General Terms and Conditions of GES Europe GmbH
§ 1 Scope of validity, form
(1) These General Terms and Conditions (referred to in the following as “GTC”) apply to all our business relations with our customers (referred to in the following as the “Buyer”). The GTC apply only if the Buyer is an entrepreneur. According to Section 14 of the BGB (German Civil Code), an entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
(2) The GTC shall in particular apply to contracts concerning the sale and/or the delivery of movable objects (“goods”) irrespective of whether we produce the goods ourselves or purchase these from suppliers (Sections 433 and 651 of the BGB [German Civil Code]). Unless agreed otherwise, the GTC shall also apply in the version valid at the time at which the Buyer placed the order and/or in the version last presented to the Buyer in text form as a framework agreement for future contracts of a similar nature without us having to refer to them again in each individual case.
(3) Our GTC shall apply exclusively. Deviating, contrary or supplementary General Business Terms and Conditions of the Buyer shall only therefore become a part of the contract to the extent that we have explicitly approved their validity. This approval requirement shall apply in any case, for example, also if, with the knowledge of the GTC of the Buyer, we complete the delivery to the Buyer without reservation.
(4) Individual agreements reached in an individual case with the Buyer (including collateral agreements, supplements and amendments) shall in all cases have precedence over these GTC. A written contract or our written confirmation shall be considered decisive in terms of the contents of such agreements
(5) Legally relevant declarations and notifications made by the Buyer which refer to the contract (e.g. the setting of deadlines, notifications of defects, declarations of withdrawal or reductions in price), require the written form in order to be valid. Statutory formalities and additional verifications, particularly in cases of doubt regarding the authentication of the declaring party, remain unaffected.
(6) References to the validity of statutory regulations shall only have clarifying relevance. This means that the statutory regulations also apply without such a clarification insofar as they are not directly changed or are explicitly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers and the presentation of our products on our website and in our catalogues are without obligation and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyright.
(2) The ordering of the goods by the Buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within one (1) calendar week after its receipt by us.
(3) The acceptance can be declared either in writing (e.g. through the confirmation of the order) or through the delivery of the goods to the Buyer.
§ 3 Language of the contract, storage of the contractual text
(1) The languages available for the conclusion of the contract are German and English.
(2) The contractual text will not be stored in our systems.
§ 4 Delivery deadline and default in delivery
(1) The delivery deadline shall be agreed individually and/or stated by us in our offers. We are entitled to make deliveries before expiry of the delivery deadline.
(2) We are entitled to make partial deliveries insofar as this is acceptable to the Buyer.
(3) If we are unable to comply with binding delivery deadlines for reasons beyond our control (non-availability of service) we will inform the Buyer accordingly without delay, stating the
expected new delivery deadline at the same time. If the service is still not available within the new delivery period, we shall be entitled to withdraw wholly or partly from the contract; any
fee already paid by the Buyer will be reimbursed without delay. A particular instance of nonavailability of service in this respect is late delivery to us by our suppliers, if we have
concluded a congruent covering transaction, if neither we nor our suppliers are to blame or if we are not obliged to make a purchase in the individual case.
(4) The occurrence of default in delivery shall be determined by the statutory regulations. A reminder from the Buyer shall be required in all cases, however. If we are in default of
delivery, the Buyer may request a fixed-rate compensation for the damage that s/he has suffered due to the default. The fixed-rate compensation amounts to 0.5% of the net price
(delivery value) per full calendar week of default, subject to a maximum of 5% of the delivery value of the goods that are delivered late. We reserve the right to prove that the Buyer has
suffered no loss at all or only a substantially lesser loss than the above fixed-rate compensation.
(5) The rights of the Buyer according to § 9 of these GTC and our statutory rights, especially upon an exclusion of the service obligation (if the service is impossible or unreasonable and/or rectification) remain unaffected.
§ 5 Delivery, transfer of risk, acceptance, default in acceptance
(1) The delivery is carried out ex-warehouse, where the place of performance and a possible supplementary performance is also respectively located. At the request and expense of the
Buyer, the goods shall be sent to another place of destination (consignment purchase). Unless agreed otherwise, we are entitled to determine the type of shipment (in particular the transport company, shipment route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall be transferred to the Buyer by no later than when the goods are handed over. In the case of a consignment purchase, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall transfer upon the delivery of the goods to the carrier, the freight forwarder or the other person or organisation appointed for the completion of the shipment. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. The obligation of examination and notification specified in Section 377 of the HGB (German Commercial Code) applies. If the Buyer fails to provide any such notification, the goods are considered to have been accepted unless the defect was not recognisable during the examination. In addition, the statutory regulations of the law governing contracts for work and services shall apply accordingly to an agreed acceptance. The same applies to the delivery and/or acceptance if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, if s/he fails to provide an act of cooperation or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to request compensation for the arising damages, including additional expenses (e.g. warehousing costs). In this respect, we shall charge a price-oriented compensation to a maximum amount of 5% and/or to a maximum of 10% for the case of definitive nonacceptance
per calendar week, starting from the delivery deadline or – in the absence of a delivery deadline – with the notification that the goods are ready for shipment. The proof of a higher degree of damage and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the fixed amount payable is, however, to be offset against further monetary claims. The Buyer reserves the
right to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned fixed amount payable.
4) In general, the Buyer is able to collect the goods at the following times: Monday to Friday, 8:00 am until 3:00 pm, not including public holidays. The Buyer must inform us accordingly at least five (5) days before the date of collection so that we are able to retrieve the goods from our warehouse.
§ 6 Prices and conditions of payment
(1) If no alternative agreements have been made in writing, the prices valid at the time of contract conclusion shall apply, not including the statutory rate of VAT applicable on the date of invoicing. If a price increase occurs at the time that the service is rendered due to a change in the market price or an increase in the fees charged by third parties in the scope of the rendering of the service, the increased price shall apply. If such an increased price
exceeds the agreed price by 20% or more, the purchaser shall have the right to withdraw from the contract. This right of withdrawal must be exercised without undue delay after the notification of the increased price.
(2) In the event of a consignment sale (§ 5, para. 1), the Buyer will bear the transport costs ex warehouse, and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges will be borne by the Buyer.
(3) The purchase price is due and to be paid immediately without discount from the date of invoicing and delivery and/or acceptance of the goods. In the scope of an ongoing business relationship, however, we are also entitled to only carry out a delivery, either in part or in whole, against prepayment. We shall clarify such a condition with the confirmation of the order at the latest.
(4) In the event of orders placed by Buyers whose place of residence or business is in a foreign country, or with justifiable indications of a risk of non-payment, we reserve the right only to deliver following receipt of the purchase price and shipment costs (condition of prepayment). If we apply the condition of prepayment, we will notify the Buyer accordingly without delay. In this case, the delivery deadline starts with the payment of the purchase price and shipment costs.
(5) Once the payment deadline has elapsed, the Buyer is in default. The legally stipulated rate of default interest shall apply for the period in which the Buyer is in default. We reserve the right to assert greater damages caused by default. Our right to commercial maturity interest (Section 353 of the HGB [German Commercial Code]) towards merchants remains unaffected.
(6) The Buyer is only entitled to offset our demands if his or her counter-claims are legally established, undisputed, inextricably linked to our principal claim or have been acknowledged by us. There shall be no right to retention unless the counter-claim of the Buyer originates from the same contractual relationship and is undisputed or legally established. To assert such a right, the Buyer must provide us with the required written notification. In the case of defective delivery, the counter-rights of the Buyer, especially according to § 8, para. 6, sent. 2 of these GTC, remain unaffected.
(7) If, after the contract has been concluded, it becomes evident that our claim to the purchase price is endangered due to the insufficient financial status of the Buyer (e.g., through an application to open insolvency proceedings), we shall be entitled to withdraw from the contract (Section 321 of the BGB [German Civil Code]) in keeping with the statutory provisions on the refusal of performance – possibly after setting a time limit. In the case of contracts for the manufacturing of specific items (custom-made products), we may withdraw from the contract immediately; the statutory provisions concerning the dispensability of deadlines shall remain unaffected.
§ 7 Reservation of title
(1) We reserve the right to the ownership of the sold goods until the full payment of all of our current and future claims arising from the purchase contract and a current business relationship (secured claims).
(2) The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Buyer must inform us immediately in writing if an application to open insolvency proceedings is submitted or insofar as there are any accesses of third parties (e.g. distraints) to the goods which belong to us.
(3) In case of conduct by the Buyer which is in breach of the contract, in particular the nonpayment of the due purchase price, we are entitled to withdraw from the contract according to the statutory regulations and/or to request that that the goods are handed over on the basis of the reservation of title. The request for handing over does not at the same time include the declaration of withdrawal; we are in fact entitled to merely request that the goods are handed over and reserve the right to cancellation. We are only able to assert these rights if the Buyer fails to pay the due purchase price, if we have previously set the Buyer a reasonable deadline for payment to no avail, or the setting of such a deadline is superfluous according to the statutory regulations.
(4) With the exception of Withdrawal as stated under (c), the Buyer is authorised to sell and/or to process the goods which are subject to the reservation of title in proper business transactions. In this case, the following provisions shall also apply.
(a) The reservation of title covers the products which are manufactured on the basis of the processing, mixing or combination of our goods at their full value, whereby we are considered to be the manufacturer. If the ownership right of third parties continues to exist in the event of a processing, mixing or combination with goods of third parties, we shall acquire co-ownership in terms of the invoice values of the processed, mixed or combined goods. Apart from that, the same shall apply to the produced product as to the goods delivered under reservation of title.
(b) The Buyer hereby assigns the claims against third parties which are established from the resale of the goods or product in full or to the amount of our possible co-ownership share to us as collateral according to the above paragraph. We hereby accept this assignment. The obligations of the Buyer stated in para. 2 shall also apply in view of the assigned claims.
(c) The Buyer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his or her payment obligations towards us, there is no limitation to his or her ability to perform, and we do not assert the reservation of title by exercising a right according to para. 3. However, if this is the case, we can request that the Buyer informs us of the assigned claims and their debtors, provides all information which is necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to withdraw the permission of the Buyer for the resale and further processing of the goods which are subject to the reservation of title.
(d) If the realisable value of the collateral items exceeds our claims by more than 10%, at the request of the Buyer we shall release collateral items at our choice.
§ 8 Claims for defects by the Buyer
(1) Unless agreed otherwise in the following, the statutory regulations apply to the rights of the Buyer in cases of material defects and defects of title (including incorrect delivery and shortfalls in delivery as well as incorrect assembly or faulty assembly instructions). The statutory regulations particular to the final delivery to a consumer shall remain unaffected in all cases, even if s/he has processed them further (supplier recourse according to Sections 478 et seq. of the BGB [German Civil Code]). Claims arising from supplier recourse are excluded if the defective goods were processed further by the Buyer or another entrepreneur, e.g. through installation in another product.
(2) The basis for our liability for defects is primarily the agreement regarding the condition of the goods. The agreement regarding the condition of the goods is only based on our product descriptions which form the subject matter of the individual contract.
(3) In the absence of any agreed condition of the goods, the existence of defects shall be determined according to the statutory provisions (Section 434, para. 1, s. 2 and 3 of the BGB [German Civil Code]). We are not liable for any representations made to the public by the manufacturer or by any other third party (e.g. advertising statements), however.
(4) Claims for defects of the Buyer presume that s/he has satisfied his or her statutory obligations for examination and notification of complaints (Sections 377, 381 of the HGB [German Commercial Code]). If a defect is determined during the examination or at a later date, this is to be reported to us immediately in writing. In all cases, the Buyer must report obvious defects within five (5) working days of delivery, and in the case of defects which were not apparent during the examination, within the same time following their discovery. If the Buyer fails to carry out the proper examination and/or notification of defects, our liability for the defect which was not notified in time and/or not properly notified is excluded according to the statutory regulations.
(5) If the delivered object is faulty we can initially decide whether we shall provide subsequent performance by rectifying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to decline the subsequent fulfilment according to the statutory conditions remains unaffected.
(6) We are entitled to make the outstanding subsequent performance dependent on the Buyer paying the due purchase price. The Buyer is entitled to retain part of the purchase price in reasonable proportion to the defect, however.
(7) The Buyer must give us the time and opportunity necessary for the outstanding subsequent performance, in particular to return the goods that are subject to the complaint for inspection purposes. In the event of replacement delivery, the Buyer must return the faulty item to us according to the statutory regulations. If we were not originally obliged to install the item, the subsequent fulfilment shall not include the removal of the defective item or its refitting.
(8) The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, route, work and material costs, shall be reimbursed by us according to the statutory regulations if a defect is found to be present. Otherwise, we may request the reimbursement of the costs incurred for the unjustifiable request to rectify the defect (especially inspection and transport costs) from the Buyer, unless the lack of a defect was not recognisable for the Buyer.
(9) In urgent cases, e.g. when operating safety is endangered or to avert disproportionate damage, the Buyer has the right to rectify the defect on their own and to claim from us the objectively required expenses. We must be advised without delay, if possible beforehand, of such a self-remedying of defects. The right of self-remedy shall not apply if we would have been entitled to refuse the corresponding subsequent performance in accordance with the statutory provisions.
(10) If the subsequent performance has failed or a reasonable deadline which is to be set by the Buyer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory regulations, the Buyer can withdraw from the purchase contract or reduce the purchase price. However, no right to withdrawal exists in the case of an insignificant defect.
(11) Claims of the Buyer for damages and/or reimbursement of fruitless expenses shall only exist according to § 9 and are otherwise excluded.
§ 9 Other liability
(1) Unless otherwise derived from these GTC including the following provisions, in the case of a breach of contractual and non-contractual duties, we shall be liable according to the relevant statutory regulations.
(2) We shall be liable for damages – regardless of their legal grounds – in the case of wilful intent and gross negligence. In the case of simple negligence, according to the statutory regulations, upon reservation of a lesser degree of liability (e.g. care applied to proprietary affairs), we shall only be liable
a) for damages arising from injury to life, the body or the health,
b) for damages arising from the breach of an essential contractual duty (an obligation, the fulfilment of which only enables the proper execution of the contract and upon which the contractual partner relies and may generally rely on its compliance); in this case, our liability is limited to the reimbursement of the foreseeable, typically occurring damages, however.
(3) The limitations of liability according to para. 2 also apply in the case of breaches of duty by and/or to the benefit of people whose fault we are responsible according to the statutory regulations. They do not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods and for claims of the Buyer according to the Product Liability Act.
(4) The Buyer can only cancel or terminate the contract owing to the breach of a duty, which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination on the part of the Buyer (in particular according to Sections 651 and 649 of the BGB [German Civil Code]) is excluded. Apart from that, the statutory requirements and legal consequences shall apply.
§ 10 Statute-barring
(1) Notwithstanding Section 438, para. 1, no. 3 of the BGB (German Civil Code), the general statute-barring for claims arising from material defects and defects of title is one (1) year from delivery. Insofar as an acceptance has been agreed, the statute-barring period starts with the acceptance.
(2) The aforementioned statute-barring periods of Sales Law also apply to contractual and non-contractual claims for damages by the Buyer which are due to a defect to the goods, unless the application of the standard statute-barring period (Sections 195 and 199 of the BGB [German Civil Code]) would lead to a shorter statute-barring period in the individual case. Claims for compensation by the Buyer according to § 9, para 2., sent. 1 and sent. 2 (a)
and those according to the Product Liability Act only become barred by statute according to the statutory statute-barring periods.
§ 11 Data Protection and Copyright
(2) The Buyer is entitled to receive information about his or her stored personal data at any time upon request.
(3) Apart from that, the statutory data protection regulations apply, especially the General Data Protection Regulation (GDPR), the revised German Data Protection Act (BDSG-neu) and the German Telemedia Act (TMG).
(4) We hold the copyright to all of the images, films and texts which are published on our website. The use of such images, films and texts is not allowed without our express permission.
§ 12 Choice of law and place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relations between us and the Buyer under the exclusion of international regulations, in particular the UN Convention on the International Sale of Goods.
(2) If the Buyer is a merchant in terms of the HGB (German Commercial Code), a legal entity under public law or a public utility fund, the sole – and also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our principal place of business in Gelnhausen. The same applies if the Buyer is an entrepreneur in terms of Section 14 of the BGB (German Civil Code). In all cases, however, we are also entitled to take legal action at the place of the fulfilment of the delivery obligation according to these GTC and/or an individual agreement that takes precedence or at the general place of jurisdiction of the Buyer. Statutory provisions which take precedence, particularly regarding exclusive competences, remain unaffected.
Date of validity: 27.08.2018