GITES GmbH General Terms and Conditions

 

1. General
(1) These general terms and conditions apply to all contracts, deliveries and other services of Gites GmbH, Gröblingen 80, 48336 Sassenberg, Germany (hereinafter referred to as ‘the Seller’) toward their customers. In their respective versions, they are also effective as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same customer, without the Seller having to refer to them again in each case; in such cases, the Seller shall inform the customer immediately of any changes to the general terms and conditions.

(2) These general terms and conditions do not apply to contracts with consumers.

(3) If the customer has different provisions, these do not apply unless the Seller has agreed to them in writing. This agreement requirement applies in all cases, for example, even if the Seller is aware of the customer’s general terms and conditions and nevertheless proceeds with delivery to the customer without reservation. In individual cases, agreements concluded with the customer (including ancillary agreements, supplements and amendments) shall take precedence over these general terms and conditions. The content of such agreements shall be governed by a written contract or the written confirmation of the Seller. Legally significant declarations and notifications, which the customer shall make to the Seller after concluding the contract (e.g. deadlines, reminders, declaration of withdrawal), must be made in writing.

(4) The business relations between the Seller and the customer are subject to the law of the Federal Republic of Germany. The validity of international uniform law, in particular of the UN Convention on Contracts for the International Sale of Goods, is excluded. The conditions and effects of the retention of title according to Section 7 are subject to the law in the respective location of the item, insofar as the law chosen in favour of German law is subsequently inadmissible or ineffective.

(5) The place of performance and place of jurisdiction for deliveries, payments and any disputes arising from the contracts concluded between the parties is the Seller’s registered office in Sassenberg, Germany. The Seller also has the right to sue the customer at their place of business.

 

2. Conclusion of contract
(1) The Seller’s offers are always subject to change and are not binding. This also applies if the Seller has provided the customer with catalogues, documentation (e.g. drawings, plans, calculations), other product descriptions or documents – including those in electronic form – to which the Seller reserves the right of ownership and copyright. Such documents are only entrusted for the purposes of the respective offer and may not be reproduced, in part or in whole, or made accessible to third parties without the express consent of the Seller. This applies in particular to such documents that are designated as ‘confidential’; the customer requires the express written consent of the Seller before sharing them with third parties.

(2) Unless otherwise agreed, the Seller shall be bound by an offer for a period of four weeks after submission. In individual cases, a longer binding period can also be agreed.

(3) In all cases, a purchase contract and other agreements shall only come into effect upon confirmation of the order by the Seller in writing or by email. The documents accompanying the offer, such as illustrations, drawings, weight and dimensions, are only approximate unless otherwise expressly agreed.

(4) After the Seller has confirmed the offer, the order is binding for the customer; the latter can only withdraw from the respective purchase contract in accordance with the legal regulations. This also applies in the event of the Seller’s insolvency.

(5) The Seller’s employees, sales representatives, agents or other intermediaries are not authorised to disregard the requirement of obtaining order confirmation in writing or to make any deviating commitments or to declare any guarantees.

 

3. Prices, sales tax and payment
(1) Unless the prices are agreed in individual contracts, the Seller’s prices on the date of conclusion of the contract apply. The prices are subject to the statutory value added tax, if applicable.

(2) Unless otherwise agreed in individual contracts, the customer shall bear the costs for freight, transport, insurance, packaging and the import turnover tax.

(3) Unless otherwise agreed in individual contracts, the Seller’s invoices shall be payable net within 14 (fourteen) days from the date of the invoice. Payments shall be made in the currency agreed upon at the time of the order. For transfers from abroad, any bank charges incurred shall always be payable by the customer. If the Seller exceptionally accepts bills of exchange and cheques as means of payment, these shall only be accepted on account of performance.

(4) If the customer is in default of payment, the Seller shall be entitled to default interest amounting to nine percentage points above the base interest rate. According to Section 288 (5) of the German Civil Code (BGB), the customer is obliged to reimburse the Seller for reminder fees in the amount of a flat rate of EUR 40.00; these will be set off against any costs of legal proceedings. The assertion of an additional delay claim is reserved.

(5) If, after conclusion of the contract, it becomes apparent that the Seller’s claim to the purchase price is jeopardised by the customer’s lack of performance, the Seller can demand advance payment. Furthermore, the Seller has the right to refuse performance in accordance with the statutory regulations and – after setting a deadline, if necessary – to withdraw from the contract.

(6) The customer shall bear all costs for any return deliveries not caused by a defective delivery by the Seller.

 

4. Special terms for contract production
(1) Quantity tolerances of +/- 5% within the scope of contract production are not taken into account when setting prices. Higher deviations are calculated accordingly.

(2) When the customer provides raw materials, a production-related shrinkage of at least 5% is to be expected.

 

5. Delivery period and delay in delivery
(1) The delivery period shall be individually agreed or specified by the Seller when the order is accepted. The Seller’s compliance with the delivery period is contingent on the customer’s fulfilment of the contractual obligations.

(2) Delivery periods specified by the Seller, even when notification thereof is provided in writing, are non-binding and for information only. The expiry of certain delivery dates does not release the customer from the obligation to set a reasonable grace period for the provision of the service or to declare that they will refuse the service after expiry of the period. This shall not apply if the Seller has designated, expressly and in writing, a period or a date as a so-called ‘binding delivery date’.

(3) If the Seller is unable to comply with delivery periods for reasons beyond their control (non-availability of the service), the Seller shall notify the customer immediately and, at the same time, inform the customer of the anticipated new delivery period. If the service is not available even within the new delivery period, the Seller shall have the right to withdraw from the contract in whole or in part; the Seller shall immediately reimburse any consideration already paid by the customer. Withdrawal and termination rights according to Section 8 of these general terms and conditions shall also remain unaffected.

(4) The Seller is entitled to reasonable partial deliveries.

(5) The occurrence of a delay in delivery by the Seller is determined according to the statutory provision. In any case, however, a reminder from the customer is required. If the Seller is in default of delivery, the customer can demand lump-sum compensation for damages caused by the delay. For each completed calendar week of the delay, the compensation for damages amounts to 0.5% of the net price (delivery value), but in total no more than 5% of the delivery value of the delayed delivered goods. The Seller reserves the right to prove that the customer has suffered no damage at all or only significantly less damage than the above lump sum.

 

6. Transfer of risk, shipping
(1) The delivery is made EXW (Incoterms 2020) from the Seller’s warehouse. All costs related to the delivery of goods, i.e. costs for transport, insurance, taxes and other (customs) duties, shall be payable by the customer. The risk passes from the Seller to the customer upon handover to the carrier, even if partial deliveries are made or the Seller has assumed other services (such as shipping or transport).

(2) If shipping is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness to ship; however, the Seller must arrange for the insurance requested by the customer at the expense of the customer.

(3) If the customer does not specify a shipping method, the Seller is entitled to choose the shipping method and route at their discretion, with no obligation to choose the least expensive shipping method.

 

7. Opposing rights, retention of title
(1) The customer is entitled to rights of set-off or retention only to the extent that their claim is legally established or undisputed. In the event of defects in the delivery, the opposing rights of the customer remain unaffected, in particular their right to retain a reasonable part of the purchase price in relation to the defect.

(2) The Seller shall reserve the ownership of the goods until the purchase price has been paid in full. The following regulations apply only in commercial transactions: The customer may neither pledge the delivery item nor transfer it for security purposes. In the event of seizure, confiscation or other dispositions by third parties, they shall inform the Seller immediately thereof.

(3) In the event of a breach of contract by the customer, in particular in the event of non-payment of the due purchase price, the Seller shall have the right to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the customer does not pay the due purchase price, the Seller may only assert these rights if the Seller has set a reasonable payment deadline for the customer without success, or if the setting of such a deadline is superfluous according to the statutory regulations.

(4) The customer has the right to resell the reserved goods in the ordinary course of business provided that the claims from the resale are transferred to the Seller as follows:
a) The customer already now assigns to the Seller, up to the amount of the purchase price claim, all claims with all ancillary rights which accrue to them from the resale against the buyer or against third parties.
b) The customer is also entitled to collect this claim after the assignment. The Seller’s right to collect the claims itself remains unaffected; however, the Seller undertakes not to collect the claims as long as the customer meets their payment obligations.
c) The Seller can demand that the customer inform the Seller of the assigned claims and their debtors, provide all the information necessary for collection, hand over the corresponding documents and inform the debtor of the assignment.
d) In any case, the above-mentioned securities shall automatically expire as soon as their value exceeds the claims to be secured by more than 10 per cent.

 

8. Liability for defects
(1) The legal regulations apply to the rights of the customer in the event of defects in quality and title (including incorrect or short delivery), unless otherwise specified in the following. In all cases, the statutory special regulations remain unaffected if the goods are delivered to a consumer (supplier’s recourse according to Sections 478, 479 BGB).

(2) The basis of the Seller’s liability for defects is the agreement reached on the quality of the goods. The product descriptions designated as such, which were provided to the customer prior to their order or were included in the contract in the same way as these general terms and conditions, shall be deemed to be the agreement on the quality of the goods. For contract production, the Seller does not assume any warranty with regard to the chemical or physical reactions of the product, the shelf life of the finished product, the chemical stability of the product to be developed or any other characteristic of the product to be developed, if the specifications come from the customer. Furthermore, the Seller does not assume any warranty with regard to the composition and dosage specified by the customer. If the labels are specified by the customer, the Seller assumes no liability for the conformity of the information on the labels with the actual contents of the finished product.

(3) The customer’s claims for defects are contingent on their compliance with the statutory duties of inspection and notification of defects (Sections 377, 381 of the German Commercial Code). If a defect appears during or after the inspection, the Seller must be notified of this immediately in writing. The notification shall be deemed as immediate if it is made within ten working days, whereby the timely dispatch of the notification shall be sufficient for the deadline to be observed. Irrespective of this obligation to inspect and give notice of defects, the customer shall give written notice of obvious defects (including incorrect and short delivery) within two weeks of delivery, whereby the timely dispatch of the notification shall also in this case be sufficient for the deadline to be observed. If the customer fails to properly inspect and/or report defects, the Seller shall not be liable for the defect that has not been reported.

(4) If the notice of defects is justified and provided in a timely manner, the Seller shall immediately refund the shipping costs and remedy the defects by means of supplementary performance in accordance with Section 439 BGB through subsequent delivery or correction of the defects. The Seller shall not be obliged to provide any supplementary performance if any interventions or changes are made to the goods without the Seller’s consent, unless the customer proves that the defect was not caused by these interventions and changes. Should supplementary performance be refused, fail or be inadequate for the customer, the latter shall have the right to withdraw from the contract or obtain a price reduction. For an insignificant defect, there is no right of withdrawal. Claims for damages or compensation of futile expenses asserted by the customer only exist according to Section 8 and are otherwise excluded.

(5) In the event of fraudulent concealment of a defect or acceptance of the guarantee for the quality of the object of purchase at the time of the transfer of risk within the meaning of Section 444 BGB (declaration by the Seller that the object of purchase has a certain property at the time of the transfer of risk and that the seller wishes to be responsible for all consequences of the deficiency, regardless of fault), the rights of the customer are exclusively based on the legal provisions.

 

9. Disclaimer
(1) Outside the liability for material defects and defects of title, the Seller shall be liable without limitation if the cause of damage is based on intent or gross negligence. The Seller shall also be liable for the slightly negligent breach of material obligations (obligations whose breach endangers the achievement of the purpose of the contract) and for the breach of cardinal obligations (obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies), but in each case only for the foreseeable damage typical of the contract. The Seller shall not be liable for the slightly negligent breach of obligations other than the aforementioned obligations or consequential damages and loss of profit.

(2) The limitations of liability of the preceding paragraphs do not apply in the case of injury to life, body and health, for a defect after the assumption of a guarantee for the quality of the product and for fraudulently concealed defects. Liability under the Product Liability Act remains unaffected.

(3) If the Seller’s liability is excluded or limited, this shall also apply to the personal liability of their employees, representatives and vicarious agents.

(4) All claims for damages against the Seller, regardless of the legal basis, shall become time-barred at the latest one year after delivery of the goods to the customer, or in the case of tortious liability, as from the time of this becoming known, or grossly negligent ignorance of the circumstances giving grounds for the claim and of the person of the party liable to effect compensation. The provisions of this paragraph shall not apply, in the case of liability for intent and in the cases provided for in Para. 2. In this case the provisions of the law shall be applicable. Any shorter statutory limitation periods shall take precedence.

(5) If the end user of the goods is a consumer, the statutory provisions shall apply to the statute of limitations of any right of recourse of the customer against the Seller.

 

10. Property rights
(1) For contract production according to the customer’s specifications, the customer is liable for all patent, utility model or other industrial property rights.

(2) Moreover, the Seller reserves the intellectual property rights and copyrights for all products, illustrations and other documents supplied. The customer may only use such documents with the prior express written consent of the Seller; no independent rights shall arise for the customer.

(3) The customer shall not infringe any third-party property rights (patents, licenses, trademarks, etc.) when reselling the goods purchased from the Seller.

 

11. Data protection
For the purpose of processing orders, inquiries and offers which are carried out by the customers or by third parties commissioned by them on their behalf, the Seller has the right to store and process the data electronically. The seller also has the right to transfer data to third parties, in particular to credit institutions and contractual partners involved in the processing of orders. The provisions of the German Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR) are observed.

Version: July 2020