General terms and conditions of delivery and payment
of ELCEDE GmbH, Kirchheim/Teck
1. Scope of applicability
1.1. Unless otherwise agreed in writing, these terms and conditions of business shall apply to all contracts, deliveries and other performances, including counselling services and the provision of information, which we render. Terms and conditions of the customer, which we do not explicitly acknowledge in writing, shall be unbinding for us, even if we do not explicitly contradict them.
1.2. The terms and conditions of business shall also apply to all future contracts with the customer, as well as to all deliveries and other performances to be rendered to it.
2. Conclusion of contract
2.1. Our offers shall be subject to confirmation. They shall not become binding until we confirm the order. Any orders, contractual amendments and supplements forwarded to us shall require the written form. Orders placed via telephone or other means shall be considered as accepted either when we confirm the order in writing or when the dispatch or delivery of the goods ensues.
2.2. Specifications regarding dimensions and weight, as well as specifications regarding our product's performance characteristics shall ensue subject to minimal technical deviations.
2.3. Catalogues, technical drawings and samples shall remain our property. Imitation, duplication and transmission to third parties is prohibited by copyright and will result in civil and criminal proceedings. Specifications in catalogues, technical drawings and samples, as well as those in assembly instructions are simply product descriptions and do not constitute any assurance of quality or warranty on our part.
3. Delivery and transfer of risk
3.1. Place of fulfilment for all our delivery obligations shall be our factory, our subsidiary or the respective delivery warehouse (the manufacturing factory in the event of transfer order) in which the goods are given to the first carrier for transfer to the customer. This shall also apply in the event of rework and subsequent delivery.
3.2. Our deliveries shall ensue at the customer's risk. In the absence of a deviating agreement, the risk shall transfer to the customer at the latest as soon as we have given the goods to the forwarding agent, freight carrier or any other person appointed to execute the dispatch. Even in the event of our delivery, the assumption of any other obligations to be executed at the point of delivery or our assumption of the transport costs, the transfer of risk shall ensue. At the customer's request and expense we shall be obligated to take out the insurance requested by the latter.
3.3. In the event of collection by the customer or by a transport company commissioned by the customer, the risk shall transfer to the customer once loading begins; in such cases the customer shall be solely responsible for the reliable and safe transport during loading and unloading. Should we assist, this shall ensue on the customer's behalf and at the customer's risk. The customer shall indemnify us against any claims asserted against us due to damage events arising from the absence of reliable and safe transport during loading. Moreover, the customer shall indemnify us against any disadvantages and/or encumbrances, which occur to us due to the fact that the carrier in its direct employ or subject to its instructions has infringed the provisions of the law governing road haulage Güterkraftverkehrsgesetz).
3.4. Should the delivery be delayed in consequence of circumstances for which the customer is responsible, the risk shall transfer to the customer on receipt of the notification of readiness for dispatch.
4. Delivery time
4.1. In principle, unless explicitly designated as binding, the delivery time stated in the offer or the confirmation of order shall be unbinding. The course of the delivery period shall begin with the dispatch of the confirmation of order, but not before the purchaser has submitted any documents, approvals, releases and any information necessary to process the order, and not before the receipt of the first down payment agreed under Clause 5.2.
4.2. Unforeseeable circumstances outside our sphere of influence (such as e.g. strikes, lockouts, etc.) shall entitle us to postpone the delivery for the duration of the hindrance, including an appropriate run-up time, or to withdraw from the contract due to the non-fulfilled part thereof; this shall apply irrespective of whether the above-designated events have occurred at our own location or at that of one of our suppliers. The right of withdrawal shall not exist should the events cause only a brief interruption to our delivery capability.
4.3. Should the dispatch be delayed at the client's wishes, or should the client be in default of acceptance, this shall entitle us to invoice the costs accrued due to storage at a rate of at least 1% of the invoice amount for each month commenced of the delivery period exceeded as a result, up to a maximum, however, of 10% of the invoice amount, unless the client provides evidence of lower costs. This shall not affect the assertion of any other damages caused by delay.
5. Prices and terms and conditions of payment
5.1. Our prices shall apply ex works, i.e. excluding dispatch, packaging and insurance costs, as well as statutory VAT; should a price not be specifically agreed, the respective current price list shall apply. Separately agreed down-payment discounts or cash discounts shall not apply should our claim not be fulfilled in its entirety.
5.2. Unless otherwise agreed, the purchase price shall fall due as follows:
- 50% of the invoice amount following receipt of our confirmation of order
- 50% of the invoice amount following receipt of our notification of readiness for dispatch.
Payment shall be made without deduction; bills of exchange and cheques shall only be accepted on account of performance. Charges for bills of exchange and discounts shall be borne by the customer. The acceptance of bills of exchange shall not signify a deferment of the claim; we shall still be entitled to demand gradual cash payment of the claim in return for the relinquishment of the bill of exchange once payment falls due. In the event of letters of credit the client shall bear all accrued charges and costs. In the event of collection and clean payment payments, the client shall bear all accrued costs, bank charges and payment provisions.
5.3. Only in the event of uncontested or legally determined counterclaims may the customer offset or exercise a right of lien with reference to such claims. The customer my not exercise any right of lien, which is not based on the same contractual relationship.
5.4. Should we become aware, after concluding the contract, that objections have been raised to any of the customer's bills or exchange, or judicial execution proceedings have been initiated against it, or any other asset deterioration has occurred, we may also immediately demand any claims not yet due as well as such claims arising from the business connection for which a bill of exchange or cheque has been surrendered, if and to the extent in which our due consideration is at risk as a result of the abovedesignated circumstances.
5.5. Non-compliance with these terms and conditions of payment shall entitle us to discontinue each delivery and only deliver against advance payment or cash, until such time as the arrears have been settled.
5.6. In the event of default, our claim shall be charged at an interest rate of 8% above the respective base interest rate. For the second and any subsequent reminders, lump sum collection expenses in the amount of € 10.00 per reminder shall be levied.
6. Retention of ownership
6.1. We shall retain the ownership of the delivered goods until all our claims against the customer have been satisfied. For the duration of the retention of ownership the customer shall be obligated to treat the conditional products carefully and to appropriately insure them on our written request.
6.2. The customer shall only be permitted to sell the delivery items subject to retention of ownership (hereinafter: conditional products) within the scope of proper business transactions. The customer shall not be entitled to pledge the conditional products, assign them as securities or make any other disposals that may endanger our property. At this juncture the customer hereby already assigns the claims from the resale to us, and we already accept said assignment. The customer shall have the revocable empowerment to collect the claims assigned to us on its own behalf. We may revoke this empowerment, as well as the entitlement to resale, if and to the extent in which the customer falls into arrears with payments due to us.
6.3. Any access by third parties to the goods subject to retention of ownership or to the transferred claims shall be immediately reported to us.
6.4. Processing of or alteration to the conditional products shall ensue on our behalf as manufacturers, but without any obligation on our part. Should our (co-)ownership expire due to the combination or amalgamation with other goods, it is hereby already agreed that the customer's (co-)ownership of the uniform item shall transfer to us at the value percentage (invoice value) and that the item shall be considered as a conditional commodity in this respect. In such case Clause 6.2 shall apply accordingly.
6.5. Should the customer fall into arrears with its payment obligations, irrespective of our other rights we may immediately demand the surrender of the conditional products. This shall be considered as a withdrawal from the contract, which, in the event of default, is permissible without further prerequisites. The costs of the return and recycling shall be borne by the customer. The recycling costs shall be set at a lump sum of 15% of the recycled revenue, with the customer still being allowed to provide evidence of lower costs.
6.6. Should the realisable value of the securities at our disposal exceed the value of the claims to be insured by a total of more than 20%, we shall insofar be obligated to release the securities of our choice at the customer's request.
6.7. In the event of payment as a so-called "Scheck-Wechsel-Geschäft" (cheque-bill transaction), the parties hereby agree that even in the event of the encashment of the cheque surrendered by the purchaser, the right of retention shall continue to exist until the bill of exchange is returned, cancelled or any other recourse upon a bill of exchange is excluded.
7. Notifications of defect and warranty rights
7.1. In the event of the delivery of goods not manufactured by us, any liability for the characteristics of the goods, as specified by the manufacture, is excluded.
7.2. The goods shall be inspected immediately on delivery. Any notifications of defect shall be made by fax immediately, or at the latest by the expiration of the 8th day following the date of receipt. Should the customer fail to make the notification, the goods shall be considered as approved, unless the defect in question is not recognisable during the inspection. Should such a defect reveal itself later, the notification shall be made immediately on discovery; the goods shall otherwise be considered as approved, even taking such a defect into consideration.
7.3. We shall only be liable for damages in consequence of incorrect specifications in catalogues, technical drawings and assembly instructions inasmuch as these are caused by our gross negligence or intent.
7.4. In the event of justified notifications of defect, a rework or subsequent delivery shall ensue at our discretion. Should these measures fail, even after two rework attempts/subsequent deliveries, in the event of such a defect, which constitutes an essential contractual breach, following the expiration of a final deadline, which must amount to at least 14 days for batch products and at least 2 months for customised products, the customer shall be entitled to demand the cancellation of the contract or the reduction of the remuneration in all other cases.
7.5. The costs of the rework/subsequent fulfilment shall be borne by us, with the exception of the costs accrued due to the dispatch of spare parts, the return transport of the product, or the travel expenses of those of our employees commissioned with the rework; cf. also Clause 3.1, Sentence 2.
8.1 We shall render other service performances on the basis of separately placed orders, at the respectively applicable price conditions at that time. Invoicing shall ensue per quarter of an hour commenced at the confirmed hourly rate.
8.2. Moreover, the provisions of these general terms and conditions of business shall also apply in relation to the separately concluded contracts for work and services in this respect, in particular according to Clause 2, Clause 5.3, Clause 5.6, Clause 10, as well as Clause 11.
9. Limitation period
9.1. Warranty claims to new products and machines shall become time-barred 1 year following the transfer of risk. The warranty for second-hand goods is hereby excluded.
9.2. Other contractual claims on the part of the purchaser due to breaches of duty shall also become timebarred in 1 year.
9.3. In deviation to Clauses 8.1 and 8.2, the statutory limitation periods shall apply to the following claims on the part of the purchaser:
- Claims for damages due to an injury to life, limb or health, or due to infringement of an essential contractual duty, as well as due to other damages arising from intentional or grossly negligent breach of duty on either our part, that of our legal representatives, or that of our vicarious agents;
- Claims to reimbursement of expenses according to § 478 Paragraph 2 of the German Civil Code;
- Claims due to the fraudulent concealment of a defect.
Unless otherwise agreed, delivered goods may not be returned. However, should goods be returned, the acceptance of such goods shall not be considered as the approval of a credit note, even when the receipt of the goods is acknowledged in writing.
11.1 Any claims not explicitly conceded in these terms and conditions of business, in particular claims for damages on the part of the customer for any form of defective performance of the contract, as well as in the event of unlawful act, shall be excluded. The exclusion of liability shall not apply to intent or gross negligence. We shall also be liable for slight negligence, should this concern duties essential to the achievement of the contractual purpose, and on the strict compliance with which the customer may rely (cardinal duties); furthermore, the exclusion of liability shall not apply to damages arising from injury to life, limb or health, or to those arising according to the Product Liability Law either.
11.2. The amount of our obligation to pay damages shall be restricted to typical contractual and foreseeable damages; on no account shall we assume untypical contractual damages and unforeseeable damages.
12. Place of jurisdiction and applicable law
12.1. Insofar as the customer is a businessman in accordance with the German Commercial Code, a legal person subject to public law, or has its principal place of business in an overseas contractual state of the EuGVVO (Council Regulation on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters), Kirchheim/Teck shall be place of jurisdiction for all discrepancies arising directly or indirectly from the contractual relationship. We shall also be entitled to claim against the customer at its general place of jurisdiction.
12.2. The law of the Federal Republic shall apply to these terms and conditions of business, as well as to all legal relationships between the customer and ourselves.
12.3. Should any provision in these terms and conditions of business or any provision within the scope of other agreements be or become invalid, this shall not affect the validity of the remaining provisions or agreements.