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GTC Cellpack GmbH

General Terms and Conditions of Delivery and Payment

I. General provisions

1. These General Terms and Conditions shall apply to legal relations between the Supplier and the Purchaser with regard to deliveries and/or services provided by the Supplier (hereinafter referred to as the „Delivery“ or „Deliveries“). The Purchaser’s general terms and conditions only apply if the Supplier has expressly agreed to their use in writing. Concordant written declarations from both parties shall determine the scope of the Deliveries.

2. The Supplier reserves, without any restrictions, the right of exploitation under its ownership rights and copyrights of cost estimates, drawings and other documents (hereinafter referred to as the „Documents“). Third parties may only access the Documents after obtaining the Supplier‘s prior written consent and if no order is placed with the Supplier, shall return the Documents immediately upon request. Sentences 1 and 2 shall apply accordingly to the Purchaser‘s documents; however they may be accessed by any third party the Supplier has assigned to provide the Deliveries.

3. The Purchaser shall have the non-exclusive right to use standard software and firmware with the agreed features without any changes on the agreed devices. The Purchaser may create a back-up copy of the standard software without express agreement.

4. Partial Deliveries shall be permitted to the extent the Purchaser considers them reasonable.

5. In the General Terms and Conditions, the term „claims for damages“ shall also include claims for compensation for futile expenditure.

II. Prices, payment terms and offsetting

1. The prices shall be quoted ex works excluding packaging and applicable value added tax.

2. If the Supplier has accepted the installation or assembly order and unless otherwise agreed, the Purchaser shall bear all additional costs such as travel and transport costs as well as accommodation allowances in addition to the agreed remuneration.

3. Payments shall be made to the Supplier‘s account without any deductions and free of transaction fees.

4. The Purchaser may only offset claims that are undisputed and established as final and absolute by a court.

III. Retention of ownership

1. The Deliveries (goods subject to retention of ownership) shall remain the property of the Supplier until all claims against the Purchaser arising from the business relationship have been fulfilled. If the value of all security interests to which the Supplier is entitled exceeds the amount of all secured claims by more than 20%, the Supplier shall release a corresponding part of the security interests at the Purchaser‘s request; the Supplier shall be entitled to choose which security interests are to be released.

2. As long as the retention of ownership exists, the Purchaser may not pledge or transfer any security interest, and the Deliveries may only be resold by resellers in regular business transactions and only under the condition that the reseller receives payment from its customer or makes the transfer of ownership dependant on the fulfilment of the customer’s payment obligations.

3. If the Purchaser resells the goods subject to retention of ownership, it shall assign as a security to the Supplier its future claims arising from the resale to its customers with all additional rights, including any balance claims, without this requiring any further declarations. If the goods subject to retention of ownership are resold together with other goods without the individual price having been agreed for the goods subject to retention of ownership, the Purchaser shall assign to the Supplier the part of the total price that corresponds to the price of the goods subject to retention of ownership invoiced by the Supplier.

4. a) The Purchaser shall be entitled to process the goods subject to retention of ownership or mix or combine them with other goods. The goods shall be processed on behalf of the Supplier. The Purchaser shall store the new items for the Supplier with the due diligence of a prudent businessman. The new items shall be considered goods subject to retention of ownership.

b) The Supplier and Purchaser agree that by mixing or combining the items with other items that do not belong to the Supplier, the Supplier shall be entitled to a share in the co-ownership of every new item in proportion of the value of the mixed or combined goods subject to retention of ownership to the value of the other goods at the time they were mixed or combined. To that extent the new items shall be deemed goods subject to retention of ownership.

c) The provision concerning the assignment of claims set forth in No. 3 shall also apply to the new items. However, the assignment shall only apply up to the amount of the value invoiced by the Supplier for the processed, combined or mixed goods subject to retention of ownership.

d) If the Purchaser combines the goods subject to retention of ownership with land or movable objects, it shall assign by way of security to the Supplier its claims for remuneration for the combination, with all ancillary rights in proportion of the value of the combined goods subject to retention of ownership to the other combined goods at the time they were combined, without requiring any further declarations.

5. Until revoked, the Purchaser may collect assigned claims arising from the resale. Where good cause exists to do so, in particular in case of late payments, suspension of payments, start of insolvency proceedings, noting and protest of a bill or substantiated evidence indicating excessive indebtedness or threatening insolvency of the Purchaser, the Supplier shall be entitled to revoke the authorization of the Purchaser to collect on claims. Furthermore, after prior warning and after an appropriate notice period, the Supplier may disclose the assignment of security, use the assigned claims as well as request from the Purchaser that the latter disclose the assignment of security to its customers.

6. The Purchaser shall immediately inform the Supplier in case of seizure, confiscation or other dispositions or interventions by third parties. If the Purchaser can substantiate a legitimate interest, the Purchaser shall immediately provide the Supplier with the required information to assert its rights against the customers and to submit the necessary documents.

7. If the Purchaser violates its obligations, in particular if payments are delayed, the Supplier shall be entitled to not only have the Deliveries returned but also to withdraw from the contract if an appropriate period of time granted to the Purchaser to fulfil its obligations has lapsed without result; this shall be without prejudice to the statutory provisions to set deadlines. The Purchaser shall surrender the Deliveries. Taking back the Deliveries or asserting claims of retention of ownership or seizing the Deliveries subject to retention of ownership by the Supplier shall not be considered withdrawal from the contract unless the Supplier expressly declares withdrawal.

IV. Delivery deadlines; delays

1. Adherence to the delivery deadlines shall require that Purchaser supplies all documents, necessary approvals and clearances, in particular of plans, in good time as well as that the Purchaser adheres to the agreed terms of payment and other obligations. If these conditions are not met in good time, the deadlines shall be extended for an appropriate period of time; this shall not apply if the Supplier is not responsible for the delay.

2. If the deadlines cannot be met due to

a) force majeure e.g. mobilisation, war, acts of terrorism, riots or similar events (e.g. strikes, lockouts),

b) viruses or other attacks by third parties on the Supplier‘s IT

system, provided these occurred despite due diligence with regard to using protective measures,

c) hindrances due to German, American or other applicable

national, EU or international provisions of the foreign trade and payment law or due to other circumstances that are beyond the Supplier’s control, or

d) late or improper delivery by the Supplier, the deadlines shall be extended accordingly.

3. If the Supplier fails to meet the deadline, the Purchaser, provided there is evidence that damages occurred, may demand damages of 0.5% for each full week of delay but no more than 5% in total, of the price for the part of the Delivery that could not be used for its specific purpose due to the delay.

4. Both, claims for damages by the Purchaser due to a delayed delivery as well as claims for damages in lieu of performance that exceed the limits stated in No. 3, shall be excluded in all cases of delayed delivery, even after the time period the Supplier was granted to General Terms and Conditions of Delivery and Payment of Cellpack GmbH deliver the goods has lapsed. This shall not apply to cases of intent, gross negligence or injury to life, limb or health. The Purchaser may only withdraw from the contract within the scope of statutory provisions to the extent that the Supplier is responsible for the delay in the delivery. Any changes to the burden of proof to the disadvantage of the Purchaser shall not be linked to the provisions set forth above.

5. At the Supplier‘s request and within an appropriate notice period,the Purchaser shall declare whether it shall withdraw from the contract due to the delay of the delivery or insists that delivery be carried out.

6. If shipments or deliveries are delayed at the request of the Purchaser by more than one month after notification that the Deliveries are ready for delivery, the Purchaser may be invoiced storage fees in the amount of 0.5% of the price of the items to be delivered for each storage month started, but no more than a total of 5% of the price. It shall be left to the Contractual Parties‘ discretion whether evidence of higher or lower storage costs should be presented.

V. Transfer of risks

1. In the case of Deliveries that are free of transportation charges, the risk shall be transferred to the Purchaser as follows:

a) in the case of Deliveries which do not require installation or assembly, upon dispatch or collection of the Deliveries. Upon request and at the cost of the Purchaser, the Supplier shall insure the Deliveries against standard transportation risks.

b) in case of Deliveries that include installation or assembly, on the day the Purchaser receives the Deliveries at the Purchaser’s location or, if agreed, after successful trial run.

2. If shipment, delivery, start and execution of the installation or assembly, receipt at the Purchaser‘s location or trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser delays accepting the Deliveries for other reasons, the risk shall be transferred to the Purchaser.

VI. Installation and assembly

Unless otherwise agreed in writing, the following shall apply to installation and assembly:

1. The Purchaser shall provide at its own costs and in good time:

a) all earthworks, construction work and other additional work from other sectors, including skilled and auxiliary staff, building materials and tools required,

b) the items and materials required for assembly and start-up, such as scaffolding, hoists and other equipment, fuels and lubricants,

c) energy and water at the installation site including connections, heating and lighting,

d) at the installation site, large, suitable, dry and lockable rooms for storing machine parts, apparatus, equipment, tools etc. and suitable work and recreation rooms including sanitary facilities for the assembly staff that are suitable under the respective circumstances; additionally, the Purchaser shall take the same measures to protect the property of the Supplier and the assembly staff at the building site it would take to protect its own property.

e) Protective clothing and equipment that are required due to certain conditions at the installation site. Before the start of the assembly work, the Purchaser shall provide the necessary information about the location of concealed electricity lines and gas and water pipes or similar installations as well as necessary structural data, without being requested to do so.

2. Before the start of the installation or assembly, the materials and items required to carry out the work must be available at the installation or assembly site and all preparations must be completed to the extent that the installation or assembly can be started as agreed in the contract and carried out without interruptions. Access routes and the installation or assembly site must be levelled and cleared.

3. If the installation, assembly or start-up is delayed due to reasons beyond the Supplier‘s control, the Purchaser shall bear the costs for any waiting time and any additional necessary journeys of the Supplier or assembly staff to a reasonable extent.

4. The Purchaser shall provide evidence to the Supplier of the length of time that the assembly staff work on a weekly basis as well as immediately report the completion of the installation, assembly or start-up.

5. If the Supplier demands that the Delivery be accepted after completion, the Purchaser shall do so within two weeks. If the Purchaser allows the two-week deadline to lapse or if the Delivery is put into use, as the case may be, after an agreed-upon test period has ended, acceptance shall be deemed to have incurred.

VII. Acceptance

The Purchaser may only refuse acceptance of Deliveries in case of significant defects.

VIII. Material defects

The Supplier shall be liable for material defects as follows:

1. At the Supplier‘s discretion, all parts or services that show defects shall be repaired, replaced or newly provided free of charge, provided the cause of the defect already existed at the time risk was transferred.

2. Claims for remedial action shall expire 12 months after the starting date of the statutory limitation period; the same shall apply to withdrawal and reduction of price. This period shall not apply if longer terms are required by law pursuant to §§ 438 Paragraph 1, No. 2 (construction and construction materials), 479 Paragraph 1 (recourse claim) and 634a Paragraph 1, No. 2 (construction defects) BGB (German Civil Code) in the case of intent, deliberate concealment of the defect as well as non-compliance with a quality guarantee. The legal provisions regarding suspension of expiration of prescription, interruption of the running of the statute of limitation and recommencement of the term shall remain unaffected.

3. The Purchaser shall submit any notices of defects immediately in writing.

4. In the case of notices of defects, the Purchaser may withhold payment in proportion to the material defect. The Purchaser may only withhold payments if a complaint in respect to a defect is filed and if there are no doubts that the defect exists. The Purchaser may not withhold payments if its claims for defects are time-barred. If a notice of defect is unjustified, the Supplier shall be entitled to compensation by the Purchaser for the expenses incurred in connection therewith.

5. The Supplier shall be granted the opportunity to carry out remedial action within an appropriate time period.

6. If the remedial action fails, the Purchaser shall have the right to withdraw from the contract or to decrease remuneration, without prejudice to any claims for damages pursuant to No. 10.

7. No claims for defects shall be asserted in the case of insignificant deviation from the agreed conditions, insignificant impairment to usability, natural wear and tear or damages caused after the transfer of risk as a result of incorrect or careless use, excessive use, unsuitable equipment or other particular external influences not provided for in the contract, as well as in the case of software errors that cannot be reproduced. If the Purchaser or a third party incorrectly makes changes or repairs, no claims for damages may be asserted for those or for consequences resulting therefrom.

8. Claims made by the Purchaser regarding expenses required for the remedial work, in particular transport, travel, work and material costs, shall be excluded if the expenses are increased because the Delivery was delivered to another place than the Purchaser‘s location, unless this suits the intended purpose.

9. The Purchaser may only make recourse claims against the Supplier pursuant to § 478 BGB (recourse by the employer) if the Purchaser has not made any agreements exceeding the statutory claims for defects. No. 8 shall apply accordingly to the scope of the Purchaser‘s recourse claim against the Supplier pursuant to § 478 Paragraph 2 BGB.

10. The Purchaser may not assert any claims for damages due to material defects. This shall not apply in the case of deliberate concealment of the defect, non-compliance with the quality guarantee, in the case of injury to life, limb or health, and if the Supplier violates its obligations wilfully or due to gross negligence. Any changes to the burden of proof to the disadvantage of the Purchaser shall not be linked to the above provisions. Any further claims or claims other than those stipulated in Art. VIII by the Purchaser due to a material defect shall be excluded.

IX. Intellectual property rights; defects in title

1. Unless otherwise agreed, the Supplier shall provide the Delivery unencumbered of any intellectual property rights of third parties (hereinafter referred to as the „Property Rights“) only in the country where delivery takes place. If third parties assert valid claims against the Purchaser due to a violation of Property Rights in connection with Deliveries provided by the Supplier and used pursuant to the contract, the Supplier shall be liable to the Purchaser within the period specified in Art. VIII, No. 2 as follows:

a) At its own discretion and costs, the Supplier shall either obtain the right to use the Deliveries concerned, change the Deliveries so that the Property Rights are not violated or replace the Deliveries. If this is not feasible for the Supplier under reasonable conditions, the Purchaser shall be entitled to make use of its statutory right to withdraw from the contract or to reduce the price.

b) The Supplier‘s obligation to pay damages shall be determined by Art. XII.

c) The Supplier‘s obligations set forth above shall only exist if the Purchaser notifies the Supplier immediately in writing of any claims made by third parties, does not acknowledge a violation and the Supplier’s rights to take defence measures and engage in settlement procedures are reserved. If the Purchaser ceases to use the Delivery in order to reduce damages or for other important reasons, it shall notify the third party that the suspension of use it not an acknowledgement of a violation of Property Rights.

2. Claims made by the Purchaser are excluded if the Purchaser is responsible for the violation of the Property Rights.

3. Claims made by the Purchaser shall also be excluded if the violation of Property Rights is caused by specific specifications of the Purchaser, by use that was unforeseeable for the Supplier or is caused by the fact that the Delivery has been changed by the Purchaser or is used together with products not delivered by the Supplier.

4. In the case of a violation of Property Rights, the provisions in Art. VIII, No. 4, 5 and 9 shall apply accordingly to claims stipulated in No. 1a) above made by the Purchaser.

5. In the case of other defects in title, the provisions of Art. VIII shall apply accordingly.

6. Any further claims or claims other than those stipulated in Art. IX by the Purchaser against the Supplier and its agents shall be excluded due to defect in title.

X. Conditions for fulfilment

1. The fulfilment of the contract shall be under the reservation that no hindrances due to German, American or other applicable national, EU or international provisions of the foreign trade and payment law as well as no embargos or other sanctions restrict such fulfilment.

2. The Purchaser shall provide all information and documents required for export, shipment or import.

XI. Impossibility, contract adjustments

1. If a Delivery cannot be provided, the Purchaser shall have the right to demand damages unless the reasons for the non-provision are beyond the Supplier’s control. However, claims for damages by the Purchaser shall be limited to 10% of the value of the Delivery part that cannot be used for its intended purpose due to the Supplier‘s inability to provide the Delivery. This limitation shall not apply if liability is mandatory, e.g. due to intent, gross negligence or due to injury to life, limb or health; any changes to the burden of proof to the disadvantage of the Purchaser shall not be linked hereto. The Purchaser‘s right to withdraw from the contract shall remain unaffected.

2. If events within the meaning of Art. IV No. 2 a) to c) significantly change the economic importance or the contents of the Deliveries or significantly impact the Supplier‘s business operations, the contract shall be adjusted appropriately based on good faith. If this is not economically feasible, the Supplier shall be entitled to withdraw from the contract. The same shall apply if necessary export licences are not granted or are not useable. If the Supplier wishes to exercise its right to withdraw from the contract, it shall immediately after realising the significance of the event inform the Purchaser, even if an extension of the delivery time was previously arranged with the Purchaser.

XII. Other claims for damages

1. Unless stipulated otherwise in the General Terms and Conditions, claims for damages by the Purchaser, in particular due to a violation of the contract and illegal activities, shall be excluded, irrespective of the legal basis.

2. This shall not apply if claims are made:

a) pursuant to the Product Liability Act,

b) in the case of intent

c) in the case of gross negligence on the part of the owners, legal representatives or executive staff,

d) in the case of fraudulent intent

e) in the case of non-compliance with an accepted guarantee,

f) due to deliberate injury to life, limb or health, or

g) due to culpable violation of important contractual obligations. Claims for damages arising from a violation of important contractual obligations shall be limited to foreseeable damages typical for the type of contract, provided none of the other cases stated above has occurred.

3. Any changes to the burden of proof to the disadvantage of the Purchaser shall not be linked to the provision set forth above.

XIII. Place of Jurisdiction and Applicable Law

1. The sole place of jurisdiction for all disputes arising from this contractual relationship, directly or indirectly, shall be the headquarters of the Supplier if the Purchaser is a usinessman. The Supplier shall also have the right to file suit at the Purchaser‘s headquarters.

2. This contract including its interpretation is subject to German law; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

XIV. Binding effect of the contract

The contract shall remain binding even if individual provisions in its remaining parts become legally invalid. This shall not apply if adherence to the contract would mean unreasonable hardship for one Party.

GTC Cellpack GmbH

GTC Cellpack AG

General Terms of Delivery

1. Exclusive Applicability

The present General Terms of Delivery shall apply if their applicability has been expressly stipulated by either the offer or the confirmation of the order. Terms and conditions of the Buyer shall apply only if and to the extent they have been expressly accepted by the Supplier in writing.  

2. Offers  

Offers that do not stipulate an acceptance period shall not be binding.  

3.  Conclusion of a Contract

The contract of delivery is deemed to have been concluded once the Supplier, after having received an order, has confirmed the same in writing.  

4.  Extent of Delivery

For the extent and execution of a delivery the tenor of the confirmation of the order shall be decisive. Any performance that is not defined in the confirmation of the order shall be charged for separately.  

5.  Technical Documents

Save as provided otherwise, prospectuses and catalogues shall not be binding. Data contained in technical documents shall be binding on the Supplier only if expressly guaranteed.  

6.  Prices

Prices indicated are, as a rule, net prices, ex works, packing excluded, in freely disposable Swiss francs, without any deductions allowed. All incidental expenses, such as freight charges, insurance premiums, expenses relating to export, import, transit and other permits, as well as authentication, shall be assumed by the Buyer. The same applies for any kind of taxes, charges, customs duties and other duties, which shall likewise be assumed by the Buyer. The Supplier reserves the right to adjust prices if, within the period of time from the moment the offer was made and the moment delivery is executed in compliance with the stipulated term, either the wage rates or the cost of material were to vary. This adjustment of prices shall be made in accordance with the price escalator clause defined by VSM (the Swiss Association of Machinery Manufacturers).  

7.  Terms of Payment

Payments shall be made in compliance with terms stated on the invoices. The dates of payment shall also be observed even if transport, delivery, installation, putting into operation, or acceptance of products supplied are delayed or prevented due to reasons beyond Supplier's control. The Buyer shall not withhold - in full or in part - payment of an invoice on account of complaints, claims or counterclaims raised by the Buyer and not recognized by the Supplier. If the Buyer is in default with respect to the agreed terms of payment, he shall be liable, without reminder, to pay default interest, from the agreed date of maturity, at the rate prevailing at Buyer's domicile, but not less than 6 % p.a. Payment of default interest shall not, however, release the Buyer from his contractual obligations to pay.  

8.  Reservation of Title

The Supplier shall remain the owner of all products supplied until he has received payment in full of the agreed amount. The Buyer undertakes to contribute to such efforts as are required with a view to safeguarding Supplier's property. The Buyer herewith authorizes the Supplier to have said reservation of title registered without his cooperation being required.  

 9.  Delivery Period

The agreed delivery period shall start on conclusion of the contract, provided all administrative formalities, such as import permits and permits to transfer funds have been completed and payments and securities made available at the moment the order is placed (if an agreement to this effect had been concluded) and all essential points of a technical nature settled. The delivery period shall be deemed to have been observed if, on its expiry, the products to be supplied are ready to be collected by the Buyer at Supplier's works. The delivery period is reasonably extended in the event of circumstances amounting to force majeure, which the Supplier, in spite of using the required care, is unable to overcome, or if the Buyer is in delay of performance with respect to any of his contractual obligations, in particular if he fails to comply with terms of payment. A contractual penalty to be paid in the event of delayed delivery must be made the object of a separate agreement in writing. If a substitute delivery is made, the Buyer cannot claim payment of the contractual penalty. The Buyer shall not be entitled to raise a claim for compensation of damage suffered, or terminate the Contract on account of the delay in delivery.  

10.  Examination and Acceptance of Products

Supplied  Insofar as this is customary, products to be supplied shall be examined by the Supplier during the process of manufacturing, or prior to delivery, respectively. If the Buyer requests additional examinations to be conducted, a written agreement to this effect shall have to be concluded and costs relating to such examinations shall be at Buyer's expense. The Buyer shall examine the products delivered within ten (10) days after having received them and notify the Supplier immediately and in writing in the event of defects, pointing out to him all relevant particulars. If the Buyer fails to so notify, the products supplied are deemed to have been accepted. If the Buyer wishes examinations preceding acceptance to be conducted, such examinations shall be agreed on in writing. If examinations preceding acceptance cannot be conducted within the prescribed time on account of reasons the Supplier is not responsible for, the products to be supplied are deemed to have the characteristics whose existence the examination was to confirm. The Buyer shall not be entitled to raise any further claims based on faulty delivery; he shall, in particular, not have a claim for damages nor have the right to terminate the Contract.  

11.  Packing

Save as provided otherwise, expenses relating to packing shall be charged to the Buyer separately and packing material is not taken back by the Supplier. If packing material has been marked as being the property of the Supplier, the Buyer shall have to return such packing material to the Supplier, postage/freight paid, to the place of departure of the products supplied  

12.  Passing of Benefit and Risk

Benefit and risk shall pass to the Buyer the moment the products to be supplied have been singled out for delivery to the Buyer, unless Supplier and Buyer have made special arrangements for delivery in accordance with provisions of Incoterms. If delivery is delayed or rendered impossible in consequence of reasons the Supplier does not have to answer for, the products concerned shall be stored at Buyer's risk and expense. 

13.  Transport and Insurance

Any special requests as to delivery or insurance must be made known to the Supplier by the Buyer in due course. Save as provided otherwise, transport shall be effected at Buyer's risk and expense. Complaints relating to transport shall be notified by the Buyer to the last carrier immediately on receipt of the delivery or the respective documents.  

14.  Liability

The Supplier is liable to the Buyer for the quality of his products. The Supplier undertakes to either repair or replace forthwith - at his discretion - upon Buyer's written demand, all parts of which it can be demonstrated that they have become defective or unfit for use on account of faulty material or conception, or imperfection in the execution. Replaced parts shall become the property of the Supplier. The Buyer shall not be entitled to raise any further claims on account of insufficient performance, in particular claims for compensation of damage suffered. A rescission of the Contract and a reduction of the purchase price are likewise excluded. The Supplier only assumes such expenses as are incurred by him in relation with repairing or replacing defective parts in his workshop. If any acts or omissions on the part of the Buyer or his auxiliary staff entail personal injury or damage to property belonging to third parties, and if the Supplier is held liable for such injury or damage caused, the Supplier shall be entitled to have recourse against the Buyer.  

15.  Venue and Applicable Law

Venue for both Buyer and Supplier shall be the place of the Supplier's registered office. The Supplier, however, shall be entitled to bring action against the Buyer also at the place of Buyer's registered office. This contractual relationship is governed by Swiss substantive law. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall not apply.  

September  1994                                                                                     CELLPACK AG