GENERAL TERMS OF BUSINESS APPLICABLE FOR ALL CONTRACTUAL RELATIONSHIPS BETWEEN GENESIS GMBH & CO KG AND COMPANIES
§ 1 Scope of the terms and conditions
1. The following general terms of business shall apply to all business relations between Genesis GmbH & Co KG, Schulerstrasse 22, 75180 Pforzheim, represented by Genesis GmbH at the same address, in turn represented by the company management (hereinafter referred to as Genesis) and entrepreneurs in accordance with section § 14 BGB German civil code (hereinafter referred to as: customers).
2. An entrepreneur, according to section §14 I BGB of German civil code, is any natural person or legal entity, or company with legal personality, which carries out commercial or independent professional activities on entering into a legal transaction. A company with legal personality, according to section §14 II BGB of German civil code, has the capacity to conclude legal transactions and is capable of acquiring rights and incurring obligations.
3. The general terms of business of the customer, regardless of whether they are in conflict or are complementary, shall only become part of the contract when these conditions have been expressly approved by Genesis. The inclusion of the customer general terms of business merely through the act of advising said terms is therefore excluded.
§ 2 Contract conclusion / Intellectual property rights / Restrictions on use of documentation
1. All product presentations are subject to change and are non binding irrespective of whether in any specific case a price has been mentioned. They are understood to be an invitation to the customer to make an offer.
2. With the placing of an order for a product the customer bindingly declares his intention to purchase the goods and is bound to his offer for 2 weeks. Genesis has the option of accepting the offer of the customer within 2 weeks. Confirmation of the receipt of a customer order does not constitute binding acceptance of the respective order.
3. Genesis reserves the right for each business transaction to make the acceptance declaration conditional on the receipt on a down payment / advance payment of the customer. If a down payment / advance payment has been agreed, then this agreement is a condition for the conclusion of the contract without which Genesis will not accept the offer of the customer. In case a down payment / advance payment has been agreed, the contract between Genesis and the customer, irrespective of further agreements, is only concluded with the receipt of the agreed down payment / advance payment on the account provided by Genesis.
4. Genesis accepts the offer of the customer through the express declaration of acceptance by, for example, email, fax or letter or through sending the respective goods. A contract is only concluded through this express declaration of acceptance or through the implied declaration of acceptance with the act of sending the goods. The customer must immediately check the declaration of acceptance for correctness and completeness. Any deviations in the declaration of acceptance to the order must be immediately asserted in writing but at the latest within 3 workdays after receipt provided the agreed date for execution of the performance by Genesis does not make the period for the correction unreasonably long. The customer carries the risk that the correction is received within the required period.
5. If Genesis, in the course of contract negotiations, contract execution and / or processing of the order, makes further product specific documentation or descriptions available to the customer in addition to the purchase contract documentation which are not part of the contract and do not relate to the ordered goods, then the use of these is limited exclusively to the execution of the respective contract. Any use beyond that requires a separate agreement. Under no circumstances are intellectual property rights transferred or their use permitted outside this contract. The customer is not authorised to make copies of such without obtaining the express prior consent of Genesis. Genesis will only grant such authorisation in writing. The documentation must be handed back to the seller after the contract has been executed or in the case of electronic media the data must be deleted.
§ 3 Payment deadline, payment
1. The invoice amount including the statutory value added tax is due for payment immediately. The customer will be in default without the need for further payment demands if he has not paid the full sum of the invoice within 30 days after receipt of the invoice or equivalent payment schedule. If the customer is in default with a payment, Genesis, after setting a reasonable period of grace, is entitled to withdraw from the affected contract with the customer and also to withdraw from all other non-executed contracts with the customer. In the event of a delay in payment, Genesis is entitled to charge default interest at the applicable statutory rate and also to demand further compensation. When the customer falls into arrears with payment, at the same time all agreements on extension of the payment period and respite and prolongation agreements cease to exist. Further rights due to a delay in payment by the customer remain unaffected by the above rule.
2. If the customer makes a cashless payment, the crediting of the amount listed in the invoice or equivalent list of payments from Genesis to the appropriate account is decisive in order to observe the deadline for payment.
3. Cheques are only accepted for the purpose of payment. They are only to be considered as payment after they have been successfully redeemed. Payment by cheque must be in time to ensure that under consideration of a reasonable time for Genesis to submit the cheque to its bank, the cheque is cleared within the period of time named in clause 1. The regulation defined in clause 2 is correspondingly valid.
4. The customer shall be permitted to offset any counterclaims only if the counterclaims have been ordered by court, are undisputed, or have been recognised by Genesis. The customer is only authorised to exercise a right of retention as far as his counterclaim is based on the same contractual relationship.
§ 4 Reservation of ownership and right of withdrawal
1.a. Genesis retains ownership of the articles in question until the full settlement of all claims from the on-going business relationship and will, as far as the total value of the goods with reserved ownership exceeds the relevant total claim by 20%, on the request of the customer, release parts of the reserved goods to avoid over-collaterisation. (Please see clause 1.)
1.b. The customer is permitted to resell the goods to a third party in the ordinary course of business. In this case, however, he already now cedes to Genesis all claims to the total of gross invoiced amount that accrue to him through resale of the goods. Genesis shall accept the assignment. Even after the assignment, the customer is still entitled to collect the claims. Irrespective of this, Genesis is also entitled to collect the claims but will abstain from doing so as long as the customer properly pursues his obligations to pay and that the financial position of the customer does not deteriorate to the extent that there is risk that the company must file for bankruptcy. In particular, the financial position of the customer is assumed to have deteriorated to the relevant extent if the customer fails to meet his payment obligations.
1.c. If the purchased goods are processed and inseparately mixed, joined or connected with other items not from Genesis, Genesis acquires co-ownership to the product resulting from the mixing, combining and processing in proportion to the value of the goods subject to retention of title (gross amount of the invoice) to the value of the other goods processed. If the linking, mixing or processing is undertaken such that the customer's item is to be regarded as being the main item, it is agreed that the customer will transfer proportional ownership to Genesis. The customer will store the items carefully and free of charge which are fully or partly owned by Genesis. In order to secure the claims of Genesis against the customer, the customer assigns all claims to Genesis which are created against a third party by the combination of the goods with reserved ownership with real property. Genesis accepts this assignment already today.
1. d. At the request of the customer, Genesis undertakes to release the securities to which it is entitled insofar as the realisable value of the securities exceeds the claims to be secured by more than 20%.
2. Before the purchase price has been paid in full, the customer is not entitled outside the normal course of business to resell the goods, to assign them as security and/or pledge the goods. The customer has to store the goods with special care until ownership is transferred and to protect the goods against third party access and against damage of all kind and to avoid any loss in value.
3. If ownership of the goods is not passed to the customer and the goods have to be returned to Genesis, the customer must also take responsibility for incidental impairment of the goods and / or damage provided Genesis is not responsible for the impairment or damage in question. This is also applicable inasmuch as Genesis approved the commissioning /use of the goods before the transfer of ownership.
4. If the customer is late with the fulfilment of his payment obligations, after an additional warning and fruitless expiration of a supplemental deadline Genesis is entitled to withdraw from the contract. This is also applicable if the customer is in arrears with only one instalment in cases where an agreement to pay in instalments has been made.
5. The customer undertakes to notify Genesis of any deterioration in his financial standing in the time up to the acquisition of the goods inasmuch as this deterioration might jeopardise the fulfilment of the payment obligations of the customer.
6. If the financial standing of the customer deteriorates in this way and this deterioration prevents the customer from meeting financial obligations of the customer to third parties, Genesis is entitled to withdraw from the contract provided an insolvency administrator does not have the right to require execution of the contract.
7. In the case of lien or other third-party interventions, the customer must immediately notify Genesis in writing, thereby giving Genesis the opportunity to take legal action in accordance with § 771 ZPO of the German code of civil procedure. As far as the third party is not able to repay the costs for the necessary legal action to Genesis, the customer is liable for the loss.
§ 4 Correct and punctual supply to Genesis
If a supplier is not able to supply Genesis correctly or punctually, Genesis is entitled to withdraw from the contract without the customer having the right to assert claims for compensation. This is only applicable when Genesis is not responsible for the non delivery. Genesis shall notify the customer immediately of the non-delivery of the performance. The financial contribution provided and any other benefits gained shall be immediately returned.
§ 5 Customer's duty of co-operation
1. In due consideration of the special points of the individual contracted order, the customer shall thoroughly and expediently fulfil his duty of co-operation. If the customer is not able to do this, he shall provide an appropriate other representation in time and without cost to Genesis.
2. In particular, in addition to the timely fulfilment of his payment and acceptance obligations, the customer shall make all appropriate arrangements to ensure that Genesis is able to execute any agreed delivery, set-up, commissioning and training obligations to the agreed schedule.
3. If a delivery has been agreed, the transfer of the goods to the customer is always made at the delivery address, with roadside delivery. If there is no special agreement, the customer shall provide transport from the roadside to the final destination.
4. If Genesis is bound by contract to conduct a set up/commissioning/training, Genesis shall perform this at the final destination. The customer shall at his own cost make appropriate arrangements in good time at the point of use so that Genesis is able to carry out the performance according to the contract. The customer additionally guarantees the suitability, reliability and safety of the final destination for the goods also relating to the permanent position and operation of the goods. The customer shall notify Genesis in good time of all possible hazards and special points regarding the set-up/commissioning/ training. This information shall be clearly communicated.
5. The customer shall immediately notify Genesis in a suitable manner if he discovers defects to the purchased goods and shall without delay give Genesis or a third party commissioned by him an amount of time within the scope of what is considered to be reasonable during normal business hours to inspect the defect.
6. If the customer fails to accept the goods or violates other co operation obligations, Genesis is entitled to all legally stipulated damage claims and compensation of any consequential costs.
§ 6 Delivery period / Contractual deadlines / Partial deliveries
1. Genesis is entitled to execute immediate delivery.
2. Genesis is entitled to employ suitable third parties in the fulfilment of its contractual obligations.
3. Genesis shall deliver the goods within the contractually agreed deadline. Compliance with deadlines shall be subject to customer's fulfilment in a timely manner of obligations to co operate. In particular, delivery made by Genesis according to the contractual deadline requires compliance of the agreed payment schedule by the customer. Therefore, under no circumstances, shall the delivery period for Genesis commence before receipt of a down payment or advance payment from the customer. The end of the delivery period is accordingly delayed by a reasonable amount of time. If these conditions are not fulfilled in a timely manner, the contractual deadlines are extended by a reasonable amount of time. This is not true when Genesis is responsible for the delay. Genesis reserves the right to object to non-performance of the contract.
4. Genesis is not responsible for delays in delivery and in particular also in the following cases and is given a reasonable extension to the delivery time:
a. In cases of an Act of God, strike, lockout or similar cases.
b. If the set-up, commissioning or training has to be carried out outdoors and this cannot take place at the agreed time due to difficult weather conditions, or, if due to difficult weather conditions a time has not been agreed upon despite the correct provision of services by Genesis, Genesis is not responsible for the delay which ensues. This is also applicable when the weather is typical for the time of year.
5. If there is a delay in delivery on the part of Genesis, all claims for damages and compensation (hereinafter referred to as claims for damages) of the customer relating to delay in delivery are excluded including claims for damages instead of fulfilment of obligation in all cases of late delivery including a possible period of grace. This does not apply in so far as there is compulsory liability in cases of wilful intent or of gross negligence or for injury to life, to the body or to health. A change in the onus of proof to the detriment of the customer is not connected to the present regulation.
6. Partial deliveries are permissible, in as far as this is reasonable for the customer. This is also applicable to excess or shortage quantities which is customary in the trade.
§ 7 Transfer of risk
1. The risk shall pass onto the customer in any case as soon as the goods are handed over to the customer or if the customer is in default of acceptance of the goods or services in question.
2. If the goods are purchased by mail order, without changing the mandatory requirement for the customer to his detriment, the title is transferred from Genesis in the case of an indeterminate obligation at the time of the handover of the correctly packed goods to a proper and reliable carrier. Accordingly, the indeterminate obligation is limited to the transferred object (§ 243 para. 2 BGB, German civil code). If there is accidental damage to the purchased object while in transport, Genesis is released from its obligation to deliver.
§ 8 Use as intended by the contract / Wear
1. The customer may only use the delivered goods with all units and accessories and other components for the purpose intended by the contract. This purpose is in particular listed in the product description / instruction manual. In the event that the customer of Genesis resells the goods, the customer shall take all possible and reasonable measures to ensure that also his buyer, especially if it is a consumer according to § 13 BGB (German civil code), understands the importance of the instruction manual and the operation manual and use according to the terms of the contract for the future product quality and performance.
2. Changes to the purchased goods, in particular modifications to the goods themselves, and use in violation of the terms of this contract are at the cost of the customer and sufficient to make the warranty obligations of Genesis wholly or partly void. In the event that the customer of Genesis resells the goods, the customer shall take all possible and reasonable measures to ensure that also his buyer, especially if it is a consumer according to § 13 BGB (German civil code), understands the importance of change or modifications to the purchased goods for their functionality, operational reliability and in particular with regard to the statutory warranty obligations.
3. Genesis is not liable for wear occurring during operation.
§ 10 Material defects and warranty
1. All descriptions of the goods and services supplied shall constitute descriptions and are not a guarantee.
2. The warranty rights of the customer assume that he has properly observed his business investigation and rebuke obligations according to § 377 HGB (German commercial code).
3. Claims arising from a defect shall lapse 12 months after the customer has received delivery of the goods from Genesis. Warranty obligations regarding used goods are excluded. The above provisions do not apply if the law according to section § 438 para. 1 No. 2 BGB (German civil code, structures and items for structures), section § 479 para. 1 BGB (claims under right of recourse) and section § 634a para. 1 BGB (construction defects) mandatorily prescribes longer time limits. Our consent must be obtained prior to any returning of the goods.
4. In case of a legitimate, proper claim in particular in due time, the decision is solely at the discretion of Genesis of whether to rectify or replace the goods so that they are free of defects. In any case, however, Genesis shall be given a reasonable opportunity to provide subsequent fulfilment within a reasonable period of time. Recourse claims shall remain unaffected by the above regulation without restriction.
5. If, due to a failure of subsequent fulfilment, the customer is entitled, on the one hand, to require further subsequent fulfilment from Genesis, and, on the other hand, to assert the statutory rights due to him, then Genesis can within a reasonable period of time require a decision about this in writing. Decisive for the deadline adherence is the receipt of the declaration by Genesis. In the absence of a declaration within the required time limit, the customer can only assert his further rights and in particular his right to withdraw provided that a reasonable period which has been granted by the customer for the subsequent fulfilment has elapsed without success.
6. Claims for damages and compensation of expenses (hereinafter jointly referred to as "claims for damages") from the customer due to a defect and or consequential damage are excluded. This does not hold true for fraudulent concealment of a material defect, negligence in upholding a guarantee of quality, and in cases of gross negligence, grossly negligent breach of obligations or when there is mandatory liability due to a fatal injury or an injury to the body or damage to health. A change in the onus of proof to the detriment of the customer is not associated with this.
7. Claims of the customer based on expenditure necessary for the purpose of the subsequent fulfilment, in particular transport, travelling, labour and material costs, are excluded in so far as the expenditure increases because the item delivered has retrospectively been taken to a location other than the business establishment of the customer, unless this relocation is in line with the intended use.
8. A material defect does not exist if there is only an insignificant deviation from the agreed level of quality or if there is only an insignificant impairment to the usability of the purchased goods. In particular a claim for a defect cannot be made on the warranty if the deviation to the contractually agreed quality or contractually foreseen usability of the purchased goods is due to the fact that the relevant facts required for the performance of the purchased goods notified by the customer at the time of contract conclusion have since changed. Natural wear and tear also fails to justify a claim on the warranty. Damages that have occurred after passing the risk due to incorrect or negligent handling, excessive loads, unsuitable equipment, imperfect workmanship, unsuitable building ground or which arise due to special external circumstances which are not presupposed in accordance with the contract also do not justify a claim on the warranty. If improper modifications or repairs are made by the customer or third parties, they are not entitled to assert claims for damages on the consequences resulting thereof.
9. Rights of recourse of the customer against Genesis shall only be deemed to apply to the extent that the customer has not made any agreements with his buyer extending beyond the statutory mandatory claims relating to defects. In respect of the proportion of the customer's right of recourse against Genesis it is also valid that claims by the customer regarding expenses for the purpose of subsequent fulfilment, in particular for transport, travelling, labour and material costs, are excluded in so far as the expenditure increases because the item delivered has retrospectively been taken to a location other than the business establishment of the customer, unless this relocation is in line with the intended use.
§ 11 Liability and exclusion of liability
Genesis is not liable unless there is a case of statutory liability such as liability in connection with product liability, cases of wilful intent and / or a grossly negligent breach of duty, due to a fatal injury, injury to the body or health, due to the assumption of a guaranty for the condition of a product, due to malicious concealment of a defect or breach of important contractual obligations. Damages for violation of important contractual obligations is, however, limited to contract-typical, foreseeable damage as far as intent or gross negligence is not present. No change in the onus of proof to the detriment of the customer is connected with the above provisions. Inasmuch as our liability is excluded or limited this also applies to the personal liability of the staff, employees, fellow workers, representatives and/or agents of Genesis.
§ 12 Place of performance and court of jurisdiction
1. The place of fulfilment is the registered place of business of Genesis in the Schulerstrasse, Pforzheim, Germany.
2. The place of jurisdiction for all disputes arising from and connected to this contract is the company headquarters of Genesis in Pforzheim. This is also applicable when the legal effectiveness of this contract is disputed. However, Genesis is entitled to take legal action against the customer at a different venue laid down by statute.
§ 13 Final provisions
1. All legal relationships in connection with this contract are subject to the law of the Federal Republic of Germany.
2. Changes and addendums to this contract have to be made in written form to be valid.
3. In the event of individual provisions of this contract being ineffective, this shall not affect the validity of the contract as a whole, unless one of the contract parties would not have concluded the contract had he known of the ineffectiveness of the affected provision.