Terms, Sales and Delivery Conditions
Status as at 12/2020
I. Scope of application
The goods and services supplied by GEGGUS GmbH shall be supplied exclusively in accordance with the following general Sales and Delivery Conditions. These shall only apply to business people and companies in accordance with Section 14 of the German Civil Code (BGB). They shall apply to future transactions with the purchaser. Conditions that deviate or conflict with these conditions shall not be valid, unless GEGGUS GmbH has expressly agreed that they shall apply. The following conditions shall also apply if GEGGUS GmbH or their agents provide the service without reservation although they are aware of the customer’s regulations that conflict with or deviate from these conditions.
The current version of our Sales and Delivery Conditions can be accessed as a storable document at www.geggus.de/services/downloads
II. Quotation, conclusion of the contract and service content
- GEGGUS GmbH’s quotations are not binding but should be viewed as a request to the purchaser to make an appropriate offer to GEGGUS GmbH. The contract is brought about by the purchaser’s purchase order (quotation) and acceptance by GEGGUS GmbH. Should this deviate from the purchase order, this shall be deemed a new non-binding quotation of GEGGUS GmbH.
- If the customer orders the goods electronically, receipt of the purchase order shall be confirmed as quickly as possible. Simply confirming receipt does not constitute binding acceptance of the purchase order. Confirmation of receipt can be combined with the acceptance declaration.
- The technical data and descriptions of the relevant product information, advertising materials and technical data sheets and information by manufacturers or their vicarious agents shall not be a guarantee of the quality or durability of the goods to be supplied by GEGGUS GmbH, unless the information is agreed in the individual contract.
With regard to sales by sample or test, these only describe workmanlike samples but do not give a warranty for the quality or durability of the goods to be delivered by GEGGUS GmbH.
- Advice provided by GEGGUS GmbH in relation to the application is provided to the best of its knowledge. All details and information about the suitability and application of the goods shall not release the purchaser from performing his own checks and tests to ensure that the products are suitable for the intended processes and purposes.
- GEGGUS GmbH reserves the ownership rights and copyrights to images, drawings, calculations and other documentation of GEGGUS GmbH; it is not permitted to give third parties access to these. This shall apply in particular to those written documents that are marked as confidential; before passing them on to third parties the customer shall require the express written approval of GEGGUS GmbH.
III. Prices, payment conditions, offsetting, retention
- Prices are ex works prices and do not include packaging. Unless stated to the contrary, the prices are in euros and do not include value added tax. Value added tax will be invoiced in addition at the current rate in accordance with the tax regulations that apply in each case.
- GEGGUS GmbH shall only be bound by information about prices and services as well as other declarations or undertakings if these have been given or confirmed in writing.
- The agreed prices shall only apply to the order concluded in each case.
- GEGGUS GmbH shall be entitled to implement reasonable price rises, but by no more than 5%, if costs have increased after the contract has been signed, particularly if these cost increases have been caused by collective bargaining agreements or increases in the price of materials. If requested, proof shall be provided to the customer.
- Unless stated to the contrary in the order acknowledgement, the purchase price shall be due for payment within five days of the invoice date. A deduction for cash payment shall only be permitted if an express agreement has been made.
- Should the delivery be delayed for reasons for which the purchaser is responsible, the delivery shall be deemed to have been made when notification has been given that the order is ready for dispatch.
- Payment terms shall be considered to be met if GEGGUS GmbH can access the amount within the set period. Payments can be offset against other outstanding receivables, as chosen by GEGGUS GmbH.
- Cheques and bills of exchange – where payment via a bill of exchange has been agreed – are accepted as payment. GEGGUS GmbH shall be reimbursed immediately for discount, collection and interest charges.
- The purchaser shall not be entitled to offset receivables, unless the offsetting of receivables is not disputed or has been recognised by a legally established judgment.
- The purchaser shall not be entitled to withhold payments, unless retention of the payment is not disputed or has been recognised by a legally established judgment. GEGGUS GmbH is entitled to avert the right of retention from being exercised via security, including surety.
- Should the purchaser be in arrears in whole or in part with his payment obligations, he shall – without prejudice to the rights of GEGGUS GmbH – pay default interest at the statutory rate from this point onwards, unless GEGGUS GmbH can provide evidence of a greater loss.
- Should the purchaser suspend payments, if he is overindebted or if an application is made to institute composition proceedings or bankruptcy or if the purchaser falls into arrears with the payment of due bills of exchange or cheques, the total amount owing to GEGGUS GmbH shall be due immediately. The same shall apply in the event of any other significant deterioration in the economic circumstances of the purchaser. In these situations GEGGUS GmbH shall be entitled to demand that adequate security is provided or to withdraw from the contract.
- The agreed delivery dates shall only be approximate dates, unless a fixed date has been expressly agreed in writing.
Delivery dates are always stated subject to the proviso that the purchaser cooperates appropriately for the contract.
Should the agreed delivery dates nevertheless be exceeded for reasons that can be attributed to GEGGUS GmbH, if the purchaser has set in writing an additional period which must be a minimum of 15 working days and this has passed without results, the purchaser can withdraw from the contract or demand compensation. Withdrawal shall be in writing. Obligations to pay compensation are based on section VII 5 ff. and X section 1 ff.
- GEGGUS GmbH shall not be in default until after the purchaser has set a reasonable additional period of at least 15 working days. In the event of force majeure or other unforeseeable and unusual circumstances that GEGGUS GmbH is not responsible for, such as business interruptions as a result of fire, water and similar events, the failure of production equipment and machines, late or non-delivery of supplies from other providers and interruptions to operations as a result of shortages in raw materials or energy, strikes, lockouts, interventions by the authorities, pandemics or an epidemic event, GEGGUS GmbH shall be entitled – providing the company is not to blame for the failure to meet its delivery obligations in a timely manner – to delay the provision of goods or services for the duration of the impediment plus a reasonable period to start up again.
If the provision of the goods or services is delayed by more than one month as a result of this, both GEGGUS GmbH and the purchaser shall be entitled to the exclusion of any claims for compensation (subject to section VII item 5 ff., X item 1 ff.) to withdraw from the contract in writing with regard to the defects affected by the delivery disruption.
- GEGGUS GmbH is entitled to make partial deliveries of goods and services within the agreed periods for the delivery of goods and services, if this is reasonable for the purchaser.
- GEGGUS GmbH’s compliance with its obligations for the supply of goods and services assumes that the purchaser will provide the required cooperation in a timely and proper manner.
- Should the purchaser be in arrears in respect of calling off, accepting or collecting the order or if a delay in dispatching or delivering the goods is the responsibility of the purchaser, GEGGUS GmbH shall be entitled, regardless of any further claims the company may have, to request a flat-rate amount equivalent to the usual local warehousing costs, irrespective of whether the goods are stored at GEGGUS GmbH or a third party. The ordering party has the right to furnish proof that no or lower losses have been incurred.
Unless a different arrangement has been expressly agreed in writing between GEGGUS GmbH and the purchaser, the goods shall be delivered ex works and collected by the purchaser at his own risk and expense. In this case, the risk of accidental loss or accidental deterioration of the contractual items supplied shall pass to the purchaser after the purchaser has received notification that the items are ready for collection. In other instances, the risk of accidental loss and accidental deterioration of the items supplied shall pass to the purchaser when the goods are handed over to the carrier. This shall also apply to carriage paid deliveries or deliveries where the transport insurance is provided by GEGGUS GmbH.
VI. Reservation of title
- Our goods and services shall remain our property until all receivables due from the purchaser in connection with the business relationship have been paid in full. The receivables shall include all cheque-based and bill-based claims and all receivables on the current account.
- The purchaser is required to treat the goods subject to the reservation of title carefully for the duration of the reservation of title and to have necessary maintenance work or servicing carried out at his own expense by knowledgeable staff. In particular, he undertakes to insure the goods adequately against losses caused by fire, water and theft on a new-for-old basis at his own expense. The purchaser hereby transfers to us all compensation claims arising from this insurance. We hereby accept the assignment. Should assignment not be permissible, the purchaser shall give irrevocable instructions to his insurer that any payments shall only be made to us. All further claims from us shall remain unaffected. If requested to do so, the purchaser shall provide us with proof that insurance has been taken out.
- The purchaser shall only be entitled to sell the goods that are subject to the retention of title as part of a normal business transaction. The purchaser shall not be entitled to pledge the goods that are subject to the retention of title, to assign them by way of security or to dispose of them in any other way that would jeopardise our ownership. In the event of pledging or other interventions of third parties, the purchaser must advise us of this in writing without delay and provide all the necessary information, must inform the third parties of our ownership rights and must contribute to the measures we take to protect the goods that are subject to our retention of ownership. The purchaser shall bear all the costs for which he is responsible that have to be incurred to cancel the attachment and to purchase the goods again, in situations where they cannot be taken back from the third party.
- The purchaser hereby assigns to us the receivables arising from selling on the goods, including all ancillary rights, and this is irrespective of whether the goods subject to reservation of title have been sold on without or after processing. We hereby accept this assignment. Should assignment not be permissible, the purchaser shall give irrevocable instructions to the third-party debtor that any payments shall only be made to us. The purchaser is entitled until this right is revoked to collect the receivables assigned to us on a fiduciary basis. The amounts collected shall be paid to us immediately. We can revoke the customer’s authorisation to collect payments and the purchaser’s right to sell on the goods if the purchaser does not fulfil his payment obligations to us in the proper way, if he falls behind with the payments, if he ceases to make payments or if insolvency proceedings are instituted against the purchaser’s assets. It is not permitted to sell on the receivables without our prior approval. The permission granted to the purchaser to collect payments shall lapse upon notification of assignment to the third-party debtor. Should permission to collect payments be revoked, we can demand that the purchaser provides information about the assigned receivables and their debtors, provides all the information required for collection, hands over the associated documents and notifies the debtors of the assignment.
- In the event that the purchaser’s receivables from selling on the goods were paid to a current account, the purchaser hereby also assigns his receivables from the current account in respect of his contractual partner to us and this shall be for the amount of the purchase price, including value added tax, which was agreed for the goods that were sold on and were the subject of the reservation of title.
- Where we assert our claims to have the goods returned after withdrawal from the contract, the purchaser must immediately give us access to the goods that are the subject of the reservation of title, send us an accurate schedule of the available reserved goods, separate out the goods for us and hand them over to us when we request this.
- The processing or transformation of the goods subject to the reservation of ownership by the purchaser shall always be undertaken for us. The expectant right of the purchaser to the goods subject to the reservation of title shall continue in the processed or transformed item. Should the goods be processed, connected or mixed with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the goods supplied in relation to the other items processed at the time of processing. The purchaser shall keep the new items for us free of charge. In other respects, the same provisions apply to the item created by processing, transformation or connection as for the goods that are subject to the reservation of title.
- If requested by the purchaser, we are required to release the security to which we are entitled to the extent that the achievable value of security exceeds our receivables arising from the business relationship with the purchaser by more than 10%, taking account of the usual valuation discount of banks. When making the valuation, it can be assumed that the invoice value will be used for the goods subject to the retention of title and the nominal value will be used in the case of receivables.
- The above regulations in this section VI. explicitly do not apply to advance payments agreed with and made by the purchaser (both in advance and subsequently). Where the purchaser makes advance payments for the full amount, ownership of the delivery item paid in advance shall pass to the purchaser with the handover or agreement of constructive possession in accordance with Section 929 ff. of the German Civil Code (BGB).
- If goods are delivered to other legal systems where rules regarding retention of ownership in accordance with this paragraph do not have the same level of security as in the Federal Republic of Germany, the purchaser hereby grants us a corresponding right of security. Should further declarations or actions be required for this, the purchaser will make these declarations and carry out the actions. The purchaser shall take part in all measures that are necessary and useful for the effectiveness and applicability of such security rights.
VII. The purchaser’s rights in the event of defects/compensation
- Obvious material defects, incorrect deliveries and differences in quantities shall be reported immediately by the purchaser in writing but at the latest eight days after receipt of the goods. GEGGUS GmbH shall be notified in writing of hidden defects immediately but no later than eight days after they have been discovered. Should the purchaser fail to notify GEGGUS GmbH, the goods shall be considered to be approved. In other respects, Sections 377 ff of the German Commercial Code (HGB) shall apply.
- In particular, the purchaser shall check whether the material supplied is free of defects and in accordance with his order, if necessary through sample processing. Goods that are the subject of a complaint are only allowed to be processed further with the written approval of GEGGUS GmbH.
- Notifications of complaints on account of hidden defects shall be excluded and deemed to be received too late after three months of the transfer of risk to the purchaser in accordance with section V, providing that it would be reasonable for the purchaser to have noticed these.
- Where the goods exhibit a material defect upon transfer of risk, GEGGUS GmbH is entitled and has an obligation to carry out rectification. GEGGUS GmbH may choose whether to rework the item or provide a replacement delivery to rectify the problem. The cost of rectification, in particular transport, travel, work and material costs, shall be paid by GEGGUS GmbH. Where the costs constitute more than 50% of the value of the item supplied, GEGGUS GmbH shall be entitled to refuse to carry out rectification.
- Where rectification is unsuccessful, has not taken place within a reasonable additional period allowed by the purchaser or is refused, the purchaser shall be entitled to choose whether to withdraw from the contract, reduce the purchase price (reduction) in line with the cost of the defect or – within the limits set out below – request compensation instead of performance. The regulations in Sections 445a, 445b and 478 of the German Civil Code (BGB) shall remain unaffected.
- Should a material defect lead to a loss, GEGGUS GmbH shall be liable in accordance with the statutory provisions, providing it is a loss arising from injury to life, body or health, if the loss falls under the Product Liability Act or is due to a deliberate action or gross negligence or if a guarantee has been given regarding a certain property.
- Where the loss is due to a culpable breach of an important contractual obligation or a key obligation, without gross negligence or a deliberate act, GEGGUS GmbH shall only be liable for the foreseeable losses typical for the type of contract involved. Key obligations are those obligations which must be fulfilled for the contract to be performed properly and which the contracting party can routinely rely on being complied with and is entitled to do so.
- More extensive contractual and tortious claims on the part of the purchaser shall be excluded. GEGGUS GmbH is in particular not liable for losses that do not occur to the delivery item itself, in particular not for lost profits or other financial losses incurred by the purchaser.
- Where the liability of GEGGUS GmbH is excluded or limited, this shall also apply to the personal liability of GEGGUS GmbH’s staff, workers, employees, representatives and vicarious agents.
VIII. Other liability
- More extensive claims for losses on the part of the purchaser, regardless of the legal grounds but in particular on account of breaching various contractual duties or actions based on tort, shall be excluded according to appropriate application of the provisions in section VII. items 6-9. The aforementioned arrangements are not associated with a change in the burden of proof to the disadvantage of the purchaser.
- Where claims for compensation exist, these shall be time barred as material defects.
- In the event of a breach of a preliminary contract obligation or an impediment to performance that already existed at the time the contract was concluded (Section 311 (2), 311 a of the German Civil Code (BGB)), the obligation of GEGGUS GmbH to pay compensation shall limited to loss incurred by relying on the validity of a declaration (negative interest).
- In the case of losses or wasted expenditure incurred as a result of advice or information that was not paid for separately, GEGGUS GmbH shall be liable in the event of a deliberate or grossly negligent breach of obligation, providing this breach of obligation does not constitute a material defect in the goods supplied by GEGGUS GmbH, as defined by Section 434 of the German Civil Code (BGB).
- Where the liability of GEGGUS GmbH is excluded or limited, this shall also apply to the personal liability of GEGGUS GmbH’s staff, workers, employees, representatives and vicarious agents.
IX. Industrial property rights and copyright / legal defects
- Unless an agreement is made to the contrary, GEGGUS GmbH is required to make the delivery in the country of the delivery destination so that it is free of industrial property rights and copyright of third parties (hereinafter called property rights). Where a third party files justified claims against the purchaser on account of the infringement of property rights as a result of supplies made by GEGGUS GmbH and used in accordance with the contract, GEGGUS GmbH shall be liable to the purchaser within the time period defined in section X item 1 as follows:
a) For the relevant deliveries GEGGUS GmbH may choose and at its own expense either negotiate to obtain property rights, change the delivered items so that they do not infringe the property right or exchange them. Should GEGGUS GmbH be unable to do this at reasonable conditions, the purchaser shall be entitled to apply the statutory rights to withdraw from the contract or reduce the amount paid.
b) The obligation of GEGGUS GmbH to pay compensation is based on section VIII.
c) GEGGUS GmbH’s obligations as set out above shall only exist to the extent that the purchaser informs GEGGUS GmbH immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and ensures that all defensive measures and negotiations to come to a compromise remain available to GEGGUS GmbH. Should the purchaser cease to use the items delivered on account of loss reduction or other reasons, he shall be required to make the third party aware that the fact that he has stopped using the items is not connected to an acknowledgement of the infringement of property rights.
- Claims of the purchaser shall be excluded, where he is responsible for infringing the property rights.
- Claims of the purchaser shall also be excluded, providing the infringement of property rights arise as a result of the purchaser’s special specifications, as a result of an application not foreseen by GEGGUS GmbH or because the item supplied has been modified by the purchaser or is used together with products not supplied by GEGGUS GmbH.
- Where legal defects exist, the provision in accordance with section VII. shall apply accordingly.
- More extensive claims on account of a legal defect or claims by the purchaser against GEGGUS GmbH and its vicarious agents other than the claims covered in this section IX. shall be excluded.
X. Time limitation
- Claims regarding material defects shall become time limited in one year. The period shall commence with the transfer of risk as set out in section V., unless the law requires longer periods in accordance with Sections 438 (1) No. 2 (matters relating to a building), 445 b (right of recourse) and 634 a (1) No. 2 (building defects) of the German Civil Code (BGB).
- Subject to the arrangement in Section 438 (1) No. 2, the time limitation period for claims for losses on account of a defect shall be one year.
- The provisions set out in items 1 to 3 do not apply to the time limitation of the purchaser’s claims on account of the injury to life, body or health and not to the time limitation of claims in accordance with the Product Liability Act and on account of legal defects in the goods supplied by GEGGUS GmbH that exist in a property right of a third party, on account of which the goods supplied by GEGGUS GmbH must be handed over. They shall also not apply as regards the time limitation of claims made by the purchaser that are based on the fact that GEGGUS GmbH fraudulently concealed defects on the goods supplied to the purchaser or if GEGGUS GmbH has breached an obligation deliberately or through gross negligence. The statutory time limitation periods shall apply to the time limitation of these claims in the cases stated in this section; the same shall apply in cases where GEGGUS GmbH has expressly given a guarantee for a certain property.
XI. Place of performance and competent court, applicable law, written form and severability
- The place of performance and the exclusive legal venue for all claims between GEGGUS GmbH and business people or legal persons under public law or special funds governed by public law shall be the headquarters of GEGGUS GmbH, unless stipulated otherwise by statutory law. The aforementioned competent court shall also be agreed where the purchaser has his head office or branch office abroad. However, GEGGUS GmbH shall also have the right to bring an action against the purchaser at the purchaser’s statutory competent court. The agreement on the competent court shall also apply to legal action pertaining to bills of exchange and cheques.
- The legal relationships between GEGGUS GmbH and the purchaser shall be governed exclusively by the law of the Federal Republic of Germany. The application of regulations relating to the international sale of goods (CISG-UN Sales Convention) and German international private law shall be expressly excluded.
- The latest version of the INCOTERMS shall apply if the goods are delivered by sea.
- In order to be effective, all amendments and additions to the contract shall be in writing. The contracting partners can also comply with this requirement by sending documents in text form, in particular by fax or e‑mail, unless different arrangements are in place for individual declarations. The requirement to use the written form can only be cancelled in writing.
- Should one of the provisions of these terms and of additional agreements be or become ineffective, this shall not affect the validity of the remaining provisions. The parties to the contract undertake to replace the invalid provisions by another arrangement which comes as close as possible to the financial purpose.