General Terms and Conditions
General Terms and Conditions of Payment and Delivery of gym80 International GmbH
1. Application of terms and conditions, note on further conditions Service Contract gym80 software (active Service Contract)
a. These General Terms and Conditions of Trade shall apply exclusively to our business dealings with undertakings, legal persons under public law and public-sector fund assets. They shall not apply in business transactions with consumers. Consumers are natural persons who conclude the legal transaction for a purpose that cannot be attributed to either their commercial or independent professional activity. They shall also apply to all future business dealings, even if not explicitly agreed at a later date.
b. When placing an order or accepting an offer, the buyer shall acknowledge our General Terms and Conditions of Trade as solely binding and waive any subsequent revocation.
c. These Terms and Conditions shall be deemed to have been accepted at the latest on acceptance of our deliveries and performances.
d. References by the buyer to its terms and conditions of trade are hereby opposed. They shall not engage us even if we do not oppose them in each individual case.
e. Divergent terms and conditions of the buyer shall only apply if explicitly confirmed by us in writing. This shall also apply to divergent agreements.
f. With the incorporation of the present Terms and Conditions of Payment and Delivery, all previous General Terms and Conditions of Trade shall cease to be valid. With the exception of remunerations and the contents of performances, we may make amendments to these Terms and Conditions of Payment and Delivery at any time, insofar as this becomes necessary due to changed circumstances (e.g. a change in the legislation or case-law) and is not unacceptable to the buyer. We shall notify the buyer of amendments in writing or electronically, provided this does not involve unacceptable expense. The buyer shall be entitled to object to the amendments within 14 days, failing which the amendments shall be deemed to have been accepted.
g. If the buyer orders software products (gym80 software), he places himself under obligation at the same time 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 Web site at: www.gym80.de under the “Terms and Conditions” link, stored as a PDF file and printed.
2. Offers, orders, order change, self-deliveries, variations
a. Our offers are always subject to confirmation and without obligation, unless in a given case we have made a binding offer in writing.
b. The purchase contract is entered into and becomes effective when we confirm in writing the acceptance of the order, or the purchase offer, of the buyer within a period of three (3) weeks after receipt or when we execute the delivery in full or partially. The sending of the declaration of acceptance within the prescribed time-limit shall suffice for the keeping of the term.
c. If the buyer desires changes after shipment of the order confirmation or would like to move the confirmed delivery date to a later date, any resulting costs shall be borne by the buyer.
If the purchased items have already been produced, we are entitled, for the period between the confirmed delivery date and the new delivery date, to calculate storage costs specified in point 6 f) of our Terms and Conditions of Payment and Delivery.
Changes requested by the buyer or desired delivery date postponements must be submitted in a text format not later than three weeks before the confirmed delivery date.
d. We enter into our contracts with the buyer exclusively subject to correct and timely self-delivery by our suppliers. This shall only apply if and insofar as the non-delivery cannot be attributed to us, especially if a congruent hedging transaction is concluded with our suppliers. The buyer shall be informed immediately of the non-availability of the performance. Any counter-performance already provided by the buyer shall be recompensed by us.
e. The customary variations in quality and colour are permitted for the goods to be delivered, and shall not justify any material defect, unless the variations contradict a promise or guarantee.
a. Orders for which fixed prices are not explicitly agreed shall be calculated at our list price plus VAT in force on the day of the order confirmation and shall be understood to be ex warehouse excluding packaging and delivery charges.
b. Offer or list prices shall be subject to confirmation until the order is confirmed in writing and shall not include VAT.
c. If in the case of orders with a lead time of more than 4 months or a delay in delivery of more than 4 months not attributable to us the production costs on which the order confirmation was based (material costs, wages, energy costs, charges, etc.), including any cost-specific ancillary expenses, change through no fault of our own by the time of delivery, we shall be entitled to amend our prices accordingly. This shall not apply if the buyer in turn has effectively and unconditionally bound itself contractually to a consumer in view of the object of sale.
4. Terms and Conditions of Payment, delay, right of retention
a. Our invoices are due for payment immediately, on the 10th calendar day after the date of invoice, and are to be paid without delay, at the latest at the time of delivery. The deduction of discounts shall require separate written agreement. If the buyer fails to pay on time, we shall be entitled to demand default interest at the rate calculated by the commercial bank for our overdrafts, but at least 9 percentage points above the applicable basic interest rate.
b. Goods selected and taken from our warehouse shall be paid for immediately in cash, unless otherwise agreed in writing.
c. If goods ordered by the buyer are not in stock and have to be ordered, a deposit in the sum of 25 per cent of the agreed price shall be due when the contract of sale is concluded, and the remaining amount on the 10th calendar day after the date of invoice, and at the latest at the time of delivery.
d. On request, the buyer shall provide an irrevocable, unlimited, absolute bank guarantee in respect of the remaining purchase price, to the exclusion of the benefit of discussion.
e. We shall be entitled to first count payments against earlier debts. If costs and interest have already been incurred, we shall be entitled to count these payments first against the costs, then against the interest and finally against the main performance. If a provision to the contrary applies to the customer at the time of the performance, we can also elect to base our calculations on this provision.
f. A payment shall only be deemed to have been made once we have unrestricted access to the funds. Bills of exchange shall only be accepted for processing and subject to their bankability. Discounting costs and expenses shall be met by the buyer.
g. If the buyer fails to meet its payment obligations, in particular does not honour a cheque, the account does not show sufficient cover in the event of agreed direct debit procedures, stops its payments or if we become aware of other circumstances that call the buyer’s creditworthiness into question, we shall be entitled to demand payment of the entire remaining debt.
h. The retention of payments because of or offsetting with counterclaims by the customer is only permitted if the counterclaims have been established beyond dispute or with the force of law. In addition, rights of retention may only be exercised if they are based on the same contractual relationship.
5. Time of delivery and performance, force majeure
a. Indications of delivery times are only approximate. Binding delivery dates and times must be agreed in writing. The day of dispatch works or ex warehouse shall be deemed to be the day of delivery.
b. In all instances of force majeure, such as storms and natural disasters, and in cases of mobilisation, war, civil unrest, strikes, lockouts, hold-ups, restrictions and shortages of raw materials and supplies and similar events that are beyond our control, the delivery time shall be extended by the duration of the hindrance and a reasonable start-up time once the hindrance has been removed. If it becomes unreasonable for one of the parties to execute the contract due to these events, it may withdraw from the contract. Our customers shall be barred from making claims for compensation.
c. Part-deliveries within the delivery deadline are permitted, unless the customer cannot be expected to accept delivery in parts and at intervals.
d. If after the contract has been concluded it becomes apparent that our payment claim is threatened by the buyer’s lack of ability to pay, we can refuse the performance and allow the buyer a reasonable time in which to pay step by step in return for performance or provide security. If the buyer refuses or if the deadline is not met, we shall be entitled to withdraw from the contract and/or demand compensation.
e. Individual part-deliveries shall be demanded and arranged so that it is possible for us to manufacture and deliver as per the contract.
6. Shipment and transport, transfer of risk, default, compensation
a. Unless agreed otherwise, the buyer shall bear the costs of shipment (packaging and transport).
b. Unless the buyer has explicitly stipulated a particular shipment method, we shall be free to choose the shipment method. Shipment and transport shall be at the risk of the buyer.
c. The risk shall pass to the buyer as soon as the product has been transferred to the person responsible for transport or has left our warehouse by shipment. If shipment is delayed through no fault of our own, the risk shall pass to the buyer on receipt of its notice of readiness to dispatch. Unless explicitly agreed otherwise in writing, the “ex works”/“EXW” clause shall apply (Incoterms 2000). Delivery warehouse is Gelsenkirchen.
d. If for reasons beyond our control the object of sale is taken back, the buyer shall bear the risk until the object arrives at our works.
e. We shall be entitled, for the duration of the default of acceptance on the part of the buyer, to store the deliverables at the risk and expense of the buyer; to this end, we may also avail ourselves of a haulier or stockist. We are, however, under no obligation to take out an insurance policy for the delivery items.
f. During default of acceptance, the buyer shall pay us as compensation for the storage costs incurred per month a flat-rate of 1.0 per cent of the purchase price per month and without further proof; at the most 5% of the overall purchase price, though. If further storage costs are incurred, we shall be entitled to demand these from the buyer against proof. The buyer remains free to prove that the actual storage costs are lower than the lump sum demanded.
g. If upon expiry of a grace period granted to it, the buyer refuses payment of due purchasing price, refuses acceptance of goods or states that it does not wish to accept the goods, we may refuse to complete the contract and demand compensation. We shall be entitled to choose to claim as compensation from the buyer either a flat-rate 25 per cent of the agreed purchase price or compensation of the actual loss incurred. Buyer may prove that actual loss incurred is lower than 25 per cent of the agreed purchase price.
7. Notice of defects and warranty
a. The buyer is obliged to inspect the goods delivered immediately for apparent defects, in particular apparent deficits or damage, and notify us of this in writing immediately, and at the latest within 5 days of receiving the goods. The timely sending of the notice of defect shall suffice for the keeping of the term. In the event of hidden defects the buyer is obliged to notify us of these in writing as soon as they are discovered, but at the latest within the period of limitation given in point 7 i). Notice of defects on the delivered software must be given in writing immediately, at the latest five (5) days after installation and commissioning. The buyer shall bear the burden of proof for all requirements, in particular for the existence of the defect, the time of detection of the defect and for the notice of defects in due time. If the buyer neglects the aforesaid objections, we may not be held liable for defects. The notice of defects must document the defect in question in suitable fashion.
b. The buyer shall not be entitled to make claims due to defects in the object of sale insofar as the defect is caused by a failure to observe provisions concerning handling, maintenance and care of the object of purchase in the operating instructions or by a failure to observe prescribed maintenance intervals or by the installation of parts or accessories, the use of which was not approved by us; or if the object of purchase was otherwise improperly handled.
c. Any claims of the buyer due to defects are also excluded for used goods as well as for goods that are not contained in our product catalogue if the goods were manufactured as custom-made products at the request of the buyer.
d. If we did not manufacture the object of sale, we shall to the exclusion of our obligations to the buyer under the warranty relinquish our warranty claims against our presuppliers to the buyer, provided this does not adversely affect the buyer to an unreasonable extent. In particular, we shall be subordinately liable if and insofar as the presupplier fails to satisfy the claims of the buyer, even when enforced by the courts. We shall reimburse the buyer for any costs that cannot be collected from the presupplier.
e. If the product is defective, we reserve the right to first put the defect right through additional delivery or rework (supplementary performance), as we see fit. In the event of supplementary performance we shall be obliged to meet all expenses required to this end, in particular transport, road, labour and material costs, provided 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 legal provisions, we are obliged to take back the new product or to drop (reduce) the purchase price, even without fixing the time-limit that would otherwise be necessary, if, as consumer of the purchased new chattel (consumer goods purchase), the buyer’s customer was able to demand that the buyer take the product back or drop (reduce) the purchase price because this product is defective or an equivalent resultant cancellation claim is made against the buyer (supplier regress). We are also obliged to reimburse any expenses incurred by the buyer, in particular transport, road, labour and material costs, in the relationship with the end-consumer within the context of subsequent performance on account of a defect of the product that existed at the time the risk passed from us to the buyer. These expenses shall be reimbursed in the form of credit notes for goods. Claims shall be barred if the buyer fails to properly comply with the obligation to examine and obligation to give notice of defects specified in § 377 of the German Code of Commercial Law (Handelsgesetzbuch – HGB).
g. The obligation in point 7 e) shall not apply to defects caused by advertising messages or other contractual agreements that do not stem from us or if the buyer has given a particular guarantee to the end-consumer. The obligation shall also not apply if the buyer itself was not obliged to exercise the rights under the warranty in respect of the end-consumer on the basis of statutory regulations or did not give notice of defect in respect of a claim made against it. This shall also apply if the buyer has accepted warranties in respect of the end-consumer that go beyond the legal measure.
h. If the subsequent performance comes to nothing, is impossible, if it is refused on as a whole by us genuinely and conclusively or if it is unacceptable to the buyer or a time-limit to be set by the buyer for the subsequent performance has expired without result or is superfluous according to the statutory provisions, the buyer shall be entitled to drop (reduce) the purchase price or demand that the contract be rescinded (withdrawal), as it sees fit. By declaring its withdrawal or demanding a reduction, the buyer waives its claim to delivery of a product free of defects. Claims of the buyer to compensation or reimbursement of wasted expenses shall only be allowed within the context of point 8 below, for the rest they are barred. As long as we fulfil our obligations to remedy the defect, the buyer shall not be entitled to demand a reduction in fee or the rescission of the contract, provided the subsequent performance did not fail.
i. In the case of products on which no defect could be found, we shall be entitled to pass on any inspection costs.
j. The limitation period for claims based on a product defect is one year from delivery of the product to the buyer. This shall not apply to the instances referred to in point 9 b), all of which are subject to the statutory period of limitation.
8. Liability, exclusion of supplementary performance and withdrawal, performance period
a. With the exception of the circumstances governed in b) below, liability above and beyond the liability for defects specified in point 7 above for compensation or reimbursement of wasted expenses in the event of breaches of duty without consideration for the legal nature of the claim being made shall be barred. This shall also apply if and insofar as breaches of duty are committed by our legal representatives or agents.
b. The exclusion of liability in the above paragraph shall not apply to claims by the buyer based on product liability law, in cases of damage to life, body or health attributable to us, in cases of grossly negligent or wilful breaches of duty, in the event that a major contractual obligation is infringed and if a guarantee was given or a party acted maliciously. In such cases, we are liable under the statutory provisions. If, however, a major contractual obligation is infringed due to simple carelessness, our liability shall be limited to compensating the typical, foreseeable loss.
c. The buyer can only withdraw because of a breach of duty not based on a product defect if the circumstance justifying the withdrawal is based on a fault attributable to us and the breach of duty is so significant that the buyer cannot be expected to adhere to the contract.
d. If a time-limit set by the buyer for performance has elapsed without result and it fails to comply with our subsequent request within a reasonable further time-limit set by us to explain why it is standing by its claim for performance or is demanding compensation instead of performance, the claim for performance shall be barred upon expiry of the reasonable time-limit associated with this request.
a. All claims and rights of the buyer on any legal grounds whatsoever shall be limited to one year, unless our liability is based on deliberate action.
b. In derogation from the above principle, the statutory period of limitations shall apply in the following cases:
- To claims for defects, insofar as we have fraudulently concealed the defect or have accepted a guarantee in respect of quality,
- To claims under a right of recourse by the buyer in the context of a delivery chain in accordance with § 478 of the German Civil Code (Bürgerliches Gesetzbuch – BGB),
- To compensation claims or claims for the reimbursement of wasted expenses arising out of damage to life, body or health,
- To claims under product liability law.
10. Retention of title
a. The delivered product shall remain our property until all outstanding bills arising out of the business relationship between us and the buyer have been settled in full. The suspension of individual outstanding bills in a current account and the striking of balances and the recognition thereof shall not affect the retention of title. In the event of a delay in payment on the part of the buyer we shall be entitled, having set a further time-limit to no effect, to take back the product and sell it at the buyer’s expense.
b. The buyer is entitled to resell the conditional product in the ordinary course of business. It is not permitted to pledge the conditional product or assign it as security. In the event of a resale of the conditional product on credit, the buyer is obliged to agree a retention of title for its part.
c. The buyer is obliged to handle the conditional product with care, and is in particular obliged to see to it that the product is identified and stored properly.
d. If the buyer assigns its claim arising out of the resale of the conditional product to us at this point, we shall accept this assignment. If the conditional buyer includes the claim in an existing current account relationship with its customer, it shall assign to us both the acknowledged balance and the causal balance up to the amount of the original current account claim. Regardless of the assignment and out right of collection, the buyer is entitled to collection as long as it duly meets its obligations towards us and is not at risk of financial collapse.
e. If the conditional product is resold together with other goods, irrespective of whether without or after being processed or combined, the above-agreed advance assignment shall only apply in the sum of the invoice value of the conditional product that is sold together with the other goods. If the buyer is in default in respect of its payment obligations, it shall on request provide the information about the assigned claims required for collection and notify the debtors of the assignment.
f. Insofar as the buyer undertakes refinancing on a factoring basis, it shall relinquish the claims to which it is entitled from this action against the factor in the sum of its outstanding balance arising out of the business relationship with us.
g. The buyer must notify us immediately of third-party compulsory enforcement measures in respect of the conditional product or the outstanding bills relinquished beforehand, handing over any documents required for an intervention. Any costs of justifiable interventions shall be met by the buyer, insofar as these cannot be obtained from third parties.
h. We undertake to release the securities due to us in accordance with the above provisions at the request of the buyer as we see fit insofar as their realisable value exceeds the outstanding bills being secured by 10.0% or more. The conditional buyer shall have a claim to release if the estimated value of the goods assigned as security is 150% of the outstanding bills being secured.
11. Final provisions
a. Place of performance for all claims arising out of the contractual relationship shall be Gelsenkirchen.
b. Legal domicile for all legal disputes arising out of the contractual relationship and pertaining to its origin and validity shall be Munich or the general legal domicile of the buyer, as we see fit. Statutory regulations relating to exclusive jurisdictions shall continue to apply. All disputes that arise out of or in connection with the present contract shall be ruled on conclusively and bindingly by the German national courts.
c. The contractual relationship shall be governed solely 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. Additional agreements to this agreement may not be made. Just like amendments to this provision, amendments or additions must be made in writing to be legally valid.
12. Note on data protection
We would like to point out that personal data of our contracting partners is processed and passed on solely for the purpose of implementing the contractual relationship by means of electronic data processing in accordance with the provisions of the German Data Protection Act (BDSG), the 2016/679 Regulation (EU) of the European Parliament and of the Council (General Data Protection Regulation, GDPR) and the Telemedia Act (TMG). The Data Protection Declaration can be found on our Web site at the URL https://www.gym80.de/de/datenschutz.
In this connection, specific data (name, address, billing information and late payments of the buyer) may be sent to credit reference agencies.
gym80 International GmbH as at: 06/2018