General Terms and Conditions of Gira Giersiepen GmbH Co. KG
1. General provisions
- The mutual written declarations are decisive for the scope of the goods or services. However, the Customer’s General Terms and Conditions shall only apply insofar as the Supplier or Performing Party has expressly agreed to the same in writing.
- The Supplier reserves the unrestricted right to exercise their rights of use to ownership and copyright for all cost estimates, drawings and other documents. The documents may only be made accessible to third parties with the Supplier’s prior consent. If the order is not placed with the Supplier, the documents shall be returned to the same upon request without undue delay. Clauses 1 and 2 shall apply mutatis mutandis to the Customer’s documents. However, these same documents may be made accessible to any third parties that the Supplier has, where permitted, tasked with deliveries.
- The Customer has the non-exclusive right to use standard software with the agreed performance characteristics in an unchanged form on the agreed devices. The Customer may create a back-up copy without express agreement.
- Partial deliveries are permissible if they are acceptable to the Customer.
2. Conclusion of the contract – written form
- Unless specified otherwise in writing, Gira’s offers are non-binding. An order shall be deemed to have been accepted only when Gira has confirmed it in writing. In this regard, only the text of Gira’s order confirmation is binding.
- All agreements, declarations and other information must be made in writing to be valid. Phone calls, faxes, telegrams and telexes shall be confirmed by Gira in writing.
3. Scope of goods and services
- The documents, drawings, information about weights, samples etc. enclosed with Gira's offer are only approximate, unless otherwise stated in the offer.
- Gira expressly reserves the right to make changes to the design, layout, choice of materials and manufacturing process even after sending the order confirmation, provided that this does not affect the quality, price and/or material functional data or the delivery period and that this is acceptable to the Customer.
4. Delivery periods
- The delivery time specified by Gira in the order confirmation is non-binding, unless otherwise agreed in writing. This is expressly dependent on correct and timely deliveries being made to Gira. The delivery period shall start on the date on which Gira’s order confirmation is sent, but not before all the technical detailed issues have been clarified in full.
- The delivery time shall be extended if unforeseen, extraordinary and inevitable events occur, particularly if there are strikes of any kind and if Gira’s suppliers fail to deliver on time, even if these events occur when a delay has already been caused.
- If dispatch is delayed at the Customer’s request or for other reasons that are not attributable to Gira, the Customer shall bear the resulting additional costs and shall bear the risk of the goods being accidentally lost or damaged following notification of readiness for dispatch.
- If goods are stored in Gira’s factory (or with Gira’s authorised representatives), Gira is entitled to charge at least 0.5% of the price of the delivery for each month begun. Gira reserves the right to make other claims, particularly under the terms of Section 373 of the German Commercial Code.
- Gira categorically reserves the right to make partial and early deliveries.
- In the event of delayed delivery for which Gira is responsible, the Customer shall be obliged to set an appropriate grace period for Gira. The Customer is entitled to withdraw from the contract if, in the event of delayed delivery, the Customer gives Gira a grace period that is appropriate under the circumstances and Gira misses this deadline for reasons for which it is responsible. The Customer may only claim compensation if any losses or damages suffered were caused as a result of intent or gross negligence.
- If the contract is a fixed-date transaction under the terms of Section 376 of the German Commercial Code, Paragraph 6 shall apply provided that the Customer may withdraw from the contract in writing to the exclusion of all further rights, unless the losses or damages were caused due to intent or gross negligence.
- In order for Gira to comply with the delivery period, the Customer must properly fulfil its contractual obligations – particularly its payment obligations – in good time.
5. Transfer of risk, dispatch, packaging, receipt
- Risk shall be transferred from Gira’s factory or delivery warehouse (INCOTERMS 2000) to the Customer. This shall also apply to the extent that partial deliveries are made.
- Dispatch shall take place at the Customer’s expense and risk. Unless the Customer provides shipping instructions, Gira shall select the cheapest mode of transport and the cheapest transport route.
- The packaging costs shall be calculated at cost price unless agreed otherwise.
- If Gira takes out transport insurance as part of its general insurance policy, settlement shall take place according to the insurance conditions upon submission of the following documents:
a) Proof of delivery from the transport company (e.g. receipt from the carrier)
b) Original consignment note
c) Transfer of right for the damage caused.
- If Gira is responsible for the transport damage, the Customer is obligated to inform Gira in writing – immediately after receiving the consignment – that transport damage has occurred. The damaged parts shall be sent back to Gira’s factory in Radevormwald or to the relevant delivery warehouse free of charge.
- The Customer may not refuse to accept deliveries because of minor defects.
6. Prices, terms of payment, securities
- Gira’s prices are ex works or the relevant delivery warehouse (as per INCOTERMS 2000), plus any applicable statutory value-added tax.
- Gira’s prices are based on the cost factors that are decisive at the time the offer (order confirmation) is submitted. If these same cost factors change between the time the contract is concluded and the time the goods are delivered, Gira reserves the right to change the price in reasonable proportion to the increased costs.
- If the Customer orders a fixed quantity of goods worth at least EUR 500 net, Gira shall offer carriage-paid delivery of the goods to the receiving station excluding packaging. If the Customer orders a fixed quantity of goods worth EUR 1,000 net, Gira shall offer carriage-paid delivery of the goods to the receiving station including packaging. A flat-rate processing fee of EUR 15 shall be charged for orders of less than EUR 100. For third-party deliveries (where the shipping address is different from the order address), Gira shall charge flat-rate shipping costs of at least EUR 7.50 per consignment. Higher shipping costs shall be agreed with the Customer on a case-by-case basis.
- All of the Customer’s payments shall be made to Gira’s bank account on the specified dates, free of charge and without any deductions. The Customer shall only be entitled to offset rights in the event of undisputed and legally established claims. In such situations, the Customer shall also have a right of retention. The Customer shall also have a right of retention if such a right is due to a delivery defect attributable to Gira. In such situations, however, the right of retention may only be exercised in proportion to the defect actually present.
- If, after the date on which Gira sends out its order confirmation, the Customer’s financial situation changes in such a way that might raise doubts as regards the Customer fulfilling their payment obligations, Gira is entitled to withhold delivery of the goods or to request security from the Customer. If the Customer does not comply with Gira’s request for security within a reasonable period of time, Gira is entitled to withdraw from the contract.
- If payment is made within 10 days of the invoice date, Gira shall give a discount of 2%. No discount shall be given on outstanding or exchange payments. The standard payment term is 30 days strictly net.
- Gira’s representatives and travelling salespeople are not entitled to accept payments or means of payment unless they have the authority to collect.
- Bills of exchange and cheques shall only be accepted on account of payment. The bank, discount and collection charges shall be borne by the Customer. Payments made by bills of exchange and cheques shall only be deemed to have been made once the relevant amount has been credited to Gira’s account.
- Following receipt of the goods, the Customer is obligated to pay the Supplier’s receivable within 30 days. Once this period has elapsed, the Customer shall fall into arrears without any further reminder being required.
- While the Customer is in default, it shall pay interest of 8% above the base rate on the amount owed. Gira reserves the right to provide proof that greater damage has been caused by the Customer’s default and to assert a claim for the same.
- If the Supplier has assumed responsibility for installation or assembly, the Customer shall – unless otherwise agreed – bear all the necessary incidental costs (such as travel costs, costs for transporting employees’ tools and personal luggage, as well as per diem allowances) in addition to the agreed remuneration.
7. Material defects
The Supplier shall be held liable for material defects as follows:
- All those parts or services that prove to have a material defect within the period of limitations – regardless of the operating period – shall at the Supplier’s discretion be repaired, replaced or provided again free of charge, provided that the cause of the same material defect already existed at the time of transfer of risk.
- The period of limitations for claims for material defects is 24 months. This shall not apply if the
law according to Section 438 Para. 1 No. 2 (Construction Work and Materials for Construction Work), Section 479 Para. 1 (Right of Recourse) and Section 634a Para. 1 No. 2 (Construction Defects) of the German Civil Code stipulates longer periods and – in cases of death, personal injury or damage to health – in the event of the Supplier violating their obligations due to intent or gross negligence and in the event of fraudulent concealment of a defect. The foregoing shall be without prejudice to the legal regulations on suspension of the statute of limitations, suspension and recommencement of the time periods.
- The Customer shall inspect the goods and services immediately after receiving the same.
Section 377 of the German Commercial Code shall apply.
The Customer shall inform the Supplier of any material defects in writing within a period of two weeks. For obvious defects, this period shall begin when the goods are delivered to the Customer. If Gira is not notified of the defect in good time, the Customer may not make any claims under warranty. Timely dispatch shall be sufficient for observance of the deadline. The Customer shall bear the full burden of proof for all claim requirements, particularly for the defect itself, for the point in time that the defect was found and for promptly lodging a complaint notification.
- In the case of complaints that are submitted in due time and form, the Customer may withhold payments to an extent in reasonable proportion to the material defects identified. The Customer may only withhold payments if a complaint that is beyond doubt has been lodged. If the complaint was submitted wrongly, the Supplier is entitled to request compensation from the Customer for any expenses it incurred.
- First of all, the Supplier shall be given a reasonable period of time to rectify the problem. Any replaced parts shall be returned to Gira free of charge upon request.
- If the attempt to rectify the problem fails (under the terms of Section 440 of the German Civil Code), the Customer may withdraw from the contract or reduce the remuneration, notwithstanding any claims for compensation under the terms of Art. XI.
- Claims for defects cannot be made if there is only a minor deviation from the agreed quality, a minor impairment in usability, natural wear or damages that occurred following transfer of risk due to incorrect or negligent handling, excessive loading, unsuitable operating resources, defective construction work, an unsuitable building site or particular external influences that are not provided for in the contract, or non-reproducible software errors. If modifications or repair work is/are improperly carried out by the Customer or third parties, claims for defects may also not be made for the same or the resulting consequences. Gira’s warranty obligation further requires that the goods are properly assembled and commissioned, and used precisely in accordance with Gira’s operating instructions.
- The Customer may not make any claims due to the necessary expenses incurred for the purpose of rectification – particularly transport, travel, labour and material costs – if the expenses increase because the delivery object was subsequently taken to a location other than Customer’s subsidiary, unless such relocation corresponds to its intended use.
- The Customer may only make recourse claims against the Supplier under the terms of Section 478 of the German Civil Code (Entrepreneur’s Recourse) insofar as it has not made any agreements with its own customer that extend beyond the statutory claims for defects. Furthermore, No. 8 shall apply mutatis mutandis to the scope of the Customer’s recourse claim against the Supplier pursuant to Section 478 Para. 2.
- Art. XI (“Other claims for compensation”) shall otherwise apply to claims for compensation. The Customer may not make further claims or claims other than those regulated in the present Art. VIII against the Supplier or its agents due to a material defect.
- An excess or a short delivery of 10% shall be deemed contractually agreed in the case of custom-made products.
8. Returns processing (return of goods)
- If the requirements for the Customer’s warranty claims are not met, Gira is not obligated to take the goods back.
- If Gira exceptionally agrees to take the goods back from the Customer without any warranty claims being made, this constitutes a voluntary measure and does not involve the recognition of legal obligations. This does not justify the Customer making a claim for refund of the purchase price.
- If Gira processes a return without any warranty claims being made as described in No. 2 above, the Customer shall be charged a flat-rate processing fee. The relevant amount of the flat-rate fee can be found on Gira’s website – www.gira.de – on the portal for specialist wholesalers.
9. Reservation of ownership
- Gira shall reserve ownership of the goods until it has received all the payments arising from this supply contract, including all other contracts that were concluded between the Customer and Gira up until conclusion of this contract. The Customer may resell the goods that are subject to reservation of ownership in the ordinary course of business. However, the Customer shall thereupon assign to Gira all claims amounting to the relevant invoice value that the Customer has incurred as a result of reselling the goods to its own customer or to third parties. The Customer is entitled to collect these claims even after they have been assigned.
- Gira’s authorisation to collect the claim itself shall remain unaffected by this. In particular, Gira may demand that the Customer inform it of the assigned claim, their stock and their debtors, provide all the information needed for the purposes of collection, submit the associated documents to Gira without delay and inform the debtor of the assignment in writing.
- Insofar as damage was caused by negligence, Gira’s liability shall be limited to payment of compensation by its liability and/or product liability insurance, provided that the regulation as per Para. 1 places the Customer at an unreasonable disadvantage in a particular case.
- The Customer is not entitled to pledge the goods that are subject to reservation of ownership or to transfer ownership of the same to third parties by way of security.
If the Customer acts in violation of the contract – particularly in the event of default in payment – Gira is entitled to take back the goods. If Gira takes back or pledges the goods, this does not constitute a declaration of withdrawal from the contract. If Gira wishes to declare its withdrawal from the contract, it shall expressly do so in writing.
- The Customer shall inform Gira without delay and in writing in the event of any pledges or other interventions by third parties.
If the goods are resold along with goods that do not belong to Gira, the Customer’s claim against their customer amounting to the delivery price agreed upon between Gira and the Customer upon conclusion of the contract shall be deemed assigned.
Upon request, Gira shall – at its discretion – release to the Customer its security insofar as the value of the security exceeds the claims to be secured by more than 25%.
10. Infeasibility; amendment of the contract
- If the goods or services cannot be delivered, the Customer is entitled to claim compensation, unless the infeasibility is not attributable to the Supplier. However, the Customer’s claim for compensation is restricted to 10% of the value of that part of the delivery that cannot be put into useful operation due to the infeasibility. This restriction does not apply if mandatory liability is applicable in cases of intent, gross negligence or due to death, personal injury or damage to health. This is not associated with any change to the burden of proof to the Customer’s disadvantage. The Customer’s right to withdraw from the contract shall remain unaffected.
- If unforeseeable events under the terms of Art. IV No. 2 substantially change the economic significance or the contents of the delivery or have a significant impact on the Supplier’s operation, the contract shall be adapted accordingly in good faith. If this is not economically justifiable, the Supplier is entitled to withdraw from the contract. If the Supplier wishes to use this right of withdrawal, it shall immediately inform the Customer to this effect after identifying the impact of the event, even if an extension to the delivery time was initially agreed upon with the Customer.
11. Other claims for compensation
- The Customer may not make any claims for compensation and reimbursement of expenses (hereinafter referred to as “claims for compensation”) for any legal reason whatsoever, particularly due to a breach of obligations resulting from the contractual relationship or a tortious act.
- This does not apply if mandatory liability is applicable – under the terms of the German Product Liability Act, for example, in cases of intent or gross negligence, due to death, physical injury or damage to health, or due to the breach of essential contractual obligations. However, the claim for compensation for the breach of essential contractual obligations is restricted to foreseeable damage that is typical of the contract, provided that there is no intent or gross negligence involved, and that there is no liability due to death, physical injury or damage to health. The preceding regulations are not associated with any change to the burden of proof to the Customer’s disadvantage.
- If the Customer is entitled to claims for compensation according to the present Art. XI, they shall lapse when the period of limitations for claims for material defects as per Art. VIII No. 2 lapses. The statutory regulations on periods of limitations shall apply to claims for compensation as per the German Product Liability Act.
12. Place of fulfilment – place of jurisdiction – scope
- The place of fulfilment for all obligations arising from this contract – including any claim resulting from withdrawal – is Radevormwald.
- The places of jurisdiction are agreed as being those places where the courts with jurisdiction for Radevormwald are located. This also applies to legal action regarding bills of exchange and cheques, and particularly to claims arising from the dunning procedure. However, if there are no legal proceedings pending against Gira, Gira is entitled to institute proceedings against the Customer in the court with jurisdiction over the Customer’s place of residence.
- German substantive law shall apply to legal relationships associated with this contract to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- These Terms and Conditions of Sale, Delivery and Payment shall apply only to merchants as defined by Section 24 of the German General Terms and Conditions Act.
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