General terms and conditions
1. validity of the conditions:
a. These General Terms and Conditions apply exclusively to our business relations with companies, legal entities under public law and special funds under public law. They do not apply in business transactions with consumers. Consumers are natural persons who conclude the legal transaction for a purpose that cannot be attributed to their commercial or independent professional activity. They shall also apply to all future business relations, even if they are not expressly agreed again.
b. When placing an order or accepting an offer, the buyer acknowledges our general terms and conditions as solely binding, waiving any later revocation.
c. These terms and conditions shall be deemed accepted at the latest upon acceptance of our deliveries and services.
d. References of the buyer to his terms and conditions are hereby contradicted. They do not bind us even if we no longer object in individual cases.
e. Deviating terms and conditions of the buyer shall only apply if they are expressly confirmed by us in writing. This also applies to deviating agreements.
f. With the inclusion of these terms of payment and delivery, all previous GTC lose their validity. We may make changes to these terms and conditions of payment and delivery – with the exception of charges and service content – at any time, insofar as this becomes necessary due to changed circumstances (e.g. changes in legislation or case law) and is not unreasonable for the purchaser. We shall notify the purchaser of any changes in writing or electronically, unless this would involve unreasonable effort. The buyer is entitled to object to the changes within 14 days, otherwise the changes shall be deemed accepted.
g. If the Buyer orders software products, he simultaneously undertakes to conclude a service contract with further conditions, rights and obligations. The service contract is enclosed with corresponding offers or order confirmations and/or can be viewed on our website www.gym80.de under the link “AGB” and can be saved and printed as a PDF file.
2. offers, orders, order changes, self-deliveries, deviations
a. Our offers are always subject to change and non-binding, unless we have made a binding offer in writing in an individual case.
b. The purchase contract is effectively concluded if we confirm the acceptance of the order or the offer of the buyer within a period of three weeks after receipt in text form or carry out the delivery in whole or in part. To meet the deadline, it is sufficient to send the declaration of acceptance within the aforementioned period.
c. If the purchaser wishes to make changes after the order confirmation has been sent or wishes to postpone the confirmed delivery date to a later date, the expenses incurred as a result shall be borne by the purchaser.
If the purchased items have already been produced, we are entitled to charge storage fees for the period between the confirmed delivery date and the new delivery date in accordance with item 6. lit. f) our terms of payment and delivery.
Any changes or postponements of delivery dates requested by the purchaser must be received by us in text form no later than 4 weeks before the confirmed delivery date.
d. We conclude our contracts with the buyer exclusively under the reservation of correct and timely self-delivery by our suppliers. This shall only apply if and to the extent that we are not responsible for the non-delivery, in particular if a congruent hedging transaction has been concluded with our suppliers. The buyer will be informed immediately about the unavailability of the service. Any consideration already paid by the buyer will be refunded by us.
e. For the goods to be delivered, the customary deviations in quality and color are permissible and do not constitute a material defect, unless the deviations contradict a representation or warranty.
a. Ordered products shall be invoiced at the prices set out in the order confirmation plus. VAT and are quoted ex warehouse excluding packaging and shipping costs.
b. Offer or list prices are subject to change until written order confirmation and do not include VAT.
c. Insofar as, in the case of orders with a delivery period of more than 4 months or a delay in delivery of more than 4 months for which we are not responsible, the manufacturing costs on which the order confirmation is based (material costs, wages, energy costs, duties, etc.) including the respective cost-specific ancillary costs change up to the delivery date through no fault of our own, we shall be entitled to adjust our prices accordingly. This shall not apply if the Purchaser, for its part, has entered into an unrestricted contractual obligation vis-à-vis a consumer with respect to the purchased item.
4. terms of payment, default, right of retention
a. Unless otherwise agreed in writing, our standard payment terms are 50 percent deposit at time of order placement and 50 percent balance prior to shipment. Alternatively, a written letter of entry may be submitted by a funder (leasing company/bank). Any different form of payment requires the written form and the consent of the seller.
b. Our invoices are due immediately, but no later than upon delivery, without deduction. The deduction of discounts is not permitted.
If the Buyer fails to pay on time, we shall be entitled to charge interest on arrears at the rate charged by the commercial bank for our overdrafts, but not less than 9 percent p.a. above the respective prime rate.
c. Goods selected and taken from our warehouse are to be paid immediately in cash, unless otherwise agreed in writing.
d. If goods ordered by the Buyer are not in stock and must be ordered or manufactured, at the conclusion of the purchase contract, with reference to 4.a. a deposit of 50 percent of the agreed price when the order is placed, with the balance due before delivery.
e. Upon request, the Buyer shall provide an irrevocable, unlimited directly enforceable bank guarantee for the remaining purchase price, excluding the defense of anticipatory action.
f. We are entitled to offset payments against older debts first. If costs and interest have already been incurred, we shall be entitled to offset these payments first against the costs, then against the interest and finally against the main performance. If the customer makes a different provision at the time of performance, we may, at our option, also charge according to this provision.
g. A payment shall only be deemed to have been made when we can dispose of the amount without restriction. The possible acceptance of bills of exchange shall only take place on account of performance and subject to their discountability. The costs and expenses of discounting shall be borne by the buyer.
h. If the buyer does not meet his payment obligations, in particular if he does not honor a check, if the account does not have sufficient funds in the case of agreed direct debit procedures, if he stops his payments or if we become aware of other circumstances that call into question the creditworthiness of the buyer, we shall be entitled to call due the entire remaining debt.
i. The withholding of payments due to or the offsetting of counterclaims by the customer is only permitted if the counterclaims are undisputed or have been legally established. Furthermore, rights of retention may only be exercised if they are based on the same contractual relationship.
5. Delivery and performance time, force majeure
a. Delivery time specifications are only approximate. Binding delivery dates and deadlines must be agreed in writing. The day of delivery shall be the day of dispatch ex works or ex warehouse.
b. In all cases of force majeure such as severe weather and natural disasters, as well as in cases of mobilization, war, civil unrest, strikes, lockouts, operational disruptions, restrictions and shortages of raw materials and supplies, and in the case of similar events beyond our control, the delivery period shall be extended by the duration of the hindrances and a reasonable start-up time after the hindrance has ended. If the performance of the contract becomes unreasonable for one of the parties due to these events, it may withdraw from the contract to this extent. Claims for damages by our customer are excluded.
c. Partial deliveries within the delivery period are permissible unless the customer cannot reasonably be expected to accept delivery in parts and at intervals.
d. If, after conclusion of the contract, it becomes apparent that our claim for payment is at risk due to the buyer’s inability to pay, we may refuse performance and set the buyer a reasonable deadline within which he must pay concurrently against delivery or provide security. In case of refusal by the buyer or in case of unsuccessful expiry of the deadline, we are entitled to withdraw from the contract and/or to claim damages.
e. Call-off and scheduling of individual partial deliveries shall be made in such a way that we are able to manufacture and deliver in accordance with the contract.
6. Shipping and transport, transfer of risk, default of acceptance, damages
a. Unless otherwise agreed, the buyer shall bear the costs of shipment (packaging and transport).
b. The choice of the mode of shipment shall be left to us, unless the Buyer has expressly stipulated a particular mode of shipment. Shipping and transport are at the risk of the buyer.
c. The risk is transferred to the buyer as soon as the goods have been handed over to the person carrying out the transport or have left our warehouse with shipment. If shipment is delayed for reasons for which we are not responsible, the risk shall pass to the Buyer upon receipt by the Buyer of the notice of readiness for shipment. Unless expressly agreed otherwise in writing, the clause “ex works”/”EXW” (incoterms 2000) shall apply. Delivery warehouse is Gelsenkirchen.
d. If the purchased item is taken back for reasons for which we are not responsible, the purchaser shall bear the risk until it arrives at our factory.
e. For the duration of the Buyer’s default in acceptance, we shall be entitled to store the delivery items at the risk and expense of the Buyer; for this purpose, we may also use a forwarding agent or a warehouse keeper. However, we are under no obligation to take out insurance for the delivery items.
f. During the delay in acceptance, the Buyer shall pay us a lump sum of 1.0 percent of the purchase price per month or part thereof as storage charges from the date of notification of readiness for delivery as compensation for the storage costs incurred without further proof, but no more than a total of 5 % of the purchase price. If higher storage costs are incurred, we are entitled to demand these from the buyer against proof. The Buyer shall be at liberty to prove that the storage charge is actually lower than the flat rate demanded.
g. If the purchaser does not pay the purchase price due or refuses to accept the goods or declares that he does not wish to accept the goods after the expiry of a grace period set for him, we may refuse to fulfill the contract and claim damages. We shall be entitled to claim damages from the Buyer either at a flat rate of 25 percent of the agreed purchase price or compensation for the actual damage incurred. The purchaser is at liberty to prove that the damage is actually less.
7. Complaints and warranty
a. The buyer is obligated to immediately inspect the delivered goods for obvious defects, in particular also for obvious shortages or damages, and to immediately notify us of these in writing upon receipt of the goods. The timely dispatch of the notice of defect shall be sufficient to comply with the time limit. In the case of hidden defects, the Buyer shall be obliged to report them after their discovery, but at the latest within the limitation period pursuant to Section 7. lit. i) to notify us in writing. Defects in delivered software must be reported in writing immediately, at the latest within 5 days after installation and commissioning. The purchaser shall bear the burden of proof for all prerequisites, in particular for the existence of the defect, for the time of detection of the defect and for the timeliness of the notice of defect. If the buyer fails to make the above-mentioned complaints, our liability for defects is excluded. The notice of defect shall document the defect complained of in a suitable manner.
b. Claims of the purchaser due to defects in the object of purchase are excluded insofar as the defect was caused by non-compliance with regulations on handling, maintenance and care of the object of purchase or with scheduled maintenance intervals or installation of parts or accessories whose use was not approved by us or the object of purchase was otherwise improperly handled.
c. Claims of the buyer due to defects in the purchased goods are also excluded for used products and for goods that are not included in our product catalog, but are manufactured as a custom-made product at the request of the buyer.
d. If we are not the manufacturer of the purchased item, we shall assign our warranty claims against our upstream suppliers to the purchaser to the exclusion of our warranty obligation towards the purchaser, insofar as this does not unreasonably disadvantage the purchaser. In particular, we shall be subordinately liable if and to the extent that the upstream supplier fails to meet the Buyer’s claims even after enforcement by a court of law. We will reimburse the buyer for any costs not recoverable from the upstream supplier.
e. If the goods are defective, we reserve the right, at our discretion, to remedy the defect first by subsequent delivery or repair (subsequent performance). In the event of subsequent performance, we shall be obliged to bear all expenses necessary for this purpose, in particular transport, travel, labor and material costs, provided that these are not increased by the fact that the object of sale was taken to a place other than the place of performance.
f. In accordance with the statutory provisions, we shall be obliged to take back the new goods or to reduce the purchase price even without setting the otherwise required deadline if the purchaser’s customer, as a consumer of the new movable item sold (purchase of consumer goods), was able to demand the return of the goods or the reduction of the purchase price from the purchaser due to the defect of these goods or if the purchaser is subject to a similar resulting claim for rescission (supplier recourse). In addition, we are obliged to reimburse necessary expenses of the buyer, in particular transport, travel, labor and material costs, which the buyer had to bear in relation to the end consumer in the context of subsequent performance due to a defect in the goods existing at the time of transfer of risk from us to the buyer. Reimbursement of these expenses is made in the form of merchandise credits. The claim shall be excluded if the Buyer has not properly complied with the duties of inspection and notification of defects owed pursuant to § 377 of the German Commercial Code (HGB).
g. The obligation pursuant to item 7. lit. f) is excluded insofar as it concerns a defect based on advertising statements or other contractual agreements which do not originate from us or if the purchaser has given a special guarantee to the end consumer. The obligation is also excluded if the buyer himself was not obliged to exercise the warranty rights against the end user due to legal regulations or did not make this complaint against a claim made to him. This shall also apply if the purchaser has assumed warranties towards the end user which exceed the statutory scope.
h. If the supplementary performance fails, is impossible, is seriously and finally refused by us in its entirety or is unreasonable for the Buyer or if a deadline to be set by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer shall be entitled to reduce the purchase price (reduction) or to demand the rescission of the contract (withdrawal) at its discretion. Upon declaration of withdrawal or demand for reduction, the purchaser’s claim to delivery of a defect-free item shall lapse. Claims of the Buyer for damages or reimbursement of futile expenses shall only be granted within the scope of the following clause 8, otherwise they shall be excluded. As long as we fulfill our obligations to remedy the defects, the buyer does not have the right to demand a reduction of the remuneration or cancellation of the contract, unless the remedy has failed.
i. In the case of products on which no defect could be detected, we are entitled to charge for the testing effort.
j. The warranty is governed by the applicable and publicly disclosed warranty termshttps://www.gym80.de/de/garantiebestimmungen/.
8 Liability, Exclusion of Subsequent Performance and Withdrawal, Performance Period
a. With the exception of the cases mentioned in the following lit. b) any liability for damages or reimbursement of futile expenses in the event of breaches of duty beyond the liability for defects pursuant to Section 7 above shall be excluded, irrespective of the legal nature of the asserted claim. This shall also apply if and to the extent that there are breaches of duty by our legal representatives or vicarious agents.
b. The exclusion of liability contained in the above paragraph shall not apply in the event of claims by the Buyer based on the Product Liability Act, not in the event of injury to life, limb or health attributable to us, not in the event of grossly negligent or intentional breaches of duty, not in the event of a breach of a material contractual obligation and not insofar as a guarantee has been granted or acted fraudulently. In this case, we are liable in accordance with the statutory provisions. In the event of a breach of an essential contractual obligation due to simple negligence, however, our liability shall be limited to compensation for typical, foreseeable damage.
c. Due to a breach of duty that is not based on a defect in the goods, the buyer may only withdraw if the circumstance entitling him to withdraw is based on a fault for which we are responsible and the breach of duty is so significant that the buyer cannot reasonably be expected to adhere to the contract.
d. If a deadline set by the purchaser for performance has expired fruitlessly and the purchaser does not comply with our subsequent request within a further reasonable period set by us for this purpose to clarify whether the purchaser will adhere to its claim for performance or demand damages instead of performance, the claim for performance shall be excluded after expiry of the reasonable period associated with this request.
9. Statute of limitations
a. All claims and rights of the purchaser, irrespective of the legal grounds, shall become statute-barred within one year, unless our liability is based on intentional action.
b. Notwithstanding the above principle, the statutory limitation period shall apply in the following cases:
- For claims for defects, insofar as we have fraudulently concealed the defect or have assumed a guarantee for the condition,
- For recourse claims of the buyer within the scope of a supply chain according to § 478 BGB,
- For claims for damages or claims for reimbursement of futile expenses arising from injury to life, limb or health,
- For claims under the Product Liability Act.
10. Retention of title
a. The delivered goods remain our property until full payment of all claims arising from the business relationship between us and the buyer. The inclusion of individual claims in a current invoice as well as the drawing of a balance and its recognition shall not affect the retention of title. In the event of default in payment on the part of the purchaser, we shall be entitled to take back the goods and sell them at the purchaser’s expense after setting an unsuccessful grace period.
b. The buyer is entitled to resell the reserved goods in the ordinary course of business. He is not permitted to pledge or assign the reserved goods as security. In the event of a resale of the reserved goods on credit, the purchaser is obliged to agree a reservation of title on his part.
c. The buyer is obligated to handle the reserved goods with care; in particular, the buyer is obligated to ensure proper storage and labeling of the goods.
d. The claim of the buyer from the resale of the goods subject to retention of title is already now assigned to us, we accept this assignment. If the conditional purchaser includes the claim in an existing current account relationship with his customers, he hereby assigns to us both the acknowledged balance and the causal balance up to the amount of the original current account claim. Notwithstanding the assignment and our right to collect, the Buyer shall be entitled to collect as long as he duly meets his obligations towards us and is not in danger of financial collapse.
e. If the reserved goods are resold together with other goods, regardless of whether without or after processing or combination, the advance assignment agreed above shall only apply to the amount of the invoice value of the reserved goods that are resold together with the other goods. If the purchaser defaults on his payment obligations, he shall, upon request, provide the information on the assigned claims required for collection and notify the debtors of the assignment.
f. Insofar as the Buyer refinances on a factoring basis, he hereby assigns to us the claims to which he is entitled against the factor in the amount of his outstanding balance from the business relationship with us.
g. The purchaser must inform us immediately of any compulsory execution measures by third parties against the goods subject to retention of title or against the claims assigned in advance, handing over the documents necessary for an intervention. Any costs of justified interventions shall be borne by the Buyer, unless they can be obtained from third parties.
h. We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion at the Buyer’s request to the extent that their realizable value exceeds the claims to be secured by 10.0% or more. The conditional buyer shall be entitled to a release if the estimated value of the goods assigned as security amounts to 150 % of the claims to be secured.
11. Final provisions
a. The place of performance for all claims arising from the contractual relationship is Gelsenkirchen.
b. The place of jurisdiction for all legal disputes arising from the contractual relationship as well as about its origin and effectiveness is Munich or, at our discretion, the general place of jurisdiction of the purchaser. Statutory regulations on exclusive responsibilities remain unaffected. All disputes arising out of or in connection with this Agreement shall be finally and bindingly decided by the German, state courts.
c. The contractual relationship shall be governed exclusively by the laws of the Federal Republic of Germany to the exclusion of all international and supranational legal systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
d. No ancillary agreements to this agreement have been made. Amendments or supplements, just like the amendment of this provision, must be made in writing to be legally effective.
e. The pictures shown are for reference only, the actual product may differ.
12. Data protection notice
In this context, certain data (name, address, invoice data and payments not made on time by the buyer) may be transmitted to credit agencies.
gym80 International GmbH (as of 03/2022)