General Terms and Conditions of
GAMO Fahrzeugwerke GmbH
(1) These General Terms and Conditions (GTC) of GAMO Fahrzeugwerke GmbH (GAMO) shall apply to all business transactions concerning the supply, and those services related to the supply, of goods to the customer by GAMO insofar as the customer is not residing in Germany.
(2) The scope of these GTC shall be limited to contracts with business entities.
(3) Any inclusion of conflicting or varying conditions of the customer in terms of these GTC is hereby objected to. Such conflicting conditions or conditions at variation hereto shall not apply even if we have knowledge of such or do not expressly object to such GTC of the customer when any delivery is made to the customer.
(4) These GTC shall also apply to any future business transactions between GAMO and the customer.
2. RIGHTS TO DOCUMENTATION
(1) All offers, quotations and other documentation shall remain our property and shall not be made available to any third party without prior written approval (Article 13 CISG).
(2) All (copyright) rights to any samples, equipment, tools, drawings, quotations, drafts and plans in particular patent rights, copyright, and inventor rights shall belong exclusively to us. Such shall not be made available to any third party unless we have expressly agreed to such (Article 13 CISG).
(3) In the provision of any of the above objects or documentation there shall be no transfer of rights nor shall there be any granting of such (licence of use).
3. ADDITIONAL DUTIES OF CUSTOMER
(1) The customer shall notify us without undue delay of all binding legal provisions which apply at its seat or the place of destination of the goods and of which it becomes aware insofar as such binding legal provisions could interfere with the provisions of this contract or the performance thereof.
(2) The customer shall provide us with extensive support to the extent that we are to undertake measures in terms of the performance of the contract in the country in which the customer has its seat or the country of the place of destination known to the customer.
4. CONTRACT FORMATION
(1) Our offers are generally non-binding. This shall also apply even if we provide, at the request of the customer, and in particular for the purposes of satisfying legal requirements, an advance invoice (pro forma invoice) or any comparable declarations.
(2) The contract shall first be formed only with our written order confirmation (Article 13 CISG).
(3) Any offer of the customer shall be irrevocable for a period of two weeks from the time of receipt by GAMO. This shall not apply if the customer has reserved the right of revocation expressly in writing (Article 13 CISG).
5. CONTENT OF CONTRACT
(1) The contractual performance shall be determined in accordance with the order confirmation and, as necessary, the customary purpose for such goods of the same nature. Any particular purpose intended by the Customer is only applicable if such is expressly made known to us before the concluding of the contract in writing (§ 126 BGB).
(2) The subject matter of the contract shall be satisfied in accordance with the contract insofar as it meets the legal requirements and in particular the official, public or official requirements at our seat. We shall be liable for any compliance with outline requirements at the seat of the customer or in the place of destination of the country known to the customer or in a third country only if we have issued an express written agreement to such (§ 126 BGB) and the customer has satisfied its duty to provide support in relation to existing requirements in particular in accordance with III. Generally, it shall be the duty of the customer to obtain any necessary permits.
(3) Technical specifications for our products such as those related to weight, measurements, performance and quality as well as any pictures, drawings and other documentation do not constitute a guarantee of quality. Specific qualities shall only be deemed to be guaranteed insofar as a separate written agreement (guarantee of quality) is entered into. In terms of writing, for the declaration of guarantee §126 BGB shall apply.
(4) Documentation shall be provided in the German or English language. Any agreement as to a duty of GAMO to provide documentation in any other language must be made in writing (§ 126 BGB).
(5) Any supplementary changes or additions to the performance obligations of GAMO are permissible only insofar as such are customary or technically necessary and are not an unreasonable burden for the customer.
6. DELIVERY DEADLINE; FORCE MAJEURE; PART DELIVERY; NON-COMPLIANCE WITH DELIVERY DEADLINE
(1) Subject to any provision at variation hereto, in any individual case delivery deadlines shall be approximate targets. GAMO shall give notice of the actual time of delivery with a reasonable period of advanced notice, generally two weeks, in writing (Article 13 CISG). The actual time of delivery shall not, subject to sections 2, 3, 5 and 6, be more than two weeks after the previously-notified approximate delivery deadline target.
(2) The commencement of a delivery deadline shall begin only after the clarification of all technical issues. The delivery deadline shall not commence before the customer has satisfied its duty to supply support in this regard.
(3) Any agreed delivery deadline shall commence in case of any agreement as to prior support by the customer such as, for example, the provision of a down-payment or proof of financing, not before the customer has satisfied the respective duty to perform.
(4) GAMO shall be entitled to the defence of non-performance of the contract.
(5) Any agreed delivery deadline shall be subject to the condition of complete and timely delivery by our contractual partners (self-delivery reservation).
(6) Any delivery deadline shall be extended by a reasonable period in case of force majeure, in particular events such as but not limited to flooding, natural catastrophes, shortage of raw materials, terrorist attacks, strikes. GAMO shall notify the customer without undue delay as to the occurrence of any force majeure event as well as the probable time that such event will end. In case the force majeure event continues for a consecutive period of more than six weeks or if the delivery date is delayed by a period of more than eight weeks as a result of a force majeure event, the customer is entitled to cancel the contract (Aufhebung). In case of any force majeure event any further rights to claim are excluded.
(7) We are entitled to provide part deliveries insofar as such is not unreasonable for the customer.
(8) Any claims for damages as a result of non-compliance with delivery deadlines shall be in accordance with XII.
7. TRANSFER OF RISK
(1) The risk of accidental destruction shall transfer upon delivery to the customer, its carrier or any third party nominated by it (cf. Incoterms 2010 FCA GAMO, Ravensburg; Germany).
(2) If the customer does not take delivery of the goods which have been declared ready for delivery at the time of delivery (VI, section 1 sentence 2), the risks in relation thereto for any accidental loss or destruction are transferred to the customer at the time of delivery.
8. DELAY IN TAKING DELIVERY; DELAY DAMAGES
(1) If the customer does not take delivery of the goods in good time (VII.) or if it is in any other way in delay in the taking of delivery, the customer shall pay GAMO for each commenced week an amount of 0.5% of the contract value or the value of the part delivery but not exceeding a maximum of 5% of the contract value or the value of the part delivery.
(2) The customer has the right to prove that the actual damage is lower and GAMO has the right to prove that the actual amount of damage is greater.
9. PRICES; PAYMENT CONDITIONS
(1) All prices are net prices and subject to the applicable turnover tax in each case.
(2) Unless agreed otherwise, payments are made in EUR. If any agreement to pay in EUR is not permissible, payment is to be made in the customary currency at the seat of the customer. In such case payment shall be to the amount corresponding to the invoice value in EUR at the due date for payment or part payment. If payment is not possible in either of the above named currencies, payment may be made in the currency of a third country. Sentence 3 as well as section 6, sentence 2 shall apply accordingly.
(3) Any other costs incurred including those for the processing of payment, transport, import and export, customs, duties, fees etc. shall be borne by the customer.
(4) Subject to any specific agreement to the contrary in each case all prices are Free Carrier (FCA Incoterms 2010) GAMO, Ravensburg, Germany.
(5) Any deduction for prompt payment shall require a separate agreement in each case.
(6) Payment is to be made to the seat of GAMO in Ravensburg, Germany. Costs and risks in relation to payment shall be borne by the purchaser.
(7) Subject to any written agreement to the contrary (Article 13 CISG), in any individual case, the following payment conditions shall apply:
a. a down-payment of 10% upon the concluding of the contract
b. part payment of 50% within one week of notification of the date of delivery (VI section 2, sentence 2);
c. final payment to the final amount of 40% upon the transfer of risk.
(8) If more than fourteen weeks separate the date of the concluding of the contract and the transfer of risk and provided that we have not intentionally caused the period to be exceeded, we are entitled to increase any price in accordance with our increased production costs particularly on the basis of any increase in raw material prices.
10. CLAIMS FOR DEFECTS
(1) The customer shall examine any performance for defects within one week of the transfer of risk. This shall not apply insofar as the actual transfer of risk is before the agreed delivery date (delivery time in accordance with VI section 1, sentence 2). In such case the deadline for examination shall commence with the agreed delivery date (delivery time in accordance with VI section 1, sentence 2).
(2) The customer shall notify us within a further week in relation to any defect detected during the examination (section 1, sentence 1).
(3) Furthermore, the customer shall notify us of any defect which was not capable of being detected during the examination (section 1, sentence 1) within one week of the date of actual discovery of such.
(4) Any notice of defect must be in writing (Article 13 CISG). The notice of defect shall provide details on the basis of which the likely cause as well as the effects can be determined. Upon request, suitable documentation, in particular photographs are to be made available.
(5) In the event that the customer does not fulfil its obligations to examine and to provide notice of defect, the performance shall be deemed to have been approved and any warranty claims as well as any right to claim for damages shall be excluded. This shall not apply insofar as we have been concealed such defect or such exclusion would not be compatible with the provisions of a guarantee (V section 3).
(6) The customer shall bear any related costs of GAMO in connection with an unjustified notice of defect.
(7) The deadline for sections 1 to 3 shall commence, insofar as any documentation is due from GAMO, from the time that the customer receives such documentation.
(8) If between the delivery and the notification of any defect a period of two years passes, the Customer shall have not be entitled to make any claims based on defect.
11. RIGHTS OF THE PURCHASER IN CASE OF BREACH OF ANY OBLIGATION OF THE SELLER (WARRANTY CLAIMS); EXPIRY OF ANY RIGHTS TO CLAIM; RELATIONSHIP TO DAMAGES
(1) In case of any incorrect performance by GAMO, i.e. the non-conformity of the actual performance with the performance owed under the contract (defective performance), the rights of the customer shall be determined in accordance with the following provisions.
(2) Initially the customer is only entitled to require GAMO to rectify any defect within a reasonable period. The selection of the method of rectification by way of repair or replacement delivery, by which GAMO is to correct the defective performance, shall be determined by GAMO. For the purpose of rectifying any defect the customer shall allow GAMO or, any third party nominated by GAMO, access to the goods and provide support for any measures which become necessary or are required. The costs of defect rectification shall be borne by GAMO except for those extra costs related to the additional transport of the goods to or from a place other than the original place of destination.
(3) If GAMO does not provide the rectification of the defect within a reasonable period or if the work undertaken by GAMO in the selected form does not result in a rectification of the defect, the customer is entitled to reduce the purchase price.
(4) The customer is entitled to cancel (Aufhebung) the contract only
a. if there is a material breach (wesentliche Vertragsverletzung) and
b. if the rectification of the defect does not take place within a reasonable deadline or such is unsuccessful in terms of correcting the defect.
Lit. b is not required to be fulfilled for the cancellation (Aufhebung) of the contract if the defect rectification is unreasonable or will apparently not be successful for the customer on the basis of the circumstances of the individual case
(5) The customer is entitled to cancel the contract only if GAMO does not comply with the delivery deadline despite a further reasonable deadline being set (and generally such further deadline should not be less than two weeks) and after the expiry of such further deadline the performance is still not provided. In relation to such further deadline VI section 6, sentence 1 shall apply accordingly.
(6) The customer shall make any claims under section 2-5 within a reasonable period. It shall request GAMO to undertake the measures in writing (Article 13 CISG).
(7) If the non-performance or inadequate performance relates only to part of a delivery, the rights under sections 2 and 3 shall only relate to that part affected by the non-performance or inadequate performance. Any cancellation of the entire contract (sections 4 and 5) may be declared in such case only if an incomplete delivery or a part-only delivery in accordance with the contract constitutes a material breach of the contract (wesentliche Vertragsverletzung).
(8) Warranty claims – with the exception of claims for damages – shall expire within twelve months from the time of the transfer of risk. This shall not apply to any fraudulently concealed defects as well as any hidden defects (X. section 3).
(9) The customer may demand a cancellation of the contract or substitute delivery only if the received performance can be substantially returned in the condition in which it was received.
(10) Any of the above claims for inadequate performance which result from incorrect use or operation by the customer or the non-observation of the guidelines for use are hereby excluded.
(11) In relation to any claims for damages as a result of defects, section 4. b. as well as section 4, sentence 2 shall apply correspondingly. In addition XII shall apply.
(1) GAMO shall be liable in accordance with the provisions of law in case of any breach of any obligation for which it is at fault in relation to all damage arising from injury to life, bodily injury or injury to health.
(2) GAMO shall be liable in accordance with the provisions of the applicable product liability laws.
(3) In case of any agreement as to a contractual guarantee (V. section 3), GAMO shall be liable in accordance with the guarantee declaration.
(4) GAMO shall be liable for any wilful breach of a duty or any breach of a duty involving gross negligence.
(5) Liability under section 4 shall, in the case of breach of any duty involving gross negligence be limited to three times the respective contract value. If three times the respective contract value is less than EUR 25,000, GAMO shall in case of any actual damage be liable accordingly to an amount of EUR 25,000.
(6) Liability for any other breaches of duty or any damage where the party is not at fault is hereby excluded.
13. SET-OFF; RIGHT OF RETENTION
(1) Any right of set-off by the customer shall be permitted only in relation to undisputed claims or any claims which have been confirmed by a final court judgment.
(2) In relation to any right of retention, section 1 shall apply accordingly.
14. RETENTION OF TITLE
(1) Until such time as all claims arising out of our commercial relationship have been settled in full, we shall retain title to any goods delivered (goods subject to retention of title).
(2) The customer shall insure goods subject to retention of title at its own expense and adequately in relation to any loss, damage or destruction by fire, water or theft.
15. APPLICABLE LAW
This contract as well as its formation shall be subject to the Convention of the United Nations concerning Contracts for the International Sale of Goods dated 11 April 1980 (CISG). In addition the law of the Federal Republic of Germany shall apply.
(2) Section 1, sentence 2 shall apply accordingly for any non-contractual claims.
16. ARBITRATION, IMPRACTICABILITY OD ARBITRATION PROCEEDINGS
(1) Any disputes arising in connection with this contract or its validity shall be finally settled in accordance with the arbitration rules of the German Institute of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V.- DIS) to the exclusion of the ordinary courts of law.
(2) The place of the arbitration proceedings shall be Stuttgart, Germany.
(3) The number of arbitrators shall be three.
(4) The language of the arbitration proceedings shall be German.
(5) The applicable material law shall be that determined under XV.
(6) If the arbitration proceedings are impracticable, the Parties agree that the responsible court at the seat of GAMO in terms of the contract confirmation shall have exclusive jurisdiction. GAMO shall in such case also be entitled to commence legal proceedings against the customer at the customer’s court of general jurisdiction.
(1) The language of the contract shall be German. All declarations must be provided in the contract language in order to be effective.
(2) The customer shall not assign in whole or in part to any third party any rights or duties arising out of this agreement without our prior written (Article 13 CISG) approval.
Any and all changes or supplements to these GTC as well as any waiver as to the application must be in writing in accordance with §126 BGB. This shall also apply in relation to any possible waiver of this requirement of writing.
(1) In the event that one or more versions of these GTC being in part or in whole ineffective, this shall not affect the effectiveness of the other provisions or the contract as a whole.
(2) The Parties undertake to mutually agree on an effective provision to replace the ineffective provision which most closely reflects the original commercial purpose of the ineffective provision.
(3) Sections 1 and 2 shall apply correspondingly in case of any omission.