General Terms of Business
§ 1 Scope
(1) All deliveries, services, and offers of Gefen Europe GmbH called the Seller hereinafter, shall be based solely on these General Terms of Delivery. They are a com-ponent of all contracts the Seller signs with contract partners (also called “Customers” here-inafter) for the deliveries or services offered. They also apply to all future deliveries, services, or offers to the Customer even if they are not agreed to again separately.
(2) Business terms of the Customer or third parties do not apply even if the Seller does not separately decline them in a specific case. Even if the Seller refers to a letter that contains business terms of the Customer or a third party or points to such, this does not constitute agreement to the applicability of such business terms. The purchase contract shall be con-cluded with:
Gefen Europe GmbH, Managing Director: Florian Goebel, Ehrenbreitsteiner Strasse 28, 80993 Munich, Commercial Register: District Court of Munich HRB 202467. You can reach our customer service with questions or complaints on weekdays from 9:00 to 17:00 at the telephone number 089-444 889 100 or by email at support(@)gefen.eu.
§ 2 Offer and Conclusion of Contract
(1) All offers of the Seller are subject to confirmation and are non-binding unless they are expressly identified as binding or contain a definite deadline for acceptance. The Seller may accept orders or contracts within fourteen days of receipt. The representation of products in the online shop does not constitute a legally binding offer but rather an invitation to place an order. All offers are valid “whilst supplies last” unless otherwise stated for specific products. May be subject to errors.
(2) By clicking the button ‘Place Order’ in the final step of the order process in the online shop, you submit a binding order for the item in the shopping cart. The purchase contract is concluded when we accept your order by sending an order confirmation by email immedi-ately after receiving your order.
(3) Seller information about the object of the delivery or service (e.g. weight, dimensions, present utilisation values, load capacity, tolerances, and technical data) and our images thereof (e.g. drawings and photographs) are only approximate, unless exact agreement is required to guarantee usability for the contractually intended purpose. They are not guaran-teed qualities, but descriptions or identifications of the delivery or service. Industry-typical differences and deviations that occur due to legal regulations or that represent technical im-provements and replacement of components by equivalent parts are permitted as long as they do not impair usability for the contractually intended purpose.
(4) The Seller retains the title or copyright to all offers and quotations made and any draw-ings, images, calculations, brochures, catalogues, models, tools, and other documents and resources provided to the Customer. The Customer may not make such items or their con-tents accessible to third parties, disclose them, or use or reproduce them or have third par-ties do so without the Seller’s express permission. At the Seller’s request, the Customer must return these items in full and destroy any copies made if they are no longer necessary in the normal course of business or if negotiations do not lead to conclusion of a contract.
§ 3 Prices and Payment
The prices apply to the scope of services and deliveries stated in the order confirmations. Additional or special services will be billed separately. Prices are in EUROS ex works plus packaging, value-added tax, customs duties and fees for exports, and other public duties and shipping costs.
(1) Payment is made in advance; other agreements must be in written form.
(2) For payment in advance, we will disclose our bank information in the order confirmation and deliver the goods after receipt of payment.
(3) Offsetting with counter-claims of the Customer or retention of payments due to such claims is only permitted if such counter-claims are undisputed or have been found legally valid. A right of retention may only be exercised if the claims falling due are from the same legal relationship on which the Customer’s liability is based.
(4) The Seller may decide only to complete or render outstanding deliveries or services in return for payment in advance or granting of a security if the Seller becomes aware after concluding the contract of circumstances that may significantly reduce the Customer’s credit worthiness and may endanger payment of the Seller’s outstanding receivables by the Cus-tomer within the contractual relationship in question (including from other individual orders subject to the same framework agreement).
§ 4 Delivery and Delivery Time
(1) Deliveries are ex works.
(2) Deadlines or dates set by the Seller for deliveries and services are always only approxi-mate unless a fixed deadline or date has been agreed upon. If shipment has been agreed upon, delivery deadlines or dates are based on the date of hand-over to the shipper, carrier, or other third party commissioned for transport.
(3) Notwithstanding rights arising from delay by the Customer, the Seller may request an extension or delay of delivery or service deadlines from the Customer by the amount of time for which the Customer does not meet the Customer’s contractual duties to the Seller.
(4) The Seller is not liable for impossibility of delivery or delays in delivery if such are caused by force majeure or other events not foreseeable at the time of conclusion of contract (e.g. disruptions in operations of all kinds, difficulties in acquiring materials or power, delays in transport, strikes, legal lock-outs, lack of manpower, energy, or materials, difficulties in ac-quiring required official permits, official actions or lacking, incorrect, or late delivery by sup-pliers) for which the Seller is not at fault. If such events make delivery significantly more dif-ficult or impossible for the Seller and the hindrance is not merely temporary, the Seller may withdraw from the contract. In cases of temporary hindrances, the delivery or services dead-lines will be extended or delayed by the length of the hindrance plus an appropriate run-up time. If it is not reasonable for the Customer to accept the delivery or service due to the de-lay, the Customer may withdraw from the contract by sending the Seller an immediate writ-ten declaration.
(5) The Seller may only make partial deliveries if the partial delivery is usable by the Cus-tomer for the contractual purpose and delivery of the remaining goods ordered is ensured and the Customer is not subject to any significant additional costs or expenses (unless the Seller declares willingness to bear these costs).
(6) If the Seller is in default of a delivery or service or it becomes impossible for the Seller to complete a delivery or service for any reason, the Seller’s liability is limited to compensation for damages in accordance with § 8 of these General Terms of Delivery.
§ 5 Place of Performance, Shipping, Packaging, Transfer of Risk
(1) The place of performance for all duties from this contractual relationship is Munich, Germany, unless specified otherwise.
(2) Method of shipping and packaging are subject to the Seller’s discretion within the bounds of the Seller’s duties.
(3) Risk is transferred to the Customer no later than transfer of the delivery item (the begin-ning of the loading process) to the shipper, carrier, or other third party tasked with complet-ing the shipment. This also applies to partial deliveries or if the Seller has taken on other ser-vices (e.g. shipping or installation). If shipment or transfer is delayed due to circumstances for which the Customer is responsible, risk is transferred to the Customer on the day on which the Seller is ready to ship and has notified the Customer thereof.
(4) The Customer shall pay any storage costs after the transfer of risk. If the Seller stores the goods, the storage costs will be 0.25% of the invoice amount of the delivery items to be stored per completed week. Higher or lower storage costs may be asserted or proven.
(5) The Seller will only insure the shipment against damages due to theft, breakage, trans-port, fire, water, or other insurable risks at the Customer’s express request and expense.
§ 6 Warranty
(1) Statutory warranty periods apply.
(2) The delivered items must be carefully inspected immediately after delivery to the Cus-tomer or a third party specified by the Customer. They are considered approved if the Seller does not receive a notice of defects of the form specified in § 2 (2) p. 6 for obvious defects or other defects that become apparent during an immediate, careful inspection within seven working days after receipt of the delivery item or otherwise within seven working days of discovery of the defect or the time when the defect became apparent to the Customer dur-ing normal use of the delivered item without closer inspection. At the Seller’s request, the faulty delivery item will be sent back to the Seller carriage-free. If the notice of defects is justified, the Seller will reimburse the costs of the most affordable method of shipping; this does not apply if the costs increase because the delivery item is located at a different loca-tion than the location of correct use.
(3) If the items delivered have material defects, the Seller may choose whether to rectify the defects or sent a replacement within a reasonable period. If there is a failure, i.e. impossibil-ity, unreasonableness, refusal, or unreasonable delay in rectification or replacement, the Customer may withdraw from the contract or reduce the purchase price by a proportionate amount. The faulty goods must be shipped back to the Seller before the replacement deliv-ery. After consultation with the Seller, the exchange may also take place before return ship-ment of the customer item, but the customer item must then be received within 10 calendar days of the notice of defects to the Seller. If the faulty item is not sent back to the Seller within four weeks of sending the replacement item, the Customer is obligated to accept the so-called replacement item notwithstanding any remaining warranty rights to the original faulty item and to pay the purchase price according to the currently valid price list after in-voicing by the Seller.
(4) If a defect is caused by the Seller, the Customer may claim compensation for damages in accordance with the provisions set forth in § 7.
(5) The warranty expires if the Customer modifies or has third parties modify the delivery item without the Seller’s permission and rectification of defects becomes impossible or un-reasonably difficult as a result. In all cases, the Customer must pay any additional costs of rectifying the defects caused by the modification.
(6) A delivery of used items agreed upon with the Customer in a specific case will not be sub-ject to any warranty, with the exception of the claims regulated in § 7.
§ 7 Liability for Compensation for Damages due to Fault
(1) The Seller’s liability for compensation for damages, regardless of legal grounds, but especially due to impossibility, default, faulty or incorrect delivery, breach of contract, breach of duties in contract negotiations, and tortious acts is limited in accordance with § 8 if a fault is involved.
(2) The Seller is not liable a) in case of simple negligence by its bodies, legal representatives, employees, or other agents; b) in case of gross negligence of non-management employees or other agents unless breach of an essential contractual obligation is at issue. Essential con-tractual obligations include the obligation to provide on-time, defect-free delivery and instal-lation and duties of advice, protection, and care that are intended to facilitate the Cus-tomer’s contractual use of the delivery item or to protect the body or life of personnel of the Customer or third parties or to protect the Customer’s property from serious damages.
(3) If the Seller is liable for compensation for damages due to reasons set forth in § 7 (2), this liability shall be limited to damages that the Seller foresaw at the time of conclusion of contract as a possible consequence of breach of contract or ought to have foreseen using customary standards of care based on the circumstances known to the Seller or of which the Seller ought to have been aware. Indirect damages and consequential damages that result from defects in the delivery item are only indemnifiable if such damages can be typically expected with correct use of the delivery item.
(4) In case of liability for simple negligence, the Seller’s liability to pay damages for injury to persons or property damage is limited to 1,000,000.00 EUR per damage event (according to the relevant coverage sum of the Seller’s product liability insurance), even if a breach of es-sential contractual obligations is at issue.
(5) The aforementioned exclusions and limitations of liability apply equally to the bodies, le-gal representatives, employees, and other agents of the Seller.
(6) If the Seller issues technical information or acts in an advisory capacity and this informa-tion or advice is not part of the Seller’s owing and contractually agreed upon scope of ser-vices, it shall be free of charge and excluded from any liability.
(7) The limitations of § 7 do not apply to the Seller’s liability for intentional actions, guaran-teed characteristics of condition, injury to life, bodily harm, or damage to health or to the Seller’s liability under product liability law.
§ 8 Retention of Title
The items delivered by the Seller to the Customer remain the property of the Seller until full payment for the items.
§ 9 Export
Products delivered by the Seller are intended for use and destination in the country of deliv-ery agreed upon with the Customer. Re-export of contractual products by the Customer is subject to approval and to the foreign trade regulations of the Federal Republic of Germany and for products imported from the USA, the export and control provisions of the United States of America. The Customer must obtain information about these regulations inde-pendently; at the Federal Export Office (Bundesausfuhramt), 65760 Eschborn/Taunus for the German regulations and at the US Department of Commerce, Office of Export Administra-tion, Washington, DC 20320 for the US regulations. Regardless of whether the Customer states the final destination of the delivered contractual products, it is the Customer’s re-sponsibility to obtain any necessary permits from the relevant foreign trade authorities be-fore exporting such products. Any further delivery of contractual products by the Customer to third parties, with or without our knowledge, requires submission of the export approval conditions. The Customer is liable to the Seller for proper adherence to these conditions.
§ 10 Test Samples and Exchange Deliveries
Goods delivered for inspection are subject to a maximum holding period of 10 calendar days unless another period of time is agreed upon in writing. The period begins upon transfer to the shipper or collector. The time of return is the receipt of the item by the Seller in proper condition including all accessories in the original packaging.
(1.) If this period is exceeded or the items are sent back with defective packaging, scratches, or other (small) defects or missing accessories, a flat fee for return to storage amounting to 15% of the net list price will be payable as compensation for the additional expenses in-curred by the Seller. The Customer is at liberty to demonstrate lower damages; the Seller is at liberty to demonstrate higher damages.
(2.) If an item delivered for inspection has not been sent back to the Seller within four weeks of shipping, the Customer is obligated to accept this item and pay the purchase price after invoicing by the Seller according to the price list valid at this time.
§ 11 Final Provisions
(1) The place of jurisdiction for all disputes arising from the business relationship between the Seller and the Customer is Munich. Munich is the sole place of jurisdiction for suits against the Seller. Mandatory statutory regulations on sole places of jurisdiction remain un-affected by this clause.
(2) The relationships between the Seller and the Customer are subject solely to the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 does not apply.
(3) If the contract or these General Terms of Delivery contain gaps, these gaps shall be filled by such legally valid provisions as the contract partners would have agreed upon had they known of such gaps in accordance with the commercial goals of the contract and the pur-pose of the General Terms of Delivery. Note: the Customer takes cognizance that the Seller stores data from the contractual relationship for purposes of data processing in accordance with § 28 Federal Data Protection Act (Bundesdatenschutzgesetz) and reserves the right to transmit the data to third parties (e.g. insurance companies) in so far as necessary to exe-cute the contract.