General terms and conditions of business
1. General conditions
- The mutual written declarations are authoritative for the scope of supply and services. The general terms and conditions of the ordering party apply only insofar as the supplier or those performing for the supplier have expressly agreed in writing.
- The supplier reserves the unrestricted property and copyright exploitation rights for cost estimates, illustrations and other documents. The documents may only be made available to third parties with previous consent of the supplier and are to be returned to him/her promptly on demand if the order was not placed with the supplier. Clauses 1 and 2 also apply for the documents of the ordering party; these, however, may be made accessible to third parties to whom the supplier has permissibly transferred supplied goods.
- The ordering party has the non-exclusive right to use the standard software with the performance features agreed upon in unmodified form on the devices agreed upon. The ordering party may make a backup copy without express permission.
- Partial shipments are permissible as long as they are reasonable to the ordering party.
2. Completion of a contract in written form
- Unless something to the contrary has been designated in writing, our offers are non-binding. An order is not considered accepted until it has been confirmed in writing. Only the text in our order confirmation is then binding.
- All agreements, declarations and other specifications must be written in order to be considered valid; telephone calls, facsimiles, telegrams and telexes are to be confirmed in writing with us.
3. Scope of supply and service
- The documents, illustrations, weight specifications, samples, etc. included with our offer are only authoritative to a degree, insofar as nothing contradictory arises from the offer.
- We reserve the express right to modify the structure, design, material selection and manufacture, even after the order confirmation has been sent, as long as the price and/or the essential function data or supply period has not changed as a result and as long as it is reasonable to the customer.
4. Terms of supply
- The supply period specified by us in the order confirmation is non-binding unless stipulated otherwise in writing. We reserve ourselves the express right to deliver in a proper and timely fashion. The term of supply begins with the date on which the order confirmation is sent, however not before complete clarification of all questions regarding technical details.
- The term of supply is extended in the event of unforeseeable, unusual and inevitable events, especially for strikes of any type, and for late supply by us, even if these events do not occur until during a delay already in effect.
- If shipment is delayed on request of the customer or for other reasons beyond our control, the customer shall bear the additional costs which arise and the risk of incidental ruin or degradation of the goods starting from the time of the announcement of readiness to receive the shipment.
- In cases in which goods are stored in our factory (or with those authorised by us), we have the right to charge at least 0.5 % of the price of the supply for each month begun. Additional claims, especially from § 373 HGB (German Commercial Code), are reserved.
- We fundamentally reserve the right to make partial shipments and to supply the goods early.
- In case of a supply delay on our part, the customer is obligated to set a reasonable final delivery deadline. If the customer sets a reasonable final deadline in case such a supply delay occurs and we are responsible for failing to comply with this term, the customer has the right to withdraw from the contract; damage claims only appertain to him/her in case of deliberate or grossly negligent cause of damage.
- If the contract is a firm deal as described in § 376 BGB (German Civil Code), Paragraph 6 applies, providing that the customer may withdraw from the contract with the waiving of any further rights in writing. This is the case unless a deliberate or grossly negligent cause of damage is evident.
- Our compliance with the term of supply requires timely and proper fulfilment of the contractual obligations by the customer, especially his/her duty of payment.
5. Transfer of risks, shipment, packaging, acceptance
- Risk is transferred to the customer from our factory or supply facility (INCOTERMS 2000), including when partial shipments are made.
- Shipment is paid for by the customer and occurs at his/her own risk; if no shipment stipulations have been provided by the customer, we select the cheapest means and route of transport.
- Packaging costs are calculated as original costs, if not agreed otherwise.
- If we accept the transport insurance within the framework of the general policy arranged by us, regulation in accordance with the conditions of insurance occurs when the following documents are presented:
a) Proof of delivery from the transport company (e.g. receipt from carrier)
b) Original carriage note
c) Transfer of right for the damage incurred.
- If we are responsible for the transport damage, the customer is obligated to inform us of incurred transport damage in writing immediately after the shipment is received. The damaged parts are to be sent back to our factory in Radevormwald, Germany or our respective supply facility free of charge.
- The ordering party may not refuse to accept supplied goods due to negligible defects.
6. Prices, payment conditions, securities
- Our prices are to be understood to be from our factory or the respective supply facility (in accordance with INCOTERMS 2000) and do not include the appropriate VAT.
- Our prices are based on the definitive cost factors at the time the offer is tendered (order confirmation). If these change between the time the contract is concluded and the time the goods are supplied, we reserve the right to change the price in reasonable proportion to the risen costs.
- For completed acceptance of goods with a net value of at least EURO 500, we do not charge for delivery to the receiving station, but do charge for packaging, for completed acceptance of goods with a net value of EURO 1,000 or more, we do not charge for delivery to the receiving station or packaging. For orders less than EURO 100, we charge a processing fee of EURO 15. For deliveries where the shipping address differs from the ordering address, we charge a shipping-cost fee of at least EURO 7.50 per shipment. Higher shipping costs are agreed upon with the customer on an individual basis.
- All payments from the customer are to be made to our bank account without a deduction. Offset rights appertain to the customer only with receivables determined to be indisputable or legally valid; in these cases, the customer also has authorisation for retention. He/she is also authorised to retain when the reason for the right of retention is based on a supply defect on our part; in these cases, the right of retention may only be exercised relative to the actual existing defects.
- If the economic standing of the customer changes after the date of send-off of our order confirmation, and it is now questionable whether the customer is able to fulfil his/her payment duties, we are entitled to withhold delivery of the goods or to request security; if the customer does not grant our request for a surety within a reasonable amount of time, we are entitled to withdraw from the contract.
- For payments made within 10 days after the invoice date, we give a discount of 2%. Payments in arrears and bill payments preclude a discount. The open target time is 30 days; strictly net cash.
- Our representatives and travelling personnel are not authorised to accept payment or means of payment unless they have permission to do so.
- Bills of exchange and cheques are only accepted on account of payment. The bank, discount and collection charges are to be covered by the customer. Payments in the form of bills of exchange and checks are considered valid only after the funds for the respective amount have been received in our account.
- The ordering party is obligated to pay the receivables of the supplier within 30 days after receiving the goods. After the expiration of this term, the ordering party has defaulted on payment without having to receive any further notification.
- During the period of delay, the ordering party must pay interest on the money owed in the amount of 8% above the base interest rate. We reserve the right for the furnishing of proof of greater damage caused by delayed payment and its assertion.
- If the supplier has performed installation or mounting and it has not been agreed otherwise, the ordering party shall bear all necessary additional costs such as travel expenses, costs for hand-tool transport and personal luggage and accommodations, in addition to the stipulated fees.
7. Redhibitory defects
The supplier is liable for redhibitory defects as follows:
- All parts or services exhibiting a defect, not considering the duration of operation, are to be repaired, replaced or reproduced at no cost to the ordering party at the discretion of the supplier within the period of limitation, providing that the cause of the defect was already present during the passage of risk.
- Claims of redhibitory damage are barred at 24 months. This does not apply if the
law according to §§ 438 Para.1 No. 2 (construction facilities and materials for construction facilities), 479 Para. 1 (claim to recourse) and 634a Para.1 No. 2 (construction defects) BGB (German Civil Code) stipulate longer terms and in cases of death, personal injury or damage to health, with deliberate or grossly negligent violation of duties by the supplier and with fraudulent misrepresentation of a defect. The legal regulations on suspension of the statute of limitations, escapement and restarting of the terms remain unchanged.
- The ordering party must check the supply and services without delay after receipt.
§ 377 HGB (German Commercial Code) is applicable.
The supplier must be informed of redhibitory defects by the ordering party in writing within two weeks. For obvious defects, this term begins with delivery of the goods to the ordering party. If a declaration of defects is not made within the stipulated time period, assertion of warranty claims are precluded. Timely send-off is sufficient for observance of the deadline. The full burden of proof is on the ordering party for all claim requirements, especially for the defect itself; for the time of discovery of the defect and for timely notification of defects.
- If a notification of defects is provided in a timely manner and proper form, the ordering party may halt payment in reasonable proportion to the redhibitory defects which have occurred. The ordering party may only halt payment if a notification of detects has been made, where no doubt remains regarding its eligibility. If the notification of defects is found to have taken place wrongly, the supplier is entitled to claim compensation from the ordering party for the expenditures accrued.
- The opportunity for subsequent compliance within a reasonable term is to be granted to the supplier first. Any replaced parts are to be sent back to us free of charge if desired.
- If subsequent compliance is unsuccessful (in accordance with § 440 BGB (German Civil Code)), the ordering party is entitled to withdraw from the contract or reduce payment, irrespective of any damage claims in accordance with Article XI.
- Defect claims may not be made for merely negligible deviation from the stipulated conditions, for merely negligible impairment of usability, for normal wear or detriment occurring after the passage of risk due to improper or negligent handling, excessive strain, unsuitable equipment, faulty construction, unsuitable foundation or extraneous external influences not stipulated in the contract and non-repeatable software errors. If improper modifications or repairs are made by the ordering party or a third party, no defect claims may be made for either the modifications themselves or any results thereof. Our warranty also requires that the goods be properly mounted, commissioned and used under full compliance with our operating instructions.
- Claims by the ordering party regarding the necessary expenditures for the purpose of subsequent compliance, especially transport, travel, working and material costs are excluded if the expenditures increase because the object of supply has been moved to a location other than that of the facility of the ordering party, unless the change of location corresponds with proper use.
- Claims to recourse by the ordering party against the supplier in accordance with § 478 BGB (German Civil Code) (recourse of the company) may only be made if the ordering party has not made any agreements regarding legal defect claims with his/her client. For the scope of the claim to recourse by the ordering party against the supplier in accordance with § 478 Para. 2 BGB (German Civil Code), No. 8 also applies accordingly.
- Article XI (miscellaneous damage claims) also applies for damage claims. On-going claims or claims other than those stipulated in Article VIII by the ordering party against the supplier and its vicarious agents regarding redhibitory defects are excluded.
- For special production runs, a long or short shipment in the amount of 10% is contractually agreed upon.
8. Processing of returns (returned goods)
- If the requirements for warranty claims by the ordering party are not met, there is no obligation for Gira to accept returned goods.
- Should Gira agree to the ordering party to accept returned goods beyond warranty claims as an exception, this is shall occur voluntarily and without prejudice. A claim by the ordering party for reimbursement of the purchase price shall not be substantiated hereby.
- If Gira acts in accordance with the aforementioned no. 2 and beyond warranty claims in the course of processing the returns, the customer shall be invoiced a flat fee for processing. The respective amount of the flat fee results from the Gira Homepage www.gira.de, portal for the technical wholesale trade.
9. Reservation of ownership
- The goods remain our property until all payments in this supply contract have been received, as well as those from all other contracts between the customer and ourselves which were concluded up until the time this contract was concluded. The customer may resell the conditional commodities in the appropriate course of business. At present, however, he/she transfers to us all receivables in the amount of the respective invoice value which arise from the resale to the client or third parties. The customer is also authorised to collect these receivables after his/her transferral.
- Our authority to collect the receivables ourselves remains unchanged. We are especially authorised to demand that the customer inform us of the ceded receivables, their stock and their debtors, that he/she make all necessary specifications for collection, that he/she provide us with the accompanying documents without delay and that he/she inform the debtor of the transfer in writing.
- Insofar as the cause of damage can be attributed to negligence, our liability for replacement is limited to our liability insurance or product liability insurance if the regulation puts the customer at an undue disadvantage in an individual case in accordance with Paragraph 1.
- The customer is not authorised to pledge the conditional commodities or to transfer ownership to third parties for security purposes.
If the customer violates the contract, especially in cases regarding defaulted payment, we are authorised to reclaim the goods. Our reclaiming and attachment of the goods are not a declaration of withdrawal from the contract; withdrawal is only applicable if expressly written by us.
- In case of attachments or other interference by third parties, the customer must inform us of this in writing without delay.
If the goods are resold with other goods not belonging to us, the receivables owed to the customer by the client in the amount of the supply price agreed to by ourselves and the customer with conclusion of the contract are considered to be discounted.
On request, we will unfreeze our security to the customer when its value exceeds the receivables to be secured by more than 25%.
10. Subsequent impossibility of performance; modification of contract
- If it is not possible to supply the ordering party with the goods, he/she is authorised to demand compensation unless the supplier is not responsible for the impossibility of performance. The damage claims by the ordering party are, however, limited to 10% of the value of the respective portion of the supplied goods, which cannot be adequately commissioned due to the impossibility of performance. This limitation does not apply where liability is mandatory in cases of premeditation, gross negligence or due to death, personal injury or damage to health; this is not automatically bound with a modification to the burden of proof to the disadvantage of the ordering party. The right of the ordering party to withdraw from the contract remains intact.
- Insofar as unforeseeable events as mentioned in Article IV No. 2 considerably change the economic implication or content of the supplied goods or considerably effect the operation of the supplier, the contract will be adapted appropriately in good faith. If this is not economically reasonable, the supplier is entitled to withdraw from the contract. If he/she wishes to make use of the right of withdrawal, he/she must inform the ordering party without delay once the scope of the event has been recognised and especially when an extension of the delivery period was first agreed to with the ordering party.
11. Miscellaneous damage claims
- Damage and expense claims by the ordering party (referred to as damage claims in the following), are excluded regardless of the legal basis, especially for those regarding violation of duties due to obligation and unlawful acts.
- As long as liability is mandatory (in accordance with the product liability statute, for example), this does not apply in cases of premeditation, gross negligence, for death, personal injury or damage to health or for the violation of essential contractual duties. Damage claims for the violation of essential contractual duties are, however, limited to foreseeable damage typical of a contract as long as premeditation or gross negligence are not the case and mandatory liability is in effect for death, personal injury or damage to health. A change to the burden of proof to the disadvantage of the ordering party is not bound with the above regulations.
- If damage claims appertain to the ordering party in accordance with Article XI, these claims are barred as of the expiration of the applicable period of limitation for claims of redhibitory damage in accordance with Article VIII No. 2. The statutory limitations apply for damage claims in accordance with the product liability statute.
12. Place of fulfilment, place of jurisdiction, ambit
- The place of fulfilment for all obligations relating to this contract, including a claim to withdraw, is Radevormwald, Germany.
- The place of jurisdiction is/are the location(s) over which the courts responsible for Radevormwald preside, as agreed upon. This also applies for actions on dishonoured bills/cheques, especially for claims due to court proceedings for an order to pay a debt; as long as legal proceedings are not pending against us, we are also entitled to bring charges against the customer in the courts presiding over his/her place of residence.
- German substantive law, excluding the agreement of the United Nations regarding contracts for the international sale of goods (CISG), is in effect for the legal relationship in connection with this contract.
- These sales, supply and payment conditions apply only to sales personnel as understood in § 24 AGBG (Law for the regulation of the law of general terms and conditions)