1. Scope of application
Offers, deliveries and other services provided by GKE-GmbH, briefly called GKE, are performed exclusively on the basis of these general business terms and conditions (GTC), unless otherwise agreed by GKE in writing and signed by an authorized employee. This affects all future business relationships regardless of whether these GTC are explicitly approved or not. These general terms become effective at the time of acceptance of the product or the services at the latest. Verbal agreements will only become effective after written confirmation from an authorized person.
2. Quotations, contract and export regulations
Quotations and pricelists by GKE are to be understood as non-binding and non-committal unless GKE informs about a special commitment period. Information in publications, brochures or data sheets are descriptions without possibility of any warranty claim. The customer bears the responsibility for the choice of the ordered goods, unless there are any other written agreements. The customer is individually responsible for the compatibility of GKE products with his own products. Amendments of technical design of ordered goods are acceptable, unless they do not cause a major change to the function, which is not reasonable to the customer. Orders as well as additional agreements shall become legally binding only with receipt of the order confirmation or with delivery by GKE. German customers are obliged to observe the foreign export control regulations from the German Bundesamt für Wirtschaft and to obtain the corresponding export license. The export to unauthorized third countries is not allowed. In case of violation the customer is committed to pay compensation to GKE. GKE uses automated order processing. The customer is hereby informed according to § 33 (1) of the German Data Privacy Act as well as § 3 of the Telecommunications Protection Ordinance that GKE’s customer addresses are stored in machine-readable form for the purpose of order processing.
3. Electronic Data Processing
4. Prices and terms of payment
Unless otherwise agreed, prices are in Euro (€), ex works (EXW) excluding freight, packaging and insurance. Tax will not be invoiced if the recipient/customer is located abroad. Therefore, the EU-recipient has to provide a valid sales VAT number for EU-recipient at the time of order. He also has to return an acknowledgement of receipt or any equivalent proof to GKE. Concerning non-EU-export countries the customer has to present an export certificate issued by the exporter or the German customs office. If GKE will not receive either an acknowledgement of receipt or the proof of export we will additionally charge the respective current German VAT of the invoiced amount. GKE invoices are due and payable in Euro (€) net within 30 days from the date of invoice, if no other agreements have been made and unless the customer is in default. In this case, all invoices are due for immediate payment. GKE reserves the right to defer the execution of further orders in the event of late payment or to deliver only against pre-cash payment. Costs incurred outside Germany as well as taxes, fees customs duty, freight costs and similar costs are not included in our prices. All bank charges have to be absorbed by the customer. If the payment period is exceeded, GKE is entitled to charge a reminder fee as well as interests of 4% above the base interest rate. The customer is not entitled to make any legal retention or reduction of payments because of complaints or counterclaims, unless GKE gives a written confirmation.
5. Terms of delivery, delay and impracticability
The goods will be delivered according to the order within one week without sending an order confirmation before, if the order conditions match with the delivery conditions. In case GKE is not able to deliver the goods within one week or the order does not comply with the GKE price list or the offer, the customer will receive an order confirmation in advance. If the customer does not contradict the order confirmation within 5 working days, the amendments of the contract according to the new order confirmation are deemed to be accepted. GKE is entitled to partial shipments without the customer’s agreement. If customer specific products are manufactured by GKE, the amount of goods manufactured and delivered might differ by ±10%. Appointments and terms of delivery are not binding unless otherwise agreed. Terms of delivery shall be subject to the correct and punctual delivery of the pre-suppliers and submission of customer specific technical information right in time. The customer is only allowed to resign, if he has set an appropriate deadline in advance, in case the terms of delivery are to be prolonged due to force majeure, even to the pre-supplier or due to an unforeseeable problem prior to the completion of the contract. For deliveries abroad the INCOTERMS up to date at the delivery date are valid in addition. Claims due to delay of delivery by GKE are excluded. GKE is entitled to resign from the contract, if the fulfilment of the order is impossible due to act of nature beyond control. GKE is authorized to retain the shipment, if the customer is unable to meet his payment obligations.
6. Dispatch, passage of risk, default of acceptance and returns of goods
Dispatch takes place according to the customer’s instructions or, if not available, according to GKE’s usual practice for the account and at the customer’s risk. The risk is transferred to the customer on leaving GKE’s storage even upon denial of acceptance. In the event of default of acceptance GKE is entitled to store the goods at the customer’s risk and expense with another forwarder. If the customer refuses to accept the goods, GKE charges 20% of the purchase price, but at least a handling fee of € 25,00 or the justified higher costs as long as it concerns items in stock. Goods especially produced for the customer cannot be taken back. Returns of goods can only be accepted if a return number has been requested beforehand, the goods are undamaged, complete and in unopened original packaging. For returns, that are not caused by GKE a processing fee of 10% of the net value of the goods is charged, but at least € 25.00. In this case the credit amount is not paid out and will be charged against the amount of the follow-up order. The withdrawal of biological indicators is excluded.
7. Retention of Title
The goods delivered remain GKE’s property as reserved goods until full settlement of all claims against the customer including earlier demands as well as liabilities arisen after delivery. (Extended retention of title). The customer shall not be entitled to pledge or assign the reserved goods for security. This shall also apply to sale-and-lease-back disposal. If the customer violates the obligations in this paragraph 6 or is in delay of payment or becomes insolvent, GKE shall be entitled to demand the immediate return of the goods in our possession and/or acquisition of direct title at the customer’s expense without any extension of time. After return of the goods, we shall be entitled to dispose of the reserved goods at our discretion and to offset the proceeds against the customer’s outstanding liabilities. The return or pledging of the reserved goods by GKE shall not entail a cancellation of the contract unless explicitly stated. GKE is entitled to take back reserved goods at the customer’s cost and further to requisition assignment of the customer’s claims for restitution against third parties of the goods, if the customer acts in a way contrary to the contractual obligations, especially in case of payment delay. Withdrawal or distraints of the reserved goods by GKE shall not be considered as revocation of contract as far as the instalment law is not applied. If the customer collects payments without authorisation, it shall do so in trust for us. We shall be entitled at any time to demand immediate accounting and payment of amounts collected on trust. All securities in accordance with this paragraph 6 shall also apply if the insolvency administrator chooses to implement the contract in accordance with section 103 of the Insolvency code (InsO). They shall then secure all of our claims with respect to the insolvency assets, even those arising as a result of such a choice.
8. Warranty and liability
GKE guarantees that the products are free of any material or manufacturing errors. The warranty period shall be 6 months of delivery of the products to the customer. Warranty is not transferable. We do not grant a warranty in the legal sense. In case of defects due to inappropriate handling, storage, transport or unauthorized interventions, the warranty is not applicable. Default deliveries, default amounts and apparent defects or hidden defects shall be reported to GKE within 10 days after detection in writing, otherwise the warranty is no longer applicable. The customer is obliged to carry out his own tests to verify suitability of GKE’s products prior to production. GKE shall not be liable, as long as such defect could have been discovered by such tests before starting production. GKE or a third party is entitled to fulfil the warranty by repair or exchange. Therefore, the customer has to send the goods in the original packaging, carriage free, to a named place of destination within 10 days, otherwise the claims will be expired. The customer proves a claim under guarantee by the copied invoice and includes a precise description of the defect to the shipping documents. GKE returns the repaired goods or a replacement free of charge. The customer may ask for a price reduction or cancellation of the contract, if rectifications of a defect fail within a reasonable period of time. Further claims to compensation due to consequential damage are excluded even against a third party. If the returned goods do not have any defaults according to the survey, GKE is entitled to invoice an appropriate testing fee and the freight costs. Completion or performance shall only be deemed to be unsuccessful after two attempts of rectifications have failed.
9. Code of Conduct and environmental policy
GKE consistently pursues a sustainable environmental policy and adheres to a defined code of conduct that we also expect from our customers and suppliers. Details can be found here.
10. Place of delivery, applicable law, court of jurisdiction and general conditions
For these terms and all other legal relations between supplier and customer the laws of the Federal Republic of Germany apply. The application of other legislation, e.g. International Commercial Law (CISG) is explicitly excluded. For deliveries, services and payments, the place of performance is the registered office of GKE. The exclusive place of jurisdiction for all legal disputes arising is the company headquarter of GKE with the district or the state court Wiesbaden. GKE may sue at the buyer’s headquarter as well. Should individual provisions of these General Terms and Conditions of Business be or become invalid, this shall not affect the validity of the remaining provisions. In this case this provision will be replaced by a valid provision, with content as close as possible to that of the invalid provision.