General Terms of Sale and Delivery of gwk Gesellschaft Wärme Kältetechnik mbH
Sec. 1 General
1.) Deliveries, services and offers of the Seller are
made exclusively on the basis of the present Terms of Sale. They apply
to all future business transactions also if not explicitly agreed
subsequently. The present Terms are considered accepted latest on
receipt of the goods or service. By way of precaution, reconfirmations
of the Buyer citing his own terms of purchase or sale are hereby denied.
2.) Discrepancies from the present Terms of Sale are valid only when confirmed by the Seller in writing.
Sec. 2 Offer and Contract Conclusion
Offers of the Seller are subject to confirmation and not binding. First
offers are made as a rule free of charge. Acceptance declarations and
orders must be confirmed by the Seller in writing to be legally
effective. This also applies to supplements, amendments or subsidiary
2.) Drawings, illustrations, measurements, weights or
other specifications are binding only when explicitly agreed in writing.
The Seller reserves the right of ownership and copyright to all
documentation supplied by him. These may be passed on to a third party
only with his consent.
Sec. 3 Prices
1.) If not agreed
otherwise, the Seller is bound to the prices quoted in his offers for 30
days from date of offer. Only the prices quoted by the Seller in the
order confirmation plus currently applicable value-added tax are
relevant. Supplementary deliveries and services are billed separately.
2.) Prices are exclusive of freight and packing unless agreed otherwise.
Sec. 4 Delivery and Performance Dates/Scope of Supply
The delivery dates and periods quoted by the Seller to merchants are
not binding except when explicitly agreed otherwise in writing. Shipping
dates are quoted subject to receipt of records and permits to be
supplied by the Buyer as well as compliance with agreed payment terms.
The Seller is not responsible for late shipments resulting from force
majeure or events which render the shipment substantially more difficult
or infeasible for the Seller even if delivery dates and periods have
been bindingly agreed. They entitle the Seller to postpone the delivery
or service by the duration of the obstruction plus an adequate lead time
or withdraw from the contract in whole or in part with respect to the
undelivered portion. If the obstruction lasts longer than three months,
the Buyer is entitled after setting an adequate grace period to withdraw
from the contract with respect to unperformed portions thereof. The
Seller is at all times entitled to make partial shipments or provide
3.) The delivery is considered made on time if the
product was shipped or collected by the agreed date. If the shipment is
delayed for reasons attributable to the Buyer, the delivery date is
considered met with the notification of shipping readiness by the due
date. In case of postponed acceptance of the goods, that is announced at
short notice, we will store the ordered goods free of charge for a
period up to 30 days after the originally confirmed delivery date. After
that we are authorized to invoice the value of the goods and to insist
on the corresponding payment. In addition, we reserve the right to
invoice a default interest of 1 % of the total order sum per month or
4.) The scope of delivery is subject to our written order confirmation.
5.) The collection of all building code or other permits for the erection site is the exclusive responsibility of the Buyer.
Sec. 5 Transfer of Risk
The risk passes to the Buyer as soon as the shipment has been handed
over to the forwarder or has left the warehouse of the Seller. If the
shipment is rendered infeasible without fault of the Seller, the risk
passes to the Buyer with the notification of shipping readiness.
2.) If the shipment is delayed by fault of the Buyer, the risk passes to the Buyer with the notification of shipping readiness.
If loading or shipping of the goods is delayed for reasons attributable
to the Buyer, the Seller is entitled to store the goods at his
discretion for account and risk of the Buyer, to take all measures
deemed expedient for preserving the goods and to invoice the goods as
having been delivered. The same applies if goods notified ready for
shipment are not called off within four working days. Legal provisions
on late acceptance remain unaffected.
4.) Shipment must be accepted by the Buyer also if affected by minor defects.
Sec. 6 Acceptance
Acceptance tests are performed only when explicitly agreed in the
contract. The resulting costs must be borne by the Buyer. In all other
cases, the delivered products is considered accepted after it has been
put into use for four weeks without giving rise to a justified and
substantial claim in writing. Minor claims do not entitle to postpone or
Sec. 7 Warranty
1.) The Seller supplies a
warranty for the delivered goods in line with the following provisions
which contain definite warranty clauses without constituting a warranty
in the legal sense. With commercial goods, possible warranties of the
manufacturer remain unaffected by these Clauses.
2.) If the product
is defective or lacks assured major properties or becomes defective
during the warranty period due to manufacturing or material flaws, the
Seller will supply at his option and excluding other warranty claims of
the Buyer a replacement or repair. Multiple repairs are permitted.
A prerequisite for the warranty is that the erection, installation and
operation of the product is made by the Seller, by a dealer authorized
by the Seller or by qualified personnel.
4.) The warranty period is
12 months and starts on the date of delivery. This period also applies
to spare parts replaced during the warranty period. The warranty period
for the original products not extended thereby.
5.) If technical spec
sheets, documentation or instructions of the Seller are not followed or
the product is modified, the warranty lapses except if the Buyer
demonstrates that the claimed defect was not caused by any of the above.
The Buyer must inspect the shipment promptly on arrival for shipping
damage and promptly inform the Seller of any possible damage or loss.
Visual defects must moreover be reported to the Seller in writing
promptly but at the latest two weeks from delivery. Defective products
must be retained for inspection by the Seller in the state at the time
defect was determined or returned on demand on the latter. The Buyer
bears the full onus of proof that all prerequisites for a claim, in
particular the defect itself, the date of its determination and the
submission of the claim by the due date are met.
7.) If the claim is justified, the Seller may at his option make supplementary performance by repair or replacement.
If supplementary performance fails after an adequate grace period and a
maximum of three attempts, the Buyer is entitled to demand at his
option either a reduction of the price or rescission of the contract.
The Buyer has no right of rescission if the non-contractual service is
insignificant, in particular if the defect is minor.
9.) If the Buyer
opts for contract rescission after failed supplementary performance due
to a legal or physical vice, he is not entitled to an additional claim
for compensation on account of the defect.
10.) If the Buyer opts for
compensation after failed supplementary performance, the amount of the
compensation shall be limited to the difference between the purchase
price and the value of the defective product. This does not apply to
breach of contract resulting from malicious premeditation by the Seller.
In the absence of an explicit agreement to the contrary, the
contractual state of the goods is the product description quoted in the
order confirmation of the Seller. Public statements, recommendations or
advertising do not constitute a description of the contractual state of
12.) When the Seller operates on the basis of customized
specifications, liability for the suitability of the product for the
intended purpose of the goods, their proper design, compliance with
safety regulations and adequacy of the material is excluded.
the specifications of the Seller quoted in the order contain parameters
which the Seller recognizes as critical or infeasible for production,
the Seller shall notify the Buyer accordingly. The Buyer must in such a
case review the objections of the Seller at his own responsibility. The
Seller does not assume any undertakings or liability with regard to the
suitability of possible alteration proposals to meet the intended
purpose of the Buyer.
14.) The warranty does not include parts
subject to wear and products damaged by improper handling, unauthorized
operation or inadequate storage.
15.) During the warranty period, the
Seller will at his option replace defective parts either by new parts
or repair them provided the parts have not become defective as a result
of any of the following:
1. Typical eawr
2. Defects resulting from
non-compliance with our technical spec sheets and other technical
notices on the products and user manuals.
3. Defects from failure to perform the operating and maintenance measures recommended by the Seller.
4. Defects resulting from modifications or the use of foreign parts by the Buyer or operator.
5. Defects resulting from adjustments of instrument calibrations performed by the Seller.
6. Defects resulting from the late replacement of parts subject to wear.
7. Defects caused by repairs or interference by unauthorized persons.
Damage resulting from processing of abrasive or aggressive plastics,
and corrosion resulting from improper handling or maintenance.
9. Damage from the use of unsuitable refrigeration or temperature equalization media.
Defects resulting from unauthorized use of products above pressure and
temperature limits quoted in the technical documentation or on order
11. The warranty obligation lapses in the case of mechanical destruction, or of damaged or removed seals.
The Seller is not liable for defects to objects other than the products
subject to the warranty. The Seller is not liable for consequential
damage, plant interruptions, delays slowdown of production or downtimes.
Statutory provisions on product liability remain unaffected by these
17.) Compensation claims against the Seller and his
vicarious agents on account of infeasibility of performance,
non-performance due to positive breach of contract, culpability at
contract conclusion and from unauthorized acts are excluded except if
the damage was caused by premeditation or gross negligence or involve
injury to life, limb or health.
Sec. 8 Scope of Warranty/Place of Warranty Performance
Warranties are performed at our option by the gratuitous repair of
defective parts or their replacement by flawless parts. Repairs at the
erection site may be demanded only for firmly installed equipment of
major size. Replaced or exchanged parts became our property. If the
place of fulfilment is in a country other than the Federal Republic of
Germany, the Buyer bears the travel costs and expenses from the German
Sec. 9 Other Limitations of Liability and Exclusions
1.) The Seller is not liable in the event of negligent breach of immaterial contract obligations.
With other negligent breaches of contract, the liability of the Seller
is limited to the average contract-typical damage foreseeable by product
type. This also applies to negligent contract breaches by legal
representatives of the Seller or their vicarious agents.
above limitations of liability do not apply to claims of the Buyer under
the Product Liability Act or to injuries to life and limb attributable
to the Seller or in the event of the death of the Buyer.
Compensation claims of the Customer become time-barred in one year from
date of delivery. This does not apply to claims of the Buyer under
Product Liability Law or to injuries to life and limb attributable to
the Seller or in the event of the death of the Buyer.
Sec. 10 Reservation of Title
All delivered goods remain the unrestricted inalienable property of the
Seller up to the fulfilment of all our claims. If reserved goods are
sold, the claim resulting from the resale passes to the Seller. The
Buyer undertakes to treat the goods with due care and to have possibly
required maintenance and inspection works performed. The reserved goods
must be insured against fire, theft and water damage at the expense of
the Buyer. The insurance coverage must be based on the reprocurement
value of the goods. In the event of non-contractual conduct by the Buyer
or the latter’s default, the Seller is entitled to demand the surrender
of the goods. A demand for the return of the goods does not constitute a
withdrawal from the contract except if explicitly declared by the
Seller. In the event of a return of the goods, the Seller is entitled to
sell them elsewhere and deduct the sales revenue from the liabilities
of the Buyer.
2.) The Buyer is entitled to resell the goods as part
of its ordinary business transactions and as long he is not in default.
The Buyer assigns to the Seller already at this time all claims up to
the amount of the invoice (incl. value-added tax) generated by the
resale to the third party. In this context, it is immaterial whether the
goods were processed by the Buyer prior to the resale. The Buyer is
entitled to collect the receivable also after the assignment. The Seller
reserves the right, however, to collect the receivable if the Buyer
should be in default or apply for the opening of insolvency proceedings.
The processing of the products shall be made at all times in the name
and on instructions of the Seller.
3.) If the product is processed
together with other goods which are not owned by the Seller, the Seller
acquires co-ownership in the newly produced products in a ratio of the
value of his product to the value of the new product. This also applies
to the blending of the product with other goods or objects not owned by
the Seller. The Seller shall be promptly informed of any attachment of
the product at the Buyer.
4.) In the event of non-contractual conduct
of the Buyer, in particular default of payment, the Seller is entitled
to retrieve the reserved goods at the expense of the Buyer or possibly
demand the assignment of the surrender claims of the Buyer against a
third party. The return or attachment of reserved goods by the Seller
does not constitute a withdrawal from the contract. This does not apply
if the Buyer is also the consumer.
Sec. 11 Invoicing and Payment
If not agreed otherwise, all invoices of the Seller are due for payment
promptly on invoice issue without deduction. First-time customers must
pay in advance.
2.) Payment is considered made when the Seller can
freely dispose of the amount. With cheques, payment is considered made
when the amount of the cheque was credited to the bank account of the
Seller and not redebited against the account of the Seller within seven
3.) If the Buyer is in arrears with payment, the Seller
is entitled to charge as of the respective date interest of at least 5 %
above the respective basic interest rate as per Sec. 247 Subsec. 1 BGB
plus statutory value-added tax.
4.) If the Buyer fails to meet his
payment obligations, e.g. if a cheque or bill of exchange is not
honoured or if he suspends payments or if the Seller learns of other
circumstances which give rise to question the creditworthiness of the
Buyer, the Seller is entitled to declare the entire balance due for
payment immediately. In this case, the Seller is moreover entitled to
demand prepayments or deposits on other contracts and/or after an
adequate grace period withdraw from these contracts or demand
5.) The Buyer is entitled to offset only if his counterclaim is undisputed or declared legally final.
Sec. 12 Data Protection
The business transactions are supported by a data processing system.
Accordingly, customer data are entered into a file which is stored up to
the end of the business relationship. The customer is advised of this
storage. Legal basis: Secs. 27ff, 33 BDSG
Sec. 13 Place of Fulfilment and Jurisdiction
The place of fulfilment for delivery and payment is 58566 Kierspe. If
the Buyer is a merchant, legal entity of public law or a public-law
special fund, the seat of the Seller is agreed to be the place of
jurisdiction for both Parties for any disputes arising from contracts
with the Seller. The Seller is, however, entitled to take out
proceedings against the Buyer also at his ordinary court of
Sec. 14 Buyer With Seat Outside the Federal Republic of Germany
Transactions with customers with seat outside the Federal Republic of
Germany shall be subject to the UN Convention on the International Sale
of Goods (UN purchase law) except where amended or supplemented by the
following clauses. Other terms of purchase are agreed excluded.
Payments must be made in EURO if so agreed. If the Buyer fails to make
payment by the due date, interest of 8 % over the respective basic
interest rate of the European Central Bank may be charged as from the
3.) If the goods are non-conforming, the Seller in
departure from Art. 46 of the Convention is entitled to supply a
replacement in lieu of repair. In this case, the Buyer must return the
non-conforming goods for account of the Seller.
4.) Compensation on
account of non-conforming goods must be paid by the Seller only if the
Seller is liable for the breach of contract. The amount of compensation
claims shall be limited to € 25,000.
Sec. 15 Saving Clause
If any provisions of these Purchase and Delivery Terms or a provision
to be added in the future should be ineffective or infeasible in whole
or in part or the validity or feasibility subsequently lapses or if an
omission should be found, the validity of the remaining provisions shall
not be affected. The place of the ineffective or infeasible provisions
or to fill out the omission shall be taken by an adequate provision
which as far as legally permitted comes closest to what the Contract
Parties intended or would have intended by the spirit and purpose of
Terms of Sale and Delivery if they had take the point into
If the invalidity or infeasibility of a provision
rests on a definition of performance or time (delivery date or term)
quoted in it, the legally permitted value that comes closest to the
provision shall be agreed in its place. This shall also apply to any
individual provisions of the contract.
Find a Contact
gwk Gesellschaft Wärme Kältetechnik mbH
Tel.: +49 23 59 - 66 50
Fax: +49 23 59 - 66 51 56