475
7. If the contract is a fixed-date transaction under the terms of Section 376
of the German Commercial Code, the previous paragraph applies, with the
proviso that Customer can withdraw in writing from the contract to the
exclusion of all further rights, unless the losses or damage suffered were
caused intentionally or as a result of gross negligence.
8. In order for Gira to meet the delivery deadline, Customer must fulfil its
contractual obligations and, in particular, its payment obligations properly
and on schedule.
5. Transfer of risk, shipment
1. The Incoterms rules, as amended, currently Incoterms 2010, "EXW" (ex
works) clause, applies to the relationship between Gira and Customer. The
risk of the goods being accidentally destroyed or damaged is transferred to
Customer when the goods are shipped to Customer and, at the latest, when
they leave the factory/warehouse. This applies regardless of whether or not
the goods are shipped from the place of fulfilment and regardless of who is
responsible for the shipping costs.
2. If Gira takes responsibility for the transport insurance as part of its general
insurance policy, the terms and conditions of the insurance apply and the
following documents must be provided by Customer:
a) Factual report from the transport company (for example the receipt from
the haulage firm)
b) Original copy of the consignment note
c) Transfer of rights for the damage caused.
3. If Gira is responsible for the transport damage, Customer must inform
Gira in writing immediately after receiving the shipment that transport
damage has occurred. The damaged parts must be sent back to the factory
in Radevormwald or to the relevant Gira warehouse free of charge. Customer
may not refuse to accept deliveries because of minor defects.
6. Prices, payment terms, securities
1. Gira's prices are quoted ex works or from the relevant warehouse and
exclude the cost of packaging and VAT at the current rate. The cost of the
packaging will be invoiced separately.
2. Unless a fixed price agreement has been reached with Customer, Gira
reserves the right to make appropriate adjustments to the prices as a result
of changes in the cost of salaries, materials and sales for deliveries that are
made three months or more after the contract is concluded.
3. A flat-rate processing fee of EUR 15 will be charged for orders with a value
of less than EUR 100. For third-party deliveries (where the shipping address
differs from the order address), Gira charges a flat-rate shipping charge of at
least EUR 7.50 per shipment. Higher shipping charges will be agreed
individually with Customer.
4. All Customer's payments must be made to Gira's bank account on the
agreed dates.
5. If Customer's financial situation changes after the date on which Gira
sends out the order confirmation and if this could call into question
Customer's ability to fulfil its payment obligations, Gira is entitled to withhold
delivery of the goods or to require Customer to provide security. If Customer
does not comply with Gira's request for security within a reasonable period,
Gira is entitled to withdraw from the contract.
6. If Customer pays within 10 days of the invoice date, Gira offers a discount
of 2%. Gira does not offer a discount on the services that it provides. No
discount will be given on payments that are in arrears. The standard payment
terms are 30 days net. Gira's representatives and salespeople are not
authorised to accept payments or means of payment, unless they have
collection authority.
7. Customer is obliged to comply with Gira's request to pay within 30 days
of receiving the goods. At the end of this period Customer is considered to
be in default, without a further reminder being necessary. While Customer
is in default, it must pay interest of 9% above the base rate on the amount it
owes. Gira reserves the right to provide proof that greater damage has been
caused by Customer's default and to make a claim for damages.
8. If Gira has taken responsibility for setting up and assembling the goods,
unless otherwise agreed, Customer will pay all the necessary incidental costs
such as travel costs, costs of transporting the employee's tools and luggage
and the accommodation allowance, in addition to the agreed payment for the
work.
7. Offsetting payments and rights of retention
Customer is entitled to offset payments to Gira only if its counterclaims are
res judicata or are undisputed. Customer is entitled to exercise a right of
retention with regard to Gira only if its counterclaim is based on the same
contractual relationship.
Scope, definitions
Scope:
These Terms and Conditions of Sale, Delivery and Payment apply only to
entrepreneurs, legal persons under public law or special funds under public
law under the terms of Section 310 para. 1 of the German Civil Code. Any
terms of Customer running contrary to or diverging from these Conditions of
Sale shall not be recognised unless they have been expressly agreed to by
Gira in writing.
2. These Terms and Conditions of Sale, Delivery and Payment apply to all
future transactions with Customer, provided that they are legal transactions
of a related kind.
Definitions:
The terms 'Gira', 'Customer' and 'Entrepreneur' have the following meanings:
Gira is
Gira Giersiepen GmbH & Co KG,
Dahlienstrasse,
42477 Radevormwald
Customer is any entrepreneur that Gira enters into a contract with in
accordance with Section 2 of these General Terms and Conditions.
Entrepreneur is any natural or legal person or partnership with legal
capacity which is exercising its trade or profession when entering into a
transaction with Gira.
1. General provisions
1. Gira reserves without limitation its rights of ownership and exploitation
of copyright in respect of cost estimates, drawings and other documents.
The documents may be made available to third parties only with Gira's prior
written consent. If the order is not placed, they must be returned to Gira
upon request without undue delay. Sentences 1 and 2 apply mutatis
mutandis to Customers' documents. However, these may be made available
to any third parties that Gira has commissioned, to the extent permitted, to
deliver the products and services.
2. Partial deliveries are permitted if they are acceptable to Customer.
2. Offer and conclusion of the contract
If a purchase order can be regarded as an offer under the terms of
Section 145 of the German Civil Code, Gira can accept this within two weeks.
3. Scope of the deliveries and services
The documents, drawings, information about weights, samples etc. enclosed
with Gira's offer are only approximate, unless otherwise stated in the offer.
Gira expressly reserves the right to make changes to the design, layout,
choice of materials and manufacturing process even after sending the order
confirmation, provided that this does not affect the quality, price and/or
material functional data or the delivery period and that this is acceptable to
Customer.
4. Delivery periods
1. The delivery period specified by Gira is not binding, unless other
agreements are reached with Customer. This is explicitly dependent on
correct and punctual deliveries being made to Gira.
2. The delivery period will be extended if unforeseen, unusual and
unavoidable events occur, including but not limited to strikes of any kind,
embargoes and the failure of Gira's suppliers to deliver on schedule.
3. If the shipment of the goods is delayed at Customer's request or for other
reasons, for which Gira is not responsible, Customer will pay the resulting
additional costs and will bear the risk of the goods being accidentally
destroyed or damaged after notification of readiness for delivery.
4. If the product is stored in the Gira factory (or on the premises of Gira's
authorised representatives), Gira is entitled to charge at least 0.5% of the
price of the delivery for every month or part of a month of storage. Gira
reserves the right to make other claims, in particular under the terms of
Section 373 of the German Commercial Code.
5. Gira reserves the right to make partial and early deliveries.
6. In the event of a delay in delivery, for which Gira is responsible, Customer
is obliged to grant Gira in writing an appropriate extension period. If, in the
event of a delay in delivery, Customer grants Gira an extension period that is
reasonable in the circumstances and if Gira misses the new deadline due
to reasons, for which Gira is responsible, Customer is entitled to withdraw
from the contract. Customer may only claim compensation if any losses or
damage suffered were caused intentionally or as a result of gross negligence.
Terms and conditions of sale, delivery and payment
for the Building Technology business division
The delivery results subject to countries specific assortments.
Gira Electrical Installation Systems
8. Defects
Gira's liability for defects is as follows:
1. All the parts or services that prove to have a defect within the period of
limitations – regardless of the operating period – must at Gira's discretion be
rectified or replaced with new parts or services, provided that the cause of
the defect already existed at the time when the risk was transferred.
2. The period of limitations for claims for defects is 24 months. This does not
apply if the law specifies longer periods under the terms of Section 438 para.
1 point 2 (buildings and items for buildings), Section 479 para. 1 (recourse
claims) and Section 634a para. 1 point 2 (construction defects) of the
German Civil Code. It also does not apply in the case of loss of life, injury or
harm to health or of an intentional or grossly negligent breach of duty on the
part of Gira or of malicious silence with regard to a defect. The statutory
regulations concerning the suspension of limitations and the suspension and
restarting of the periods remain unaffected.
3. Customer must inspect goods and services immediately after receiving
them. Section 377 of the German Commercial Code applies. Customer must
inform Gira of defects in writing, by email or by fax within a period of two
weeks. The decisive factor is the date on which Gira receives the complaint.
In the case of obvious defects, this period begins when the goods are
delivered to Customer. In the case of hidden defects, it begins when the
defects are identified by Customer. If Gira is not notified of the defect within
the specified period, Customer cannot make any warranty claims. Customer
bears the full burden of proof in respect of all claims, in particular with
regard to the defect itself, the date on which it was identified, and the
timeliness of the complaint.
4. In the case of complaints that are submitted in due time and form,
Customer is entitled to withhold payments that are proportionate to the
defects that have been identified. Customer can withhold payments only
if a complaint has been made, whose justification is beyond doubt. If the
complaint was made wrongly, Gira is entitled to require that Customer
reimburse it for any expenses incurred.
5. First of all, Gira must be given a reasonable opportunity to rectify the
problem within a reasonable period. Any parts that have been replaced must
be sent back to Gira on request free of charge.
6. If the attempt to rectify the problem fails (under the terms of Section 440
of the German Civil Code), Customer can withdraw from the contract
or reduce the payment amount, notwithstanding any claims for damages
under the terms of Section 12.
7. Claims cannot be made for defects if there is only a minor deviation from
the product's agreed level of quality or a minor impairment of the usability of
the product or if there is natural wear or damage which occurred after
the transfer of risks as a result of incorrect or negligent handling, excessive
loads, unsuitable operating resources, faulty construction work, an
unsuitable building area or external influences which are not implied in the
contract or if there are unreproducible software errors. If Customer or a third
party makes improper changes or carries out improper repairs, Customer is
not entitled to make a claim for defects for these problems or the resulting
consequences. Gira's warranty terms require the product to be fitted
correctly and to be started up and used precisely in accordance with the
operating instructions.
8. Customer cannot make any claims for the necessary expenses incurred
for the purpose of rectifying the problem and in particular the cost of
transport, travel, labour and material, if the expenses have increased
because the object of delivery was subsequently taken to a location other
than Customer's site, unless taking it to the other location corresponds
with its intended use.
9. Customer may make recourse claims against Gira under the terms of
Section 478 of the German Civil Code (recourse of the entrepreneur) only if
Customer has not reached any agreements with its own customer that go
beyond the statutory claims for defects. With regard to the scope of
Customer's recourse claim against Gira under the terms of Section 478 para 2
of the German Civil Code, No. 8 paras 7 and 8 additionally apply mutatis
mutandis.
10. With regard to claims for damages, Section 12 (Other claims for
damages) of these Terms and Conditions of Sale, Delivery and Payment
otherwise applies. Customer cannot make further claims or claims other
than those described in this Section 8 against Gira and its agents because
of a defect.
9. Returns processing (Return of goods)
1. If Customer's warranty claim is not valid, Gira is not obliged to take the
goods back.
2. If Gira makes an exception and agrees to take back Customer's goods
without a warranty claim being made, this constitutes a voluntary measure
and does not involve the recognition of legal obligations. This does not justify
Customer making a claim for the refund of the purchase price.
3. If Gira processes a return without a warranty claim being made as
described in para 2 above, Customer will be charged a flat-rate processing
fee. The current amount of the fee can be found on Gira's website at http://
www.gira.de/service and http://www.gira.de/service/fgh/retouren.html.
10. Retention of ownership
1. Gira retains ownership of the goods until all the payments have been
received from all the contracts that have been entered into up to the time of
the signing of the final contract between Customer and Gira. Customer can
resell the goods that are subject to retention of ownership as part of its
normal business. However, Customer will assign to Gira all claims for the
amount of the relevant invoice value that Customer has incurred as a result of
the resale of the goods to its own customer or to third parties. Customer is
entitled to collect the claims even after they have been assigned. This does
not affect Gira's authorisation to collect the claims itself. In particular, Gira
can require Customer to inform Gira about the assigned claim, its level and
its debtors, to provide all the information needed for the purposes of
collection, to submit the accompanying documents to Gira immediately and
to inform the debtor of the assignment of the claim in writing.
2. Customer is not entitled to pledge the goods that are subject to retention
of ownership or to transfer ownership of them to third parties in order to
provide security.
3. If Customer breaches the terms of the contract, specifically by falling into
payment arrears, Gira is entitled to take back the goods. If Gira takes back
or pledges the goods, this does not constitute a withdrawal from the contract
on Gira's part. If Gira wishes to withdraw from the contract, it will inform
Customer of this expressly in writing. Customer must inform Gira
immediately in writing of any pledges or other interventions by third parties.
4. If Customer processes or modifies the purchased item, this is always
done in the name of and on behalf of Gira. In this case Customer retains its
expectant right to the purchased item in relation to the unmodified item. If
the purchased item is processed with other items not belonging to Gira, Gira
will acquire co-ownership of the new item in the proportion of the objective
value of the purchased item to the value of the other items at the time when
they are processed. This also applies to the mixing of items. If the items are
mixed in such a way that Customer's product can be regarded as the main
product, it is agreed that Customer will transfer proportional co-ownership to
Gira and will safeguard Gira's resulting sole ownership or co-ownership. In
order to provide security for Gira's claim against Customer, Customer will
also assign to Gira claims against a third party that result from combining the
goods under retention of title with a piece of land. Gira hereby agrees to
accept this assignment.
5. Gira will release Customer's security on request at Gira's discretion and to
the extent that the value of the security exceeds the value of the claims being
secured by more than 25%.
11. Impossibility of delivery
If it is impossible to deliver the goods or services, Customer is entitled
to claim damages, unless Gira is not responsible for the impossibility of
delivering the goods. However, Customer's claim for damages is restricted to
10% of the value of that part of the delivery that cannot be put into operation
because of the impossibility of delivery. This restriction does not apply if
mandatory liability is applicable in cases of intent, gross negligence or due
to loss of life, injury or harm to health. This does not involve a change in the
burden of proof to Customer's disadvantage. Customer's right to withdraw
from the contract remains unaffected.
12. Other claims for damages
1. Customer cannot make claims for damages and expenses (referred to
in the following as claims for damages) for whatever legal reason and, in
particular, due to a breach of contractual obligations or due to unlawful acts.
This does not apply if mandatory liability is applicable, for example under
the terms of the German Product Liability Act, in cases of intent, gross
negligence, loss of life, injury or harm to health or as a result of the breach
of material contractual obligations. However, a claim for damages for the
breach of material contractual obligations is restricted to foreseeable
damages that are typical for this type of contract, provided that there is
no intent or gross negligence involved and that there is no liability for
loss of life, injury or harm to health.
2. For the rest, the basis and extent of claims for damages is restricted to the
amount of insurance available to Gira at the time the damage occurred.
3. If Customer is entitled to make claims for damages under the terms of this
Section 12, the statutory regulations concerning the period of limitations
apply.
13. Place of fulfilment, place of jurisdiction, scope
1. The place of fulfilment for all obligations referred to in this contract,
including a claim resulting from withdrawal, is Radevormwald, Germany.
2. The places of jurisdiction are the places where the courts with jurisdiction
over Radevormwald are located. This also applies to legal proceedings
concerning bills of exchange and cheques and, in particular to claims relating
to the debt collection procedure. However, if legal proceedings against Gira
are not pending, Gira is entitled to take proceedings against Customer in the
court with jurisdiction over the town where Customer is based.
3. The law of the Federal Republic of Germany applies to all legal
relationships relating to this contract. The United Nations Convention on
Contracts for the International Sale of Goods (CISG) is expressly excluded.
Terms and conditions of sale, delivery and payment
for the Building Technology business division
