General Terms and Conditions | AGB

General Terms and Conditions of ELOORAC GmbH & Co. KG

§ 1 Scope of application, contract language
§ 2 Offer and conclusion of contracts
§ 3 Prices, shipping costs and payment
§ 4 Delivery and delivery time
§ 5 Place of Performance, Shipping, Packaging, Passing of Risk, Acceptance
§ 6 Warranty and defects as to quality
§ 7 Liability
§ 8 Retention of title
§ 9 Final provisions (in particular choice of law)

§ 1 Scope of application, contract language

(1) All deliveries, services and offers of ELOORAC GmbH & Co. KG, Schnellweg 47, 33397 Rietberg (hereinafter referred to as the Seller) are made exclusively on the basis of these General Terms and Conditions. They shall become part of all contracts which the Seller concludes with his contractual partners (hereinafter referred to as the Customers).

They shall also apply to all future deliveries, services and offers to the customer, even if they have not been separately agreed again and made the basis of the contract.

(2) The General Terms and Conditions apply exclusively. Conflicting conditions of the customer or third parties do not apply. This shall also apply if the Seller does not separately object to their validity. Even in reference to letters which contain or refer to the general terms and conditions of the customer or third parties, there is no agreement to the validity of these conditions.

(3) The contract language is German.

§ 2 Offer and conclusion of contracts

(1) All offers of the seller are subject to confirmation and non-binding, unless they are expressly declared as binding or provided with a specific acceptance period. The Seller may accept orders or commissions within a period of 14 days from receipt.

(2) Exclusively decisive for the legal relationship between Seller and Customer is (if any) the purchase contract concluded in writing, including these General Terms and Conditions. The contract reflects all agreements between the contracting parties in full. In this respect, in particular verbal promises made by the Seller prior to the conclusion of the contract are legally non-binding.

Any verbal agreements shall be deemed replaced by the contract, unless it follows from them that they continue to be binding.

(3) Supplements and amendments to the agreements made, including these General Terms and Conditions, must be made in writing in order to be effective. With the exception of any transactions by managing directors or authorised signatories, employees of the seller are not entitled to make any verbal agreements deviating from this.

(4) Information provided by the seller regarding the subject matter, the delivery of the service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances, etc.) as well as the representations made by the seller (e.g. drawings, illustrations) are only approximate unless the usability for the contractually intended purpose requires an exact agreement.

(5) Furthermore, the seller retains the ownership/copyright to all offers and cost estimates submitted by him as well as to all drawings made available to the client.

(6) The Seller retains title and copyright to all offers and cost estimates submitted by him and to all illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the Customer. The customer may not make these objects accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. At the Seller’s request, the Customer shall return these items in their entirety to the Seller and destroy any copies made. Excluded from this is the storage of electronically provided data for the purpose of customary data backup.

§ 3 Prices, shipping costs and payment

(1) The prices shall apply to the services and scope of delivery listed in the order confirmations. Additional or special services shall be invoiced. Prices are quoted in Euro ex works plus packaging, statutory value-added tax, fees and other public charges.

(2) Invoiced amounts are to be paid within 30 days without any deduction unless otherwise agreed in writing. The receipt of payment by the Seller shall be decisive. Payments by cheque are excluded unless they have been agreed separately in individual cases.

(3) In the event that, after conclusion of the contract, the Seller becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Customer and which endanger the payment of the outstanding claim of the Seller by the Customer from the respective contractual relationship, the Seller shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security.

§ 4 Delivery and delivery time

(1) Deliveries shall be made ex works.

(2) The periods and dates for deliveries and services promised by the seller are always only approximate, unless a fixed period or date has been expressly promised or agreed. In the case of agreed shipment, the delivery periods or delivery dates refer to the time of handover to the forwarding agent, carrier or other transport company.

(3) To the extent that the customer fails to meet his contractual obligations towards the seller, the seller may – without prejudice to his rights arising from default – demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the customer fails to meet his contractual obligations towards the seller.

(4) The Seller shall be entitled to make partial deliveries if
– the partial delivery is usable for the customer within the scope of the contractual intended purpose,
– the delivery of the remaining part of the goods is ensured and
– the customer does not incur any significant additional costs or expenses (unless the seller agrees to bear such costs).

§ 5 Place of Performance, Shipping, Packaging, Passing of Risk, Acceptance

(1) The place of performance for all obligations arising from the contract is Rietberg, unless otherwise specified. If the Seller also owes the installation, the place of performance shall be the place where the installation is to take place.

(2) The mode of dispatch and packaging shall be at the Seller’s dutiful discretion.

(3) The risk of accidental loss shall pass to the customer at the latest when the delivery item is handed over to the forwarding agent, carrier or other third party appointed to carry out the shipment. This shall also apply if partial deliveries are made or if the Seller has undertaken other services (e.g. dispatch or installation). In the event of shipment delays caused by the customer, the risk of accidental loss shall pass to the customer on the day on which the delivery item is ready for shipment and the seller has notified the customer accordingly.

(4) An insurance for theft, breakage, transport, fire and water damage or other insurable risks will only be taken out by the seller at the express request of the customer.

§ 6 Warranty, defects as to quality

(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents, which shall become statute-barred in each case in accordance with the statutory provisions.

(2) The customer must carefully examine the delivered items immediately after delivery to him or to a third party designated by him. Obvious defects, which would have been recognizable with immediate, careful examination, are considered as approved, if the seller does not receive a written notice of defects within seven working days after delivery.

At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid. This shall not apply if the costs increase because the item is located at a location other than the location of the intended use.

(3) In the event of material defects of the delivered item, the Seller shall initially be obliged and entitled to remedy the defect or make a replacement delivery at his discretion within a reasonable period of time. In the event of failure (i.e. unacceptability, impossibility, refusal or unreasonable delay of the rectification or delivery) the customer may withdraw from the contract or reduce the purchase price.

(4) The warranty does not apply if the customer changes the delivery item or has it changed by third parties without the consent of the seller and the removal of the defect becomes impossible or unreasonably difficult as a result. In any case, the customer shall bear the additional costs of remedying the defect resulting from the change.

Any delivery of used items agreed with the customer in individual cases shall be made to the exclusion of any warranty and for material defects.

§ 7 Liability

(1) The Seller’s liability for damages, irrespective of the legal basis, in particular for impossibility or delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, shall be limited in accordance with this §, insofar as this depends on culpability.

(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, provided that this is not a breach of material contractual obligations.

Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and material defects which more than insignificantly impair its functionality or fitness for use, as well as obligations to provide advice, protection and care which are intended to enable the customer to use the item in accordance with the contract or are intended to protect life and limb, the customer’s personnel or the customer’s property from considerable damage.

(3) Insofar as the Seller is liable for damages as above, he shall do so only under limitation to the damage which the Seller could have foreseen at the time of conclusion of the contract as a possible consequence of his breach of contract or which he should have foreseen if he had taken the customary care. Indirect damage and consequential damage resulting from defects of the delivery item are also only eligible for compensation if such damage can typically be expected when the delivery item is used as intended.

(4) The above limitations shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of the Seller.

(5) Insofar as the Seller provides technical information or acts in an advisory capacity and this information does not form part of the contractually agreed scope of services owed by him, this shall be done free of charge and to the exclusion of any liability.

(6) The limitations of this § do not apply to the liability of the seller due to intentional behaviour, guaranteed characteristics, injury to life, body or health or according to the Product Liability Act.

§ 8 Retention of title

(1) The seller retains title to the delivered goods until the purchase price for these goods has been paid in full. For the duration of the retention of title, the Customer may not sell the goods (hereinafter referred to as “Reserved Goods”) or otherwise dispose of the title thereto.

(2) In the event of access by third parties – in particular by bailiffs – to the goods subject to retention of title, the customer shall point out the ownership of the seller and inform the seller immediately so that he can assert his ownership rights.

(3) In the case of processing the reserved goods, it is agreed that the processing shall be carried out in the name and for the account of the Seller as manufacturer and that the Seller shall directly acquire ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur in favour of the seller, the customer hereby transfers his future ownership – or in the above-mentioned proportion – co-ownership of the newly created object to the seller as security. If the object subject to retention of title is combined or inseparably mixed with other objects to form a uniform object and if one of the other objects is to be regarded as the main object, the seller shall assign to the customer, to the extent that the main object belongs to him, the proportionate co-ownership of the uniform object in the proportion stated in sentence 1.

(4) In the event of breach of contract by the customer, in particular default in payment, the seller shall be entitled to demand the return of the reserved goods if the seller has withdrawn from the contract.

§ 9 Final provisions (in particular choice of law)(insb. Rechtswahl)

(1) If the customer is a merchant, a legal entity under public law, a special fund under public law or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the seller and the customer shall be Rietberg or the registered office of the customer at the discretion of the seller.

However, Rietberg shall be the exclusive place of jurisdiction for any legal action against the Seller in such cases. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this provision.

(2) The relations between seller and customer are subject exclusively to the law of the Federal Republic of Germany. The Convention and the United Nations on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

(3) Insofar as the contract or these GTC contain loopholes, the legally effective provisions which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC had they been aware of the loophole shall be deemed agreed to fill these loopholes.