The General Terms and Conditions of the Genuport Trade GmbH
§ 1 Scope of Application
The following conditions exclusively apply to all deliveries and services of the Genuport Trade GmbH. We hereby explicitly object to any opposing conditions or deviating General Terms and Conditions and/or Contractual Offers from the purchaser unless prior consent was given by the Genuport Trade GmbH in writing. These conditions also apply in the event that the Genuport Trade GmbH carries out the delivery to the purchaser without reservation despite being aware of the fact that the General Terms and Conditions of the purchaser contradict or deviate from our own. Subject to additional explicitly made agreements, these conditions are valid in the respectively current version and also apply to any other agreements made with the client, even if these are not explicitly included in the contract. These conditions solely apply to enterprises as well as to corporate bodies of public law or separate estates governed by public law in keeping with §§ 310 Section 1, 14 BGB.
§ 2 Subject Matter/Prices/Terms of Payment
Our offers in catalogues, lists, shops, etc. are subject to change and do not obligate us to accept an order, unless they are explicitly referred to as binding.
The minimum purchase order value is € 350.00 net.
The subject matter of the delivery or service comprises the goods and/or services offered by us and ordered by the purchaser. Insofar as not otherwise explicitly specified in the respective offer, the versions and prices only apply to the respective item on offer, but not to any other equipment or decorations that may also be depicted.
Guarantees in accordance with the law are referred to under the specific name of “Guarantee” and are only issued by us in writing. Any guarantees from the manufacturer remain unaffected by this.
All deliveries and services are carried out based on the respective version of the Genuport Trade GmbH price list that is valid at the time of concluding the contract. The prices are “franco domicile” (free delivery) but are plus value-added tax at the applicable legal amount.
Provided that nothing else is stated in the order confirmation, the net purchase price (without deduction) will be due for payment within 7 days after the date of invoice. If the purchaser defaults on the payment of any of our invoices, Genuport Trade GmbH reserves the right to add interest for default at eight percent p.a. above the respective base interest rate in accordance with § 247 BGB. The right to claim higher damages due to default remains unaffected. If the purchaser defaults on one of several financial liabilities to us, or we become aware of circumstances that lead us to have well-founded doubts about the credit worthiness of the purchaser, then all of our accounts receivable due from the purchaser shall become due immediately. In this case, we are not obligated to make any further deliveries under this or any other agreement unless the purchaser offers to settle the entire residual debt step by step in return for delivery. The purchaser is only entitled to offset Genuport Trade GmbH payment claims against counterclaims that are legally established, undisputed or acknowledged by the Genuport Trade GmbH in writing. Moreover, the purchaser shall be entitled to exercise any right of retention only insofar as the counterclaim is based on the same contract and the Genuport Trade GmbH is responsible for an infringement of obligations in accordance with § 276 BGB.
We are entitled to assign the claims from our business relations.
Provided that the claims from our business relations have been assigned, payments with the effect of debt-discharge may only be made to the company or person to whom we have assigned the claims from our business relations.
§ 3 Delivery/Delivery Deadlines/Terms of Delivery
If the loading or transport of goods is delayed for reasons for which the purchaser is responsible, the Genuport Trade GmbH has the right to store the goods at our own reasonable discretion at the expense and risk of the purchaser, to take all action deemed suitable to preserve the goods and to invoice the goods as delivered. The same shall apply if goods notified as being ready for delivery are not requested to be delivered within four days. The statutory provisions regarding default of acceptance remain unaffected by this.
The period of delivery determined by us shall only commence after all technical questions have been clarified with the purchaser. The compliance with our delivery commitment additionally presupposes the timely and orderly fulfilment of the purchaser's obligations. The right to raise objection to non-fulfilment of the agreement is reserved.
Delivery deadlines and dates are only binding if they have explicitly been specified as binding and confirmed in writing by the Genuport Trade GmbH. Force majeure and any other circumstances beyond the control of Genuport Trade GmbH extend the delivery deadline by the duration of the obstacle. The Genuport Trade GmbH will immediately notify the purchaser of such circumstances.
Should the Genuport Trade GmbH be unable to deliver the ordered goods through no fault of our own because our suppliers have not fulfilled their contractual duties, we are entitled to withdraw from the contract with the purchaser. This right of withdrawal, however, only exists in the event that the Genuport Trade GmbH has a corresponding supply agreement (i.e. has bindingly ordered a sufficient quantity of the goods concerned in good time) with the supplier concerned and cannot be held responsible for the non-delivery of the goods for any other reason. In such cases, the Genuport Trade GmbH will inform the purchaser without delay that the ordered goods are not available and will immediately reimburse any advance payments.
§ 4 Reservation of Ownership Rights
The Genuport Trade GmbH retains the ownership rights to all deliveries until all payments based on the existing business relations up to the date of conclusion of the respective contracts have been settled.
Insofar as a checking account relationship has been agreed upon between the purchaser and the Genuport Trade GmbH, the reservation of ownership rights also relate to the respectively acknowledged balance.
The same applies in the event that a balance is not acknowledged and a "balance is made for cause", for instance because the purchaser becomes bankrupt or goes into liquidation. The purchaser is obliged to treat the purchased goods with care.
In case of seizure or other actions by third parties, the purchaser shall immediately notify the Genuport Trade GmbH in writing so that we may take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not able to reimburse the Genuport Trade GmbH for judicial and extra-judicial costs for the legal action as per § 771 ZPO, the purchaser is liable for the costs incurred.
The purchaser is entitled to resell the goods in an orderly business transaction; however, the purchaser already now assigns all claims to the Genuport Trade GmbH to the amount of the final amount of the invoice (including value added tax) incurring to him from the resale to his customers or third parties, independent of the fact whether the goods were resold without or after processing.
The Genuport Trade GmbH accepts this assignment. The purchaser retains the right to collect these claims even after this assignment. The Genuport Trade GmbH’s right to collect the payment for these claims ourselves remains unaffected. However, theGenuport Trade GmbH hereby undertakes not to collect on the claim for as long as the purchaser meets his payment obligations from the proceeds received, is not in arrears, and in particular no application is filed for the opening of insolvency proceedings or payments are suspended. If this is, however, the case, the Genuport Trade GmbH is entitled to revoke the direct debit authorisation and demand that the purchaser notifies us of the assigned claims and the debtors thereunder, provides all details necessary for collection, delivers the corresponding documents and notifies the debtor (third party) of the assignment.
Any processing or modification of the purchased item by the purchaser will always be carried out on the behalf of the Genuport Trade GmbH. If the goods are processed with other objects not belonging to the Genuport Trade GmbH, theGenuport Trade GmbH shall acquire co-ownership in the new object at the ratio that applies between the value of the goods and the other processed items at the time of processing. The object created through further processing shall be subject to the same conditions as the goods supplied under reservation of title.
If the goods are irrevocably mixed with other objects not belonging to the Genuport Trade GmbH, the Genuport Trade GmbH shall acquire co-ownership in the new object at the ratio that applies between the value of the goods and the other mixed items at the time of mixing. If the mixing takes place in such a way that the purchaser’s property is to be regarded as the main item, it is agreed that the purchaser transfers proportional co-ownership to the Genuport Trade GmbH. The purchaser shall safeguard the sole ownership or the co-ownership thus arising for theGenuport Trade GmbH.
The Genuport Trade GmbH agrees to release the securities to which it is entitled at the purchaser’s request to the extent that the realisable value of the securities exceeds the obligations to be secured by more than 10 %; the Genuport Trade GmbH is entitled to select the securities to be released.
§ 5 Liability
The risk is transferred to the customer with the delivery of the goods to the forwarding agent or carrier, at the latest however upon leaving the factory.
The Genuport Trade GmbH warrants that the delivered goods are free of fabrication or material defects and correspond with the written specifications.
The purchaser is obliged to inspect deliveries immediately pursuant to § 377 HGB (German Commercial Code) and to notify us of any defects in writing without delay.
Faulty goods are to be made available to the Genuport Trade GmbH for inspection in the condition that they were in at the time of discovering the defect. Infringement of this obligation shall lead to an exclusion of any liability by the Genuport Trade GmbH. The aforementioned clauses also apply for over-delivery, under-delivery as well as for incorrect deliveries.
Insofar as the purchased item has a defect for which the Genuport Trade GmbH can be held responsible, the purchaser is entitled to demand, as preferred, compensation in the form of rectification of defects or the delivery of a new item.
In the case of rectification of defects, the Genuport Trade GmbH bears all costs for necessary expenses incurred, in particular transportation costs, route-related transport costs, labour costs and the cost of materials, provided that the said costs are not increased by the fact that the purchased item was brought to a place other than the place of delivery. In the event that subsequent performance fails, the purchaser is entitled to withdraw from the contract and demand compensation for damages instead of fulfilment, insofar as the contract obligation was not insignificant. In all other respects, § 6 applies for the limitation of liability. The purchaser’s right of reduction remains unaffected.
If the Genuport Trade GmbH has given a guarantee for the quality of an item, we are held liable in accordance with the statutory provisions.
§ 6 Other liability
Claims for damages asserted by the purchaser against the Genuport Trade GmbH are hereby ruled out. Exempt from this rule are claims for damages by the purchaser due to injury to life, body and health or in case of violation of essential contractual duties (cardinal obligations), as well as the liability for other damages resulting from a wilful or grossly negligent breach of duty on the part of the Genuport Trade GmbH, its legal representative or persons assisting in the performance of obligations. Essential contractual obligations are those that are required to be fulfilled in order to achieve the aim of the contract and those on whose compliance the purchaser, as a contractual partner, can trust upon regularly. Essential contractual obligations are those that are required to be fulfilled to achieve the aim of the contract and those on whose compliance the customer, as contractual partner, can trust upon regularly. If the breach of an essential contractual obligation is based on slight negligence, the Genuport Trade GmbH’s liability is limited to foreseeable damages typical of the contract concerned unless the claims for damages by the purchaser are due to injury to life, body and health;
The aforementioned liability limitations shall also apply in favour of the legal representatives or persons assisting in the performance of obligations of the Genuport Trade GmbH if claims are asserted directly against them as well as analogously for claims to reimbursement of expenses. The provisions of the German product liability laws as well as the liability of the Genuport Trade GmbH for any contractual guarantees remain unaffected.
§ 7 Place of Performance/Jurisdiction/Other
Place of fulfilment and jurisdiction for both parties is Norderstedt, insofar as the purchaser is a merchant, a legal entity under public law, or a public-law special fund. The Genuport Trade GmbH, however, is also entitled to bring action against the other party in the other party’s general place of jurisdiction. The law of the Federal Republic of Germany shall apply under exclusion of the convention of the United Nations concerning contracts for the international purchase of goods. (CISG). Should any of the provisions of these General Terms and Conditions be or become ineffective this shall not affect the effectiveness of the remaining provisions.
Status: April 2012