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The GEALAN terms of service
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Terms of service
GEALAN terms of service
The GEALAN Window Systems
General Terms of Service
GEALAN Fenster-Systeme GmbH;
Hofer Strae 80, 95145 Oberkotzau, Germany
NOTE: The translation is provided for information purposes only. The German version is the authoritative version.
1. General scope of these conditions
In these terms and conditions, "Seller" means GEALAN Fenster-Systeme GmbH.
The following conditions govern all contracts for delivery of goods and services entered into by the Seller. All business transactions with the Seller are subject to these conditions without requiring specific mention of these conditions.
All transactions with the Seller are also subject to the "International Commercial Terms" (Incoterms) of the International Chamber of Commerce, revision 2000, where applicable.
These terms and conditions shall apply to every contract for the sale or supply of Goods entered into by the Seller.
The Buyer agrees to the following conditions for all deliveries of goods offered by the Seller. No variation shall be binding unless agreed in writing by the Seller. Any terms or conditions proffered at any time by the Buyer are hereby excluded.
Should the Buyer object to the following conditions, the Buyer must immediately and specifically object in writing to the Seller. The Seller reserves the right to withdraw from the order, and is free of any obligations.
Electronically generated business correspondence (i.e. Orders of Confirmation, Bills, Rebates, Account Reports and Payment Reminders) are legally binding without need of a signature.
The Seller shall inform the Buyer in accordance with German privacy regulations that all personal data collected for the purpose of conducting business shall be electronically stored and shall only be distributed within the company.
2. Contract Offers and Acceptance
All offers made by the Seller are open and non-binding. A contract is first created by the written Confirmation of Order by the Seller or by final delivery, whereas in the latter case the Bill of Payment replaces the Confirmation of Order. The same condition applies to all orders, agreements, extensions, variations and additions.
This also applies to all orders delivered to the Seller through the Seller's external representatives or by verbal agreement.
Drawings, models, size and weight measurements or similar performance data in brochures, newsletters, price lists and other publications as well as product information included in offers are approximate measurements and are measurable with standard accuracy, provided no more exact tolerances have been specifically agreed upon. They are not guaranteed characteristics.
All confirmed contracts are to be delivered in a proper and timely manner to the Seller.
All documents related to the offer (i.e. cost estimates, schematics, drawings and descriptions) are copyrighted by the Seller; access by third parties without express permission is prohibited. All documents are to be returned to the Seller in case no order is made; in other cases the Seller must request the return of the documents.
Samples and drawings delivered to the Seller are returned only if expressly desired. The Seller reserves the right to destroy these documents after a period of three months, should the Buyer not request a return.
Should the Seller produce products according to the Buyer's specific instructions, then the Buyer assumes responsibility for ensuring that the product does not infringe on the patents or copyrights of others.
Should a third party demand that the Seller cease production of a product due to rights infringement, the Seller may - without any requirement to check the legal situation - immediately cease production and delivery, without compensation to the Buyer and to demand payment for accumulated costs, should the Buyer not immediately contest the claims of the third party.
3. Contract Fulfilment
The written Confirmation of Order is the sole measure of the scope of the delivery, in the case of a limited-time offer by the Seller that is accepted within the deadline, provided no other Confirmation of Order is submitted beforehand.
Exceptions and changes require a written confirmation from the Seller. Partial deliveries are allowed in accordance with §266 BGB.
If the purchase goods cannot be delivered as in the technical state defined in the contract, due to unilateral technical improvements in production by the Seller, then the Seller has the right to deliver the improved version of the goods. The Seller may also deliver goods that differ slightly from the agreed goods, as long as it does not affect the Buyer's interests, the delivery is not considered a delivery of unordered items as defined in §241a BGB. The Seller also reserves the right to changes in the construction of the goods. The Seller may oversupply or undersupply 10% of the ordered volume, in cases of custom manufacture 20%.
Variations in contract offers, price lists or other suggestions other than the above listed are valid only after written acknowledgement by the Seller.
Eventual import or export licenses, currency exchange permits or other legal permits necessary for contract fulfilment are the responsibility of the Buyer, unless otherwise agreed to in writing. Should the Buyer not be able to deliver the permits within 12 months accepting the contract, the Seller may withdraw from the contract without legal consequences. In the event that this happens, the Seller must immediately notify the Buyer.
The delivery date is calculated from the date that the Confirmation of Order is sent, but not until the Buyer supplies all required documents, permits and allowances or before receipt of any agreed payment.
The goods are considered delivered on time when the goods have left the facilities or their readiness to be delivered has been signalled.
The delivery date can be extended in case of labour disputes, especially strikes and lockouts, as well as a result of unforeseen obstacles that lie outside of the Seller's influence, that result in a measurable delay in production or delivery of goods.
The above clause is also effective should similar problems arise with the Seller's suppliers. This also applies when the noted hindrances further delay a delivery that has already been delayed. The Buyer is to be immediately informed at the start and the end of such hindrances.
Should the Buyer suffer unforeseeable, atypical damages due to delay that is the fault of the Seller, the Buyer may demand compensation for damages.
For every full week delay, a rebate of 0.5%, up to a maximum of 5% will be granted of the value of portion of the delivery that was delayed or otherwise not according to contract.
Should the order be delayed due to the Buyer's wishes or other circumstances originating from the Buyer, then the buyer shall pay for the cost of storing the delivery in the Seller's facilities, beginning one month after readiness for delivery has been announced. The minimum price for storage is 0.5% of the price per month. The Seller may, after a set period, offer the goods elsewhere and deliver the ordered goods to the Buyer at a new, later date.
The Seller may make the delivery of all ordered goods dependant on the fulfilment of other contractual and business obligations by the Buyer.
5. Price, Transport, Packing and Miscellaneous Costs
The prices are based upon specifically agreed price lists for each individual Buyer. The prices do not include any sales taxes, import taxes, consul fees or other surcharges that are levied by the destination country.
Deliveries are only delivered at the risk and cost of the Buyer from the facilities in Oberkotzau. Delivery within the Federal Republic of Germany is free of charge, provided the order is placed at least 1 calendar week (7 days) before the Seller finishes the internal delivery schedule. The seller reserves the right to change the delivery schedule at any time; any already earned rights to free delivery are not voided by such changes. Otherwise, delivery from the facilities shall proceed according to specific written agreement. The deliverable wares are packaged according to industry standards. Should the Seller note that the wares require extra packaging (i.e. boxed, crated, in foam packaging, etc.), the added costs will be charged to the Buyer.
Containers and pallets remain the property of the Seller. They are loaned to the Buyer and the Seller may require the return of them at any time, as soon as the Buyer no longer needs them to complete the delivery. The Seller is not required to account for international shipping and customs unless the Buyer has made a detailed account of such charges beforehand.
In the case of international currency exchange rate fluctuation, the Seller may request a higher price to cover a drop in value.
The payment goal is more than 90 days, and the drop in currency value to the Euro ( € ) is more than 3%. The currency exchange rate to be used as measurement is the official exchange rate at the bourse in Frankfurt. Should the Seller agree to take back already delivered items, then the Seller may demand 10% of the items' gross value as service charge for accepting the returned items. The Buyer must send the items to the Seller at the Buyer's expense.
All payments and requests for payment between the parties are to be made in Euros (€).
6. Conditions of Payment
Provided no other agreements exist, all bills from the Seller are to be paid in full within 30 days of writing. Payment is considered fulfilled on the day that the Seller can access the funds paid.
The Seller can withdraw demands on the Buyer at any time. The Buyer cannot transfer claims from this contract on third parties, except with the expressed written permission of the Seller.
Provided there are no open accounts, the Seller may grant a refund of 4% of the net price for early payment, by payment within 10 days of the issuance of the bill 2% of the net sales price of the goods (excluding charges for packaging, shipping, handling, insurance and other related surcharges). In the case of payment of more than one bill in a lump sum, where the difference between date of delivery and date of billing is more than 10 calendar days, no refund may be granted. In new business contacts, the Seller may require payment in advance before delivery.
Bills of exchange, cheques and money orders can only be accepted in the case of explicit agreement and only as exceptional cases by be Seller. Service charges and other expenses are to be paid by the Buyer. Cheques are considered payment only after enchashment. Bills of exchange are considered provisional payment until the threat of regression has passed.
The Seller is entitled to accredit payments to the oldest outstanding debits, in spite of any stipulations made by the buyer. Should any surcharges or accumulated interest, the Seller is entitled to first deduct the surcharges, then the interest, and finally accredit the main article.
In the case of defaulted payment, the Seller is entitled to demand a moratory interest of 8% over the base interest rate, as per Paragraph 247 of the German Civil Code. The right to demand compensation for further damages due to delay is preserved. Should the Buyer default on more than two successive instalments, or a cheque or bill of exchange cannot be cashed in, or a cheque be returned due to insufficient funds, or the Buyer be forced into insolvency proceedings, then the Seller is entitled to declare all bills as due, irrespective of duration. The Seller is also entitled to withhold all outstanding deliveries against payment in advance or collateral securities. Should the advance payment or collateral securities not be provided within a reasonable time limit, the Seller is entitled to withdraw from the contract for outstanding goods and services, and use all legal possibilities. In this case, the Buyer loses all rights to outstanding deliveries.
In the above cases, the Seller may, instead of withdrawing from the contract, apply his retention of title of the good as per Part 7 of these Terms. The seller is entitled to charge the Buyer for all outstanding debts, specifically all outstanding debts from delivered goods or other services according to law. Should the outstanding debts have different maturation periods, the debts will be calculated to the validation date. In case of open accounts, the summation is added to the balance.
7. Transfer of title
Goods delivered by the Seller remain the property of the Seller until all open claims against the Buyer - including supplemental demands, encashment of cheques and bills of exchange, delay interest and damage claims - that are relevant to the delivered goods are paid in full by the Buyer. This also applies in the case of payment in a running account and the balance is recognised.
The Buyer is entitled to process and/or offer goods still under the title of the Seller (reserved goods) as part of the Buyer's normal business operations. The Buyer cedes all claims from such sales to the Seller. This also applies when the goods have been joined to real estate property or similar piece of property that belongs to a third party.
Should the value of the ceded claims be greater than 20% of the owed sales price, the Seller is obligated to return all claims that exceed the 20% limit.
The Buyer is entitled to retract all ceded titles, even after advance ceding of title. This entitlement is repealable. As soon as the Buyer can no longer fulfil his contractual obligations, the Seller may single-handedly collect all ceded claims. The Seller may then demand that the Buyer turn over all ceded claims and reveal the debtors, along with all information needed to collect the outstanding amounts, and inform the debtors of the situation.
Processing or reforming of reserved goods is so carried out that the Seller is recognised as the Manufacturer, as per Paragraph 950 of the German Civil Code.
Should the reserved goods be bonded with other materials, the Seller gains partial title to the new object in accordance to the proportion of the value of the reserved good to the value of the other goods. The authoritative period for appraisal is the time of processing. The Buyer shall store the new object for the Seller at no charge for as long as the the Seller retains title. The newly created object is then considered reserved goods as defined in these Terms.
The Buyer is responsible for protecting all reserved goods against fire and theft, and to provide proof of protection to the Seller upon demand. The Seller is entitled to ensure the article of sale against fire, theft, breakage, water and similar damages at the Buyer's expense, provided the Buyer cannot provide proof of insurance. In the latter case, insurance claims in case of damage or loss to the reserved goods are assigned to the Seller.
The Buyer may not mortgage the reserved goods, nor offer them as collateral. In case of garnishment, seizure or similar injunction by a third party, the Buyer must immediately inform the Seller per registered letter and carry the costs of all measures necessary to recover the goods, especially for legal intervention, should the opposing party not return the goods.
In the case of illegal behaviour by the Buyer, especially default of payment, the Seller may repossess reserved goods after all warnings are unsuccessful. The Buyer is required to return the repossessed goods. The repossession and garnishment of the delivery does not qualify as a withdrawal from contract. Depending on the Buyer's nation's laws, applicable prerequisites, such as registration, form requirements, etc. are the responsibility of the Buyer and are to be fulfilled at his cost.
8. Transfer of risk and acceptance
The responsibility of risk, even by freight-free delivery or by delivery free of charge to the Buyer, is transferred to the buyer, at the moment that partial deliveries are made or when the Seller assumes the cost of other services, such as shipping charges or installation.
In the case of a delay in delivery due to situations that the Buyer is responsible for (i.e. necessary co-operation and supplemental responsibilities), the responsibility of risk is then transferred to the Buyer on the date that the delivery is ready to go. Delivered goods are, even in the case of minor flaws, to be accepted by the Buyer as undamaged as per Part 9 of these Terms.
Claims due to incomplete, faulty or false deliveries are to be made immediately after receiving the goods as listed on the delivery or consignment note, 8 days at the latest in writing from the Buyer, his assistants or his recipients with industry-standard care. Otherwise, the delivery is considered accepted.
After transfer of risk, the Seller may insure the contracted goods against fire, transportation and other hazards, provided the Buyer cannot provide proof of insurance. The right of the Seller does not apply when individual contractual rights - especially through the implementation of the appropriate Incoterns - specifically place the burden of insurance on the Seller.
9. Liability for defects and faults
Faults in the delivery, including the absence of promised properties, are the liability of the Seller, with the exclusion of further claims as per parts 10 and 11 of these Terms as follows:
The Seller assumes responsibility for only those defects that are detected within 24 months of delivery and are the result of factors from before the transfer of risk (warranty length). For defects that do not affect the performance of the purchased items, no liability is assumed. Also not covered are faults or damages that result from the following causes: the goods were not used according to the Seller's recommendations, the goods were used in a false manner, or were improperly handled. Natural wear and tear is not defect.
The appropriate method of usage of the goods may be requested in writing at any time from the Seller.
The Seller must be immediately notified in writing of any detected faults; non-hidden faults must be reported within 8 calendar days. The Buyer is responsible for inspecting the received goods accordingly. The notification of defects only takes effect if a careful and detailed list of the inspection results is made. Should a delivery be made up of multiple goods, the notification of defects must list which individual articles are defective. Other articles are exempted from the notification.
The Buyer has the right to claim from the Seller, limited to 24 months from the date of proper notification. The depreciation as per part 11 of these terms is conditionally excluded. The Seller instead has the choice between remedial action or replacement of the faulty goods.
The remedial and/or costs are the responsibility of the Seller, within reasonable limits. This includes all necessary transportation, materials, and transfer of the purchased goods to another location as the original destination.
The time limit for liability of the delivered goods is extended by the period of time needed to remedy the faults.
All further Buyer entitlements, especially the entitlement to damage compensation, that are not part of the delivered item, are excluded, provided they are not included in the warranty. This exclusion of liability is not applicable to wilful or wantonly negligent breaches of contract by the Seller, his legal representatives or auxiliary persons. In case of simple breach of contract the Seller is only liable for contractual obligations. The Seller is liable in the case of culpable violation of substantial contractual responsibilities – except in the case of intentional and wanton negligence by the Seller or his executive – only for contractually typical or reasonably predictable damages. The exclusion of liability also does not apply in cases where, in accordance with the German Product Liability Law, defects in the delivered item are responsible for damages to persons or privately used objects.
10. Liability for additional services
Structural stability calculations, construction plans and other engineering and architectural services are – with the exception of individual agreements – only ancillary services. The Buyer is solely responsible for verifying these services.
For all named, but also all other ancillary services in the contract, the following liability rules apply. The Seller assumes liability for the following:
The Seller is responsible for the full amount of damages caused his or his executive's wanton negligence. The Seller is also responsible by substantial breaches of contract by auxiliary persons, provided the situation is contrary to normal business procedures. In both cases the compensation is limited to the amount typical for compensating foreseeable damage. Further liability for ancillary services, whether compensation or other claims, are excluded.
11. Buyer's rights of cancellation, and other responsibilities of the Seller
The Buyer may withdraw from the contract if the Seller cannot deliver all purchased goods and services before the transfer of risk. The same applies to incapacity of the Seller.
The Buyer can also withdraw from the contract when an order of similar items cannot be delivered in full and the Buyer has legitimate cause to refuse partial delivery; if this is not the case, the Buyer may decrease returned services.
Should the Seller be behind in services as defined by these terms of services and the Buyer has granted the defaulting Seller a reasonable extension period – in most cases 6 weeks – with the explicit declaration that the delivery will not be accepted after this period, then the Buyer may withdraw from the contract after the passage of the deadline. Should the prevention of fulfilment happen during default of acceptance by the Buyer or through the Buyer's fault, them the Buyer remains bound to return for services.
All other claims made by the Buyer are excluded, especially cancellation or depreciation as well as compensation for any damages of any sort, especially for damages that were not caused by the delivered items.
12. Location, judicial district and applicable laws
Place of execution is 95145 Oberkotzau in Germany. For all disputes arising from this contract, all actions are to be taken in the court of Hof/Saale. The Seller is however entitled to choose to file legal action against the Buyer at the court responsible for the Buyer's area of business.
For single firms, personal companies and associations limited by shares, the judicial district agreement also applies to the owner or managing partner, respectively.
The relationship defined in this contract is governed by the laws of the Federal Republic of Germany. The contract language used is German.
13. Salvational clause
Should one of the conditions defined in these terms become wholly or partially invalid, the remaining conditions shall not be affected. Invalid conditions shall be replaced with new formulations that are legally valid and resemble the invalidated condition the most.