General Terms and Conditions (convenience translation – the german version is authoritative)
GEJOS Kanal TV GmbH/GEJOS Service GmbH, Am Dörrenhof 11a, 85131 Pollenfeld, Germany
(Last updated: January 2021)
Art. 1 Scope
1.1 These General Terms and Conditions shall apply to all business transactions between GEJOS and the contracting party in their currently valid version.
1.2 Contracting parties are exclusively entrepreneurs (Unternehmer) as defined by § 14 of the German Civil Code (BGB).
1.3 These General Terms and Conditions shall apply exclusively. GEJOS shall not recognise any terms and conditions of the contracting party which conflict with or deviate from these terms and conditions, unless GEJOS has expressly agreed to them in writing in advance. These General Terms and Conditions shall also apply if GEJOS executes the contract without reservation in the knowledge of conflicting or deviating terms and conditions of the contracting party.
1.4 These General Terms and Conditions shall also apply – notwithstanding 1.1 – to all future transactions within the context of ongoing business relations.
1.5 Amendments and subsidiary agreements must be made in writing.
Art. 2 Offers/order confirmation/contract conclusion
2.1 All offers made by GEJOS are non-binding and subject to change. The mere presentation of goods and services in marketing brochures, a website or in the company’s offices do not constitute offers.
2.2 Orders placed by contracting parties shall be binding for a period of four (4) weeks from the day the order is placed.
2.3 Conclusion of the contract shall be effected exclusively by sending the goods ordered or a confirmation of the order.
Art. 3 Delivery/transfer of risk/default of acceptance
3.1 All offers made by GEJOS are non-binding and subject to change. The mere presentation of goods and services in marketing brochures, a website or in the company’s offices do not constitute offers.
3.2 If necessary, GEJOS shall be entitled to deliver the goods ordered not as a single consignment but in partial consignments.
3.3 The stated delivery times and delivery dates refer to the dispatch of the goods ex works, unless otherwise agreed on a case by case basis.
3.4 The contracting party is not entitled to refuse acceptance of the delivery due to insignificant defects.
3.5 The risk of accidental deterioration or loss shall pass to the contracting party upon handover or delivery of the goods to the forwarding agent.
3.6 If the delivery is delayed for reasons that the contracting party is responsible for or if the contracting party is in default of acceptance in any other way, the risk shall pass to the contracting party in accordance with 3.3.
3.7 If the contracting party is in default of acceptance, GEJOS shall place the goods in temporary storage at a cost of 15.00 euros per week. GEJOS reserves the right to assert further claims, such as charges for additional costs on the part of the forwarding agent.
Art. 4 Price/payment
4.1 The prices quoted by GEJOS are net prices ex works plus the applicable value added tax.
4.2 Packaging, shipping costs and other ancillary costs shall be invoiced separately. GEJOS reserves the right to charge the customer for any non-standard shipping costs (Saturday delivery, forwarding delivery, advice, express, etc.) separately at a later date.
4.3 The contracting party shall be charged separately for subsequent requests for changes and cancellations as well as for returns.
4.4 Partial deliveries may be invoiced by GEJOS after handover or delivery.
4.5 Unless otherwise agreed, all payments shall be made in full immediately.
4.6 GEJOS shall be entitled to insist on an advance payment of either 50 % or 100 % from the contracting party.
4.7 If the contracting party is in default of payment, GEJOS shall be entitled to demand immediate payment of any outstanding claims against the contracting party that are not yet due. The contracting party shall be notified of the due date in writing.
4.8 The contracting party may only offset claims that are undisputed or have been legally established. The contracting party is only entitled to exercise a right of retention if its counterclaim is based on the same contractual relationship.
4.9 If the contracting party is in default of payment, GEJOS shall also be entitled to charge default interest in accordance with Art. 288 of the BGB in the amount of 8% above the base interest rate in accordance with Art. 247 of the BGB.
Art. 5 Performance dates/delivery date
5.1 Delivery periods and delivery dates shall only be approximate unless expressly specified as binding by GEJOS in writing. The performance period shall commence with the dispatch of the order confirmation, but not before all technical and commercial details have been finalised. If an advance payment, bank guarantee or letter of credit has been agreed, the performance period shall commence upon receipt of the payment or the relevant documents. Any changes to the performance of the subject matter of the contract requested by the contracting party during the performance period shall extend the performance period accordingly.
5.2 Adherence to delivery periods and delivery dates is subject to correct and timely delivery to GEJOS.
5.3 The delivery periods and delivery dates shall be deemed to have been complied with if the deliverables have left the GEJOS factory or notification of readiness for dispatch has been received by the delivery date.
5.4 Partial performance and partial deliveries are permissible.
5.5 If shipping is delayed for reasons for which the contracting party is responsible, the contracting party shall compensate GEJOS for the costs incurred as a result of the delay, starting one month after notification that the goods are ready for shipment.
5.6 If the failure to adhere to the delivery date is the result of force majeure, industrial disputes or other events beyond the control of GEJOS, the delivery date shall be extended accordingly. GEJOS shall inform the contracting party of the beginning and end of such circumstances as soon as possible.
5.7 The contracting party shall be entitled to withdraw from the contract without setting a deadline if the entire performance becomes impossible for GEJOS before the transfer of risk. The contracting party may also withdraw from the contract if the execution of a part of the delivery of an order becomes impossible and the contracting party has a justified interest in refusing a partial delivery. If this is not the case, the contracting party shall pay the contractual price apportionable to the partial delivery.
Art. 6 Defects/warranty
6.1 Material defects
6.1.1 The contracting party shall immediately inspect the purchased goods for quality defects and quantity discrepancies. The contracting party shall notify us in writing of any material defects within seven (7) days of their discovery.
6.1.2 In the event of a defect in the purchased item, GEJOS shall, at its own discretion, rectify the defect or provide a replacement.
6.1.3 If the subsequent performance fails, the contracting party may, at its own discretion, demand a reduction of the purchase price or withdraw from the contract (rescission). Claims for damages are subject to Art. 6.
6.1.4 Claims for material defects are subject to a limitation period of 12 months from the date of the transfer of risk, unless a longer period is prescribed by law, namely for Art. 438 para. 1 No. 2 BGB (Buildings and Material for Buildings) and Art. 634a para. 1 No. 2 BGB (Construction Defects), nor in the case of injury to life, limb or health, nor in cases of intent and gross negligence. The statutory provisions on the stoppage and recommencement of the limitation period shall remain unaffected.
6.1.5 Claims for material defects shall not exist in the event of insignificant deviations from the agreed quality, in the event of non-reproducible software errors or in the event of natural wear and tear. In addition, such claims shall not exist in the event of damage caused by improper or negligent handling or storage, excessive stress, use of unsuitable operating materials, faulty on-site conditions or technical information provided by the contracting party. The same shall apply to damage caused by external influence. There shall be no warranty claims for improper servicing, maintenance and repairs or for modifications made by the contracting party or a third party and the resulting consequences.
6.1.6 Unless otherwise agreed, GEJOS shall not be liable for material defects of second-hand goods.
6.1.7 The contracting party shall not be entitled to any warranty claims due to material defects apart from the claims mentioned under 5.1. All further or deviating claims are expressly precluded.
6.2 Defects of title
6.2.1 No claims against GEJOS shall be asserted based on the fact that a delivery outside the Federal Republic of Germany does not comply with the relevant regulations applicable in the importing country or that it not exempt from approval or customs duties.
6.2.2 In the event of other defects of title, 5.1 shall apply accordingly. This also includes the exclusion of warranty pursuant to 5.1.7.
Art. 7 Compensation for damages
7.1 In principle, GEJOS shall be liable in accordance with the statutory provisions insofar as the contracting party asserts claims for damages which are based on intent or gross negligence, including intent or gross negligence on the part of our representatives or their vicarious agents. Insofar as there is no allegation of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
7.2 GEJOS shall be liable in accordance with the statutory provisions provisions if an essential contractual obligation is culpably breached, in which case the liability for damages shall be limited to the foreseeable damage typically occurring, insofar as GEJOS is not liable for intent.
7.3 Liability for loss of or damage to data for which GEJOS is responsible shall be limited to the cost of restoring the data from backup copies.
7.4 Liability for culpable injury to life, limb or health shall remain unaffected. This shall also apply to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
7.5 Unless otherwise stipulated above, liability is excluded. This shall also apply to indirect damage, consequential damage and loss of profit, insofar as GEJOS is not liable for intent.
Art. 8 Withdrawal and termination
8.1 If a contract for the production or processing of goods is terminated by the contracting party before completion without good cause, GEJOS may demand the agreed price. Any expenses saved, as well as income earned by deploying capacity elsewhere or income lost maliciously, shall be deducted from this. GEJOS shall be entitled to demand a flat rate of 20% of the agreed price for this purpose instead of an itemised calculation, insofar as the contracting party fails to provide evidence of lesser damages.
8.2 Furthermore, GEJOS shall be entitled to withdraw from the contract:
8.2.1 If GEJOS itself has not received proper delivery and is not responsible for this.
8.2.2 If GEJOS becomes aware of circumstances which call the creditworthiness of the contracting party into question.
8.2.3 If the contracting party acts in breach of the contract, in particular in the event of late payment. In this case, it shall not be necessary to set a grace period or to observe the provisions on payment in instalments.
8.2.4 In the event of a breach of any other obligation following an unsuccessful warning, if we can no longer reasonably be expected to comply with the contract. No prior warning shall be required in the case of particularly serious violations.
8.3 Withdrawals and notices of termination must always be in writing.
8.4 The statutory regulations on the consequences of withdrawal remain unaffected.
Art. 9 Retention of title
9.1 At the time of sale, GEJOS shall retain title to the goods until the price has been paid in full in accordance with Art. 4. Furthermore, GEJOS shall retain title to the goods until all claims arising from the ongoing business relationship with the contracting partner have been settled in full.
9.2 If the realisable value of the goods subject to retention of title exceeds the claims to be secured from the current business relationship, not only temporarily, by 10 %, GEJOS shall be obliged to release the goods subject to retention of title at the request of the contracting party. GEJOS shall be responsible for selecting the securities to be released. In doing so, GEJOS shall take the legitimate concerns of the contracting party into account.
9.3 The contracting party is obliged to treat the goods delivered with care for the duration of the retention of title. They shall be obliged to protect the goods from damage and overuse in every way, to only allow the goods to be used by trained personnel and to ensure proper use in accordance with the operating instructions, and shall be liable for any damage or loss incurred.
9.4 Any damage incurred during this period must be reported in writing without delay. If maintenance, servicing and updating is required, the contracting party must order this separately from GEJOS or from another designated service centre named in advance. The contracting party may not carry out any maintenance, servicing or repair work themselves.
9.5 The contracting party shall inform GEJOS in writing without delay if the goods subject to retention of title are destroyed or damaged, accessed by third parties (e.g. by way of execution), if the goods become subject to a change of ownership or if they are moved to a different location. The contracting party shall compensate GEJOS for all damages and costs arising from a breach of these obligations and from necessary intervention measures against access to the goods by third parties.
9.6 The contracting party shall be entitled to resell the purchased goods in the ordinary course of business. Otherwise, the contracting party shall not be entitled to dispose of the goods until the transfer of ownership has taken place. The contracting party hereby assigns to GEJOS all claims up to the amount of the invoice which accrue to it against a third party as a result of the resale or re-leasing of the goods. GEJOS accepts the assignment. After such assignment, the contracting party shall be entitled to collect the claim until it has been disclosed. GEJOS reserves the right to collect the claim itself as soon as the contracting party fails to duly meet its payment obligations and defaults on payment. If GEJOS exercises its right to collect the assigned claims, GEJOS may demand the disclosure of the debtors of the contracting party and all information as well as the surrender of all documents required for assertion of the claim.
9.7 Treatment, processing and modification of the goods subject to retention of title shall in all cases be carried out on behalf of GEJOS.
Art. 10 Disposal obligation
The contracting party shall assume the legal obligation to dispose of the goods purchased properly at their own expense after they have ceased to be used in accordance with the statutory provisions.
Art. 11 Repair orders
11.1 Repair orders shall only be carried out at the GEJOS premises or by GEJOS-authorised service centres. GEJOS shall invoice the repair costs to the contracting party separately, with the exception of warranty claims.
11.2 GEJOS shall be granted a lien on objects which enter the possession of GEJOS for the purpose of repair work in order to secure the claims arising from the repair order. The lien shall also extend to the securing of outstanding claims from previous business transactions. 9.2 shall apply mutatis mutandis regarding release of the goods.
11.3 The contracting party shall be obliged to back up the data stored on the devices, such as photos and videos, before ordering the repair. Under certain circumstances, data stored on the device may be deleted by GEJOS in the course of the repair work (in particular in the case of software updates).
Art. 12 Privacy/confidentiality
12.1 All data collected by the contracting party shall be treated confidentially. GEJOS shall only store the contracting party’s data within the course of processing the order and pass this data on to affiliated companies, couriers, etc. within the context of fulfilling the contract, or to banks for invoicing purposes.
12.2 All documents or items used for demonstration purposes which GEJOS provides to the contracting party for the purpose of submitting a quotation, fulfilling an order or for any other reason shall remain the property of GEJOS and may not be disclosed to third parties without the express consent of GEJOS. If confidentiality is not ensured, GEJOS shall be entitled to reclaim the documents and objects. The contracting party shall comply with this immediately.
Art. 13 Non-assignment clause
The contracting party shall not be entitled to assign its claims against GEJOS arising from this contract. The validity of an assignment pursuant to Art. 354a of the German Commercial Code (HGB) shall remain unaffected.
Art. 14 Legal venue/place of performance/applicable law
14.1 The place of performance and the exclusive place of jurisdiction shall be Pollenfeld, Germany.
14.2 The law of the Federal Republic of Germany shall apply exclusively, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).
Art. 15 Severability clause
Should any provisions of the contract with the contracting party, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.