Terms and Conditions

Terms and Conditions of Sale, Delivery, and Payment

§ 1 Scope of Application

1. All orders and delivery transactions of Giesguth Vertriebsgesellschaft mbH, Borchen (hereinafter referred to as GIESGUTH) are exclusively subject to the following terms and conditions, unless expressly agreed otherwise.
2. These terms and conditions shall be deemed accepted upon receipt of the goods at the latest.
3. A contract concluded on the basis of these terms and conditions establishes their validity for all further (delivery) transactions with the buyer, even if GIESGUTH does not expressly refer to them in the future.
4. Deviating agreements, especially conflicting terms and conditions, require the express written consent of GIESGUTH to be effective and must be separately confirmed by GIESGUTH for each individual contract. Otherwise, such terms and conditions of the buyer shall not be binding on GIESGUTH, neither in their entirety nor with regard to individual provisions, and not even if GIESGUTH does not expressly object to them.

§ 2 Offer and Conclusion of Contract

1. GIESGUTH’s offers are non-binding with regard to prices and delivery times. Drawings, illustrations, dimensions, weights, or other performance data are only binding if expressly agreed upon in writing.
2. If the buyer places an order, this shall be considered a binding offer. As the seller, GIESGUTH may accept this offer within 2 weeks by sending an order confirmation.
3. The purchase contract shall only be concluded upon written order confirmation from GIESGUTH.

§ 3 Prices and Payment Terms

1. Prices are ex works, excluding packaging, freight, customs duties, import duties, ancillary charges, net plus statutory value-added tax. Price changes apply from the dates specified by GIESGUTH for all deliveries.
2. Should raw material prices, wages, and/or other economic conditions demonstrably affecting prices change to GIESGUTH’s disadvantage between the conclusion of the contract and delivery, GIESGUTH is entitled to demand a corresponding adjustment of prices within what is reasonable for the buyer.
3. GIESGUTH’s invoices are due immediately upon receipt, unless otherwise agreed. All payments must be made in Euros.
4. Payment default entails the loss of all discounts, sales and freight allowances, and deferrals potentially granted by GIESGUTH (with the exception of discounts/allowances expressly agreed upon as compensation for the buyer’s assumption of warranty and/or guarantee obligations). In the event of the buyer’s payment default, GIESGUTH is also entitled to declare all or individual outstanding claims of GIESGUTH from all business relationships with the buyer immediately due and payable. In the event of the buyer’s payment default, GIESGUTH is entitled to charge the buyer 0.05% default interest per day. Further claims of GIESGUTH remain unaffected.
5. Bills of exchange and checks are accepted only for the purpose of performance, and the debt is only settled upon full payment.
   If bills of exchange are not issued within 14 calendar days after the agreed deadline, GIESGUTH may demand immediate payment.
   GIESGUTH assumes no liability whatsoever for the correct and timely presentation and protesting of issued checks or bills of exchange.
   Discount charges (2% above the discount rate charged by GIESGUTH’s house bank, but at least €50) and all costs arising from the encashment of bill of exchange and check amounts shall be borne by the buyer.
   All claims of GIESGUTH against the buyer, regardless of the term of any accepted and conditionally credited bills of exchange, become immediately due if the payment terms are not met or if circumstances become known that are likely to reduce the buyer’s creditworthiness.
6. Should justified doubts about the buyer’s solvency or creditworthiness arise after the conclusion of the contract, or should such circumstances already existing at the time of contract conclusion only become known later, GIESGUTH is entitled to demand either advance payment or security before delivery, as well as to revoke granted payment terms and declare credited claims immediately due.
7. Despite any provisions to the contrary from the buyer, GIESGUTH is entitled to first offset payments against the buyer’s older debts. GIESGUTH will inform the buyer about the type of offsetting that has occurred. If costs and interest have already accrued, GIESGUTH is entitled to first offset the payment against the costs, then against the interest, and finally against the principal amount.
8. The buyer is entitled to offset, withhold, or reduce payments – even if asserting claims for defects or counterclaims – only if the counterclaims have been legally established or are undisputed.

§ 4 Delivery and Delivery Time

1. Deliveries are made ex works, unless otherwise agreed upon in individual contracts.
2. The method of shipment (if deviating from § 4 Para. 1) as well as the type, manner, and extent of packaging are subject to GIESGUTH’s dutiful discretion, unless expressly agreed otherwise.
3. GIESGUTH is entitled to withdraw from the contract if the agreed payment securities do not exist, particularly if there is no sufficient trade credit insurance coverage.
4. Scheduled delivery dates are stated in the order confirmation or otherwise agreed upon in writing and will be adhered to if possible.
   If a scheduled delivery date is exceeded by more than 2 weeks, the buyer is entitled to set GIESGUTH a reasonable grace period for subsequent delivery. If delivery has not been made within 2 weeks of the grace period, the buyer has the right to withdraw from the contract. The withdrawal must be declared in writing. The right of withdrawal only exists if GIESGUTH is responsible for the non-observance of the grace period and if further adherence to the contract is unreasonable for the buyer.
5. For the duration of circumstances beyond GIESGUTH’s control (force majeure), such as the impossibility of procuring raw materials and means of transport, operational disruptions, strikes and lockouts, fire and natural disasters, GIESGUTH is released from the obligation to deliver. Agreed delivery periods shall be extended by the duration of the force majeure circumstances. The buyer can only refuse delivery after the cessation of the force majeure circumstances if acceptance of the delivery has become unreasonable after this period.
6. GIESGUTH is entitled to make partial deliveries or provide partial services if (I) the partial delivery is usable by the buyer within the scope of the contractual purpose, (II) the delivery of the remaining ordered goods is ensured, and (III) the buyer does not incur significant additional effort or costs as a result (unless GIESGUTH agrees to bear these costs).
7. For call-off orders, the buyer undertakes to take delivery of the goods by the completion date specified in the order confirmation, or, in the absence thereof, no later than 28 calendar days after notification of completion; otherwise, the goods will be automatically delivered and/or, in case of refusal of acceptance, publicly stored at the buyer’s expense.

§ 5 Transfer of Risk

1. The risk of accidental loss shall pass to the buyer in all cases as soon as the consignment has been handed over to the person carrying out the transport or has left GIESGUTH’s warehouse for dispatch. This applies in particular to “free delivery”.
2. If dispatch cannot be carried out within the agreed delivery period through no fault of GIESGUTH, the risk of accidental loss of the goods shall pass to the buyer upon notification of readiness for dispatch.
3. The buyer is obliged to accept the goods on the confirmed date. Otherwise, GIESGUTH is entitled to charge customary storage costs.

§ 6 Warranty; Limitation Periods

1. Obvious defects and defects discoverable upon proper inspection must be reported by the buyer in writing immediately after receipt of the goods. Defects that could not be discovered even with proper inspection within this period must be reported to GIESGUTH immediately after discovery. The same applies to complaints regarding incorrect deliveries and quantity deviations. Warranty claims are excluded if the notification period is missed.
2. Before processing or working on the delivered goods, the seller is obliged to check them for their suitability for their intended purpose, even if samples were delivered beforehand.
3. Minor deviations in dimensions and designs do not entitle the buyer to claim defects. Any deviations within the scope of the relevant quality guidelines known to the buyer are considered to be in conformity with the contract. The assertion of defects requires that the reduction in value as a result of the defects exceeds 4% of the goods’ value. For orders, quantity deviations of up to 10% are recognized by the buyer as being in conformity with the contract.
4. Complaints can only be considered for goods that are still available for inspection and/or return.
   A prerequisite for the warranty obligation is the fulfillment of the contractual obligations incumbent upon the buyer, in particular the agreed payment terms. No goods may be returned to GIESGUTH without prior mutual agreement.
5. In the event of defects in the delivered goods reported in due time as per Section 1 above, GIESGUTH is entitled, at its own discretion, to subsequent performance by rectifying the defect or delivering defect-free goods. Should subsequent performance fail, the buyer may reduce the purchase price or, at their discretion, withdraw from the contract. Claims for damages are only available to the buyer within the scope of § 8 below.
6. The warranty obligation expires if the delivered goods have been altered, processed, or improperly handled.
7. GIESGUTH is not liable for the deterioration of its coated products if they are used outside the EU, unless the intended use and country were disclosed to GIESGUTH prior to use and the suitability of the material for the purpose was confirmed in writing by GIESGUTH.
8. The limitation period for the buyer’s claims for defects is one year, unless it concerns a defect in a product or the defective goods have not been used for products in accordance with their usual intended use and have caused their defectiveness. It also applies to claims arising from tort based on a defect in the goods. The limitation period begins with the delivery of the goods. Liability under § 8, in particular GIESGUTH’s unlimited liability for damages resulting from injury to life, body, or health, for intent and gross negligence, and for product defects, remains unaffected. A statement by GIESGUTH regarding a claim for defects asserted by the buyer is not to be regarded as entering into negotiations about the claim or the circumstances giving rise to the claim, provided that the claim for defects is fully rejected by GIESGUTH.
   The limitation period in the case of supplier recourse according to §§ 478, 479 BGB remains unaffected.
9. The preceding paragraphs comprehensively and conclusively regulate GIESGUTH’s warranty – subject to express contractual or mandatory statutory provisions to the contrary.

§ 7 Retention of Title

1. GIESGUTH retains title to the purchased goods until all payments from the business relationship with the buyer have been received. Insofar as GIESGUTH agrees with the buyer on payment of the purchase price debt based on the check/bill of exchange procedure, the retention of title also extends to the encashment and to claims against the buyer in connection with a possible claim by GIESGUTH from third-party bill of exchange beneficiaries and does not expire merely upon receipt of money within the check/bill of exchange procedure.
2. Processing or transformation always takes place exclusively while safeguarding GIESGUTH’s security interests. The processed item serves with its full value to secure the claim mentioned in the preceding paragraph. Insofar as goods from other suppliers are co-processed, whereby the legal consequences of § 950 BGB are simultaneously excluded, GIESGUTH acquires co-ownership of the new item in proportion to the value of the reserved goods (final invoice amount plus value-added tax) to the other processed items at the time of processing.
   Insofar as the reserved goods are inseparably combined or mixed with goods from other suppliers, GIESGUTH acquires co-ownership of the new item in proportion to the value of the reserved goods (final invoice amount plus value-added tax) to the other items combined or mixed therewith at the time of combination or mixing.
   If the combination or mixing occurs in such a way that GIESGUTH’s reserved goods are to be regarded as a component of a main item of the buyer, the buyer must grant GIESGUTH co-ownership of the main item in the aforementioned proportion.
   The buyer shall store GIESGUTH’s co-ownership share free of charge. In the event that no acquisition of ownership by GIESGUTH in the sense of this paragraph should occur, the buyer hereby transfers their future ownership or co-ownership in the aforementioned proportion of the newly created item to GIESGUTH as security.
3. The buyer is entitled to sell GIESGUTH’s goods in the ordinary course of business. The buyer’s claims arising from this sale or other claims replacing the goods are hereby assigned to GIESGUTH in full and with all ancillary rights as security, irrespective of whether GIESGUTH’s reserved goods are resold without or after processing, transformation, combination, or mixing, and whether the reserved goods have been processed, combined, or mixed with goods from third-party suppliers. If another supplier can validly assert an extended retention of title regarding the buyer’s delivery claims, the buyer assigns the relevant delivery claims to GIESGUTH to the extent of GIESGUTH’s retention of title in the sold goods.
4. If the buyer’s claims arising from the resale of GIESGUTH’s reserved goods or goods in which GIESGUTH has co-ownership are included in a current account, the buyer hereby assigns their payment claim in the amount of the respective recognized balance, specifically in the amount of GIESGUTH’s claims against them.
5. The buyer remains authorized to collect the assigned claims until revocation. For justified reasons, such as payment default or cessation by the buyer, initiation of insolvency proceedings, or any other endangerment of satisfaction, GIESGUTH may revoke the buyer’s authorization to collect the assigned claims. In this case, the buyer is obliged, among other things, to immediately mark the reserved goods in a suitable manner as GIESGUTH’s property, clearly recognizable to any third party.
   The buyer must send GIESGUTH a detailed list of any remaining reserved goods, including those that have been processed or worked on, as well as a list of the assigned claims, specifying the third-party debtors. Irrespective of this, GIESGUTH’s authorized representatives are entitled at any time during regular business hours to make relevant findings at the buyer’s premises and to inspect the necessary documents.
6. The buyer bears the risk for the goods delivered by GIESGUTH. They are obliged to store the goods carefully and to insure them sufficiently against usual risks, such as damage, loss, theft, fire, etc., under customary conditions and to the usual extent. The buyer hereby assigns the claim against the insurance company to GIESGUTH in the event of damage, specifically a first-priority partial amount equal to the purchase price of the goods delivered by GIESGUTH under retention of title. Insofar as the insurance does not cover the entire damage amount, GIESGUTH cannot be referred to a pro-rata compensation.
7. Pledges or security transfers are excluded. The buyer must immediately inform GIESGUTH of all incidents concerning GIESGUTH’s property and undertake everything, in particular making any legal declaration to GIESGUTH or a third party, to ensure the effectiveness of the agreed retention of title and the advance assignment. The buyer is liable for all costs of judicial and/or extrajudicial intervention.
8. GIESGUTH is obliged to release the securities, according to GIESGUTH’s dutiful selection, if and to the extent that the estimated value of the collateral permanently exceeds GIESGUTH’s total claim to be secured by 50%.

§ 8 Limitations of Liability

1. GIESGUTH is liable without limitation for damages resulting from the breach of a guarantee or from injury to life, body, or health. The same applies to intent and gross negligence. For slight negligence, GIESGUTH is only liable if essential obligations are violated that arise from the nature of the contract and are of particular importance for achieving the purpose of the contract. In the event of a breach of such obligations, delay, and impossibility, GIESGUTH’s liability is limited to such damages as must typically be expected to arise within the scope of this contract. Mandatory statutory liability for product defects remains unaffected.
   Insofar as GIESGUTH’s liability is excluded or limited, this also applies to the personal liability of GIESGUTH’s employees, workers, staff, representatives, and vicarious agents.
2. Internally, the Buyer assumes sole risk as a co-manufacturer under the Product Liability Act, provided that the cause of damage originated within their sphere of control and organization and they are liable as a manufacturer externally. The foregoing condition particularly refers to the end product being defective and/or the instructions provided to the end-user being incorrect or incomplete. The Buyer expressly indemnifies GIESGUTH against any claims and shall, if necessary, provide security to the extent of their internal responsibility.
   Should GIESGUTH be prompted to initiate a product recall or warning due to a product defect in the goods, the Buyer shall cooperate to the best of their ability in the measures GIESGUTH deems necessary and appropriate, and shall support GIESGUTH in this, particularly by ascertaining the required customer data. The Buyer is obliged to bear the costs of the product recall or warning, unless they are not responsible for the product defect and the resulting damage according to the principles of product liability law. Further claims by GIESGUTH remain unaffected.
   The Buyer shall immediately inform GIESGUTH in writing of any risks becoming known to them regarding the use of the goods and possible product defects.

Section 9 Applicable Law, Place of Jurisdiction

1. All contractual and non-contractual relationships between the parties shall be governed by the substantive law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and – to the extent permissible – of German Private International Law (PIL) is excluded.
2. The exclusive place of jurisdiction for all disputes arising from or in connection with the concluded contract, including those concerning its formation, is Paderborn. The foregoing shall not apply if another – legally mandatory – exclusive judicial jurisdiction exists.

Section 10 Miscellaneous Provisions

1. Should individual provisions of these terms be or become invalid, the validity of the remaining provisions shall not be affected. The contracting parties are obliged to agree on a new provision that comes closest to the purpose pursued by the invalid provision. The same applies in the event of a contractual gap.
2. Amendments and deviations from the existing terms are only permissible in writing. This also applies to amendments to the written form clause itself.
3. In case of substantive deviations between these General Terms and Conditions of Sale and the concluded individual contract, the provisions of the individual contract shall prevail in case of doubt.
4. These Sales, Delivery, and Payment Terms are agreed upon in the German version.