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Personal field of application
These general terms of sale and delivery are only valid if our customer is an entrepeneur, a legal entity or a fund under public law.
Functional scope of application
All deliveries, performances and offers of Gillenkirch are carried out exclusively on the basis of these terms of sale and delivery. These therefore also apply to all future business transaction and relations even if they are not explicitly agreed upon again.
Foreign terms of business
We hereby explicitly contradict all general terms of business or purchase of our customers. The terms of business or purchase of our customer do under no condition become contract component even if we do not contradict these terms of business or purchase separately.
Offer and conclusion of contract
All offers of Gillenkirch are subject to confirmation. All orders by customers shall only become legally binding by the written order confirmation of Gillenkirch or in any case by the delivery of the goods at the customer.
Prices
All prices mentioned in contract documents, offers etc. are to be understood as exclusive of legal sales unless there is no sales tax due on the delivery, especially in the case of foreign procurement.
Bearing of risk
Place of performance of all obligations from the contracts concluded with Gillenkirch is Dinslaken. Every consignment of the product to the premises of the customer or to another place agreed upon is carried out at the risk of the customer. This also applies if the delivery is agreed to be ex works or if Gillenkirch bears the costs of freight or if Gillenkirch executes transport itself. If dispatch turns out to be impossible without Gillenkirch being responsible, the risk shall be transferred onto the customer at the moment the message of readiness for dispatch was sent.
Delivery time
In principle, all delivery times mentioned in offers, contract documents etc. are non-binding if they are not explicitly and in writing indicated to be binding. Delivery and performance delays due to acts of god and due to events which make delivery substantially difficult or impossible, these including strikes, lock-outs, official orders etc., even if taking place with the suppliers or subcontractors of Gillenkirch, cannot be answered for by Gillenkirch even if binding lead times and delivery appointments were agreed upon. You entitle Gillenkirch the right to postpone the delivery or performance for the time period of the duration of the hindrance plus an appropriate starting-up time or to partially or wholly step down of the contract concerning the part that is not yet fulfilled. If the hindrance lasts longer than three months, the customer, after allowing for additional respite, shall be authorized to step down of the contract concerning the part of the contract which is not yet fulfilled. If delivery time gets prolonged or if Gillenkirch becomes free from its obligation, the customer cannot derive any claims for compensation from this. Gillenkirch only can refer to the mentioned circumstances if it immediately informs the customer.
Partial deliveries
Gillenkirch is at any time entitled to partial deliveries and partial performances.
Packing
As far as packing of the product will turn out to be necessary, Gillenkirch shall charge the usual costs for this. Packing materials are not taken back.
Payment
As far as nothing else is agreed upon, the invoices of Gillenkirch are due and payable immediately without discount. A payment shall only be regarded as carried out if Gillenkirch can dispose of the amount. In the case of cheques the payment shall only be regarded as carried out if the cheque is cashed. Cheques and bills of exchange shall – if at all - only be accepted when fulfilling.
Balancing/retention
The claims of Gillenkirch may only balanced by the customer against other claims which are legally effective or undisputed. Rights of retention towards payment claims of Gillenkirch may only be prevailed by the customer, if the counterclaims were established as legally effective or are indisputable.
Delay in payment
If the customer does not pay an invoice or does not pay by the due date, he shall refund Gillenkirch a lump sum of € 5.00 for every reminder. This shall also be valid if Gillenkirch cannot prove the delivery of a written reminder. In the case of default of payment the customer shall have to pay default interest in the amount of 8% above basic interest rate. The enforcement of higher interest damages remains with Gillenkirch. It remains with the customers to prove in the individual case that no damage has arisen or not in the asserted height. If at agreement on payment by instalment an instalment does not get paid punctually or only partly, the complete balance still outstanding shall become due without a separate reminder.
Reservation of title
Until all claims of Gillenkirch towards its customer in the business agreement shall be fulfilled, including future claims from contracts that were concluded at the same time or later, the following securities shall be granted Gillenkirch, which shall be released on the request and at the discretion of the customer, provided the value of the securities exceeds the claims lastingly by more than 20%:
The product shall remain property of Gillenkirch. Processing or remodelling is always carried out for Gillenkirch as the manufacturer, however without obligation for it. If the (partial) ownership by Gillenkirch by connection should become obsolete, it is already now agreed upon that the (partial) ownership of Gillenkirch of the singular item passes into the ownership of Gillenkirch to a partial degree (invoice value). The customer shall keep the (partial) property of Gillenkirch safe free of charge. Goods to which Gillenkirch is entitled (partial) ownership are described in the following as reserved goods.
The customer is entitled to process and sell the reserved goods in an orderly business routine as long as he is not in default of payment. Any claims arising from the resale or other legal justification (insurance, unlawful action) regarding the reserved product (including all balance on current accounts) the customer is transferring already at present to the full extent to Gillenkirch as security. Gillenkirch authorizes the customer revocably to collect all claims transferred to Gillenkirch on their account in its own name. This collection authorization can only be revoked if the customer does not meet his financial obligations duly.
Should third parties seek to access to the reserved product, particularly in case of distraints, the customer shall point out the ownership of Gillenkirch and immediately inform it so that Gillenkirch can implement its rights of ownership. To the extent that the third party will not able to refund to Gillenkirch the legal or out of court costs arising in connection with this, the customer shall be liable.
In case of behaviour contrary to the terms of the contract by the customer, particularly in the case of default of payment, Gillenkirch shall be authorized to take back the reserved product or, if necessary to demand transfer of the restitution claims of the customer against third parties. The taking back as well as the distraint of the reserved product by Gillenkirch does not constitute a withdrawal from the underlying contract.
Guarantee
Defects of the goods shall be remedied by Gillenkirch after a corresponding communication by the customer. This shall happen at the discretion of Gillenkirch either by a cost-free improvement or a substitute delivery.
Further-reaching claims, especially claims for damages, are out of the question, to the extent that Gillenkirch did not deceitfully hide the defect or assumed to give a guarantee for the condition of the item.
Should the defect be unable to be remedied within an appropriate period of time or the substitute delivery to be considered a failure for other reasons, the customer can to his discretion demand reduction of reimbursement (abatement) or annulment of the contract (rescission). Failure to remedy or supply substitute delivery can only be considered to have occurred if Gillenkirch was granted ample opportunity for remedying the defect or to supply substitute delivery, if it proves impossible to do so, if Gillenkirch refuses or unreasonably delays it, if there are justified reasons to call in question chances of success or if an unreasonableness for other reasons occurs.
Liability
Gillenkirch shall be unrestrictedly liable for the guaranteed condition of the product, for damages because of defective title as well as for damages from the injury to life, body, or health.
Otherwise Gillenkirch shall only be unrestrictedly liable for deceit with intent and gross negligence by its legal agents and employees. Gillenkirch shall be liable for deceit with intent and gross negligence of its employees with the 2-fold sum of contract and restricted to such damages the emergence of which must typically be calculated with in the context of the contract relationship.
Gillenkirch shall only be liable for minor negligence in cases in which there was a breach of duty that played a crucial role in the fulfilment of the contract (cardinal duty). At injury of the cardinal duty liability shall be restricted to the 2-fold sum of contract and to those damages that must typically be calculated with in the context of the contract relationship.
Liability in accord with the product liability law remains untouched.
Obligation of examination and complaint
The customer is obliged to examine the purchased object for obvious defects which an average customer ought to notice straight away. Obvious defects are to be complained about in writing to Gillenkirch within two weeks after delivery. Defects which are not obvious must be complained about by the customer to Gillenkirch within two weeks after recognition. The defects have to be described as precisely as possible. The purchased object is regarded as approved in case of injury of the obligation of examination and complaint in consideration of the defect in question.
Execution
Illustrations, weight and dimension details in the brochures are non-binding for execution. Gillenkirch reserves the right to carry out construction changes at any time. It is not obliged, however, to carry out such changes also on products already delivered.
Applicable right
For all contracts between the customer and Gillenkirch the right of the Federal Republic of Germany shall exclusively be valid and this is excluding the UN purchase right.
Place of jurisdiction
The exclusive place of jurisdiction for all disputes arising immediately or indirectly from the contract relationship is Dinslaken and - depending on the sum in dispute - the office or district court responsible for Dinslaken. Every contract party however is and shall remain authorized to sue the other party in the place it is based. This stipulation as to venue does not apply to entrepreneurs who are not merchants.
Partial invalidity
If individual regulations of these terms of sale and delivery should prove to be or become ineffective, all other agreements remain valid and unaffected by the partial ineffectiveness.
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