General Sales, Delivery and Payment Conditions (GSDPC)
Global Distribution GmbH & Co. KG, Schuckertstr. 28, 48153 Muenster
§ 1 Applicability
1. These General Sales, Delivery and Payment Conditions (hereinafter referred to as GSDPC) apply to all business relations between Global Distribution GmbH & Co. KG(hereinafter referred to as GLOBAL) and its CUSTOMERS, which are entrepreneurs. Entrepreneurs are natural persons, legal entities or lawful partnerships which enter into legal transactions for commercial or self-employed business activity purposes.
2. All deliveries, services and quotations made by GLOBAL are exclusively subject to these GSDPC. These GSDPC become an integral part of all contracts which GLOBAL enters into with its CUSTOMERS for goods and services offered. They also apply to all future deliveries, services or quotations to CUSTOMERS, even where they are not separately stipulated.
3. General business conditions of CUSTOMERS or third parties shall not be binding, even where GLOBAL does not specifically reject same. Even in instances where GLOBAL refers to correspondence which contains or alludes to general business conditions of CUSTOMERS or third parties, such does not constitute consent that any such business conditions shall become binding.
4. These GSDPC shall also be binding where GLOBAL is aware of contrary or differing business conditions of CUSTOMER and nevertheless makes delivery without reservation.
§ 2 Quotations and Contractual Conclusion
1. All quotations of GLOBAL are non-binding and subject to change insofar as they are not expressly designated as binding or specify a fixed period to place an order. GLOBAL can accept orders or bids within 14 days after reception.
2. The sole authoritative instrument governing the legal relationship between GLOBAL and CUSTOMER is the written purchase agreement, as concluded, inclusive of these GSDPC. The purchase agreement and these GSDPC comprehensively reflect all agreements between the contractual parties as concerns the contractual subject matter. Verbal commitments of GLOBAL made prior to conclusion of such agreement are legally non-binding and any verbal agreements reached by the contractual parties are superseded by the written agreement, insofar as it is not expressly stipulated therein that such shall continue to be binding.
3. Supplements and modifications of the agreements concluded inclusive of these GSDPC require the written form to become valid. With the exception of managing directors and authorized agents, employees of GLOBAL are not authorized to make differing verbal commitments. Transmission per telefax-facsimile suffices to meet the written form requirement, but any other telecommunication transmission, especially per e-mail, is insufficient.
4. Representations made by GLOBAL regarding the specifications of goods or services (e.g. weight, dimensions, operational values, load capabilities, tolerances and technical data) as well as our illustrations (e.g. drawings and depictions) are approximations. Such are not guaranteed characteristics, but descriptions and identification of such goods or services. Variances according to commercial custom and usage as concern color, form or features as well as variances required by law or which represent technical improvements, and the substitution of components with parts of equivalent standard, are permissible, insofar as such do not impair usability as contractually intended.
5. GLOBAL retains ownership and/or copyright of all quotations, cost estimates and price lists as well as in all drawings, depictions, calculations, brochures, catalogues, models, tools and other documents or materials supplied to CUSTOMER. CUSTOMER shall not make available any of the aforementioned materials, whether in original or in a summarized form, nor otherwise replicate, disclose or use such items or allow third parties to replicate, disclose or use such items, without the express approval of GLOBAL. Upon request of GLOBAL, CUSTOMER is obliged to comprehensively return any such above mentioned materials and, where applicable, to destroy all reproductions or copies made of such if they are no longer needed in the regular course of business or if negotiations do not lead to a contractual agreement.
§ 3 Prices and Payment
1. Unless otherwise agreed, the prices for the designated good and services as stated in our order confirmation shall be binding. Extra and/or special services shall be billed separately. Prices are in Euro or US $ ex works inclusive of packing but exclusive of statutory VAT which shall be added. Where export deliveries are involved, CUSTOMER shall assume all customs duties, miscellaneous fees, banking charges, transport insurance and other governmental surcharges.
2. GLOBAL only delivers against prepayment or C.O.D. (cash on delivery) unless otherwise expressly agreed. GLOBAL reserves the right to refuse certain modes of payment. Where delivery on account has been stipulated, invoiced amounts are due and payable to GLOBAL within three days after shipment of the goods and reception of the invoice without cash discount.
3. Should CUSTOMER fail to make timely payment when due, any and all outstanding balances shall bear interest at 8 percentage points above the then current basis interest rate; the right to claim higher interest and additional damages in the event of payment default shall remain unaffected.
4. A set-off by CUSTOMER against its counterclaims or the withholding of payment based upon any such claims is impermissible where the counterclaims are disputed or where such have not been judicially recognized by a court of law.
5. GLOBAL is authorized to demand, as a pre-condition for the supply or shipment of any outstanding goods or services, that prepayment be made or that security collateral be provided, should after conclusion of the purchase agreement circumstances become know which are of such substantial nature as to diminish the creditworthiness of CUSTOMER, and which would endanger payment by CUSTOMER of any outstanding amounts due GLOBAL under the existing contractual relationship (inclusive of other orders existing within the scope of the contractual framework).
§ 4 Delivery and Delivery Periods
1. Deliveries are ex works.
2. Proposed deadlines and dates for the delivery of goods and supply of services made by GLOBAL are only approximations, unless a specific deadline or specific date has been expressly promised or stipulated. Where shipping has been agreed upon, the delivery periods and the delivery dates refer to the date of transfer to the forwarding agent, freight carrier or other commissioned shipping agent.
3. GLOBAL is authorized - without prejudice to its rights in the event of CUSTOMER default - to demand an extension or a postponement of delivery and performance periods for the equivalent period in which CUSTOMER does not fulfill its contractual obligations to GLOBAL. Such also applies to clarification of all technical issues.
4. GLOBAL shall not be liable for impossibility of delivery or for delay in delivery insofar as such has been caused by force majeure or other circumstances which were unforeseeable at the time of conclusion of the contract and for which GLOBAL is not responsible (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, manpower, energy or raw material shortages, difficulties in obtaining required official approvals, official measures or the lack thereof, improper delivery or untimely delivery by suppliers). Should such circumstances substantially hinder or make impossible the supply of goods or services permanently, GLOBAL is authorized to rescind the contract. In the event of hindrance of a temporary nature, the delivery and performance periods of GLOBAL shall be extended or postponed for the period of such hindrance plus a reasonable start-up period. If, as a result of the delay, it would be unreasonable for CUSTOMER to accept delivery of the goods or services, CUSTOMER is authorized to rescind the contract by submitting an immediate written declaration to GLOBAL to such effect
5. GLOBAL is authorized to make partial deliveries where
1. The partial delivery can be used by CUSTOMER within the scope of the contractually intended purpose,
2. The delivery of the remaining ordered goods is assured, and
3. CUSTOMER does not incur any substantial extra work or additional costs thereby (unless GLOBAL declares that it will assume any such costs).
6. Should GLOBAL default in the delivery of goods or supply of services or should the delivery of goods or supply of services be impossible for whatever reason, the liability of GLOBAL for damage claims shall be limited in accordance with § 7 of these General Sales, Delivery and Payment Conditions.
7. In the event CUSTOMER defaults in accepting ordered goods or services or culpably breaches its other duties to cooperate, GLOBAL shall be authorized to demand compensation for damages incurred, including any additional expenses. The right to claim further damages remains reserved.
§ 5 Place of Performance, Shipping, Packing, Risk of Loss, Acceptance
1. Place of performance for all obligations arising from the contractual relationship is the registered office of GLOBAL, insofar as nothing else has been stipulated.
2. The method of shipping and the packing chosen are subject to the prudent discretion of GLOBAL.
3. Risk of Loss is transferred to CUSTOMER at the latest when the shipment is ready for dispatch and handed over (the beginning of the loading procedure is decisive) to the forwarding agent, freight carrier or other commissioned shipping agent, and also applies to partial shipments or where GLOBAL has assumed other services. If the shipment or its dispatch is delayed due to circumstances for which CUSTOMER is responsible, risk of loss is transferred on that date on which the shipment is ready for dispatch and GLOBAL has notified CUSTOMER thereof.
4. CUSTOMER shall bear all storage costs after transfer of risk of loss. If the goods are stored by GLOBAL, the storage costs shall be 0,25 % of the amount invoiced per full week of storage. The right of either party to claim higher or prove lower storage charges remains reserved.
5. The shipment will generally be insured by GLOBAL at the cost of CUSTOMER against theft, breakage, transport, fire and water damage or other insurable risks. CUSTOMER is authorized to waive such insurance (so-called “Insurance Waiver“) by executing a special waiver declaration (so-called “Customer Transport Insurance Waiver Confirmation”); a CUSTOMER which elects waiver shall bear all risks of theft, breakage, transport, fire and water damage, etc.
6. The risk of loss and the risk of data alterations as concerns downloads and the transfer of data via the internet is transferred to CUSTOMER as soon as the network interface is crossed.
§ 6 Warranties, Defects, Liability Disclaimer
1. If the delivered goods are defective, CUSTOMER can demand that GLOBAL remedy the defect or provide defect free substitute goods; where CUSTOMER is an entrepreneur GLOBAL has full discretion whether to remedy the defect or to provide defect free substitute goods. GLOBAL may refuse a demand by CUSTOMER for a certain remedial action where such can only be effected with disproportional costs.
2. If the remedial action pursuant to § 6 (1) fails or is unacceptable to CUSTOMER or GLOBAL refuses the remedial action, CUSTOMER shall be entitled in accordance with applicable law to rescind the purchase agreement, to reduce the purchase price or to demand compensation or reimbursement of its wasted or purposeless expenses. The special provisions of § 7 of these GSDPC apply to all damage claims of CUSTOMER.
3. The warranty period begins with the delivery of goods to CUSTOMER and is twelve months.
4. CUSTOMER shall inspect the goods immediately upon reception. The delivered good are deemed approved if GLOBAL is not notified of an obvious defect within five workdays after delivery, and in all other cases, within five workdays after the defect is discovered.
5. If a defect is due to the fault of GLOBAL, CUSTOMER can demand compensation for damages subject to those certain conditions contained in § 7 below.
6. Where components of other manufacturers are defective which GLOBAL cannot remedy due to licensing issues or for other de-facto reasons, GLOBAL, at its election, may assert its warranty claims on behalf of and for the account of CUSTOMER against any such manufacturer or supplier or may assign such claims to CUSTOMER. Warranty claims against GLOBAL for such defects only exist in accordance with other conditions and in accordance with these GSPDC where legal enforcement of such claims against the manufacturer or supplier is unsuccessful or futile, for example, due to insolvency. In the event any such warranty claims are assigned to CUSTOMER, the liability of GLOBAL is precluded where CUSTOMER improperly manages the legal proceedings or intentionally or recklessly fails to raise legal assertions or defenses which are known to CUSTOMER or should have been known. Final judgments in legal proceedings are binding between GLOBAL and CUSTOMER as concerns their internal relationship; judicial or extra-judicial settlements require the prior written approval of GLOBAL. For the duration of the legal proceedings any prescription deadlines or statute of limitations affecting the warranty claims of CUSTOMER against GLOBAL are tolled.
7. The warranty lapses if CUSTOMER modifies the delivered goods or allows third parties to modify such without the approval of GLOBAL and remedial action becomes impossible or unreasonable because of such. CUSTOMER shall in all such cases bear the additional costs which relate to any such modifications in any remedial action.
8. Any delivery of used goods to CUSTOMER as agreed on a case to case basis is made to the exclusion of any warranty for defects of any type whatsoever.
§ 7 Culpable Liability for Damages
1. The liability of GLOBAL for damages, on whatever legal grounds, especially due to impossibility, delays, defective or improper delivery, breach of contract, breach of obligations during contractual negotiation or tort, insofar as such are based upon culpability, are limited in accordance with this § 7.
2. GLOBAL shall not be liable for simple negligence by its executive bodies, legal representatives, employees or other agents insofar as there is no breach of an essential contractual obligation. Key contractual elements are the obligations to deliver goods free of major defects in a timely manner as well as informational, safety and due care duties as required to enable CUSTOMER to utilize the goods as contractually intended or as required to protect the safety of CUSTOMER staff or its property from substantial injury or damage.
3. Insofar as GLOBAL is liable for damages on the grounds of and in accordance with § 7 (2), such liability is limited to the damages that GLOBAL foresaw as a potential consequence of a contractual breach at the time of conclusion of the contract or could have foreseen by applying due care and diligence. Indirect and consequential losses or damages, which result from a defect in the goods supplied, are moreover only reimbursable insofar as such loss or damage can typically be expected when using the goods in conformity with their intended purpose.
4. In the event of liability for simple negligence, any obligation of GLOBAL to make compensation for personal injury and property damage is limited to EUR 3.000.000,00 per casualty (limited by a ceiling of double such amount for all casualties within any given year) and any obligation to make compensation for any consequential financial loss is limited to EUR 500.000,00 (limited by a ceiling of double such amount for all casualties within any given year) even where a breach of essential contractual obligations is concerned.
5. The aforesaid exclusions of liability and limitations of liability apply to the same extent for the benefit of executive bodies, legal representatives, employees and other agents of GLOBAL.
6. Insofar as GLOBAL provides technical information or is active in an advisory capacity, and such information or advice is not included in the contractually stipulated scope of services to be rendered, such is given gratuitously and to the exclusion of all liability of any nature whatsoever.
7. The limitations stipulated in this § 7 do not apply to any liability of GLOBAL on account of willful acts, for guaranteed characteristics, on account of injury to life, limb or health or according to the German Product Liability Act.
8. CUSTOMER shall indemnify and hold GLOBAL harmless from any and all third party claims, which are based upon any form of culpability of CUSTOMER, its employees or other parties commissioned by CUSTOMER.
§ 8 Retention of Title
1. The following retention of title covenant serves as security for all existing or future claims of GLOBAL against CUSTOMER which arise out of the contractual relationship between the parties for the supply of goods (inclusive of outstanding balance claims under current account credit terms limited to this delivery relationship).
2. The goods delivered by GLOBAL to CUSTOMER remain the property of GLOBAL until such time as all secured receivables have been paid in full. Such goods, as well as any goods which take their place and are subject to retention of title under this clause, are hereinafter referred to as “secured goods”.
3. CUSTOMER shall store and insure the secured goods for GLOBAL free of charge.
4. CUSTOMER is authorized to process and sell the goods in the ordinary course of business until an Event of Default (see Paragraph 9) occurs. Pledging or assigning the good as collateral is not authorized.
5. It is agreed that where CUSTOMER processes the goods, such shall be processed in the name of and for the account of GLOBAL as the manufacturer, and GLOBAL shall immediately acquire full ownership, or - where the materials of several owners are processed or the value of the processed goods exceeds the value of the secured goods - then joint ownership (fractional ownership interest) of the newly created goods based upon the value of the secured goods to the newly created goods shall be acquired. To the extent that no such ownership interest is acquired by GLOBAL, CUSTOMER hereby transfers its future ownership interests or its joint ownership interest - per the aforementioned ratio - in the newly created goods to GLOBAL as collateral. To the extent that the secured goods are combined or inseparably intermingled with any other goods to create a single product and one of the other goods is considered a key component, GLOBAL shall acquire joint ownership in such single product in the ratio as stipulated in the first sentence of this provision.
6. In the event that the secured goods are sold, CUSTOMER hereby assigns to GLOBAL as security the resulting claim for payment against any such purchaser - where GLOBAL has joint ownership in the secured goods then in proportion to that ratio of ownership. The same applies to any other claims that take the place of the secured goods or otherwise accrue with respect to the secured goods, as for example, insurance claims or tort claims arising from the loss or destruction of the secured goods. GLOBAL grants CUSTOMER the revocable authorization to collect such assigned claims in its own name. Global may only revoke this collection authorization upon an Event of Default.
7. Should any third party attempt to seize the secured goods, in particular by means of attachment, CUSTOMER is obliged to immediately notify such third party of the ownership interest of GLOBAL in the secured goods and shall inform GLOBAL accordingly so that GLOBAL can enforce its ownership rights. To the extent that any such third party is unable to reimburse GLOBAL for all of its judicial and non-judicial expenses resulting from such action, CUSTOMER shall be liable to reimburse GLOBAL for such amounts.
8. GLOBAL shall, upon request, release at its discretion the secured goods or the goods or claims which replaced same, insofar as their value exceeds the value of the secured claims by more than 50%.
9. Should GLOBAL terminate the contract due to contractual breaches of CUSTOMER (Event of Default) - especially payment default - it is authorized to demand return of the secured goods.
§ 9 Data Protection
CUSTOMER is hereby notified that GLOBAL stores data arising from the contractual relationship in accordance with the provisions of § 28 German Data Protection Act for the purposes of data processing, and reserves the right to forward such data to third parties (e.g. shipping agents, freight forwarders, etc.) where necessary for contract fulfillment purposes.
§ 10 Applicable Law - Choice of Forum
1. The legal relationship between GLOBAL and CUSTOMER, especially the purchase contract concluded between the parties, is subject to the laws of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods which shall find no application.
2. If CUSTOMER is a Merchant having its registered office in the Federal Republic of Germany as characterized by § 1 Paragraph 1 of the German Commercial Code (HGB), a legal entity under public law or a special estate under public law, the courts having competent jurisdiction over the registered office of GLOBAL in Münster, Federal Republic of Germany shall have exclusive jurisdiction for all disputes resulting from or relating to the respective legal relationship between the parties. The following shall apply to all CUSTOMERS having a registered office outside of the Federal Republic of Germany: Such CUSTOMERS are obliged to file legal actions against GLOBAL exclusively in the courts stipulated in § 10 Paragraph (2) Sentence 1 of these GSDPC; GLOBAL however has the right to file legal actions against CUSTOMERS having a registered office outside the Federal Republic of Germany with the courts having competent jurisdiction over such foreign registered office or alternatively in Münster, Federal Republic of Germany.
§ 12 Severability Clause
Should one or more provisions of the purchase agreement or these GSDPC be invalid or unenforceable or become invalid or unenforceable after conclusion of the contractual relationship, such shall not affect the validity of the remaining provisions of the purchase agreement or these GSDPC. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision which corresponds as closely as possible to the original commercial intent which GLOBAL and CUSTOMER contemplated in stipulating the invalid or unenforceable provision. This aforesaid provision shall likewise apply in the event that the purchase agreement or these GSDPC prove to be incomplete or lacking.
§ 13 Final Provisions
The German text shall in all instances exclusively govern where contractual documents or these GSDPC are translated by GLOBAL for the convenience of CUSTOMERS into languages other than German and any such translated text contradicts the German text as contained in the contractual documents or these GSDPC.