General Terms and Conditions of Business (GT&Cs)

Gold Engineering GmbH

Section 1

Application

  • (1) These General Terms and Conditions of Business (GT&Cs) shall apply to all business relations with our customers and suppliers (trading partners). In particular, the GT&Cs shall apply to the sale and delivery of goods, to the rendering of assembly and support services (e.g. repair, inspection and servicing) and to the provision of technical personnel. They shall, even if not separately agreed upon again, also apply to all future deliveries, services and offers.
  • (2) These GT&Cs shall apply exclusively. Conflicting, deviating or supplementary GT&Cs of the trading partner shall become part of the contract only if and insofar as we have given our express written consent to their application. This requirement of consent shall apply in any event, for example even if we unreservedly accept a transaction despite knowing the contractual partner’s General Terms and Conditions of Business.
  • (3) Insofar as these GT&Cs are translated into a language other than German in order to facilitate the acknowledgement of these GT&Cs, the text in German shall, in cases of doubt, prevail for the interpretation of the GT&Cs. Therefore, translations into other languages shall merely be of an informative nature in this respect

Section 2 

Offer, Conclusion of a Contract

  • (1) Our offers in prospectuses, advertisements, illustrations, drawings, calculations and other documents shall be subject to change without notice and non-binding, except where they are expressly designated as binding or contain a specific period for acceptance.
  • (2) A contract shall – except where otherwise expressly agreed upon – be brought about only by means of our written acknowledgement of the order. If no order acknowledgement is sent, a contract shall, in any event, be brought about by means of delivery with reference to the content of our invoice. From the time of receipt of an order, we shall have fourteen days within which to accept the order. Verbal assurances made by us prior to the conclusion of the contract shall not be binding in law and shall be effective only if confirmed in writing.
  • (3) During the delivery period, we may, without prior notice, make production-related changes to the goods, insofar as this does not involve changes that are unreasonable for the trading partner or cause the service, or the quality of the delivery item, to be impaired.
  • (4) Supplements and amendments to the agreements made, including these GT&Cs, shall only be effective in writing.
  • (5) The information and descriptions provided by us in prospectuses, advertisements, illustrations, drawings, calculations and other documents relating to the subject-matter of the delivery shall be non-binding in respect of the descriptions of the nature or features of the goods or in respect of weights or dimensions stated. Such information or descriptions shall constitute descriptions or designations of the delivery or service rather than guaranteed quality features. Deviations customary in the trade, deviations that occur owing to legal provisions or that constitute technical improvements as well as the replacement of component parts with parts of equivalent value shall be permissible insofar as such deviations or replacement do not impair usability for the purpose contractually envisaged.
  • (6) We shall retain all rights of title and copyrights in respect of samples, descriptions in prospectuses, advertisements, illustrations, drawings, calculations and other documents, including those in electronic form. Aforementioned documents/information that the trading partner receives from us shall be treated confidentially and not be passed on to third parties, or be copied, without our express consent. On request, these documents/this information shall be returned to us. 

Section 3 

Prices and Payment

  • (1) The prices shall apply to the scope of performance and delivery set out in the order acknowledgements. Any extra or special services shall be charged separately. The prices shall be in euros, ex works, plus packaging, value-added tax at the statutory rate, customs duty in the case of exports as well as charges and other public levies. The deduction of a cash discount shall require our prior written consent.
  • (2) In cases where sales are made in another currency, the trading partner shall bear the exchange rate risk as regards fluctuations between the exchange rate on the day when payments enter our bank accounts and the exchange rate that we have taken as a basis for conversion. We shall immediately additionally claim from the trading partner exchange rate differences disadvantageous to us. These kinds of claims shall be due immediately.
  • (3) Subject to proof, we shall be entitled to pass on to the trading partner any cost increases arising as a result of rises in, for example, wage costs or costs of materials or as a result of price increases on the part of our suppliers. Likewise, we shall, in the event of reductions in costs, correspondingly reduce the price charged to the trading partner.
  • (4) Invoiced amounts shall be paid, without any deduction, within 30 days, unless otherwise agreed upon in writing. The date of receipt on our bank accounts shall be decisive for the date of payment. If the trading partner fails to make a payment when the payment is due, the outstanding amounts shall, from the due date, bear interest at the respective statutory default interest rate applicable; the right to claim a higher interest rate and assert a further claim for loss in the event of default shall remain unaffected.
  • (5) Set-off against counter-claims of the trading partner, or retention of payments on the basis of such claims, shall be permissible only insofar as the counter-claims are undisputed or have been determined by a final and non-appealable court judgement.
  • (6) If, after the contract has been concluded, we become aware of circumstances that are likely to significantly reduce the trading partner’s creditworthiness, and that jeopardise payment of the outstanding claims arising from the respective contractual relationship (including such claims arising from individual orders governed by the same framework agreement), we shall be entitled to carry out deliveries still outstanding, or render services still outstanding, only in exchange for advance payment or the provision of security.
  • (7) If services are ordered under a contract for work, we shall be entitled to demand appropriate part payments for installation and/or repair services to be carried out or already carried out. 

Section 4 

Delivery and Delivery Period

  • (1) Deliveries shall take place ex works.
  • (2) Delivery or performance periods and dates promised shall always be only approximate, unless a fixed period or date has been expressly guaranteed or agreed. Insofar as shipment has been agreed upon, set periods and dates for delivery shall relate to the time of hand-over to the forwarder or carrier or any other third party appointed to carry out the transportation.
  • (3) Insofar as the trading partner is required to hand over to us design documents and/or plans, or fulfil other cooperation or procurement obligations, for the execution of the order, our obligation to meet a set period or date for delivery shall be conditional upon the fulfilment of these contractual duties of the trading partner. Insofar as the trading partner fails to fulfil in due time its obligation in relation to us, the set period or date for delivery shall – without prejudice to our rights arising from default on the part of the trading partner – be extended or postponed.
  • (4) We shall not be liable for any impossibility of delivery or for delays in delivery, insofar as these have been caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of any kind, unavoidable shortage of material or energy, transport delays, strikes, lawful lockouts, shortage of labour, difficulties in obtaining essential official permits, official measures or non-delivery, incorrect delivery or late delivery by suppliers), and for which we are not at fault. Insofar as such events make it materially more difficult or impossible for us to deliver or perform, and such hindrance is not merely temporary, we shall be entitled to rescind the contract. In the event of temporary hindrances, the set periods for delivery or performance shall be extended, or the set dates for delivery or performance shall be postponed, by the duration of the hindrance plus a reasonable start-up period. If, as a result of such delay, it would be unreasonable to expect the trading partner to accept the delivery or performance, the trading partner may rescind the contract by written declaration to us without delay.
  • (5) We shall only be entitled to make sub-deliveries if the sub-delivery can be used by the trading partner for the purpose specified in the contract, it has been ensured that the residual goods ordered will be delivered, and no significant extra expenditure, or additional costs, are incurred upon the trading partner as a result thereof (unless we agree to bear these costs).
  • (6) If we default on delivery or performance, or, for whatever reason, it becomes impossible for us to deliver or perform, our liability shall be limited to damages in accordance with Section 8 of these GT&Cs. 

Section 5

Place of Performance, Shipment, Packaging, Passage of Risk, Acceptance

  • (1) Hamburg is the place of performance for all obligations arising from the contractual relationship, unless otherwise specified. If the seller also owes installation, the place where installation is to take place shall be the place of performance.
  • (2) The method of shipment and the packaging shall be subject to our dutiful discretion.
  • (3) The risk shall pass to the trading partner no later than upon the hand-over of the delivery item (commencement of the loading process being decisive in this respect) to the forwarder or carrier or any other third party appointed to carry out the shipment. This shall apply even if sub-deliveries take place, or we have agreed to render further services (e.g. shipment or installation). If shipment or hand-over is delayed due to a circumstance caused by the trading partner, the risk shall pass to the trading partner from the day when the delivery item is ready for shipment, and we have given the trading partner notification thereof.
  • (4) The trading partner shall bear storage costs incurred after the risk has passed to it. In the event of storage by us, the warehousing costs shall, per week ended, amount to 0.25 % of the amount invoiced for the delivery items to be stored. The right to claim or prove additional or lower warehousing costs shall remain reserved.
  • (5) Only at the trading partner’s express request, and at its expense, shall we insure the consignment against theft and against breakage, transport, fire, and water damage or any other insurable risks.
  • (6) Insofar as acceptance is required, this shall be deemed to have occurred if delivery and, in cases where we also owe installation, installation have been completed, we have communicated this to the trading partner with reference to assumed acceptance under this provision and have called upon the trading partner to declare its acceptance, twenty-four business days have passed since delivery or installation, or the trading partner has begun to use the item (e.g. has put the delivered plant into operation), and twelve business days have, in this case, passed since delivery or installation, and the trading partner has omitted to declare its acceptance within this period for a reason other than due to a defect that has been reported to us and makes use of the item impossible or considerably impairs such use. 

Section 6 

Warranty, Quality-related Defects

  • (1) The warranty period shall be one year from delivery or, insofar as acceptance is required, from acceptance. This period shall not apply to damage claims of the trading partner that arise from mortal injury, physical harm or health damage or from intentional or grossly negligent breaches of duty on our part or on the part of our authorised agents; such claims shall, in each case, become statute-barred in accordance with the statutory provisions.
  • (2) The items delivered shall be inspected with care without delay following delivery to the trading partner or to the third party designated by it. In the case of obvious defects or other defects that would have been evident had an inspection been carried out with care without delay, the items delivered shall be deemed approved by the trading partner if we do not receive a written notification of such defects within eight business days after delivery. In the case of other defects, the items delivered shall be deemed approved by the trading partner if we do not receive notification of such defects within seven business days after the point in time when the defect became apparent. If such defect was already evident to the trading partner at an earlier point in time in the course of normal use, this earlier point in time shall be decisive for the commencement of the time limit for giving notification of such defects. At our request, a delivery item complained of shall be returned to us on a carriage-paid basis. In the case of a justified notification of defects, we shall reimburse the cost of the lowest-cost method of shipment; this shall not apply insofar as the costs rise because the delivery item is located at a place other than the place of intended use.
  • (3) In the case of quality-related defects in the item delivered, we shall, at our option, which must be exercised within a reasonable period, be obliged and entitled to initially rectify the defects or replace the item delivered. If such rectification or replacement fails, i.e. if rectification or replacement is impossible or unreasonable or is refused or unreasonably delayed, the trading partner may rescind the contract or appropriately reduce the purchase price.
  • (4) If we are at fault for a defect, the trading partner may, subject to the prerequisites specified in Section 8, demand compensation for the loss incurred.
  • (5) In cases where component parts from other manufacturers are defective, and we are unable to eliminate these defects for reasons relating to licence law or for factual reasons, we shall, at the trading partner’s option, assert the trading partner’s warranty claims against the manufacturers and suppliers for the trading partner’s account or assign the warranty claims to the trading partner. In the case of such defects, the existence of warranty claims against us shall, subject to the other prerequisites and to these GT&Cs, be conditional upon judicial enforcement of the aforementioned claims against the manufacturer and the supplier having been unsuccessful or, owing to insolvency for example, having no prospect of success. Throughout the duration of the legal dispute, the limitation period for the trading partner’s relevant warranty claims against us shall be suspended. (6) The warranty shall cease to apply if the trading partner alters the delivery item, or the trading partner has the delivery item altered by third parties, without our consent, and this makes it impossible or unreasonably more difficult to eliminate defects. In any event, the trading partner shall bear the extra defect elimination costs arising as a result of such alteration.
  • (7) Any delivery of used items agreed upon with the trading partner in any individual case shall take place without any kind of warranty for quality-related defects. 

Section 7 

Property Rights

  • (1) We shall, in accordance with this Section 7, be accountable that the delivery item is free of industrial property rights and copyrights. Each contractual partner shall notify the other contractual partner in writing without delay if claims based on an infringement of such rights are asserted against it.
  • (2) If the delivery item infringes a third party’s industrial property right or a third party’s copyright, we shall, at our option and our expense, modify or exchange the delivery item to such an extent that third-party rights are no longer infringed, but the delivery item still fulfils the contractually agreed functions, or provide the trading partner with a right of use by concluding a licence agreement. If we fail to do so within a reasonable period, the trading partner shall be entitled to rescind the contract or appropriately reduce the purchase price. Any damage claims of the trading partner shall be subject to the limitations under Section 8 of these GT&Cs. 

Section 8 

Liability for Damages due to Fault

  • (1) Our liability for damages, regardless of the legal basis, in particular on the basis of impossibility, default, defective or incorrect delivery, breach of contract, culpa in contrahendo and tort, shall, insofar as this is dependent upon fault in each case, be limited in accordance with this Section 8.
  • (2) We shall not be liable in cases of ordinary negligence on the part of our organs, statutory representatives, employees or other authorised agents, except where this concerns duties material to the contract. Duties material to the contract encompass the obligation to delivery in due time and to install the delivery item, freedom of the delivery item from defects in title and from quality-related defects that impair, more than merely insignificantly, the proper functioning of the delivery item or its fitness for purpose, as well as the duty to provide advice, the duty to protect and the duty of care that are intended to enable the trading partner to use the delivery item in accordance with the contract or to protect the life and limb of the trading partner’s personnel or protect its property against significant damage.
  • (3) Insofar as we are liable in principle under Section 8 (2), this liability shall be limited to the loss that, at the time of the conclusion of the contract, we had foreseen as being a possible consequence of a breach of contract or ought to have foreseen by applying the care customary in the trade. Additionally, any indirect loss and consequential loss incurred as a result of defects in the delivery item shall be compensable only insofar as such loss is to be typically expected when the delivery item is used as intended.
  • (4) In cases of liability for ordinary negligence, our duty to compensate for property damage and any further pecuniary loss resulting therefrom shall be limited to an amount of 10 million euros per occurrence of damage or loss, even if this concerns a breach of duties material to the contract.
  • (5) The above exclusions and limitations of liability shall apply to the same extent in favour of our organs, statutory representatives, employees and other authorised agents.
  • (6) Insofar as we provide technical information or act in an advisory capacity, and this information or this advice is not part of the contractually agreed scope of performance owed by us, this shall occur free of charge and without any liability whatsoever.
  • (7) The limitations under this Section 8 shall not apply to liability on our part based on intentional misconduct or on mortal injury, physical harm or health damage, or under the Produkthaftungsgesetz [Product Liability Act].

Section 9 

Retention of Title

  • (1) The goods delivered by us to the trading partner shall remain our property until all claims secured have been fully paid. The goods as well as the items taking their place under the following provisions, and covered by the retention title, are hereinafter called “Goods under Retention of Title”.
  • (2) The buyer shall hold the Goods under Retention of Title in safekeeping for us free of charge.
  • (3) Until the Goods under Retention of Title are realised (subsection 8), the trading partner may process and sell these goods in the ordinary course of its business. Pledging or assignment as security shall be impermissible.
  • (4) It is agreed that, in cases where the Goods under Retention of Title are processed by the trading partner, the processing shall take place in our name and for our account, and we shall directly acquire the title or – if the Goods under Retention of Title are processed out of material from multiple owners, or the value of the item processed is higher than the value of the Goods under Retention of Title – the joint title (fractional title) to the newly created item in the ratio of the value of the Goods under Retention of Title to the value of the newly created item. In case we do not acquire such title, the trading partner hereby transfers to us in advance as security its future title or – in the aforementioned ratio – joint title to the newly created item. If the Goods under Retention of Title are combined or inseparably mixed with other items to form one single item, or if one of the other items is to be regarded as the main item, we shall, insofar as the main item belongs to us, transfer to the trading partner on a pro-rata basis the joint title to the single item in the ratio specified in sentence 1.
  • (5) In case the Goods under Retention of Title are sold on, the trading partner hereby assigns to us in advance as security the claim ensuing therefrom against the buyer, in the case of joint title to the Goods under Retention of Title on a pro-rata basis commensurately with the co-ownership share. The same shall apply to other claims that take the place of the Goods Under Retention of Title or otherwise ensue in respect of the Goods Under Retention of Title, such as for example insurance claims or tort claims in the event of loss or destruction. We revocably authorise the trading partner to collect in its own name the claims assigned to the seller. We shall be permitted to revoke this collection authorisation only in the event of realisation.
  • (6) If third parties seize the Goods under Retention of Title, in particular by attachment, the trading partner shall, without delay, point out to the third parties our title to these goods and inform us of such seizure in order to enable us to enforce our rights of title. Insofar as such third party is not in a position to reimburse us for the court or out-of-court costs arising in this connection, the trading partner shall be liable for these costs in relation to us.
  • (7) We shall release the Goods under Retention of Title as well as the items or claims taking their place if and insofar as their value exceeds by more than 50 % the sum of the claims secured. Selection of the items then to be released shall be subject to our discretion.
  • (8) If we rescind the contract in the event that the trading partner has acted contrary to the contract (case of realisation), particularly in the event of default in payment, we shall be entitled to reclaim the Goods under Retention of Title. 

Section 10 

Provision of Technical Personnel and the Trading Partner’s Duty to Cooperate

  • (1) Insofar as we provide technical personnel, the personnel shall be selected at our discretion with the diligence of a prudent merchant. We reserve the right to exchange our personnel or, depending upon the requirements of the order, add to or reduce our personnel. We also reserve this right to exchange, add to or reduce our personnel during the execution of an order.
  • (2) All preliminary work must be completed before our work begins. The trading partner shall, to the best of its ability and at its own expense, assist our personnel with carrying out the agreed services. In particular, auxiliary personnel and auxiliary resources as well as electricity and water, including the connections necessary for this, shall be made available to our personnel free of charge, insofar as this is necessary for dealing with the order. The same shall apply to the provision of consumables and operating materials. Moreover, suitable tools shall be made available to the personnel. Furthermore, the trading partner shall, at its own expense, make a competent interpreter available to the personnel during the execution of an order in any non-Germanspeaking or non-English-speaking region. Before our assignment begins, freedom to build must have been brought about by the trading partner.
  • (3) For the services to be rendered on site at the trading partner, a competent and authorised contact person responsible for all pending issues for dealing with the order is to be designated for our personnel and be made available.
  • (4) The trading partner shall be obliged to take the measures necessary for protecting persons and property. Additionally, the trading partner shall be responsible for the safety of the workplace, for the observance of all relevant safety regulations and for the creation of appropriate working conditions for our personnel. It shall inform our personnel of existing safety regulations, insofar as these are of significance for the services to be rendered under the existing contract. Moreover, the trading partner shall endeavour to bring about compliance with the safety regulations by our personnel and, without delay, inform us in the event of breaches.
  • (5) Insofar as individual duties are separately listed here, this list is not definitive.
  • (6) The trading partner shall inform our personnel of particular dangers, such as for example the workplace conditions under which the contract is to be carried out, and of any dangers that could arise at the workplace or when using the items of equipment, or tools, provided. The trading partner shall comply with every appropriate request for additional safety measures that is made by our personnel.
  • (7) The trading partner is aware that our personnel must, when carrying out their work, strictly observe the provisions on health and safety at work imposed by law, by the employers’ liability insurance association or by the company, insofar as these provisions are applicable in Germany. At the workplace, the trading partner shall set up, and maintain, conditions that enable these provisions to be complied with to the greatest possible extent. The trading partner shall, of its own accord, inform our personnel if contact with, or release of, hazardous or health-damaging substances is possible in the course of the work. In particular, the trading partner shall point out to our personnel any use, or possible existence, of asbestos-containing materials in the work area and provide our personnel with a precise specification of the solvent-containing materials made available by the trading partner in the course of the repair. The trading partner is aware that, during and after the execution of work where asbestos-containing materials may be released, ventilation periods of up to 24 hours shall be adhered to if the circumstances so require, and work shall be suspended during this period. Such suspension periods shall be deemed to be working time of our personnel. Our personnel shall decide on the duration of the suspension periods, unless the trading partner proves, by means of a test carried out by an authorised testing institution, that the work area is absolutely free of asbestos dust even before the ventilation periods expire.
  • (8) The trading partner shall be solely responsible for the proper disposal of all hazardous substances arising in the course of our personnel’s work.
  • (9) Non-compliance with the aforementioned provisions shall entitle our personnel to suspend their work. The trading partner shall continue to pay the fee for the duration of such suspensions.
  • (10) The trading partner shall not be entitled to call upon, or obligate, our personnel to carry out work other than the work expressly agreed upon in the respective contract.
  • (11) The trading partner shall grant us all necessary and appropriate assistance with the procurement of visas and other permits or certificates that may be necessary in order to ensure that our personnel are able to take up their work in due time at the workplace specified by the trading partner and return to their home country after they have completed their work. Additionally, the trading partner shall ensure that it assists with dealing with customs formalities.
  • (12) The trading partner shall bear all travel and insurance costs for instruments, tools and personnel luggage, insofar as these costs arise in connection with the contract, as well as costs for long-distance calls etc. and for necessary special equipment, vaccination fees, additional health insurance, taxes, charges and the like, unless otherwise agreed upon in writing.
  • (13) If it becomes necessary to replace our personnel for a reason not attributable to us, the trading partner shall bear the costs arising as a result thereof. The trading partner shall reimburse us for all taxes and social security charges that are, as a result of this contract, levied against us or our personnel outside of Germany and our personnel’s ordinary place of taxation.
  • (14) If our personnel are injured or become ill, the trading partner shall ensure that they receive the essential medical care and – if necessary – are taken to a suitable hospital, and shall inform us thereof without delay. The trading partner agrees to advance any costs arising in this connection (in particular abroad). These shall be reimbursed to the trading partner upon receipt of the corresponding invoices. 

 

Section 11 

Final Provisions

  • (1) If the trading partner is a merchant, a legal entity under public law or a special fund under public law, or if the trading partner does not have a place of general jurisdiction in the Federal Republic of Germany, Hamburg shall, at our option, be the place of jurisdiction for any and all disputes arising from the business relationship between us and the trading partner. Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected by this provision.
  • (2) The relations between us and the trading partner shall be subject exclusively to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
  • (3) Insofar as the contract or these GT&Cs contain omissions, it shall be deemed agreed that these omissions are filled by the legally effective provisions that the contracting parties would have agreed upon in keeping with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery, had the contracting parties been aware of the omission concerned.