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Terms and conditions

This English version is provided for information only. Only the German version is legally binding.

General Terms and Conditions of Güttler GmbH

Version: October 2019

Art. 1 Scope, written form

1.1 Our General Terms and Conditions (“General Terms”) apply exclusively. They apply to entrepreneurs (Section 14 of the German Civil Code (BGB)), legal entities under public law and special funds under public law. We do not recognise any deviating general terms and conditions of the customer unless we have agreed to their validity in writing. Our General Terms also apply if we carry out delivery to the customer without reservation in the knowledge of deviating general terms and conditions of the customer. These General Terms apply in particular to contracts for the sale and/or delivery of movable items (“goods”), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).
1.2 All agreements made between us and the customer in connection with this contract, as well as legally relevant declarations and notifications by the parties with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or similar), must be made or submitted in writing, i.e. in written or text form (e.g. letter, email, fax). Where these General Terms require declarations to be made “in writing”, this is to be understood in the above sense (written or text form). Specifications must be confirmed by the customer in writing. Guarantees must be given in writing. Verbal commitments by our representatives or agents require written confirmation by us. Statutory formal requirements and further evidence, in particular in the event of doubt about the authority of the person making the declaration, remain unaffected.
1.3 These General Terms also apply to all future contracts with the customer.

Art. 2. Offer, conclusion of contract, contract documents

2.1 Our offers are subject to change and non-binding. We may accept contractual offers from the customer within four weeks of their receipt by us.
2.2 Illustrations and specifications in catalogues and brochures are approximate only. We reserve the right to make changes to models, design and equipment.
2.3 We reserve ownership rights and copyrights to illustrations, drawings, calculations and other files or documents that we have provided to the customer – including in electronic form; they must not be made accessible to third parties. This applies in particular to files or documents marked as “confidential”; before passing them on to third parties, the customer requires our express written consent.

Art. 3 Prices, terms of payment, lump-sum damages, set-off, right of retention

3.1 Unless otherwise stated in the order confirmation, all prices are “ex works” plus the VAT applicable on the date of invoicing, excluding packaging, freight, insurance, customs duties, foreign taxes, assembly and commissioning; these are charged separately.
3.2 If dispatch of goods held in stock is delayed at the customer’s request, the customer will be charged – starting one month after notification that the goods are ready for dispatch – the costs incurred through storage, but at least 0.5% of the invoice amount for each month or part thereof. The customer is entitled to prove that we have incurred no loss or a significantly lower loss than the above lump sum.
3.3 Orders are subject to the price list valid on the date of the order. If material prices or wages increase between the order being placed and delivery, we reserve the right to adjust prices accordingly.
3.4 Unless otherwise agreed, payment must be made without deduction within 14 days of invoicing and delivery or acceptance of the goods. On expiry of this payment period, the customer is in default even without a reminder. During the period of default, interest is payable on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages for default. In relation to merchants, our claim to commercial interest from the due date (Section 353 of the German Commercial Code (HGB)) remains unaffected.
We are also entitled at any time, including within an ongoing business relationship, to carry out a delivery in whole or in part only against payment in advance. We will declare any such reservation no later than with the order confirmation.
3.5.1 If delivery by us has been agreed, this means unloading and delivery at ground-floor level. Furthermore, to ensure smooth unloading, the customer must provide qualified personnel and any technical equipment required in good time and at its own expense. It is assumed that our vehicle can drive directly to the unloading point and be unloaded without delay. The customer must provide any access routes required at its own expense.
3.5.2 If an agreed delivery is delayed through no fault of our own, the customer bears the resulting additional costs, in particular the costs of waiting time and of any further journeys required by the personnel we deploy, as well as storage costs.
3.6 If goods supplied by us are taken back without our being obliged to do so, they will be credited to the customer as follows and offset against our outstanding claims, without prejudice to the assertion of claims for damages:
Up to one month after delivery: 75% of the invoice amount
up to three months after delivery: 50% of the invoice amount
We and the customer reserve the right to prove a greater or lesser reduction in value in individual cases.
Returns outside the warranty are at the customer’s expense. Art. 7 of these General Terms remains unaffected.
3.7 Where we are entitled to claim damages in lieu of performance or allow cancellation of the order, lump-sum damages of at least 15% of the order value are agreed. However, the customer is entitled to prove that we have suffered no loss or a significantly lower loss as a result of the payment default, the termination or the cancellation.
3.8 We are not obliged to accept payment by cheque or bill of exchange. If we accept such payment, this is only on account of performance.
3.9 If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardised by the customer’s inability to pay, we are entitled under the statutory provisions to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected. If, after conclusion of the contract, we also become aware of circumstances for which the customer is responsible and which call its creditworthiness into question (e.g. default), we may demand immediate payment of the entire outstanding balance, including from other invoices. This also applies if we have previously accepted bills of exchange or cheques, which in such cases will be returned against cash payment.
3.10 The customer is only entitled to rights of set-off or retention insofar as its claim has been finally established by a court or is undisputed. The customer’s counter-rights in the event of defects in the delivery, in particular under Art. 6.5 sentence 2 of these General Terms, remain unaffected by the above prohibition of set-off and exclusion of the right of retention. Counterclaims are excluded.

Art. 4 Delivery periods, partial deliveries, right of withdrawal

4.1 Delivery periods or delivery dates must be stated in writing and may be agreed as binding or non-binding; in the absence of any other designation, the delivery periods or delivery dates stated are deemed non-binding. Delivery periods begin on conclusion of the contract, but not before all technical questions have been clarified. If no delivery periods have been agreed, delivery will be made as quickly as possible. Partial deliveries are permitted insofar as they are reasonable.
4.2 If we are unable to meet binding delivery periods for reasons for which we are not responsible (non-availability of performance), we will inform the customer of this without delay and at the same time notify the customer of the expected new delivery period. If performance is not available within the new delivery period either, we are entitled to withdraw from the contract in whole or in part; we will refund without delay any consideration already provided by the customer. A case of non-availability of performance in this sense is in particular the failure of our own supplier to deliver to us on time if we have concluded a congruent hedging transaction, if neither we nor our supplier are at fault, or if we are not obliged to procure in the individual case.
4.3 Unless otherwise agreed, we are not responsible for delays in delivery due to force majeure or other circumstances for which we are not at fault, in particular traffic and operational disruptions, strikes, lockouts, shortages of raw materials or war.
4.4 Whether we are in default of delivery is determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required.
4.5 If we are in default of delivery, our liability for default is limited to a maximum of 5% of the value of the delivery. However, we reserve the right to prove that the customer has suffered no loss at all or only a significantly lower loss than the above lump sum.
4.6 The customer’s rights under Art. 7 of these General Terms and our statutory rights, in particular in the event that the obligation to perform is excluded (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.

Art. 5. Delivery, transfer of risk, default of acceptance

5.1 Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. Shipment is always made – even if delivered from a place other than the place of performance – for the account of and, even in the case of carriage-paid delivery, at the risk of the customer. Subject to any other contractual arrangement, we are entitled to determine the method of shipment (in particular the transport company, shipping route and packaging) ourselves. If the customer expressly so requests, we will cover the delivery with transport insurance; the customer bears the costs incurred for this.
5.2 The risk of accidental loss and accidental deterioration of the goods passes to the customer at the latest when the goods are handed over. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delay pass as soon as the goods are handed over to the forwarding agent, the carrier or any other person or institution appointed to carry out the shipment.
If shipment is delayed through the fault of the customer, the risk passes to the customer from the day on which the goods are ready for dispatch. Art. 3.5.3 applies accordingly.
5.3 If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting loss, including additional expenses (e.g. storage costs). For this we charge lump-sum compensation of EUR 50.00 per calendar day, beginning with the delivery period or – in the absence of a delivery period – with notification that the goods are ready for dispatch, but not more than 10% of the net purchase price.
The right to prove a higher loss and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The customer is entitled to prove that we have incurred no loss at all or only a significantly lower loss than the above lump sum.

Art. 6. Claims for defects

6.1 The statutory provisions apply to the customer’s rights in the event of material defects and defects of title, unless otherwise stipulated below. In all cases, the special statutory provisions on final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has processed them further (supplier recourse under Section 478 BGB).
6.2 The basis of our liability for defects is above all the agreement reached on the quality of the goods. Only product descriptions that form part of the contract are deemed to be an agreement on the quality of the goods. We accept no liability for public statements by the manufacturer or other third parties (e.g. advertising statements).
6.3 The customer’s claims for defects presuppose that the customer has complied with its statutory duties of inspection and notification of defects (Section 377 HGB). The customer must inspect delivered goods without delay after delivery, insofar as this is practicable in the ordinary course of business. If a defect becomes apparent on delivery, during inspection or at any later time, we must be notified of it in writing without delay. In any event, obvious defects must be notified in writing within 3 working days of delivery, and defects not detectable during inspection within the same period from discovery. If the customer fails to carry out a proper inspection and/or notification of defects, our liability for a defect that was not notified, not notified in time or not notified properly is excluded in accordance with the statutory provisions.
6.4 If there is a defect, we are entitled to determine the type of supplementary performance, taking into account the nature of the defect and the legitimate interests of the customer. In these contracts, supplementary performance is deemed to have failed after the third unsuccessful attempt. Our right to refuse supplementary performance under the statutory conditions remains unaffected.
6.5. We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.
6.6 The customer 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 event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Supplementary performance includes neither the removal of the defective item nor its reinstallation if we were not originally obliged to install it.
6.7 We bear or reimburse the expenses required for the purpose of inspection and supplementary performance, in particular transport, travel, labour and material costs and, where applicable, removal and installation costs, in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand that the customer reimburse the costs incurred as a result of the unjustified request to remedy a defect (in particular inspection and transport costs), unless the absence of a defect was not recognisable to the customer.
6.8 If supplementary performance has failed, or a reasonable deadline for supplementary performance to be set by the customer has expired without success or is dispensable under the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.
6.9 Claims by the customer for damages or reimbursement of futile expenses exist, even in the case of defects, only in accordance with Art. 7 and are otherwise excluded.
6.10 Used items are sold excluding any warranty. Liability under Art. 7.2 and 7.3 remains unaffected.

Art. 7 Other liability

7.1 Unless otherwise stated in these General Terms, including the following provisions, we are liable for breaches of contractual and non-contractual obligations in accordance with the statutory provisions.
7.2 We are liable for damages – on whatever legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, subject to a milder standard of liability under statutory provisions, we are only liable
(a) for damage resulting from injury to life, body or health,
(b) for damage resulting from a not insignificant breach of an essential contractual obligation (an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable damage of the kind that typically occurs.
In the case of Art. 7.2 sentence 2(b), our liability is excluded if the damage is insurable under an insurance policy to be taken out by the customer; notwithstanding this, our liability in the case of Art. 7.2 sentence 2(b) is limited in amount to €15,000.00.
7.3 The limitations of liability resulting from Art. 7.2 also apply to breaches of duty by or in favour of persons for whose fault we are responsible under statutory provisions. They do not apply if we have fraudulently concealed a defect or have given a guarantee for the quality of the goods, nor to claims of the customer under the German Product Liability Act.

Art. 8 Limitation

8.1 Notwithstanding Section 438(3) BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery.
8.2 However, if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory provision (Section 438(1) no. 2 BGB). Further special statutory provisions on limitation also remain unaffected (in particular Section 438(1) no. 1 and (3), Sections 444 and 445b BGB).
8.3. The above limitation periods under the law on sales also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods, unless application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, claims for damages by the customer under Art. 7.2 sentence 1 and sentence 2(a) and under the German Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.

Art. 9 Retention of title

9.1 We retain title to the goods delivered until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full. This also applies if our claims have been included in a current account and the balance has been drawn and acknowledged.
9.2 The customer is obliged to treat the goods delivered with care. The customer must carry out any necessary maintenance work in good time at its own expense. In particular, the customer is obliged to insure the goods delivered adequately at replacement value against fire, water damage and theft at its own expense.
Unless otherwise agreed, the insurance benefits must be used in full to restore the purchased item. If, in the event of serious damage, repair is waived with our consent, the insurance payment will be used to pay off the purchase price and the prices of our ancillary services.
9.3 The customer must inform us without delay of any loss, destruction or damage to goods subject to retention of title and, on first request, provide us with all damage documentation and assessments relating to the subject matter of the contract and all documents required for settling the claim with the insurer.
9.4 Goods subject to retention of title may neither be pledged to third parties nor assigned as security before the secured claims have been paid in full. In the event of seizure or other interventions by third parties, the customer must point out our ownership and must notify us in writing without delay so that we can enforce our rights (e.g. an action under Section 771 of the German Code of Civil Procedure (ZPO)). The same applies if an application has been filed for the opening of insolvency proceedings concerning the customer’s assets. If the third party is unable to reimburse us for the costs incurred in this connection, the customer is liable for the loss incurred by us.
9.5 In the event of conduct by the customer in breach of contract, 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 return of the goods on the basis of the retention of title. A demand for return does not at the same time constitute a declaration of withdrawal; rather, we are entitled merely to demand return of the goods and to reserve the right to withdraw. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
9.6 Until revoked in accordance with Art. 9.6.3, the customer is entitled to resell and use the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition.
9.6.1 The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the case of processing, mixing or combining with goods of third parties, their right of ownership remains, we acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered subject to retention of title.
9.6.2 The customer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product, in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The customer’s obligations set out in Art. 9.4 also apply with regard to the assigned claims.
9.6.3 The customer remains authorised to collect the claim alongside us. We undertake not to collect the claim as long as the customer meets its payment obligations towards us, there is no deficiency in its ability to pay and we do not assert the retention of title by exercising a right under Art. 9.5. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer’s authority to further sell and process the goods subject to retention of title.
9.6.4 If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer’s request.

Art. 10 Place of performance, applicable law, place of jurisdiction

10.1 The place of performance for all obligations arising from the contract and these General Terms is our registered office.
10.2 The contract and these General Terms are governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
10.3 For contracts with merchants, legal entities under public law, special funds under public law and with foreign parties who have no place of jurisdiction in Germany, the exclusive place of jurisdiction is Stuttgart. However, we also reserve the right to bring an action at the customer’s registered office.

Art. 11 Field test

If field test conditions are granted, which must be done in writing, the machine may only be tested in operation once for 3 hours. The customer bears the costs of delivery. We are entitled to have the field test supervised by our employees or other authorised persons. If a machine does not satisfy the customer, the customer must inform us of this immediately after use and allow a further field test in the presence of our representative. If the machine still does not satisfy the customer, the customer may reject the goods. In this case, the customer must store the machine properly at its own expense until it is collected or otherwise disposed of. The customer bears the costs of the return shipment. Any necessary refurbishment costs are borne by us.

Art. 12 Severability clause

Should any provision of the contract or of these General Terms be or become invalid, this shall not affect the validity of the other provisions of the contract or of these General Terms.

Art. 13 Information on data processing

13.1 When the customer contacts us, we collect and process the following personal data of the customer:

  • First name and surname, company and legal form;
  • Address;
  • Email address;
  • Telephone number (landline, mobile);
  • Other information required for the performance of the contract for the purposes of correspondence and invoicing.

Data processing takes place at the customer’s request and, in accordance with Art. 6(1) sentence 1 lit. b GDPR, is necessary for the performance of the contract and for the mutual fulfilment of obligations arising from the contract. The personal data collected by us will be stored until the statutory retention period has expired and then deleted, unless we are obliged to store it for longer under Art. 6(1) sentence 1 lit. c GDPR due to retention and documentation obligations under tax and commercial law (under the HGB, the German Criminal Code (StGB) or the German Fiscal Code (AO)), or the customer has consented to storage beyond this under Art. 6(1) sentence 1 lit. a GDPR.
13.2 Personal data will only be transferred to third parties

  • insofar as this is necessary for the performance of the contract under Art. 6(1) sentence 1 lit. b GDPR;
  • insofar as there is a legal obligation to do so under Art. 6(1) sentence 1 lit. c GDPR.

13.3 The customer has the right

  • under Art. 7(3) GDPR, to withdraw consent once given to us at any time. As a result, we may no longer continue the data processing based on this consent in the future;
  • under Art. 15 GDPR, to request information about the personal data processed by us. In particular, the customer may request information about the purposes of processing, the category of personal data, the categories of recipients to whom the customer’s data have been or will be disclosed, the planned storage period, the existence of a right to rectification, erasure, restriction of processing or objection, the existence of a right to lodge a complaint, the source of the customer’s data if they were not collected by us, and the existence of automated decision-making including profiling and, where applicable, meaningful information about its details;
  • under Art. 16 GDPR, to request without delay the rectification of inaccurate personal data or the completion of the customer’s personal data stored by us;
  • under Art. 17 GDPR, to request the erasure of the personal data stored by us, unless the processing is necessary for exercising the right of freedom of expression and information, for compliance with a legal obligation, for reasons of public interest or for the establishment, exercise or defence of legal claims;
  • under Art. 18 GDPR, to request the restriction of processing of the personal data insofar as the customer disputes the accuracy of the data, the processing is unlawful but the customer opposes its erasure, we no longer need the data but the customer requires them for the establishment, exercise or defence of legal claims, or the customer has objected to the processing under Art. 21 GDPR;
  • under Art. 20 GDPR, to receive the personal data the customer has provided to us in a structured, commonly used and machine-readable format or to request their transmission to another controller;
  • under Art. 77 GDPR, to lodge a complaint with the competent supervisory authority.

13.4 If the customer’s personal data are processed on the basis of legitimate interests under Art. 6(1) sentence 1 lit. f GDPR, the customer has the right to object to the processing of the personal data under Art. 21 GDPR, provided there are grounds for doing so arising from the customer’s particular situation.

If the customer wishes to exercise its right to object, an email to info[at]guettler.de is sufficient.

Version: October 2019. In the event of any discrepancy between the English and the German version, the German version shall prevail.

General Terms and Conditions of Sale and Business of Güttler GmbH (PDF, German)