risks, such as fire, theft, and water damage, to the usual extent. The buyer hereby assigns to the seller his claims for compensation against insurance companies or other parties liable for compensation for damages of the above-mentioned type in the amount of the invoice value of the goods. The seller accepts the assignment.

9. All claims and rights arising from the retention of title to all special forms specified in these terms and conditions shall remain in force until the seller has been completely released from any contingent liabilities (checks) that it has entered into in the buyer's interest. In the case of sentence 1, the buyer is generally permitted to engage in factoring for its outstanding accounts. However, he must inform the seller before entering into contingent liabilities.

§ 13 Third-party property rights
If third-party property rights are infringed during the manufacture of the goods according to the customer's specifications (e.g., drawings, models, samples), the customer shall indemnify us against all claims asserted in this respect.

§ 13a Electronic communication
The seller is entitled to send offers, invoices, and notifications in electronic form. These shall be deemed to have been received as soon as they have reached the buyer's electronic domain.

§ 14 Applicable law
The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, is excluded.

Gustav Gerster GmbH & Co.KG
Memminger Straße 18
88400 Biberach an der Riss
Germany

(Revised version dated October 1, 2025)