General Terms and Conditions
The following general terms and conditions for business are valid for all contracts, supplies and other services (like intermediation business) including consultation services which are concluded with and carried out by GAPA Werk, Papenberg & Garz GmbH & Co. KG based in Freudenstadt. Moreover, these conditions are likewise valid for supply companies carrying out our orders in our or their own name. Should these companies base their contracts, supplies and other services on GTC of their own then they shall be regarded as a complement. However, they are to be given priority in any contractual question between the customer and each supply company. They can be handed out by the supply company at wish. This is valid also in future cooperation with the customer, even though these conditions may have been handed out once at the beginning of the cooperation.
1. Offers, acceptance of orders
Our offers remain not binding. Orders given to us, either directly or through our sales representatives, are regarded as accepted if we do not contradict within 14 days after receiving the order. The buyer is bound to this cooperation offer for a period of 14 days. There is no need of confirmation of the order on our part. If a confirmation of an order is given, the contract is regarded as finally accepted and binding on both sides.
All prices are stated (except when otherwise stipulated) in Euros without VAT; VAT is generally specified to the according rate.
3. Supply, passing of risk, delivery, packaging
1) Deliveries are made from our warehouse or via the warehouse of the company executing the order. Delivery is made on customer’s account and risk in case of not agreed in writing. Orders with a total net value of at least € 5,000 are supplied without charge. We reserve the right to supply partial deliveries if it is reasonable to our contract partner.
2) The goods will be packed in a generally acceptable way. Hired packaging must be emptied by the partner immediately and returned in an irreproachable state. They may not be used for other goods or for other purposes.
3) Delivery: generally ex works, if carriage paid is agreed then free kerb is valid.
4. Amounts, weight and general quality tolerances
1) We reserve the right of supplying goods with excess or short deliveries of 10%.
2) Differences in quality or in fabrication details against given samples are admitted in a frame which is in general practice in trade and crafts. Documents belonging to the complete offer such as photographs, drawings, weights and measures should be regarded as an approximate approach.
5. Delivery dates and target dates
1) Scheduled delivery dates should be regarded as estimated. To meet the delivery day a written form has to be used and confirmed by us in order to be valid.
2) Should we or one of our subcontractors not be able to deliver within the time agreed upon in the contract, the customer is allowed to withdraw from contract (unless §3 becomes effective) if he has granted us a follow-up period of at least 14 days by giving us a warning of his withdrawal. The customer may claim damages regarding delay or non-compliance only in case if the delivery was late due to a gross fault or bad intent on the side of the company receiving the order, any of its subcontractors or of a senior manager.
3) If delivery is prohibited by force majeure, warfare, riots, governmental measures including import or export limitations, works closure, industrial action, lockouts, disruption of work, difficulties in getting the required material, energy failures, lack of transport, extraordinary weather or similar circumstances, also if they occur in the ranks of basic suppliers and not on the part of ourselves or one of our subcontractors, or if the delivery thus is made impossible or extraordinarily impaired, we are exempt of our delivery duty as long as the impairment or its effects last. Should the price of the order already has been paid, it has to be returned immediately. In case of delay would be last longer than two months both parties have the right to withdraw from contract. An extension of delivery time, also if a party withdraws from contract, the customer is not allowed to derive any claim for damages. In case of a non-delivery or insufficient supply from the side of our suppliers, we are partially or completely exempt from our duty to deliver our services. However, this is valid only if we have made the necessary precautions to purchase the goods to be delivered by us and have carefully preselected our basic suppliers. In such a case, we are obliged to cede our claims against our basic suppliers to our contract partner if he so wishes. We cannot be held responsible for the aforementioned circumstances in those cases either, should they occur while a delay has already arisen.
1) Our invoices have to be paid within 8 days plus a 2% discount or after 14 days after receiving the bill in case of nothing else has been stipulated. If there are any previous invoices due for payment the discount of 2% cannot be granted.
2) Bills of exchange or cheques are only accepted against prior agreement and on account of performance. Fees and other costs go directly to the drawee’s account and need to be refunded in cash immediately. We are not liable for supplies on time, protests etc. Moreover, the acceptance of a bill of exchange does not mean a deferment of payment of the purchase price.
3) If the contract partner as the debtor of a financial demand is getting on delay after 30 days at the latest after receiving the invoice the contract partner has to assume the legal interest during delay. If the buyer is not a consumer, the interest for our claims is 8 per cent above the basic interest rate.
4) If the customer gets into delay with payment or taking delivery, all invoices are due immediately. If the customer does not fulfill his duties in connection with the business contract or in case of a detrimental event on the side of the customer, we reserve the right to make any further processing of the order and the delivery depending on deposit of securities and pre-payment. Should our products or products from our suppliers already have been delivered, we have the right to claim the immediate payment of the whole residual amount, even if the mode of payment had been arranged in a different way. This is also valid if it becomes clear retrospectively that the customer’s economic situation had been much worse than assumed by us. If the security deposit or the pre-payment is not made within a reasonable period of time stated by us, then we have the right to withdraw from contract.
5) Any enforcement of liens, rights of retention or the contra account of claims are not allowed, unless the claims have been acknowledged by a court or by ourselves.
7. Reservation of titles
1) All the goods and products delivered by ourselves or one of our subcontractors are exclusively delivered on the basis of the reservation of titles. The delivered goods and all our claims resulting from the contract, including subsidiary claims and possible damage claims, remain our property or the property of one of our suppliers until they are completely paid – in case of cheques and/or bills of exchange until they are properly redeemed. This is also valid if all or some claims are integrated into a current invoice, the grand total has been calculated and accepted. If payment is made by cheque procedure the property transfer is made only at redemption without restrictions.
2) The customer is not allowed to make reservations or liens on our goods or hand them over as a security, including i.e. goods of which we are a co-owner after their connection, mixing or processing according to the following conditions.
3) Should the customer violate important contractual duties, in particular delay payment, we have the right to withdraw from the contract. If we thus put into practice our right to withdraw from the contract at the failure of payment and take back our goods under reservation, the customer is given a refund only in the value of 80% of the calculated sales price. The remaining 20% are regarded as an all-inclusive compensation of damages and is to cover the costs for the contract, freight, delivery, packaging and lost profit. We reserve the right to claim higher damages. It remains with the customer to prove that there was no or a minor damage.
4) Before liens or any other imminent impairment of our rights or those of one of our suppliers by a third party are made, the customer is obliged to let us know about the circumstances so that we are put into the position to intervene.
5) If caveat goods are mixed or connected without a chance of separation, we become co-owners of the combined product at a share which is the equivalent of the goods under reservation in relation to the product mixed together with it at the time of the mixing or connecting. Through adaptation or processing of the goods under reservation, we establish the ownership of the new product and the buyer is obliged to reserve it for us. The customer is entitled to a re-sale of the goods in reservation or the product resulting from a mixture or combination of our goods through adaptation or processing only in the frame of his proper business.
The customer cedes at once all his claims resulting from a re-sale of the caveat goods or the product resulting from them through adaptation or processing as a security against our claims or the claims of our basic suppliers to us or to one of our suppliers. We ourselves or one of our suppliers accept the concession. At the re-sale of our goods under reservation together with other goods in a processed or non-processed state, the claims are regarded as ceded only up to the amount of its value in the invoice as it was supplied by us or one of our suppliers. If the customer sells goods of which we or our basic supplier are owner or co-owner or just the supplier is owner or co-owner, and sells them together with goods that do not belong to us or a supplier at a comprehensive price, the customer at once cedes to us or a basic supplier a first preference partial payment being equivalent to the goods under reservation of our total claim.
The customer is entitled to collect the conceded claims on our behalf. The direct debit authorisation may be withdrawn if the buyer does not properly fulfill his payment duties resulting from the basic contract. At a suspension of payment, application for or opening of a bankruptcy procedure, a compromise agreement at court or outside court or other law suits with regard to the customer’s assets, we are furthermore entitled to claim that the customer informs us about the ceded claims and their debtors and gives us all the necessary details in view of our indentation claims, hands out the documents and informs the debtors about the cession. Moreover, in such a case the customer entitles us at once to inform the buyers about the assignment in advance.
6) We accept the duty to hand out the securities given to us according to our choice and on demand of the buyer in so far as the value of the securities exceeds other claims against the customer by more than 10%.
8. Blanket orders
In case of blanket orders, the goods are to be called off completely within a year at the latest, unless other schedules have been agreed upon. After one year we are entitled to invoice the customer for the goods and claim its immediate payment. We are furthermore entitled to calculate storage costs according to common rates among haulage companies. For blanket orders, in each case the list price of the day of delivery is valid, if there are more than 4 months between the placement of the order and the call.
9. Deficiency notes, guarantees
1) The goods delivered by us have to be examined immediately after receipt to their proper state, contractual fulfillment and completeness. If there are any complaints, they need to be made in writing. We guarantee a legal warranty of 24 months.
2) Should any complaints have been made in due course, the customer may only claim repair or replacement. If repair or replacement fail the customer has the right to reduce the purchasing price or demand the annihilation of the contract.
Our liability or that of one of our basic suppliers complies with agreement stipulated. Any damage claims from the customer’s side for a legal right whatsoever, in particular in view of the violation of duties resulting from the obligations or from a non permitted action are excluded. This does, of course, not touch any liabilities for which the law does not allow exemptions, e.g., in cases of intention or gross negligence or violation of life, body and health, for the guarantee of a property, at the neglect of vital contractual duties or according to the product liability law. There is no change of the onus of proof to the detriment of the customer connected with the foregoing conditions.
11. Partial invalidity
Should any of the clauses in these conditions be ineffective or become ineffective, the remaining agreements do remain effective.
12. Place of performance, court of jurisdiction and rights of appeal
For any current or future claims resulting from business relations to merchants proper, including claims from bills of exchange or cheques with the GAPA Werk Papenberg & Garz GmbH & Co. KG, the court of jurisdiction is only at the current base of the GAPA Werk Papenberg & Garz GmbH & Co. KG. For any claims resulting from cooperation with merchants proper including bills ox exchange or cheques against suppliers or of suppliers against the customer, the exclusive court of jurisdiction is at the respective company base, in the case of branches, the supplier’s base. The same court of jurisdiction applies when the customer does not have a court in the home country, changes its place of residence or usual place of living after the signing of the contract or if these places are not known at the opening of the law suit.
The relations of the parties of the contract are subject only to the law valid in the Federal Republic of Germany at the time of the contract and not to the rights stated in The Hague’s Merchant Rules. For the contractual relations between the customer and the supplier, the rights established at the respective company base are valid, in the case of branches, the rights valid at the base of the main office apply.
As far as the contractual relationship between the customer and the supplier is concerned, we underline the necessity to take into account the General Terms and Conditions. These General Terms and Conditions also become part of this contractual relationship and regulate the relations between customer and supplier and are valid as a complement to the relations between the customer and GAPA Werk Papenberg & Garz GmbH & Co. KG.
GAPA - Werk, Papenberg u. Garz (GmbH & Co.), 72250 Freudenstadt