General terms and conditions
General sales, delivery and payment terms and conditions
1.1 The following sales, delivery and payment terms and conditions apply to all contracts, deliveries and other services of the following companies:
- Alois Geiger Söhne GmbH & Co. KG, Aschaffenburg
- Alois Geiger Söhne GmbH & Co. KG, Heidelberg branch, Sandhausen
- Geiger Bodenbeläge München GmbH, Aschheim
- Geiger Bodenbeläge Rheinland GmbH, Köln (Cologne)
- Geiger Bodenbeläge Thüringen GmbH, Suhl
- Geiger - Römhildt Bodenbeläge GmbH, Koblenz
hereinafter respectively referred to as “seller“, unless expressly agreed otherwise. In addition, the practices of the timber trade (Tegernsee practices) apply. In case of deviations from the provisions in these general terms and conditions as well as the Tegernsee practices, the existing terms and conditions shall prevail. The validity of any deviating terms and conditions of the buyer are hereby objected. This also applies for the event that they are transmitted to the seller in a letter of confirmation or in any other manner.
1.2 All agreements that are made between the parties concluding the contract (including verbal subsidiary agreements, exclusion, amendments or additions to these general sales, delivery and payment terms and conditions) are only effective if confirmed in writing by the seller. This shall also apply for waivers of this written form requirement.
II. Offers, orders and letter of confirmation
2.1 All offers by the seller are subject to change and non-binding.
2.2 Contracts are considered to be accepted when signed and confirmed by the seller, or when executed following the receipt of an order.
III. Delivery, transfer of risk, contribution to costs and packaging, exchange
3.1 The right to effect standard technical and design modifications to the goods supplied is hereby reserved, insofar as they do not unreasonably interfere with the buyer and insofar as they do not impair the fitness for use of the purchased goods. Reference will be made to the specific features of wood and suede, see below under VI.. The DIN standard tolerances apply for the prescribed and agreed dimensions of the goods supplied, unless no different individual tolerances have been agreed upon.
3.2 Partial deliveries are permissible to a reasonable extent.
3.3 Unless otherwise agreed, the buyer shall collect the goods from the seller’s location (see respective locations in clause 1.1). In this case, the risk is passed on to the buyer when the goods supplied are made available at the seller’s plant for pick up and the buyer is notified accordingly.
If the parties have agreed to ship the goods, the risk shall be transferred to the buyer upon its surrender to the person specified to carry out the shipment.
If the parties have agreed to deliver the goods to the buyer’s site, the risk shall be transferred to the buyer when the goods are dropped off at the place of delivery (curbside). The seller is not obligated to transport the goods any further within the construction site or warehouse.
3.4 For deliveries to a construction site or delivery address that deviates from the address in the client’s account, the seller is entitled to charge a flat rate of EUR 25.00 plus statutory VAT for the resulting additional effort and expenses. For deliveries with a net goods value below EUR 150.00 net, the seller is also entitled to charge a fee to cover costs for the delivery of small quantities of EUR 15.00 plus statutory VAT per delivery. In addition, the seller shall charge a logistics fee of EUR 4.90 plus statutory VAT for each delivery. The amounts listed are not discountable.
3.5 The used packaging materials cannot be returned, unless the seller has hired a suitable waste disposal company according to the packaging ordinance in the version valid at the time. In this case, the buyer undertakes to have the used packaging material ready and hand it over to the waste disposal company accordingly. Insofar as the seller agrees with the buyer that in exchange for a flat waste disposal fee, he/she renounces his/her right to return, the buyer undertakes to hand over the used packaging material to an approved waste disposal company which ensures proper disposal according to the regulations of the packaging ordinance.
Reusable packaging is only provided to the buyer as a loan for a rental charge. The buyer must confirm the return of the packaging unit to the seller in writing and make the packaging unit available. In case the reusable packaging material is not returned, the seller is entitled to charge a rental fee retrospectively, or to charge the value of the packaging unit in an invoice which shall be due for payment upon receipt.
3.6 Acceptance of returned goods is excluded and only possible as a gesture of good will, if the right of revocation does not apply. If warehouse goods are taken back as a gesture of good will, these goods must be returned in their intact original packaging ready for resale within 30 days by deducting a handling fee of 10% of the value of the goods, however, at least EUR 10.00 net. The goods must be returned to the location from where it was picked up, or in case of delivery by the seller to the premises of the seller with whom the contract is concluded. Ordered goods are in principle excluded from any returns.
IV. Delivery period
4.1 The delivery period starts with mailing of the order confirmation, however, not before the return of the order confirmation signed by the buyer, and the submission of the documents, permits, and releases to be provided by the buyer, as well as receipt of any agreed down payment and clarification of all technical issues.
4.2 Quoted delivery times are approximate and subject to confirmation, unless explicitly agreed otherwise, and if the prerequisites according to 3.1 are met. Observance of the delivery term is in any case the prerequisite for the fulfillment of the buyer's obligations.
4.3 The delivery period shall be extended to an appropriate extent in the event of measures within the scope of lawful industrial disputes, in particular strikes and lock-outs, natural disasters, war, riots, administrative measures, and also if unforeseen obstacles outside the sphere of influence of seller occur (e.g. unexpected operational disturbances, energy deficiency and trouble in the procurement of essential materials), as well as all other cases of force majeure, insofar as such hindrances demonstrably have an influence on the completion or delivery of the goods supplied. This also applies, if such circumstances occur at a subcontractor. Circumstances of this nature shall not be the responsibility of the seller, even if they occur during a delay already caused by other reasons. In important cases, the buyer shall be informed as soon as possible of the beginning and end of these types of hindrances.
4.4 The agreed delivery period shall be considered observed, if the buyer has been notified about the readiness for dispatch of the goods by the delivery date (collectible debt) or, if the seller is in charge of the shipment (carriage paid to), if the goods are handed over to the forwarding agent by the delivery date. If the delivery is delayed for any reasons the buyer is responsible for, in particular, if the buyer does not properly pick up the goods, or has not submitted the documents required, then the risk passes to the buyer upon notification that the goods are ready for dispatch.
The seller is entitled to dispose of the goods to be delivered differently and to deliver to the buyer within a reasonable prolonged deadline, if a reasonable grace period set for the acceptance of goods by the buyer has expired without success.
4.5 If the seller assumed the contractual duty of shipping the goods, the shipment is carried out at the risk of the buyer. The seller assumes no liability for damages or loss during transport. The seller shall have the shipment sent via the best route at his/her discretion, without the seller taking responsibility for the cheapest and shortest form of dispatch.
5.1 All prices are quoted "ex works" exclusive VAT and shipment, however, including packaging. VAT in the statutory amount must be paid separately.
If no prices have been agreed at the completion of contract, the seller's prices valid on the day of delivery apply.
5.2 If nothing else is agreed, the purchasing price shall be due for immediate payment without any deductions on receipt of the goods. A cash discount must be expressly agreed. An agreed deduction of cash discount can only be claimed, if all previous invoices due have been paid and the outstanding invoice amount settled in full by that date.
5.3 Payments by bill of exchange are admissible only upon special agreement. Bills of exchange and checks are accepted always only on account, but not in lieu of payment. The costs associated with realization of a check or bill of exchange are borne by the buyer. If payment of the purchase price is made using a means of payment which the buyer has procured by discounting an acceptor's bill of exchange, then the purchase price claim shall be discharged only after the buyer has cashed in the bill of exchange. The seller assumes no warranty for submission made on time and for protests of payments.
5.4 Decisive for punctual payment is the time of the receipt of the amount by the seller or the time the amount is credited to the seller's account. If the buyer does not pay within 30 days after the due date, then interest will be charged on the outstanding amounts at a statutory rate (§ 288 paragraph 1 and 2 of the German Civil Code (BGB)) as from this date; the application of higher interest rate and additional damages in case of late payment remains unaffected.
5.5 The buyer is only entitled to set-off for claims which are undisputed or have been declared final or which are ready for decision. The buyer is only entitled to a right of retention or to refuse performance with regard to such undisputed claims which have been declared final and absolute or which are ready for decision, which stem from the same contractual relationship with the seller. The buyer is not authorized to assign his/her potential claims from the contractual relationship with the seller.
5.6 In the event of a major deterioration of the buyer's financial situation, in particular the filing of an insolvency petition, or declarations in lieu of an oath about an inventory of property against the buyer, the seller is entitled to suspend deliveries immediately and to refuse the fulfillment of current contracts, unless the buyer has fully performed his obligations beforehand.
5.7 Permissible partial deliveries may be billed separately.
VI. Features of hardwood and velour flooring, storage
6.1 Wood is a natural product, therefore, always consider the natural character, irregularities and attributes that go with it. The buyer also must take into account the biological, physical and chemical properties when buying and using wooden products. The spectrum of natural variations in color and structure and other variations within one type of wood are a characteristic of this natural product. They do not warrant any complaint or liability claim. The buyer should ask for expert advice if required.
6.2 Permanent shading can occur in rare cases on velour carpets during use (so-called shading effect). This is some optical phenomena. They cannot be influenced during the manufacture of the carpet, but are closely associated with the environmental influences at the location where the carpet is laid. Therefore, no warranty can be given for the occurrence of shading effects.
6.3 The goods must be stored properly and conform to the requirements of its kind.
VII. Complaint about defects of quality and title, rights of the buyer in case of defects of quality and title
7.1 Apparent defects must be contested within 14 calendar days after delivery. If the buyer is a merchant and the purchase constitutes a commercial business transaction, the buyer must in deviation from sentence 1 immediately contest (§ 377 of the German Commercial Code (HGB)) any defects detected during a proper inspection of the goods upon delivery; any other defects are to be reported upon discovery without delay, or within 14 calendar days the latest. If notice of defects has not been given in due time, the warranty obligation shall no longer apply for the respective defect. If the defect is apparent and the buyer is not willing to accept it, the buyer shall not be permitted to use the purchase item, i.e. install it, connect it, mix it or process it.
7.2 Potential claims and rights of the buyer due to a defect in the goods are limited to the right of subsequent performance. This subsequent performance may be the repairing of the defect or delivery of new free-of-fault goods, at the seller's discretion. Repeated improvements are permitted – in general two. For failure to subsequently fulfill the contract, the buyer may demand a reduction of the sales price or withdrawal from the contract, at the buyer’s discretion.
The seller can refuse to rectify the defect if it is impossible or is possible only with disproportional expenses. Withdrawing from the contract by the buyer is excluded, if the seller is without fault, or if the defect is only minor. Withdrawing from the contract is also excluded, if the buyer is solely or most predominantly responsible for the circumstance entitling the buyer to rescind, or if a circumstance imputable to the seller occurs during a period when the buyer is in default on taking delivery.
7.3 The buyer is not entitled to warranty claims, if he/she rectifies defects without compliance with the seller’s right to repair or replacement, or has a third party carry out modifications on the goods supplied. Only in urgent cases, where a disproportionately great damage must be prevented, the buyer has the right, subject to immediate prior notification of the seller, to remedy the defects or have them remedied by a third party and to claim from the seller reimbursement of the necessary expenses.
7.4 To the extent that the seller is obliged to pay damages because of a defect subject to statutory provisions – for whatever legal reason including possible damage claims from a positive breach of contract, culpa in contrahendo, and unlawful acts – this obligation to pay damages shall be limited in accordance with the provisions of section 8.
7.5 Any right of recourse the buyer may have according to §§ 478 of German Civil Law (BGB) remain unaffected. If the seller is obligated by law to pay compensatory damages in connection with any such recourse, then such obligation to pay compensatory damages will be limited in accordance with the provisions of section 8.
7.6 The seller is not liable for defects caused by improper installation by the buyer or third parties, by negligence, or by unsuitable or improper handling, use or storage. Liability for excessive use is excluded.
7.7 The buyer's claims for defects shall come under the statute of limitation at the end of two years after the delivery. If the buyer is an entrepreneur and buys the goods within the framework of a proper commercial transaction, the buyer’s claims shall be subject to a limitation period of one year. This shall not apply (1) in the case of willful intent or fraudulent concealment of the defect, or in the case of non-compliance with any guarantee of quality given by the seller as well as (2) in the case of an item which has been used in keeping with its customary use in a building structure and has caused the building structure to be defective. The afore-mentioned limitation period of one or two years for claims due to defects shall furthermore not apply, if the damage is caused by gross negligence of the seller, or the damage is due to personal injury, or the seller is liable under tort. The one- or two-year limitation period for claims because of defects does also not apply to defects concerning a right in rem, on the basis of which the surrender of the object of sale may be demanded, or in another title entered in the land register; in these cases, the period of limitation shall be three years. The statutory provisions on the limitation of any claims to recourse in accordance with § 479 of the German Civil Code as well as on the limitation and exclusion periods pursuant to the German Product Liability Act shall remain unaffected.
8.1 The seller will assume liability within the legal limits for damages which are based on a willful act or omission or gross negligence by the seller as well as for damages from personal injury. In the case of a slightly negligent breach of essential contractual duties which are indispensable for the attainment of the contract purpose and which the buyer must therefore be able to rely upon, the liability of the seller within the legal limits is limited to such damages the nature and extent of which were foreseeable to the seller at the time of the conclusion of the contract. Otherwise, the buyer's claim for compensation of any direct or indirect damages – irrespective of the cause of action upon which such claim is based, including a breach of duties, a breach of pre-contractual duties or tortuous conduct – is disclaimed.
8.2 This does not affect any statutory liability for the lack of any characteristic of the item warranted by us, or any liability in accordance with the German Product Liability Act.
IX. Title retention clause
9.1 All goods delivered by the seller shall remain entirely the property of the seller (reserved goods) until all – present and future – claims of the seller against the buyer arising out of the business relationship have been satisfied (current account retention). In the case of a running account, the reservation of title will serve to secure the respective balance due to the seller.
9.2 The seller is entitled but not obliged to take back the goods supplied, if the buyer acts contrary to contract, in particular if he/she is in default of payment; the buyer hereby already agrees to such recovery. The recovery shall be considered as a termination of contract only if explicitly stated by the seller. The costs arising from taking back the goods (transportation costs, in particular) shall be borne by the buyer. In this case, the seller is also authorized to forbid the buyer any resale, finishing or processing, combining or mixing of the goods delivered subject to reservation of title and to revoke the direct debit authorization (see section 9.8 below). The buyer may demand the delivery of goods recovered without an express notice of withdrawal only once the purchase price and all costs have been fully paid.
9.3 The buyer is obligated to handle the goods supplied with due care.
9.4 If the goods subject to retention of title are processed or converted by the buyer to a new movable item, the processing and/or conversion by the seller is effected without the seller being obligated as a result hereof; the new item will become the property of the seller. If the goods subject to retention of title are processed or converted together with products not belonging to the seller, the seller shall acquire co-ownership of the new products in the same ratio as that between the value of the goods subject to retention of title and the value of the other goods at the time of processing. If the goods subject to retention of title are combined, mixed or blended with the goods not owned by the seller according to §§ 947, 948 of the German Civil Code (BGB), the seller shall acquire co-ownership according to the statutory regulations. If the buyer acquires sole ownership through combining, mixing or blending, he/she hereby assigns to the seller here and now co-ownership in the same ratio as that between the value of the goods subject to retention of title and the value of the other goods at the time of combining, mixing or blending. In these cases, the buyer must store the goods which are in the seller’s ownership or co-ownership and which are also deemed to be goods subject to retention of title within the meaning of the aforementioned provisions, free of charge.
9.5 If the goods subject to retention of title are being sold individually, or together with goods not belonging to the seller within the scope of the proper course of business of the buyer, the buyer here and now assigns any claims arising out of the re-sale in the amount of the goods subject to retention of title with all additional rights of the seller and ranking ahead of the rest; the seller shall accept the assignment. The value of the goods subject to retention of title is the seller’s invoice amount plus a deposit surcharge of 10% – which, however, remains unconsidered insofar as opposed by rights of third parties. If the resold goods subject to retention of title are in co-ownership with the seller, the assignment of the claim shall extend to the amount which corresponds to the seller’s proportional value of the co-ownership.
9.6 If the buyer installs the goods subject to retention of title into premises belonging a third party as an integral part, the buyer here and now assigns the claim for payment to which he is entitled against the third party or against the person concerned with the amount that corresponds to the value of the goods subject to retention of title, with all additional rights of the seller, including the granting of a security mortgage with priority over the rest; the seller shall accept the assignment. Item 8 paragraph 5 sentences 2 and 3 apply accordingly.
9.7 The buyer is entitled and authorized to resell, utilize or install the goods subject to retention of title only in the usual proper course of business and only in accordance with the authorization and entitlement that the claims are actually transferred to the seller within the meaning of item 8 paragraphs 5 and 6. The buyer is not entitled to any other disposal of the goods subject to retention of title, especially, but not limited to, pledging or assignment by way of security. If the payment of the purchase price by the buyer involves liability under a bill of exchange for the seller, the reservation of title shall not expire until the buyer, as the acceptor, has honored the bill of exchange.
9.8 The seller authorizes the buyer, under reserve of revocation, to collect the assigned claims according to item 8, paragraphs 5 and 6. In the case of a revocation of authorization, the buyer undertakes to immediately provide his/her customers with information regarding the assignment of claims to us and to release to us all relevant information and documents required for collection. Furthermore, in this case, the buyer is obligated to return to us or assign to us any security to which he/she is entitled to for any customer payment claims. The seller shall not make any use of his own power to collect, if the buyer meets his/her payment obligations, even towards third parties. At the seller's request the buyer shall name the debtors of the claims assigned and notify them of such assignment; the seller is entitled to inform the debtors of the assignment himself/herself.
9.9 The buyer must inform the seller without delay about any foreclosure measures of third parties regarding the goods subject to retention of title, or accounts receivables assigned, and must provide all the documents necessary for an objection.
9.10 If payments are suspended, an application is filed for insolvency proceedings or insolvency proceedings are opened, and in case of judicial or extra judicial insolvency proceedings, the right to resell, use or install the goods subject to retention of title and the authorization to claim assigned accounts receivable shall be forfeited; authorization shall also lapse if a check or bill is protested.
9.11 If the realizable value of the existing securities in our favor not only temporarily exceeds the secured claims by more than 110 percent, we shall – if so requested by the buyer – release securities of our choice.
X. Place of fulfillment, place of jurisdiction and applicable law
10.1 Place of fulfillment of the contractual obligations is in each case the respective location of the seller.
10.2 Insofar as the buyer is a merchant, legal person as defined in public law or special fund as defined in public law, then the seat of the seller is exclusive jurisdiction for all disputes resulting directly or indirectly from the contractual relation; the seller, however, is entitled to invoke the aid of any other judicially competent court. The preceding provision shall not apply for those cases, where another exclusive place of jurisdiction is established by law in accordance with the statutory provisions.
10.3 The law of the Federal Republic of Germany applies, with the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention).
If individual or multiple provisions of these general terms and conditions or the contract concluded between the seller and the buyer are or become partly or fully ineffective, unenforceable or impracticable, all other provisions shall remain unaffected. The contractual partners undertake to agree to a provision that comes closest to the intended economic purpose and to replace the unenforceable, ineffective or impracticable provision. The same applies to potential loopholes in the regulation.
Notice according to §36 of the Consumer Dispute Settlement Act (VSBG)
Alois Geiger Söhne GmbH & Co. KG are not required and shall not participate in a dispute settlement process in front of an arbitration board within the meaning of the Consumer Dispute Settlement Act (VSBG).