441
7. If the contract is a fixed-date transaction under the terms of Section 376
HGB, 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 damages were caused due to intent or 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 the client:
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 is
not permitted to 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 shall be charged for orders 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 payments by Customer 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
term is 30 days strictly 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 assert a claim for the same.
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:
1. 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 (BGB).
Where Customer’s terms and conditions of sale contradict or differ from
Gira’s, Gira will only recognise them if it has explicitly confirmed in writing
that they are valid.
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, with whom Gira enters into a contract 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 Customer’s documents. However, these may be made available
to any third parties that Gira has commissioned, as permitted by the
contract, to deliver the products and services.
2. Partial deliveries are permitted if they are acceptable to Customer.
2. Offer and conclusion of the contract
Any order that can be seen as an offer under the terms of Section 145 BGB
can be accepted by Gira 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.
Änderungen der Konstruktion,
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 expressly dependent on
correct and timely deliveries being made to Gira.
2. The delivery period will be extended if unforeseen, unusual, or unavoidable
events occur, in particular strikes of any kind, embargoes, or 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 that are not Gira’s responsibility, Customer will pay the resulting
additional costs and will bear the risk of the goods being destroyed or
damaged accidentally, as soon as it has informed Gira that it is ready to
receive the shipment.
4. If the product is stored in Gira’s 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, particularly under the terms of
Section 373 of the German Commercial Code (HGB).
5. Gira reserves the right to make partial or early deliveries.
6. In the event of a delay in delivery, for which Gira is responsible, Customer
is obliged to inform Gira in writing of 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
Gira electrical installation systems
The delivery results subject to countries specific assortments.
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 material 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) BGB. 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 foregoing shall
be without prejudice to the legal regulations on suspension of the statute of
limitations, suspension and recommencement of the time periods.
3. Customer must inspect goods and services immediately after receiving
them. Es gilt § 377 HGB. Section 377 HGB 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 in good time,
Customer may not make any claims under warranty. 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 within the specified period
and which are in the correct 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 BGB),
Customer can withdraw from the contract or reduce the payment amount,
notwithstanding any claims for damages under the terms of Section 12.
7. Claims for defects cannot be made if there is only a minor deviation from
the agreed quality, a minor impairment in usability, natural wear or damages
that occurred following transfer of risk due to incorrect or negligent handling,
excessive loading, unsuitable operating resources, defective construction
work, an unsuitable building site or particular external influences that are not
provided for in the contract, or non-reproducible 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
product 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 BGB (recourse of the entrepreneur) only if Customer has not
reached any agreements with its own customer that go beyond the statutory
claims for defects. Section 8 para 7 and Section 8 para 8 apply mutatis
mutandis in respect of the scope of Customer’s recourse claim against Gira
under the terms of Section 478 para 2 BGB.
10. In the event of claims for damages, Section 12 (Other claims for damages)
of these Terms and Conditions of Sale, Delivery and Payment also apply.
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 a 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 any warranty claims being made as
described in No. 2 above, Customer shall 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 which have been entered into up to the time
of the signing of the final contract between Customer and Gira. Customer
may resell the goods that are subject to reservation of ownership in the
ordinary course of 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 these 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 reservation
of ownership or to transfer ownership of the same to third parties by way of
security.
3. If Customer breaches the terms of the contract and, in particular, is in
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 goods, 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. Schadens- und Aufwendungsersatzansprüche des Kunden (im Folgenden:
Customer cannot make claims for damages and expenses (referred to in the
following as claims for damages) for whatever legal reason and, in particular,
because of the breach of contractual obligations or because of unlawful acts.
This does not apply if mandatory liability is applicable – under the terms
of the German Product Liability Act, for example, in cases of intent or gross
negligence, due to death, physical injury or damage to health, or due to the
breach of essential 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. In addition, 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 arising from this contract –
including any claim resulting from withdrawal – is Radevormwald.
2. The place of jurisdiction is agreed as being those places where the courts
with jurisdiction for 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 explicitly excluded.
Last updated: 10/2017
Terms and conditions of sale, delivery and payment
for the Building Technology business division
