Terms and Conditions of Sale and Delivery of GENUPORT Trade GmbH
Section 1 Scope of application
- All deliveries and services of GENUPORT Trade GmbH shall be subject exclusively to the following conditions. Terms and conditions of business and contract offers of the Purchaser which conflict with or diverge from these Terms and Conditions are explicitly rejected unless they have been explicitly accepted by GENUPORT Trade GmbH in writing or in text form (e.g. email or fax).
- These Terms and Conditions shall also apply if GENUPORT Trade GmbH unreservedly performs delivery to the Purchaser with the knowledge that the Purchaser’s terms and conditions of business conflict with or diverge from these Terms and Conditions. Subject to an explicitly divergent agreement, these Terms and Conditions shall equally apply as amended to any future agreements concluded with the Customer, even if not explicitly specified as being part of the contract.
- These Terms and Conditions shall apply only to companies and legal persons under public law or a special fund under public law within the meaning of Sections 310 (1) and 14 of the German Civil Code (BGB).
Section 2 Object, prices, payment conditions
- Our offers in catalogues, lists, shops, etc. are non-binding and we are under no obligation to accept an order insofar as an offer is not explicitly designated as being binding.
- The object of the delivery or service is the goods and/or services ordered by the Purchaser as clearly agreed upon on the basis of specifications. Unless explicitly stipulated otherwise in an offer, the versions and prices relate to the articles offered, but not to any accessories or decor items depicted.
- The minimum order value is a net invoice amount of EUR 850.00. Deliveries and services shall be performed on the basis of the GENUPORT Trade GmbH price list which is valid at the time at which a contract is concluded. Prices are quoted as DDP (Incoterms 2020) plus the relevant statutory value added tax.
Unless the order confirmation stipulates otherwise, the (full) net purchase price shall be payable within seven days of the invoice date. The deduction of an early payment discount shall be subject to a separate agreement concluded in text form (e.g. in writing, by email or by fax).
- If the Purchaser falls in arrears with the payment of an invoice, GENUPORT Trade GmbH shall be entitled to demand payment of default interest in the amount of nine percentage points above the basic rate of interest p.a. pursuant to Section 288 (2) BGB plus a flat dunning fee of EUR 40.00 pursuant to Section 288 (5) BGB. The assertion of greater default damage is not excluded. In the event that GENUPORT Trade GmbH is obligated to perform in advance, GENUPORT Trade GmbH may refuse the performance incumbent upon it if, after the conclusion of the contract, it becomes apparent that its claim to counter-performance is jeopardized by the buyer's inability to perform. The right to withhold performance shall cease to apply if consideration is affected or if security for it is furnished. GENUPORT Trade GmbH may set an appropriate deadline by which the Purchaser shall reciprocally and simultaneously effect the consideration or furnish security for it at its own discretion. GENUPORT Trade GmbH may withdraw from the contract upon expiry of the deadline without consideration being affected or security for it being furnished. Further details are set forth in Section 321 BGB.
- The Purchaser shall only have rights to set-off and retention if and insofar as there is reciprocity between the claims asserted by GENUPORT Trade GmbH and the Purchaser’s counterclaims (Section 320 BGB) or if the Purchaser’s counterclaims are recognised by a declaratory judgement, are undisputed or are acknowledged by GENUPORT Trade GmbH.
- If the Purchaser falls into arrears with one of a number of accounts payable or if other circumstances come to light which call into question the Purchaser’s creditworthiness, GENUPORT Trade GmbH shall make all of its accounts receivable from the Purchaser payable immediately. In this case, GENUPORT Trade GmbH is not obliged to perform further deliveries relating to any contracts unless the Purchaser offers to pay the full balance due reciprocally and simultaneously.
- We are entitled to assign our claims pursuant to our business relations to a third party at any time.
Section 3 Delivery, delivery deadlines, terms and conditions of delivery
- If the loading or carriage of the goods is delayed for a reason which is attributable to the Purchaser, GENUPORT Trade GmbH is entitled to store the goods at its discretion at the Purchaser’s expense and risk, to effect all the measures appropriate to preserving the goods and to invoice the goods as if they had been delivered. The same shall apply if goods regarding which notification has been given that they are ready for shipment are not called off by the Purchaser within four days. This shall not affect the statutory provisions regarding default in acceptance.
- Delivery deadlines and dates shall only be binding if stipulated or acknowledged as such by GENUPORT Trade GmbH explicitly in writing or in text form (e.g. email, fax). Force majeure, the impacts of pandemics and epidemics and other circumstances for which GENUPORT Trade GmbH is not responsible shall extend a delivery deadline for GENUPORT Trade GmbH by the duration of the hindrance. GENUPORT Trade GmbH shall notify the Purchaser of such circumstances without undue delay. If the delayed provision of services due to the occurrences stated above is unreasonable for a party, said party shall be entitled to withdraw from the contract.
- In the event that GENUPORT Trade GmbH is unable to deliver the goods ordered through no fault of its own because its supplier fails to fulfil its contractual obligations vis-à-vis GENUPORT Trade GmbH, GENUPORT Trade GmbH shall be entitled to withdraw from the contract concluded with the Purchaser. However, this right of withdrawal shall only exist if GENUPORT Trade GmbH has concluded a congruent covering transaction (binding, timely and sufficient ordering of the goods) with the supplier in question and is not responsible in any other way for non-delivery. In this instance, GENUPORT Trade GmbH shall notify the Purchaser without undue delay that the goods ordered are not available. GENUPORT Trade GmbH shall refund any considerations already effected by the Customer without undue delay.
Section 4 Retention of title
- GENUPORT Trade GmbH shall retain title to all current and future deliveries until payment has been made in full.
- Insofar as an open account relationship has been concluded by and between the Purchaser and GENUPORT Trade GmbH, retention of title shall equally apply to each balance acknowledged. The same shall apply insofar as a balance is not acknowledged, with a ‘causal’ balance being drawn upon instead, for example because the Purchaser is insolvent or in liquidation.
- In the event of the attachment of or any other third-party interference in the title of GENUPORT Trade GmbH, the Purchaser shall notify GENUPORT Trade GmbH hereof in writing without undue delay such that GENUPORT Trade GmbH can file a suit pursuant to Section 771 of Germany’s Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse the court and out-of-court costs of a suit to GENUPORT Trade GmbH pursuant to Section 771 ZPO, the Purchaser shall be liable for the financial loss incurred by GENUPORT Trade GmbH.
- The Purchaser is obliged to handle the purchased item with care. The Purchaser is authorised to resell the purchased item in the ordinary course of business; however, the Purchaser hereby assigns to GENUPORT Trade GmbH all accounts receivable in the amount of the final invoice amount (including value added tax) payable to the Purchaser by their customer or third parties from the resale, irrespective of whether the purchased item was resold without or after processing. GENUPORT Trade GmbH accepts this assignment. The Purchaser shall remain authorised to collect this account receivable even after assignment. This shall not affect the authority of GENUPORT Trade GmbH to collect the account receivable itself. However, it undertakes not to collect the account receivable for as long as the Purchaser fulfils its payment obligations from the proceeds collected, does not fall into arrears with payments and in particular does not apply for insolvency proceedings to be opened or for the stoppage of payments. If this is indeed the case, GENUPORT Trade GmbH shall be entitled to revoke its direct debit authorisation. It may further demand that the Purchaser discloses the assigned accounts receivable and the corresponding debtors, makes all the disclosures which are necessary for payment collection, surrenders the corresponding documents and notifies the debtors (third parties) of the assignment.
- A purchased item is always processed or remodelled by the Purchaser on behalf of GENUPORT Trade GmbH. If the purchased item is processed or inseparably commingled with other items not belonging to GENUPORT Trade GmbH, GENUPORT Trade GmbH shall acquire joint ownership of the newly created item on the basis of the value of the purchased item in relation to the other processed or commingled items at the time of their processing or commingling. Further, the item newly created due to processing or commingling shall be subject to the same terms as the purchased item delivered subject to retention of title.
If the commingling is such that the Purchaser’s item can be considered to be the dominant item, it is agreed that the Purchaser shall transfer prorated joint ownership to GENUPORT Trade GmbH. The Purchaser shall hold the sole ownership or joint ownership thus created in safe custody for GENUPORT Trade GmbH.
- GENUPORT Trade GmbH undertakes to release the securities due to it at the Purchaser’s request insofar as the realisable value of the securities exceeds the accounts receivable to be secured by more than 10%; GENUPORT Trade GmbH shall be entitled to choose which securities to release.
Section 5 Warranty
- GENUPORT Trade GmbH guarantees that the delivered goods are safe, marketable and suitable for the agreed use, are in particular free from manufacturing and material defects, and comply with the specifications agreed upon in writing or in text form (e.g. email, fax).
Pursuant to Section 377 of the German Commercial Code (HGB), the Purchaser is obliged to inspect the delivery and assert any claims for defects in writing without undue delay. Evident defects are to be reported within three working days of delivery (Mondays to Fridays, not including the statutory public holidays at the place of inspection) and, in the case of defects not evident at the time of inspection, within the same period upon discovery, in writing or in text form (e.g. email, fax). The goods shall otherwise be deemed approved even in view of said defects, and defect warranty claims and claims for damages on the basis of said defects shall be excluded. If there is the suspicion of a defect with regard to the products delivered which is not completely negligible, the Purchaser is obliged to inform GENUPORT Trade GmbH of the suspicious facts without undue delay, even if further examinations have to be performed to verify the defect. A violation of this obligation shall result in compensation liability on the part of the Purchaser, unless the Purchaser is not responsible for this breach of duty.
- Defective goods are to be kept available for examination by GENUPORT Trade GmbH in the condition in which they were at the time at which the defect was discovered. If the Purchaser is in violation of this, they must compensate GENUPORT Trade GmbH for the resultant damage.
- Insofar as the purchased item has a defect, GENUPORT Trade GmbH has the right to choose between fulfilling its obligation of subsequent performance in the form of rectification of the defect or the delivery of a new item. Expenses incurred due to the rectification of defects, in particular transport, travel, work and material costs, shall be borne by GENUPORT Trade GmbH insofar as these are not increased by the purchased item having been transported to somewhere other than the place of delivery. If subsequent performance fails, the Purchaser is entitled to withdraw from the contract and to demand compensation rather than performance insofar as the breach of duty was not negligible. This shall not affect the Purchaser’s right to reduce the purchase price.
Section 6 General liability
- Claims for damages of any kind against GENUPORT Trade GmbH and its legal representatives and vicarious agents are excluded unless there is intent or gross negligence or the violation of a material contractual obligation.
- A material contractual obligation in this sense is any obligation without whose performance the orderly execution of the contract would not be possible and compliance with which the Purchaser can regularly rely on.
- However, liability is limited to compensation which is typical for the contract and foreseeable insofar as there is only ordinary or gross negligence.
- The above limitations and exclusions of liability shall not apply to liability in accordance with product liability laws or in the event of injury to life, limb or health.
- Claims for the reimbursement of expenses on the part of the Purchaser pursuant to Section 284 BGB shall be waived insofar as a claim for compensation instead of performance as per the above rules is excluded.
- The legal burden of proof shall not be changed by the above rules.
Section 7 Place of performance, place of jurisdiction, miscellaneous
- The place of performance for delivery, the fulfilment of warranty claims and payment shall be Norderstedt, Germany.
- If the Purchaser is domiciled in the EU or the European Economic Area, the following applies: The sole place of jurisdiction shall be Norderstedt, Germany, if the Purchaser is a merchant, a legal person under public law or a legal special fund or if the Purchaser does not have a general place of jurisdiction in Germany.
- If, however, the Purchaser is domiciled outside of the EU and the European Economic Area, the Court of Arbitration of the Hamburg Chamber of Commerce shall have exclusive jurisdiction over all disputes arising from and in relation to the contracts concluded under these Terms and Conditions and shall decide finally and without recourse to the ordinary courts of law. The defendant is entitled to submit a counterclaim to the Court of Arbitration. The place of arbitration shall be Hamburg and the procedural language shall be German. The legal proceedings and in particular the hearing of evidence shall be conducted in accordance with the Rules of the Court of Arbitration of the Hamburg Chamber of Commerce and the rules in Book 10 of the Code of Civil Procedure (ZPO). The Court of Arbitration is to base its hearing of evidence on the procedural conventions within German state courts. Common law procedural principles such as in particular regarding document production shall not apply directly or mutatis mutandis. Insofar as one party must reimburse the other party for lawyers’ fees in relation to the arbitration proceedings, these shall be limited to the costs which may be invoiced pursuant to the Lawyers’ Remuneration Act (RVG).
Last updated: June 2021