General Terms and Conditions of Sale and Delivery of GEBO Armaturen GmbH
Even where not expressly mentioned in the case of negotiations conducted orally or by telephone, these Terms and Conditions shall apply to all deliveries and services – including those made in future – to registered traders where the contract is part of Buyer’s business as well as to legal entities established under public law and to asset funds organised under public law. Delivery contracts and other agreements, especially if and insofar as they deviate from these Terms and Conditions, shall only become binding on us when confirmed by us in writing. This shall also apply to declarations made by or to representatives and travelling salespersons. Any tacit waiver by us of the requirement of the written form in respect of agreements which deviate from the provisions of these Terms and Conditions shall not imply any such waiver of the provisions concerned in future.
Buyer’s terms and conditions of purchase are hereby expressly rejected. They shall not be binding on us even if they are not expressly rejected by us once more at the time of conclusion of contract. These General Terms and Conditions of Purchase shall be deemed as having been recognised at the latest on acceptance of our goods.
We reserve the right to make technical and design changes within the customary scope insofar as they would not be unreasonable for Buyer and do not affect the serviceability of the item of sale and purchase.
Buyer’s claims shall be non-assignable.
Our prices are quoted net, ex works, and include loading at the works as well as packaging in the case of orders with a net goods value of EURO 250.00 or more. In the case of orders with a goods value up to EURO 250.00 (net goods value) freight and packing will be charged additionally. In the case of orders for which no prices are agreed, our list prices on the day of delivery shall apply. We shall have the right to make part-deliveries, in which case each individual shipment will be invoiced individually. In the case of orders with a value of less than EURO 250.00 per delivery, GEBO Armaturen GmbH shall have the right to make a small order surcharge.
3. Terms of payment
Unless agreed otherwise, the payment terms and dates stated in our invoices shall be binding. Unless indicated otherwise, our invoices are due and payable immediately without any deduction. Cash discount will only be granted by special agreement and only on the invoice amount after deduction of any credit amounts.
Payment must be made independently of receipt of the goods and notwithstanding the right to make notice of defects. Buyer may not make offset or withhold payment on account of his own counterclaims except where such claims have been expressly recognised by us or finally and absolutely established at law. In the case of any delay in payment, GEBO Armaturen GmbH shall have the right to charge dunning and other costs arising as a result of the delay in payment. In the case of late payment, we shall charge interest on the arrears at a rate of 8 % above the base interest rate. We also reserve the right to charge interest at a higher rate and to make other claims in the case of delay in payment.
Should Buyer make payments which are not sufficient to discharge the whole of our claims, such part-payments will be credited first to costs, then to interest and only then to the principal amount, even if the payment is designated as being made for a specific claim.
We shall have no obligation to take bills of exchange or cheques in payment. Where bills of exchange or cheques are accepted in payment, the amount in question will only be credited conditionally on receipt of actual payment. Payment shall only be deemed as having been made on the day on which we can actually dispose of the amount. Bills of exchange will be credited at the amount after deduction of any discount or other costs incurred by us.
Buyer must notify us without delay of any circumstances – and especially changes in ownership, legal form or address or any blanket assignment in favour of third parties – which are liable to diminish his creditworthiness.
In the event of any failure to comply with our terms of payment or in the event of any delay in payment or circumstances which are liable to diminish Buyer’s creditworthiness, all our claims shall become day and payable immediately regardless of the term of any bills of exchange which we may have accepted in payment. In the case of any delay in payment, we shall have the right to make any outstanding deliveries only in return for advance payment, to repudiate the contract after the allowance of reasonable additional time (if such allowance is indispensable) and to claim compensation, as well as to prohibit Buyer from resale or further processing of any items supplied by us subject to our reservation of title, to repossess such items at Buyer’s expense and to revoke the power of collection granted under our reservation of title. Buyer hereby already gives his consent to our repossessing the delivered goods in any of the aforesaid cases. Repossession shall only constitute repudiation of the contract by us if we expressly declare it as doing so. The costs incurred by us through repossession shall be borne by Buyer. Buyer may demand the delivery of goods repossessed by us without an express declaration of repudiation of contract only after payment in full of the purchase price and all costs.
4. Reservation of title
All deliveries are made subject to our reservation of title; title to the goods shall only pass to Buyer when Buyer has fulfilled all of his obligations towards us, regardless of the legal grounds on which they have arisen. Where goods are supplied on current account, our reservation of title shall serve as security for our claim to the balance; this shall also apply where any or all claims are placed on current account and a balance has been drawn and recognised. Any processing of goods which are subject to our reservation of title shall be deemed done by Buyer on Seller’s behalf as manufacturer, without this giving rise to any obligations for Seller. If goods subject to our reservation of title are combined, mixed or processed together with other items not belonging to us, we shall have co-title to the new item in the same proportion as that between the invoice value of the goods subject to our reservation of title and the invoice value of the other items involved at the time of processing, combination or mixing. Where Buyer acquires sole title to the new item, it is agreed between the parties that Buyer shall grant Seller co-title to the new item in proportion to the value of the goods subject to our reservation of title which have undergone processing, combination or mixing and shall preserve it free of charge for Seller. Where the other item is to be seen as the main item, Buyer shall assign co-title in proportion to the invoice values as soon as the main item belongs to him.
Buyer may resell or process goods subject to our reservation of title only in the ordinary course of business and only if he is not in arrears with payment, if the claim arising from resale or processing actually passes to Seller and if Buyer reserves title towards his buyers in the same manner as set forth in these Terms and Conditions. On conclusion of contract, Buyer shall assign to us with immediate effect all claims together with all ancillary rights and collateral accruing to him against third parties from the resale or processing of goods subject to our reservation of title. If goods subject to our reservation of title are sold by Buyer (after processing / combination) together with other goods not belonging to Seller, Buyer hereby assigns to Seller his claims arising from resale in the amount of the value of the goods subject to our reservation of title together with all ancillary rights and with priority before all others. We hereby accept the assignment. Buyer is empowered to collect the said claims notwithstanding the assignment. This shall be without prejudice to the right of Seller to collect the claims himself. However, Seller undertakes not to collect the claims himself for as long as Buyer duly fulfils his payment and other obligations. We shall have the right to require that Buyer informs us of the assigned claims and the parties by whom such claims are owed (debtors), provides us with all information and the documents necessary for collection and informs the debtors of the assignment. We shall have the right at any time, and Buyer shall have the duty if so requested by us, to disclose the assignment. Buyer shall have the duty to inform us of the whereabouts of the goods and of the assigned claims, to allow us to inspect his books in respect thereof and to furnish us with the relevant documents.
Should the value of the collateral in our possession exceed our total claim on Buyer by more than 20 %, we shall have a duty, if so requested by Buyer, to release collateral of our choice to Buyer in that amount.
If Seller should incur any liability under bills of exchange in connection with payment of the purchase price by Buyer, the reservation of title and the claims arising from supply of the goods shall not become extinct until such time as the bill of exchange has been honoured by Buyer as the drawee.
5. Times of delivery and impediments to delivery
Compliance with delivery times shall be dependent on fulfilment by Buyer of his payment obligations pursuant to these Terms and Conditions.
Any stated delivery times or dates shall be deemed approximate only and shall not be binding on us. Delivery obligations and delivery times shall be dependent on correct and timely self-supply by Buyer. Should such self-supply not be made, we shall have the right, at our choice, to repudiate the contract without the payment of compensation or to extend the delivery time accordingly. Delivery times shall mean the time of dispatch. A delivery time shall be deemed to have been met on issue of our advice of readiness for dispatch if the goods cannot be dispatched punctually through no fault of our own.
If the goods or service should be unavailable and we make use of our option to release ourselves from the contract, we undertake to inform Buyer without delay of our inability to effect performance and to return any payments made on account or other advance performance without delay.
In the event of any delay in delivery, Seller may, after the allowance of reasonable additional time and such time having elapsed without delivery being effected, repudiate the contract; in the event of impossibility (exclusion of duty to perform) he shall have the aforesaid right without the allowance of additional time. A delay in delivery shall be deemed tantamount to impossibility if delivery is delayed for more than two months. Claims to compensation (including any consequential loss) as well as refund of expenses are barred except and insofar as provided otherwise in the following paragraph:
The foregoing exclusion of liability shall not apply insofar as an exclusion or limitation of liability for damages arising from injury to life, limb or health arising from a deliberate or negligent breach of duty of the user or a deliberate or negligent breach of duty of a legal representative or vicarious agent of the user is agreed; nor shall it apply insofar as an exclusion or limitation of liability in respect of other damage arising from a deliberate or grossly negligent breach of duty of the user or a deliberate or grossly negligent breach of duty of a legal representative or vicarious agent of the user is agreed. Insofar as we should culpably breach a material contractual duty, our liability shall be limited to the damage typical for the type of contract concerned; in all other respects it shall be barred in accordance with the foregoing paragraph. In the case of refund of expenses, the foregoing shall apply accordingly.
We shall have the right to repudiate (or partially repudiate) the contract if circumstances should occur which are beyond our control and outside of our sphere of influence and which despite all reasonable care we are not able to avert, and especially in cases of Acts of God, delays in the supply of important raw materials, as well as in the case of lockouts, including also at any of our suppliers, and other such like circumstances.
6. Call orders
Call orders must be called forward or specified within a reasonable time. If an order is not called forward or specified within a reasonable time set by us, we shall have the right to deliver without a call order and to invoice at the prices valid on the day of delivery. We may also claim compensation instead of performance and avail ourselves of our right of repudiation of contract (also in respect of part-quantities).
In the case of collection, the risk shall pass to Buyer on collection; in the case of dispatch by us, the risk shall pass to Buyer on handover to the transport person. In the case of obligations to be discharged at our domicile, the risk shall pass to Buyer on entry into the works premises. We shall have the right, but not the duty, to insure all goods against transport damage at Buyer’s expense. Buyer shall be liable for roadworthy condition of the way to and from the unloading point, and in particular for the availability of sufficient manoeuvring space and for any necessary cordoning-off. Should Buyer fail to fulfil these transport and public safety duties, he will be held liable for any damage arising as a result.
In the case of any delay in taking delivery by Buyer, we shall have the right to store the goods for the cost and risk of Buyer.
Unless agreed otherwise, we shall decide at our discretion on the mode and route of transport and any protective measures.
No claims for packaging defects may be asserted against us if the goods were properly packed by us. The unloading risk shall lie with Seller.
7. Dimensions and weights
Illustrations and indications of dimensions and weights in our lists, offers and order confirmations are approximate only.
8. Supplier’s liability
We shall provide warranty for defects in delivery, provided the duties to inspect and notify as specified in § 377 HGB [German Commercial Code] are fulfilled in the proper manner, as follows:
Authoritative shall be the condition of the goods at the time of leaving the works.
Defects must be notified without delay and in writing. Notices of defects will not be considered if they are not received by us within two weeks from receipt of the goods.
If defects cannot be identified even on careful inspection during the aforesaid period, they must be notified immediately after discovery. No claim for defects can be made more than one year after the passing of risk (or five years in the case of items which are customarily used for buildings and have caused their defectiveness).
Buyer must give us the opportunity to inspect alleged defects in situ either by ourselves or through a representative. Changes to an item of delivery will result in loss of warranty.
Where an item of sale is defective, we shall have the duty to effect repair or replacement, provided the defect is of more than only minor nature. Should remedy be impossible or unreasonable, we shall have the right to refuse to effect remedy.
Excluded from warranty is all damage arising from improper treatment, wrong operation or failure to comply with our fitting instructions or with standards or local installation regulations. Claims for remedy, compensation or replacement shall lapse after one year (or five years in the case of items which are customarily used for buildings and have caused their defectiveness). Claims to a price reduction or to exercise of the right of repudiation shall be barred if the claim to remedy has expired and we cite such expiry.
We shall have the right to refuse to effect remedy for as long as Buyer has not fulfilled his payment obligations in a scope equivalent to the defect-free part of our performance. Where remedy is impossible or our attempts at remedy have failed or where we have the right to refuse to effect remedy, Buyer may either reduce the purchase price accordingly or repudiate the contract.
All other claims, on any legal grounds whatsoever, are barred unless provided otherwise in the following paragraph. This applies in particular to claims for damage not to the item of sale itself and to claims for compensation for loss of profit.
The foregoing exclusion of liability shall not apply insofar as an exclusion or limitation of liability for damages arising from injury to life, limb or health arising from a deliberate or negligent breach of duty of the user or a deliberate or negligent breach of duty of a legal representative or vicarious agent of the user is agreed; nor shall it apply insofar as an exclusion or limitation of liability in respect of other damage arising from a deliberate or grossly negligent breach of duty of the user or a deliberate or grossly negligent breach of duty of a legal representative or vicarious agent of the user is agreed. Insofar as we should culpably breach a material contractual duty, our liability shall be limited to the damage typical for the type of contract concerned. Nor shall the exclusion of liability apply in cases in which we have liability under product liability law for faults or defects in the item of delivery resulting in personal injury or damage to property in the case of privately used items. Nor shall the exclusion of warranty apply where we have given our guarantee or warranted properties if a defect covered by the warranty triggers liability of the user. The same shall also apply accordingly in the case of refund of expenses.
9. Return of materials
We generally do not take back delivered goods. If we should exceptionally decide to do so, all costs of the reverse transaction shall be borne by Buyer. We shall have the right to make a flat-rate charge for reverse transaction handling of 25 % of the value of the goods provided the goods are returned in perfect and unused condition. The return of goods made to Buyer’s specifications and goods procured to order shall in all cases be barred.
10. Place of performance / Legal venue / Applicable law
The place of performance for delivery is the place of dispatch. The place of performance for all other matters in connection with contract performance and the legal venue for both parties shall be Bochum. This also applies to legal actions relating to bills of exchange and cheques.
We shall have the right to bring action against Buyer at his general place of jurisdiction.
The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
The foregoing shall also apply to all those who assume liability for Buyer’s obligations (e.g. purchasing associations).
Should any of the provisions of these General Terms and Conditions of Sale be or become wholly or partially invalid, the other provisions shall nevertheless remain in full force and effect and the parties undertake to agree a provision which most nearly allows the economic outcome intended by the sense and purpose of the invalid provision to be achieved.