GENERAL TERMS AND CONDITIONS of GEISS AG
for use with regard to:
1. a person which at the conclusion of the contract acts in pursuance of its commercial or self-employed activity (entrepreneur);
2. juridical persons under public law or a special assets under public law.
1. All deliveries and performances are subject to these terms and separate contractual agreements, if any. Any deviating purchasing terms of the purchaser will not be accepted as basis of the contract even if the order is confirmed.
Unless otherwise agreed upon in writing, a contract is reached by means of the written order confirmation of the supplier.
2. The supplier reserves the right of ownership and copyrights to samples, cost estimates, drawings, sketches, designs, models, CAD data and similar information whether of material or immaterial nature, also in electronic form; they must not be disclosed to third parties. The suppliers engage not to disclose to third parties the information and documents determined confidential by the customer unless the latter agrees.
II. Prices and payment
1. Unless otherwise agreed upon, prices are quoted net ex works including loading in the factory, excluding transport insurance, packaging and unloading at customer site. VAT, where applicable, needs to be added to the net prices quoted at the present valid rates.
2. Unless otherwise agreed upon, payments have to be made without any deduction to the account of the supplier, as follows:
- 1/3 down deposit payment upon receipt of the order confirmation,
- 1/3 as soon as the purchaser is informed that the main parts are ready for shipment,
- the remaining balance becomes due 30 days from date of invoice.
3. The purchaser is not entitled to defer payments or to deduct amounts claimed unless his counter-claims are undisputed and have been legally confirmed.
4. In case of default, we reserve the right to charge interests payable on arrears acc. to § 288 BGB (Civil Code).
III. Delivery time, delay of delivery
1. The time of delivery is as confirmed by the agreements between the parties to the contract. The supplier adheres to the time of delivery on condition that all commercial and technical issues between the parties have been clarified and that the purchaser has fulfilled all his obligations such as supply of the necessary official certificates or approvals or having made the required deposit payment on time, failure of which will postpone the time of delivery accordingly. This does not apply if the supplier is responsible for the delay.
2. The adherence to the delivery time is subject to the supplier being himself supplied correctly and timely. The supplier will inform the purchaser as soon as possible in respect of any delay becoming apparent.
3. The time of delivery is adhered to if the goods have left the supplier's works within the deadline or if the supplier has notified that the goods are ready for shipment. If an acceptance test has to be made – except for justified refusal of acceptance – the date of acceptance will be applicable or, alternatively, the notification of the goods being ready for the acceptance test.
4. If the shipment or the acceptance test of the goods is delayed for reasons for which the purchaser is responsible, he will be charged the cost incurred by the delay beginning one month after being notified that the goods are ready for shipment or for acceptance test.
5. If the deadline for delivery cannot be kept due to force majeure, industrial actions or other events beyond the control of the supplier, the deadline will be adequately postponed. The supplier will inform the purchaser as soon as possible about the beginning and the end of such events.
6. The purchaser may withdraw from the contract if the supplier is definitely incapable of complete delivery prior to the transfer of risks. The purchaser may also withdraw from the contract if part of the shipment of a purchase order becomes impossible or if he has a legitimate interest to refuse the partial delivery. Otherwise the purchaser has to pay the contractual price commensurate to the partial delivery. The same applies to insolvency of the supplier. For other eventualities, section VII.2 applies.
If the incapability or the insolvency occurs during the delay of acceptance or if the purchaser is solely or for the most part responsible for these circumstances, he remains liable to payment.
7. If the supplier falls behind the deadline of delivery and if a damage is thereby accrued to the purchaser, he is entitled to claim a flat rate delay compensation. It amounts to 0.5% but altogether to not more than 5% of the value of that part of the complete shipment which due to the delay and cannot be used timely or pursuant to the contract.
If the purchaser gives the supplier an adequate term after expiry – allowing for the legal exceptions – and if the term is not kept, the purchaser is entitled to withdraw from the contract within the scope of legal regulations.
Other claims accruing from delay of delivery are exclusively subject to section VII.2 of these terms.
IV. Transfer of risks, acceptance
1. Risks are transferred to the purchaser when the goods have left the works, also in case of partial deliveries of when the supplier bears shipping, installation and transportation costs. If an acceptance test has to be performed, the date of acceptance will become applicable to the transfer of risks. It has to be performed without delay by the date determined for acceptance, alternatively after the supplier has notified the purchaser that the goods are ready for acceptance. The purchaser is not entitled to refuse the acceptance because of irrelevant defects.
2. If shipping or acceptance is delayed or not performed due to circumstances beyond the supplier's control, the risks will be transferred to the purchaser from the day he has been notified that the goods are ready for shipment or acceptance. The supplier engages to take out the insurances as requested by the purchaser and at the latter's cost.
3. Partial deliveries are admissible as far as reasonable for the purchaser.
V. Retention of title
1. The supplier reserves title to the goods until all payments under this contract have been made in full.
2. The supplier is entitled to insure the goods at the purchaser's cost against theft and damage caused by breaking, fire, water and other damages, unless the purchaser has himself taken out the insurance and can prove it.
3. The purchaser may not sell, mortgage or transfer the ownership as security on a debt. In case of seizure or confiscation or other dispositions by third parties, he will have to notify the supplier without delay.
4. In case of breach of contract, in particular default, the supplier is entitled to take back the goods after a reminder has been sent and the purchaser is bound to give them back.
5. Due to the retention of title the supplier can claim the return of the goods only after he has withdrawn from the contract.
6. The claim for institution of an insolvency procedure entitles the supplier to withdraw from the contract and to demand the immediate return of the goods.
For material defects and defects of title of the delivery the supplier gives the following warranty with the exception of further claims and remedies as provided in section VII:
1. The parts that are to be mended or replaced free of defects or those which are found to be defective due to a circumstance that occurred prior to the transfer of risks. The assessment of such defects is to be notified immediately to the supplier in writing. Replaced parts become the property of the supplier.
2. For the supplier to carry out all repairs and replacement deliveries he impartially deems necessary, the purchaser must give him the opportunity and sufficient time after he notified the defects; otherwise the supplier is no longer liable. The purchaser may repair the defective items or have them repaired by third parties only when they are urgent and could be dangerous for the safety of the factory, or to prevent worse damages and to claim compensation from the supplier of the costs incurred.
3. Of the direct costs incurred for repair or replacement the supplier will bear the costs for the replacement part and shipment if the complaint turns out to be justified. He will also bear the costs for disassembly and assembly and the costs of the necessary technical personell including travel expenses provided that this is not deemed to regarded as excessive by the supplier.
4. Within the scope of legal regulations the purchaser is entitled to withdraw from the contract if the supplier – allowing for legal exceptions – misses an adequate deadline he was given for the repair or replacement delivery due to a material defect. If the defect is irrelevant, the purchaser will only be entitled to a reduction of the contractual price. The right to reduce the contractual price remains otherwise excluded.
Further claims are governed by the terms of section VII.2.
5. No guarantee is offered in particular for damages caused by the following:
Inadequate or improper use, wrong installation or commissioning by the purchaser or other people, natural wear and tear, wrong or negligent handling, unfit raw materials, wanting construction works, unfit foundations, chemical, electrochemical or electrical influences, unless they can be ascribed to the supplier.
6. If the purchaser or a third party repairs improperly, the supplier cannot be held liable for the consequences thereby incurred. The same applies to modifications to the goods that were made without the prior consent of the supplier.
Defects of title
7. If the use of the goods results in violation of patent rights or copyrights in his country, the supplier will on principle and at his cost provide the purchaser the right to further use or to modify the goods in a way acceptable to the purchaser so that the violation of patent rights no longer exists.
If this is not possible on economically reasonable terms or within an adequate deadline, the purchaser is entitled to withdraw from the contract. Under the circumstances mentioned, also the supplier has the right to withdraw from the contract.
Furthermore, the supplier will exempt the purchaser from undisputed or legally confirmed claims of the relevant patent-holders.
8. The supplier's obligations mentioned in section VII.7, except as provided in section VII.2, are final in case of patent or copyright violation.
They are legally valid only, if
- the purchaser notifies the supplier immediately about the assertion of claims for violation of patent rights or copyrights
- the purchaser supports the supplier to an adequate extent in dismissing the claims asserted or enables the supplier to perform the modifications according to section VI.7,
- it remains to the supplier to initiate actions for dismissal including settlement out of court,
- the defect of title is not founded on an instruction of the purchaser,
- the infringement cannot be put down to the fact that the purchaser has modified the goods on his own initiative or has used them in a way contrary to the terms of the contract.
1. If the goods cannot be used as stipulated in the contract through the supplier's fault due to suggestions and advice that were not carried out or were performed poorly before and after the conclusion of the contract or due to the violation of other contractual collateral obligations – in particular instruction for operation and maintenance of the goods - , the provisions of sections VI and VII.2 shall apply analogously with the exception of further claims of the purchaser.
2. The supplier is liable for damages that did not affect the goods themselves – for whatever legal justification – only
a. if caused with intent,
b. for gross negligence of the owner/authorities or executives,
c. for culpable injury to life, body, health,
d. for defects he concealed fraudulently or whose absence he has guaranteed,
e. for defects of the goods insofar as liability exists under the product liability law for injury to persons or damage to property of privately used objects.
In case of culpable violation of essential contractual obligations the supplier is also liable for gross negligence of employees and for slight negligence, in the latter case limited to the typical contractual damage that can reasonably be predicted.
Further claims are excluded.
All claims of the purchaser - for whatever legal justification – will lapse within 12 months. Claims for damages pursuant to section VII.2 points
a – e are governed by the legal terms. They also apply to damages of a structure or for goods used according to their usual purpose for a structure and caused its defect.
IX. Use of software
Insofar as the scope of supply includes software, the purchaser is granted a non-exclusive right to use the software supplied including its documentation. It is let for use on the goods supplied for that purpose. The software may not be used on more than one system.
The purchaser may duplicate, revise, translate or convert the software from the object code into the source code only to the legally admissible extent (copyright §§ 69 a ff. UrhG). The purchaser engages not to delete manufacturer's references – in particular copyright references – and not to modify them without the prior explicit consent of the supplier.
All other titles to the software and the documentations including the copies remain property of the supplier or the supplier of the software. The granting of sublicences is not permitted.
X. Applicable Law, court of jurisdiction
1. All legal relations between the supplier and purchaser are governed by the relevant Law of the Federal Republic of Germany.
2. The court of jurisdiction is the court responsible for the area of the headquarters of the supplier. However the supplier is entitled to initiate proceedings at the headquarters of the purchaser.
Version: 2nd February 2005