1. Our
entire supply and service, especially also in the future, are conducted
exclusively under our following conditions. Additional side agreements
or alterations of these conditions require the written form to be valid. 2.
If the purchaser cites terms of business diverging from these, they are
only binding for us, if they were accepted by us in writing. Neither
the completion of supply and service, nor an omitted objection
constitutes an acceptance of the purchaser’s terms of business. If
individual conditions or individual supply- and payment conditions of
an executed agreement between the parties are ineffective, the
remaining parts of the executed agreement will not be affected. The only
case, where this is not applicable is, if the adherence to the
agreement constitutes an unreasonable hardship for one of the parties.
As soon as possible, the parties to the agreement will replace the
ineffective condition with an effective condition, which is economically
closest to the ineffective condition.
§ 2: Documents of GOK
We
retain unlimited title to our copyright and exploitation right for
business documents of GOK, such as quotes, models, drawings, stencils,
templates, samples, tools and other manufacturing equipment as well as
other written documentation. These documents can only be made available
to outside third parties or used for third parties upon our prior
approval. They are to be returned to us immediately upon request.
§ 3: Supply
1. Delivery terms are only binding, if explicitly agreed in writing. 2.
The delivery term is complied with, if the goods have left works at the
time of the expiration of the delivery term or if readiness for
shipment has been announced. 3. In case of force majeure, measures in
the course of industrial action (especially strike or lock-out),
service failure by sub-suppliers, where we are not at fault, as well as
other unforeseeable and non-culpable circumstances, the delivery term
will be extended appropriately. If the above mentioned circumstances
make supply impossible or unreasonable for us, we can withdraw from the
agreement. The purchaser is entitled to withdraw from the agreement if,
due to the delay, the acceptance is no longer reasonable. In important
cases, we will notify the purchaser immediately regarding the occurrence
of the mentioned circumstances. 4. Compensation claims by the
purchaser due to delays in supply, as well as compensation claims
instead of service, which exceed the limit mentioned in Nr. 4, are
excluded in all cases of delayed supply, even after the expiry of any
possible supply term set by us. The only case, where this is not
applicable is, if we are compulsory liable in the case of intent, gross
negligence or injury to life, body or health. An amendment of the onus
of proof to the detriment of the purchaser is not associated herewith.
The purchaser may withdraw from the agreement only within the scope of
the legal regulations, if the delay in supply is to be due to our fault.
5. Upon our request, the purchaser is obligated to declare within
an appropriate time, whether he will withdraw from the agreement due to
the delay in supply and/or demands compensation instead of service or
insists on supply. 6. If dispatch or delivery of the purchased goods
are being delayed at the purchaser’s request by more than one month from
the notice of readiness for shipment, we will charge the purchaser a
storage fee of 0.5 % of the price of the goods stored, not exceeding a
total of 5 % for every month or part thereof. The right to prove higher
or lower storage costs remains unaffected for both parties to the
agreement.
§ 4: Reservation of title
1.
Goods supplied by us remain our property (reserved goods) up to the
payment of all claims, especially the respective balance claims from the
business connection with the purchaser. 2. If the purchaser treats
or processes the reserved goods, he will do so for us as manufacturers
in the sense of § 950 German Civil Code, without any obligations arising
for us. The treated and processed goods are deemed reserved goods in
the sense of Nr. 1 above. 3. In case of the reserved goods being
processed, connected or mixed by the purchaser with other goods, we are
entitled to co-ownership of the newly created objects at the ratio of
the invoice value of the reserved goods compared with the invoice value
of the other utilised goods. If the reserved goods are combined with
other objects to a common object and if the other object is to be deemed
the main object, the purchaser is obligated to assign to us a pro-rata
co-ownership, if the main object belongs to him. 4. The purchaser is
entitled to on-sell the goods in the course of normal business or
otherwise use the reserved goods. The purchaser is prohibited to
otherwise utilise the reserved goods, especially for pledges or chattel
mortgage. 5. The purchaser’s claims resulting from the on-selling of
the reserved goods are herewith assigned to us. The assigned claims will
serve as security to the same extent as the reserved goods. 6. If
the reserved goods are on-sold by the purchaser together with other
goods, which were not supplied by us, the assignation of claims
resulting from the on-selling is valid only for the invoiced amount of
the reserved goods. In case of co-ownership, the assignation covers only
our pro-rata co-ownership according to Nr. 3 above. 7. The purchaser is authorised only revocable, and in the course of normal business, to recover the assigned claims. 8.
We will only invoke our right of veto, if the purchaser has neglected
his payment obligations toward us or in case of other circumstances,
which jeopardise our claims due to the deterioration of the credit
status of the purchaser. In this case, the purchaser is obligated at our
request, to immediately inform his customers of the assignation to us
and provide us with the necessary information and documents for the
recovery. 9. In case of failure to comply with the payment
conditions, unauthorised disposal of the reserved goods, a significant
deterioration of the purchaser’s asset situation, bill-of-exchange or
cheque protest or if the purchaser himself or a third party applies for
insolvency of the purchaser, we are entitled to prohibit the treatment
and processing, as well as the on-selling of the reserved goods. In
cases such as these, we are also entitled to confiscate the reserved
goods and for this purpose enter the premises of the purchaser, request
appropriate information as well as gain necessary access to his
accounting records. The claim for return, but not the simple redemption
of the reserved goods, constitutes the withdrawal from the agreement. 10.
If the value of the security interests owed to us exceed our claims in
total by more than 10 %, we will, on the purchaser’s request, relinquish
a suitable part of the security interests at our choice. 11. The
purchaser has to notify us immediately regarding impending or executed
attachments as well as assertion of third party rights on the reserved
goods and/or the claims assigned to us.
§ 5: Dispatch and transfer of risk
1.
The dispatch is ex-works at the expense and risk of the purchaser. This
also applies, if and insofar the dispatch is conducted with our own
means of transport. Transport insurance is only taken out at the request
of the purchaser and at the purchaser’s expense. 2. If the dispatch
is delayed due to circumstances, for which the purchaser is responsible,
the risk is transferred to the purchaser upon receipt of the note of
readiness for dispatch. Upon notification of deadline and its
unsuccessful expiry, we are entitled to dispose of the delivery-object
and supply the purchaser at an appropriately extended term. 3. We are entitled to partial deliveries of reasonable volume.
§ 6: Prices
1.
Unless otherwise agreed, all prices are net plus VAT at the applicable
rate on the date of dispatch. Prices are applicable for delivery ex
works excluding packaging. 2. Prices are subject to change and are duty unpaid. Invoicing occurs according to the prices relevant at the date of dispatch. 3.
If the goods are dispatched to another Member State of the European
Union, the purchaser is obligated to provide us with his VAT ID number
applicable for the delivery and his branch of trade prior to dispatch.
§ 7: Payment conditions
1. Our
invoices are payable without deduction within 30 days of the invoice
date. If these terms are exceeded, we are entitled to charge default
interest in accordance with the legal regulations. We reserve the right
to transmit our invoices by letter mail or electronically, by e-mail or
EDI. 2. The purchaser is only entitled to withhold payment or set off
possible counter claims, if these were accepted by us in writing or if
they have been legally determined. 3. Default of payment by the
purchaser or any other risk to our claim due to the deterioration of the
purchaser’s credit status permit us, to immediately call in all
existing claims resulting from the entire business connection -
regardless of term of maturity - or demand appropriate securities. In
such a case, we are further entitled to carry out pending deliveries
only against appropriate cash advance or securities. 4. We may offset all claims, which we have against the purchaser, against all claims, which the purchaser has against us.
§ 8: Liability for material defect
1.
Those goods, which show a material defect within the statute of
limitation, are to be repaired or delivered anew free of charge at our
choice, provided that the cause of the material defect existed at the
time of risk transfer. If we rectify the defects in such a case, it does
not constitute an acknowledgement of the purchaser’s right to claim. 2.
The claims for material defects expire within 12 months from delivery.
However, this does not apply in the case, where the law prescribes
longer terms due to a right of recourse in accordance with § 479 sub
paragraph 1 German Civil Code. 3. The purchaser has to give notice of a defect in writing immediately. 4. In any case, the purchaser has to provide us with an opportunity to rectify the defect within an appropriate timeframe. 5.
In the case of a notice of material defects, the purchaser may only
withhold payment to the extent of an appropriate ratio to the material
defects occurred. The purchaser may only withhold payment, if a notice
of material defects has been asserted and if it is justified. If a
notice of material defect is unjustified, we are entitled to demand
reimbursement from the purchaser for any costs incurred. 6. If a
rectification of the defects fails, the purchaser may - regardless of
any compensation claims in accordance with § 10 - withdraw from the
agreement or reduce the payment. 7. Claims based on defects do not exist in the following cases: a) insignificant variance from the agreed consistency or b) insignificant impairment of usability or c) natural wear and tear or d)
damages incurred subsequently to the transfer of risk, due to incorrect
or negligent treatment, excessive load, unsuitable maintenance
resources, inadequate installation or due to particular outside
influences, which are not provided for according to the agreement. e)
If the purchaser or a third party performs any improper alterations or
repairs to the goods supplied by us or on other products which have
repercussions on the goods supplied by us; there are no claims based on
defect for those and the consequences arising from them. 8. A legal
right of recourse by the purchasers against us only exist to the extent,
as the purchaser has not entered into any additional agreements with
his buyer, which exceed the legal claims of defect. The following clause
is applicable to the extent of the purchaser’s right of recourse
against us. 9. Claims by the purchaser for expenses incurred due to
the purpose of rectification, especially transport-, shipping- and
handling-, labour- and material costs are excluded, if the expenses were
increased due to the supplied object being moved to a place different
from the purchaser’s place of delivery, unless the transfer complies
with its usage in accordance with regulations. 10. § 10 applies for
any compensation claims. Further or other claims by the purchaser
against us and our vicarious agents due to a material default, as those
regulated under § 10, are excluded.
§ 9: Impossibility; Adaptation of contracts
1.
If the supply is impossible, the purchaser is entitled to claim
compensation, unless we are not responsible for the impossibility.
However, the compensation of the purchaser is limited to 5 % of the
value of that part of the delivery, which was not supplied or could not
be otherwise used due to the impossibility. However, this limitation
does not apply in case of intent, gross negligence or in cases of injury
of life, body or health or any other compulsory liability. This does
not incorporate an adaptation of the onus of proof to the detriment of
the purchaser. The purchaser’s right of withdrawal from the agreement
remains unaffected. 2. If unexpected events, which could not be
predicted, considerably influence the economic significance or the
content of the delivery or our organisation, the agreement will be
adapted accordingly in good faith. If we can not economically justify
this we have the right to withdraw from the agreement. In such a case we
are obligated to notify the purchaser in writing following our
realisation of the extent of the occurrence, even in such a case, where
an extended delivery term was agreed upon with the purchaser initially.
§ 10: Further, other claims of compensation
1. Claims
for compensation and -expenditure by the purchaser, regardless of the
legal foundation, especially due to violation of duties resulting from
the agreement and due to unauthorised activity are excluded. 2. This
does not apply if we are compulsory liable, i.e. according to the
Product Liability Act, in cases of intent, gross negligence, injury to
life, body, health or due to the violation of significant contractual
duties. However, the compensation claim for violation of significant
contractual duties is limited to contractually typical, predictable
damages, unless they represent intent or gross negligence or pertain to
injury of life, body or health. This does not incorporate an adaptation
of the onus of proof to the detriment of the purchaser. 3. Such
claims for compensation, as far as the purchaser is entitled to them in
accordance with this § 10, expire with the expiration of the statute of
limitation applicable for material defect claims as described in § 8.
§ 11: Taking back and environmentally friendly disposal of electronic devices
1.
The Customer is obligated to properly dispose of the electronic devices
of the “GOK” brand delivered to them at their own expense in accordance
with the provisions in the Elektro- und Elektronikgerätegesetz
(ElektroG) [Electrical and Electronic Equipment Act] after termination
of the use thereof. Thus, “GOK Regler- und Armaturen-Gesellschaft mbH
& Co. KG” is exempt from the obligations under Sec. 10 para. 2
ElektroG and third-party claims connected thereto. 2. If the Customer
fails to contractually obligate third parties to whom they forward our
electronic devices to assume the disposal obligation and to pass on
obligations, the Customer shall be obligated to take back the supplied
electronic devices at their own expense and to properly dispose of them
in accordance with the statutory provisions after termination of the use
thereof. 3. The claim of “GOK Regler- und Armaturen-Gesellschaft mbH
& Co. KG” to assumption of the obligation to dispose of electronic
devices of the “GOK” brand in compliance with statutory provisions by
the Customer supplied by GOK shall not lapse before two years after fi
nal termination of the use of the electronic devices supplied to the
Customer by us. The two-year period of expiry suspension shall commence
no earlier than on the date on which we receive a written communication
on the termination of use by our Customer.
§ 12: Place of performance and jurisdiction
1. Place of performance is Marktbreit, if the parties are registered traders. 2.
The place of jurisdiction for all disputes under this contractual
relationship shall be Marktbreit to the extent it is a dispute with a
Vollkaufmann [registered trader under German law]. However, we are
entitled to also raise claim at the purchaser’s place of business. 3.
The law of the Federal Republic of Germany applies for all legal
relationships between the purchaser and us under exclusion of the UN
Convention on Contracts for the International Sale of Goods (CISG) from
the 11.04.1980.
