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General Terms of Sale, Delivery and Payment

Scope of application
 
These General Terms of Business apply to all current and future business relationships between gigant – Trenkamp & Gehle GmbH and its customers, insofar as they are entrepreneurs. Entrepreneurs within the meaning of these Terms of Business are defined as natural persons or legal entities or legally responsible business partnerships acting within our business relationships in exercising a commercial or self-employed professional activity.

1.) Delivery agreement

Delivery contracts between gigant – Trenkamp & Gehle GmbH and its customers are only formed if gigant – Trenkamp & Gehle GmbH has confirmed the delivery contract in writing.
Amendments or supplements to agreements already made require the written confirmation of gigant – Trenkamp & Gehle GmbH for their effectiveness.
Written form, as agreed above, also applies to mutual revocation of the requirement for written form.
Electronic form only suffices to uphold written form if a corresponding agreement on the use of the electronic form has been reached with the customer.
The General terms of Business below also apply if the customer notifies or has notified us of his own, divergent terms of business or if these are printed on the customer’s correspondence, in particular on order forms.
We herby expressly oppose Customers’ orders or order confirmations with divergent terms of business as a precaution.
The documents included in printed matter, the offer and the confirmation of order, such as illustrations, descriptions and drawings, data on dimensions and weights as well as installation guidelines are only approximately authoritative, unless expressly designated as binding.

2. Terms of price and payment

Prices are ex works, unless otherwise expressly agreed with the customer.
Franco prices apply subject to the correctness of the carriage distance and carriage rates used as the basis. They do not include, unless expressly agreed in writing, road tolls, terminal charges and accompanying charges nor any surcharges for detours, narrow-gauge railway, vehicles without trailers, four-wheel drive and special vehicles and any other accompanying charges and surcharges provided for in the freight rates.
Special prices are agreed for service and repair work performed in the field.
Agreed prices remain valid for an initial period of three months from conclusion of contract.
However, gigant – Trenkamp & Gehle GmbH reserves the right to charge prices valid on the day of delivery if delivery is performed after expiry of a four-month period from closing of contract. Said prices do not include value added tax which is charged at the respective legal rate.
Invoices are due for payment immediately and without deduction subject to lack of any special agreement with the customer.
The customer is obliged to pay the purchase price within 30 days of receipt of goods at the latest. The customer shall enter into default of payment on expiry of this period without any further reminder being required.
Interest at eight percent above the European Central Bank basic interest rate shall be charged on the amount due during the default period. gigant – Trenkamp & Gehle GmbH reserves the right to evidence and enforce greater default damage.
Cheques are only regarded as payment once cashed. Bills of Exchange are not permitted as a means of payment.
The Customer is not permitted to withhold payment of due invoices or offset against unrecognised counter-claims. Default of payment on the part of the customer or insufficient information from the customer concerning his solvency entitles gigant – Trenkamp & Gehle GmbH to claim payment in advance for all deliveries still pending from the business relationship.

3. Retained ownership

gigant – Trenkamp & Gehle GmbH reserves ownership of delivered items until all invoices arising from the business relationship with the customer are settled (retained ownership). The customer may neither pledge nor transfer ownership of delivered items as security to third parties.
gigant – Trenkamp & Gehle GmbH is entitled, in the event of action on the part of the customer in breach of contract, and in particular default of payment, to withdraw from the contract and demand return of the goods.
The customer is entitled to adapt and process the goods delivered within his ordinary business operations. Adaptation and processing shall be performed for gigant – Trenkamp & Gehle GmbH and on its behalf; however, without any costs incurring to gigant – Trenkamp & Gehle GmbH. The customer’s acquisition of ownership of the goods subject to retained ownership shall also be ruled out in the event of Section 950, subsection 1 of the German Civil Code. If the customer has processed or connected goods subject to retained ownership to other goods not belonging to gigant – Trenkamp & Gehle GmbH, then it is deemed agreed that gigant – Trenkamp & Gehle GmbH shall be joint owner of the object manufactured or assembled commensurate with the proportionate value of goods subject to retained ownership to the other processed goods at the time of processing.
It is also agreed that the customer shall keep such goods free of charge for gigant – Trenkamp & Gehle GmbH. The terms valid for goods subject to retained ownership shall apply to the gigant – Trenkamp & Gehle GmbH joint ownership proportion of the processed goods.
The customer is also entitled within his ordinary business operations to resell goods subject to retained ownership with or without adaptation or processing while transferring the existing retained ownership of gigant – Trenkamp & Gehle GmbH at the same terms.

The following applies to the resale of goods subject to retained ownership:

a) The customer at this point assigns his claim against the purchaser for the purchase price to gigant – Trenkamp & Gehle GmbH, regardless of whether the goods subject to retained ownership are sold with or without adaptation or processing or whether they are sold to one or several purchasers.
gigant – Trenkamp & Gehle GmbH hereby accepts this assignment.

b) If goods subject to retained ownership are sold subsequent to adaptation and processing orsold together with other goods not belonging to the seller, then assignment of the claim arising from resale only applies to the amount of the value of the goods subject to retained ownership at the time of the adaptation or processing.

c) The assignment of the claim arising from the resale of goods subject to retained ownership shall provisionally constitute an undisclosed assignment, i.e. the purchaser shall not be notified of it. The customer is authorised to collect the claims until further notice; however, he is not entitled to dispose of the claims in any other manner, e.g. by assignment.
gigant – Trenkamp & Gehle GmbH is entitled to withdraw the authorisation to collect claims and to collect them itself if the customer no longer meets his payment obligation according to contract and particularly if he is in default of payment. The customer shall notify the purchaser of the assignment at the request of gigant – Trenkamp & Gehle GmbH. The customer is also required to state to gigant – Trenkamp & Gehle GmbH the name of the purchaser and the amount of the assigned claims and to provide gigant – Trenkamp & Gehle GmbH with all the information required for asserting assigned claims.

d) Retention of ownership according to the above mentioned agreement also continues to apply if individual claims of gigant – Trenkamp & Gehle GmbH are included in a current invoice (credit account) and the balance is drawn and recognised.
Customer’s complete payment of all claims arising from the business relationship shall cause that ownership of goods subject to retained ownership and that assigned claims arising from resale revert back to the customer.

e) gigant – Trenkamp & Gehle GmbH shall undertake to release the securities to which it is entitled under the foregoing terms at its discretion insofar as the value of goods subject to retained ownership that are unsold and the assigned claims arising from resale do not exceed the claim amount of gigant – Trenkamp & Gehle GmbH by 20%.

f) The customer shall undertake to insure the goods appropriately against all common risks such as fire, break-in and water risks and to treat them carefully. The customer assigns his claims against insurers, commensurate with the equivalent amount of the value of the goods subject to retained ownership, to gigant – Trenkamp & Gehle GmbH at the time of the delivery or at the time of adaptation or processing. gigant – Trenkamp & Gehle GmbH hereby accepts this assignment.

g) The customer is also required to notify gigant – Trenkamp & Gehle GmbH immediately and in writing of any attachment of goods subject to retained ownership and/or of assigned claims by third parties or of any claims raised by third parties concerning the goods.

h) The customer shall bear any costs arising from the assertion of the conditional sale rights.

4. Delivery period

The agreed delivery date or period is regarded as binding if it is designated as a fixed date or period in the order confirmation.
The delivery period or date is not binding if stated as an approximate period or date on the order confirmation. The delivery period shall commence with the dispatch of the order confirmation; however, not before the ordering party has provided the documents, permits,approvals that he is required to obtain and not before receipt of any agreed payments in advance.
The delivery period shall extend appropriately in the event of any unforeseen circumstances outside the volition of gigant – Trenkamp & Gehle GmbH. Such circumstances pertain to incidences of force Majeure, action by authorities, or other delays in the production of the parts to be delivered, interruptions in operations at gigant – Trenkamp & Gehle GmbH or at its suppliers at no fault of their own, delays in deliveries of essential construction and raw materials that are not their responsibility, insofar as any such obstacles have a demonstrable and considerable impact on the production or delivery of items slated for delivery.
Such obstacles that are not the responsibility of gigant – Trenkamp & Gehle GmbH shall also cause an appropriate extension of delivery period if gigant – Trenkamp & Gehle GmbH is already in default. In the case of non-binding delivery periods or dates, the customer may demand in writing that gigant – Trenkamp & Gehle GmbH deliver within an appropriate period.
gigant – Trenkamp & Gehle GmbH shall be deemed in default of delivery upon expiry of this period. In the case of a binding delivery period, gigant – Trenkamp & Gehle GmbH shall be deemed in default of delivery upon expiry of the delivery period and without any further reminder. The customer may only demand compensation for the damage caused by delay in addition to the delivery if intent or gross negligence can be held against gigant – Trenkamp & Gehle GmbH.
In the case of default of performance, the customer may set gigant – Trenkamp & Gehle GmbH an appropriate period in writing and inform gigant – Trenkamp & Gehle GmbH that he will refuse acceptance of the items slated for delivery upon expiry of this period. If the extension of time expires without result, then the customer is entitled to either withdraw from the purchase contract in a written declaration or to demand damages based on nonperformance.
However, the customer is only entitled to claim damages in the event of intent or gross negligence on the part of gigant – Trenkamp & Gehle GmbH. Assertion of a claim to damages shall exclude performance of the delivery contract.
The customer may not reject deliveries or partial deliveries performed prior to expiry of the delivery period.

5. Packaging

Goods shall be delivered unpacked. Any material required for dispatch is charged at cost price; however, it shall not be taken back, unless otherwise agreed.

6. Dispatch and transfer of risk

Deliveries are always ex works, even if the prices agreed are ex destination or free to the point of use.
Risk shall pass to the customer upon transfer to railway, forwarding agent or carrier; however, at the latest when the goods leave the works. The same shall apply for f.o.b. or c.i.f. transactions.
gigant – Trenkamp & Gehle GmbH shall select the shipping method, transport and means of protection. gigant – Trenkamp & Gehle GmbH is only liable for incorrect selection due to intent or gross negligence.
Goods notified as ready for dispatch must be called forward immediately; otherwise gigant – Trenkamp & Gehle GmbH is entitled to store the goods at its own discretion at the customer’s risk and expense and to charge the goods as delivered ex works.

7. Rights in the event of defects

Only the product description provided by gigant – Trenkamp & Gehle GmbH on the written order confirmation is valid as the agreed condition of the goods. Public statements, commendations or advertising do not represent information in terms of condition according to contract. In the event of supply of defective assembly instructions, gigant – Trenkamp & Gehle GmbH is only liable if the error in the assembly instructions contradicts proper assembly and has caused material defects.
Complaints concerning the quantity delivered and obvious defects in the goods delivered are to be asserted in writing within 10 days of delivery; hidden defects are to be reported with 10 days of their discovery. Claims according to the terms stated below are ruled out if the customer adapts, processes or resells the goods even though he already has discovered or should have discovered the defect, unless the customer acted in fulfilment of his obligation to reduce damage. gigant – Trenkamp & Gehle GmbH shall be given the opportunity to determine the defect under complaint itself on site or by a representative.
Natural wear and any damage occurring due to intentional, incorrect or negligent handling or due to non-observance of installation and maintenance regulations, overloading or force majeure shall release gigant – Trenkamp & Gehle GmbH from any obligations.
gigant – Trenkamp & Gehle GmbH may choose either repair at its own cost (reworking) or replacement delivery in the event of a valid complaint made by the customer. If reworking or replacement delivery fails, then the customer may, at his discretion, demand reduction of the purchase price or withdraw from the contract, unless the defect is only minor.
If the customer chooses to withdraw, then he is not entitled to claim damages due to the defect. Any claims due to defect shall not be recognised if the customer failed to report the defect correctly and failed to grant gigant – Trenkamp & Gehle GmbH immediate opportunity to rework the goods. The claim shall likewise lapse if repairs or modifications are performed on delivered goods without the express or written approval of gigant – Trenkamp & Gehle GmbH, or if type plates are removed. The limitation period for rights in the event of defect is 1 year from delivery of the goods, unless the product is covered under the special Gigant warranty period.
Information on the validity of the Gigant warranty period is stated on the order confirmation.
The terms set out under Clause 7 shall not affect claims arising from separate warranty statements made by gigant – Trenkamp & Gehle GmbH.

8. Entrepreneur’s recourse

The claim to recourse against gigant – Trenkamp & Gehle GmbH shall only enter into effect if the customer or an intermediate purchaser sells the goods delivered to a final consumer who is not an entrepreneur as defined under the scope of application of these General Terms of Business.
If the customer sells the newly produced gigant – Trenkamp & Gehle GmbH goods to a final consumer or an intermediate dealer and takes back these goods from the intermediate dealer or final consumer, reworks them or has to reduce the purchase price due to their defectiveness, then the customer may assert his claim for material defects from the intermediate dealer or final consumer within so-called legal entrepreneur’s recourse, insofar as the entrepreneur ensures complete documentation of material defects by providing installation and disassembly documentation, delivery notes and invoices or in another form to be agreed with gigant – Trenkamp & Gehle GmbH for asserting any such claims. The claim to entrepreneur’s recourse under the legal provisions of Sections 478 & 479, German Civil Code, regarding the claim to compensation of expenses shall lapse within 2 years of delivery of the goods to the customer. The claim due to defects shall otherwise lapse 2 months at the earliest after the time when the customer fulfilled the claims of the consumer or intermediate dealer;
however, 5 years at the latest after the time when gigant – Trenkamp & Gehle GmbH delivered the goods to the customer. The claim due to material defects shall lapse insofar as the customer has satisfied claims asserted by the final consumer or intermediate dealer due to material defects with an ex gratia settlement.

9. Customer service

gigant – Trenkamp & Gehle GmbH is pleased to assist customers within their own customer service concerning any enquiries regarding installation support or solution of technical problems. However, provided technical assistance represents a purely ex gratia service that is not based on any legal claim to it and from which no liability on the part of gigant – Trenkamp & Gehle GmbH can be derived, unless incorrect information was given intentionally or with gross negligence. The provisions under this clause shall not affect written contracts between gigant – Trenkamp & Gehle GmbH and customers concerning technical consulting for payment.

10. Place of performance and venue of courts

The place of performance for gigant – Trenkamp & Gehle GmbH deliveries and for payments to gigant – Trenkamp & Gehle GmbH is the company’s Registered Office in Dinklage.
The company’s Registered Office in Dinklage is likewise deemed exclusive venue of courts for any current and future claims arising from business relations with entrepreneurs who are simultaneously registered companies or business persons.

11. Miscellaneous

The invalidity or ineffectiveness of individual terms shall not affect the validity of the remaining provisions of this Contract.
Ineffective provisions shall be exclusively replaced regulations under the law of the Federal Republic of Germany. The laws of the Federal Republic of Germany shall apply exclusively in addition to these General Terms of Sale, Delivery and Payment.