Terms and conditions
General sales and delivery conditions
from Graphite Materials GmbH (hereinafter referred to as “Graphite Materials”)
(1) These General Terms and Conditions of Sale (AVB) apply to all of our business relationships with our customers (hereinafter: “Buyer”). The AVB only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The AVB apply in particular to contracts for the sale and/or delivery of movable items (hereinafter also: “goods”), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 651 BGB ). The current version of the AVB also applies as a framework agreement for future contracts for the sale and/or delivery of movable items with the same buyer, without us having to refer to them again in each individual case; In this case, we will inform the buyer immediately about changes to our AVB.
(3) Our AVB apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the buyer only become part of the contract if and to the extent that we have expressly agreed to their validity. This requirement for consent applies in any case, for example even if we carry out the delivery to the buyer without reservation, knowing the general terms and conditions of the buyer.
(4) Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) always take precedence over these AVB. A written contract or our written confirmation is decisive for the content of such agreements.
(5) Legally relevant declarations and notifications that are to be submitted to us by the buyer after the conclusion of the contract (e.g. setting deadlines, notifications of defects, declaration of withdrawal or reduction) must be in writing in order to be effective. Written form within the meaning of these AVB includes written and text form (e.g. letter, e-mail, fax).
(6) References to the validity of legal regulations are only of clarifying importance. Even without such a clarification, the statutory provisions apply unless they are directly modified or expressly excluded in these AVB.
Conclusion of Contract
(1) Our offers are subject to change and without obligation. This shall also apply if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, DIN standard references) and any other product descriptions or documents – also electronic documents – to which we reserve the rights of ownership and copyright.
(2) An order for Goods placed by the Purchaser shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within four weeks of its receipt by us.
(3) Acceptance can be made either in writing (e.g. by order confirmation), by text message or by delivery of the Goods to the Purchaser.
Delivery Term and Default in Delivery
(1) The delivery term shall be agreed individually or stated by us upon order acceptance. If this is not the case, the delivery period shall be approx. 12 weeks after contract conclusion. The delivery period shall commence with order confirmation.
(2) Only delivery periods that have been confirmed by us in writing shall be binding.
(3) If we are unable to meet binding delivery periods for reasons beyond our control (nonavailability), we shall be entitled to extend the delivery period by the duration of the obstruction. In this case, we shall immediately inform the Purchaser accordingly and also notify him of the expected new delivery period. If the service is not available within the new delivery period, we shall be entitled to cancel the contract in full or in part; in this case, we shall immediately reimburse the Purchaser for any performance already provided. A particular instance of non-availability of service in this respect is late delivery by our supplier, if we have concluded a congruent hedging transaction and neither our supplier nor we are at fault or we are not required to procure performance in individual cases. The same shall also apply in the event of force majeure, labour disputes or other operational disturbances in our company.
(4) The occurrence of our delay in delivery shall be determined according to the statutory regulations. In each case, a reminder shall be required from the Purchaser. If we are in default, the Purchaser shall be entitled to demand a lump-sum payment of his default damages. The lump-sum payment shall be 0.5% of the net price (delivery value) per full calendar week but shall not exceed 5% of the value of the Goods that have not been delivered in time. We shall reserve the right to prove that the Purchaser suffered no damages whatsoever or considerably lower damage than the aforementioned lump-sum.
(5) The Purchaser’s rights pursuant to Article 8 of these GCS and our legal rights in particular if the obligation to perform is excluded (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
Delivery, transfer of risk, acceptance, default of acceptance
(1) Partial deliveries are permitted as long as they are not unreasonable for the buyer.
(2) The delivery takes place from our warehouse, which is also the place of performance for the delivery and any supplementary performance. At the request and expense of the buyer, the goods will be sent to another destination (sales by mail). 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 is transferred to the buyer at the latest when the goods are handed over. In the case of mail-order sales, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is already transferred when the goods are delivered to the forwarding agent, carrier or other person or institution responsible for carrying out the shipment. So far
If acceptance has been agreed, this is decisive for the transfer of risk. For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance. The handover or acceptance is the same if the buyer is in default of 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 are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this we charge a lump-sum compensation in the amount of EUR 200 per calendar day, starting with the delivery period or – in the absence of a delivery period – with the
Notification of the readiness for dispatch of the goods.
(5) The proof of a higher damage and our legal claims (in particular reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The buyer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the above flat rate.
Prices and Terms of Payment
(1) Unless otherwise agreed in individual cases, our current prices that are valid at the time of contract conclusion shall apply. These prices shall apply ex stock plus statutory value-added tax.
(2) In the event of sale to destination according to buyer’s instructions (Art. 4 par. 1), the Purchaser shall bear the actual transportation costs ex stock, any customs duties, fees, taxes and other public charges as well as the costs of any transport insurance that may be requested by the Purchaser. The costs for this shall be charged to the Purchaser. Transport packaging, as well as all other packaging in accordance with the Packaging Ordinance, is nonreturnable and becomes the property of the Purchaser, except for pallets.
(3) The purchase price shall be due and payable within 14 days from invoicing and delivery or acceptance of the Goods. For contracts with a delivery value above 1,000.00 EUR, we shall, however, be entitled to request a deposit in the amount of 50 % of the purchase price. The deposit shall become due and payable within 14 days from invoicing. The date on which the amount owed is credited to one of our bank accounts shall be authoritative.
(4) Upon expiry of the aforementioned term of payment, the Purchaser shall be in default. During the default period, interest at the statutory default interest rate at the time shall be due on the purchase price. We shall reserve the right to claim further damage caused by default. With regard to business people, our claim for the commercial maturity interest (section 353 of the German Commercial Code) shall remain unaffected.
(5) The Purchaser shall have rights of offsetting or retention only if his claim is legally enforceable or undisputed. In the event of defective deliveries, the Purchaser’s opposing rights in particular pursuant to Art. 7 par. 6 clause 2 of these GCS shall remain unaffected.
(6) If after conclusion of the contract it becomes apparent that our claim to the payment of the purchase price is jeopardized by the Purchaser’s inability to pay (e.g. an application for commencement of insolvency proceedings), we shall be entitled pursuant to the statutory provisions to the right to refuse performance and – if necessary after fixing a deadline – to withdraw from the contract (section 321 of the German Civil Code). In the case of contracts for the manufacture of goods that cannot be exchanged (custom-made items), we shall have the right to withdraw immediately; this shall not affect the statutory provisions for the dispensability of deadlines.
retention of title; assignment of claims
(1) We reserve ownership of the goods sold until all our current and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must inform us immediately in writing if and to the extent that third parties access the goods belonging to us.
(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we are 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 return does not include a declaration of withdrawal; on the contrary, we are entitled to only demand the return of the goods and to 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 unsuccessfully set the buyer a reasonable deadline for payment or setting a deadline of this kind is unnecessary under the statutory provisions.
(4) Until revoked, the buyer is authorized in accordance with letter (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
a) The retention of title extends to the products created by processing, mixing or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
b) The buyer hereby assigns to us as security all claims against third parties arising from the resale of the goods or the product or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, does not default on 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 the information required 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 will release securities of our choice at the request of the buyer.
(5) With the settlement of all claims of the buyer from the business relationship, ownership of the reserved goods and the assigned claims are transferred to the buyer.
warranty; procurement risk; guarantee
(1) The statutory provisions shall apply to the rights of the buyer in the event of material defects and defects of title (including incorrect and short deliveries 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 in accordance with §§ 478, 445a, 445b BGB) remain unaffected, unless equivalent compensation has been agreed, e.g. as part of a quality assurance agreement.
(2) Our liability for defects is primarily based on the agreement made on the quality and the anticipated use of the goods (including accessories and instructions). All product descriptions and manufacturer information that are the subject of the individual contract or that were made public by us (in particular in catalogs or on our Internet homepage) at the time the contract was concluded are deemed to be quality agreements. If the quality has not been agreed, it is to be assessed according to the statutory regulation whether there is a defect or not (§ 434 Para. 3 BGB). Public statements by the manufacturer or on its behalf, especially in advertising or on the label of the goods, take precedence over statements by other third parties.”
(3) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether there is a defect or not (§ 434 Para. 1 Sentence 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g. advertising statements).
(4) In principle, we are not liable for defects that the buyer is aware of at the time the contract is concluded or is unaware of due to gross negligence (Section 442 of the German Civil Code). The buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). Upon delivery of the goods, the buyer must immediately carry out an initial visual and quantity check. In the case of building materials and other goods intended for installation or other further processing, an inspection must be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. 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 that cannot be identified during the inspection within the same period of time from discovery, whereby the timely dispatch of the notification is sufficient to meet the deadline. Irrespective of the first visual and quantitative inspection, the buyer has a total of four months after delivery for graphite electrodes or two weeks for special graphite to carry out a proper inspection in order to identify and report defects. A proper examination includes, among other things, a trial processing of the goods. In the case of the delivery of larger quantities, at least meaningful spot checks are to be carried out. If the buyer fails to report the defect in a timely manner, our liability for the defect not reported in time is excluded, unless there is a defect that could not be discovered despite proper inspection. In the case of goods intended for installation, attachment or installation, this also applies if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, the buyer has no claims for reimbursement of corresponding costs (“removal and installation costs”).
(5) If the goods are delivered in several partial deliveries, each partial delivery must be examined separately.
(6) If the delivered item is defective, we can initially choose whether to provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement delivery). If the type of supplementary performance chosen by us is unreasonable for the buyer in an individual case, he can reject it. Our right to refuse supplementary performance under the statutory requirements remains unaffected.
(7) We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
(8) The buyer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to us in accordance with the statutory provisions; However, the buyer does not have a right of return. Subsequent performance does not include the removal, removal or dismantling of the defective item, nor the installation, attachment or installation of a defect-free item if we were not originally obliged to provide these services; Claims by the buyer for reimbursement of corresponding costs (“removal and installation costs”) remain unaffected.
(9) We shall bear the expenses required for the purpose of testing and supplementary performance, in particular transport, travel, labor and material costs and any dismantling and installation costs in accordance with the statutory provisions and these AVB if there is actually a defect. However, if the buyer’s request for rectification of defects turns out to be unjustified, we can demand reimbursement of the costs incurred from the buyer.
(10) In urgent cases, e.g. B. if operational safety is endangered or to prevent disproportionate damage, the buyer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this. We must be informed immediately, if possible beforehand, of such a self-performance. The right to take action ourselves does not exist if we were entitled to refuse subsequent performance in accordance with the statutory provisions.
(11) If the supplementary performance has failed or a reasonable period of time to be set by the buyer for the supplementary performance has expired without success or is unnecessary according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
(12) Claims of the buyer for damages or reimbursement of wasted expenses exist only in accordance with § 8 and are otherwise excluded.
Liability and Limitation of Liability
(1) Unless otherwise stated in these AVB including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We are liable for damages – for whatever legal reason – in the event of intent and gross negligence. We are only liable for simple negligence
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the breach of a material contractual obligation (obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which 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 damage.
(3) The limitations of liability resulting from paragraph 2 also apply to third parties and to breaches of duty by persons (also in their favor) for whose fault we are responsible according to statutory provisions. The limitations of liability resulting from paragraph 2 do 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 by the buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
statute of limitations
(1) Contrary to Section 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is 12 months from delivery. If acceptance has been agreed, the limitation period begins with acceptance.
(2) However, if the goods are a building or an item that has been used for a building in accordance with its usual purpose and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory provisions (§ 438 para. 1 no. 2 BGB). Other special statutory regulations on the statute of limitations remain unaffected (in particular § 438 Paragraph 1 No. 1, Paragraph 3, §§ 444, 445b BGB).
(3) The above limitation periods of sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in individual cases to lead. The limitation of the product liability law remain unaffected in any case. Otherwise, the statutory limitation periods apply exclusively to claims for damages by the buyer in accordance with Section 8.
(1) The law of the Federal Republic of Germany shall apply to these AVB and all legal relationships between Graphite Materials and the purchaser, to the exclusion of uniform international law, in particular the UN Sales Convention. Prerequisites and effects of the retention of title are subject to the law at 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 iSd. Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship is our place of business in Zirndorf. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, we are also entitled to bring an action at the place of jurisdiction of the buyer.