GTC - EBSER Maschinenbau GmbH

Direkt zum Seiteninhalt

of EBSER Maschinenbau GmbH

1 Conclusion of contract
1.1 Unless otherwise specified, our offers are subject to change and non-binding; a contract shall only be concluded upon the issue of our written order confirmation or by delivery. Our order confirmation alone shall be authoritative for the content of the contract, in particular for the scope of performance. Amendments and supplements to the contract require our written confirmation.
1.2 We reserve the right to make changes to the illustrations, descriptions, drawings, weights, dimensions and other information contained in our brochures, price lists, catalogs and our offer, provided that the delivery item is not significantly changed or its quality is not improved as a result and the changes are reasonable for the customer.

2. Prices and terms of payment
2.1 Our prices for deliveries are ex works plus transport insurance, packaging, shipping, statutory value added tax, in the case of export deliveries plus customs duties, fees and other public charges. Service and repair work shall be invoiced in accordance with the price list valid at the time of performance.
2.2 Payment shall be due without any deduction upon delivery or acceptance. The Customer shall be in default 14 calendar days after delivery and invoicing without the need for a reminder. The date of receipt by us shall be decisive for the date of payment. Checks and bills of exchange shall only be considered as payment after they have been cashed. Discount, bill charges, bill tax and similar charges shall always be borne by the customer. Taxes on bills of exchange and similar charges shall always be borne by the customer.
2.3 If we must consider our claims to be at risk due to the customer's financial circumstances, we shall be entitled to withdraw from the contract. If the customer is in default of payment, we may declare our total claim due immediately. In the aforementioned cases, we shall furthermore be entitled to make the processing of all orders of the customer dependent on an advance payment or a security deposit.
2.4 Offsetting against counterclaims of the customer or the retention of payments due to such claims shall only be permissible insofar as the counterclaims are undisputed or have been legally established.
2.5 If delivery is made later than 6 months after conclusion of the contract for reasons for which we are not responsible, we may adjust the price up to the list price applicable on the date of delivery (in each case less an agreed percentage or fixed discount).

3. Delivery dates
3.1 Delivery dates shall be determined by the agreements made in the individual case. A delivery deadline shall be deemed to have been met if the delivery item has been handed over for transport or readiness for dispatch has been established and notified.
3.2 If we are unable to meet the agreed delivery date due to impediments for which we are not responsible (operational disruptions, strike, lockout, energy supply difficulties, delay or failure to obtain supplies ourselves, etc.), we shall inform the customer thereof without delay. In such a case, the customer is not entitled to withdraw from the contract.
However, if it cannot be foreseen that we will be able to render our performance within a reasonable period of time, but within four months at the latest, we and the customer may withdraw from the contract. The same shall apply if the reasons for the impediment still exist after the expiry of four months from the date of our notification. If the reasons for the impediment were already apparent to us at the time the contract was concluded, we shall not be entitled to withdraw from the contract.
3.3 If the customer is in default of acceptance, we shall charge storage costs amounting to 0.5% of the invoice amount per month, but not more than 5% of the invoice amount. After setting and expiration of a reasonable period of time, we may withdraw from the contract and demand liquidated damages in lieu of performance in the amount of 80 % of the order value. Both parties reserve the right to prove higher or lower damages.

4. Delivery
4.1 All deliveries shall be EXW works or distribution warehouse (Incoterms 2020). If the customer is in default of acceptance, the risk shall already pass upon notification of readiness for shipment. This shall apply irrespective of whether the shipment is made from the place of performance and who bears the transport costs.
4.2 Partial deliveries shall be permissible if the partial delivery is usable for the Customer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur significant additional expenses or costs as a result.

5. Retention of title
5.1 Goods delivered by us shall remain our property until all our claims arising from the entire business relationship with the customer have been satisfied in full.
5.2 The customer shall be obliged to store and label separately the goods subject to retention of title. He shall insure the goods subject to retention of title against fire, water damage, burglary and theft at his own expense. Upon request, the insurance policy shall be provided to us for inspection. The customer shall assign to us in advance the claims against the insurance company. We accept the assignment.
5.3 The customer shall notify us immediately of any seizure of the reserved property by third parties. The customer shall bear all costs that have to be incurred to cancel the seizure and to recover the goods delivered by us.
5.4 The customer shall be entitled to sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. By way of security, the customer hereby assigns to us in full any claims arising from the resale or any other legal grounds (insurance, tort) with respect to the reserved goods. We revocably authorize him to collect the claims assigned to us for our account in his own name. Upon our request, the customer shall disclose the assignment and provide us with the information and documents required for the collection of the claim.
5.5 If the reserved goods are combined with other items, the reserved title to the newly created item shall continue. We thereby acquire a co-ownership share in the ratio of the value of the reserved goods (invoice value) to the value of the other combined items. If one of the combined items is to be regarded as the main item, the customer shall transfer co-ownership to us in the ratio of the value of the goods delivered by us (invoice value) to the value of the other combined items. The customer shall store the new item free of charge with regard to our co-ownership share. If the goods subject to retention of title are resold as a component of the new item, the advance assignment agreed in clause 5.4 shall only apply to the amount of the invoice value of the goods subject to retention of title.
5.6 If the law of the country in which the delivery item is located does not permit the agreement of a reservation of title or only in a limited form, we may reserve other rights to the delivery item. The customer is obliged to cooperate in all necessary measures (e.g.: registrations) for the realization of the reservation of title or the other rights replacing the reservation of title and for the protection of these rights.

6. Claims for defects
6.1 If our deliveries or services prove to be defective, we shall first be obligated to remedy the defects at our discretion by eliminating the defect or by making a replacement delivery. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, labor and material costs; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
6.2 We shall be entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the Purchaser shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
6.3 The limitation period for claims based on defects shall be - except in the case of fraudulent intent and subject to Clause 7.3 - 12 months, calculated from the date of delivery or, if acceptance is required, from the date of acceptance.
6.4 If the defect is based on a defective third-party product, we shall be entitled to assign our warranty claims against our upstream supplier to the customer. In this case, we may only be held liable under the above provisions after the customer has asserted the assigned claims against the upstream supplier in court.
6.5 For defects of used delivery items which we sell as "repaired" or "used" and not as "refurbished" or "as new" items, we shall be liable exclusively in accordance with Clause 7. In the case of defects of used but refurbished or as new items, we shall only be obliged to attempt to remedy the defect. If the removal of the defect fails, the rights of the customer are limited to a reduction of the purchase price. Liability pursuant to Section 7 shall remain unaffected.
6.6 Apart from that, the customer shall not be entitled to any claims in deviation from Clauses 6.1 to 6.5.

7. Liability
7.1 We shall be liable for a culpable breach of our material contractual obligations in accordance with the statutory provisions. Material contractual obligations are obligations which characterize the typical purpose of the contract, the fulfillment of which makes the proper execution of the contract possible in the first place and compliance with which the contractual partner may regularly rely on. Insofar as we are charged neither with gross negligence nor with intent, we shall, however, only be liable for the typically occurring, foreseeable damage.
7.2 In all other cases, we shall be liable if damage has been caused intentionally or by gross negligence by one of our legal representatives or by a vicarious agent. In the event of the assumption of a guarantee as well as for damages resulting from injury to life, body or health, we shall be liable in accordance with the statutory provisions. Otherwise, claims for damages against us arising from breaches of duty shall be excluded.
7.3 Liability in accordance with the Product Liability Act shall remain unaffected.
7.4 Claims for damages according to the above clauses 7.1 to 7.3 shall become statute-barred within the statutory periods.

8. Drawings, constructions and other documents
8.1 Drawings, designs, calculations and other documents, such as samples and models, provided by us or manufactured according to our specifications shall remain and become our property. They may not be passed on to third parties or used for other purposes without our written consent. They shall be returned to us after execution of the order or upon request.
8.2 In the case of deliveries based on drawings, models or information provided by the customer, the customer shall indemnify us against all claims of third parties based on industrial property rights. In the event of breaches of contract by the customer, his industrial property rights shall not prevent us from exploiting the goods.

9. Information and technical advice
Our information and recommendations are made without obligation and to the exclusion of any liability, unless we have expressly undertaken in writing to provide information and recommendations. Whether a product is also suitable for the special applications of the purchaser must be investigated by the purchaser in his own test series. Our information and advice do not constitute a guarantee of the quality of our products.

10. Final provisions
10.1 This contract is subject to German law. Excluded from this, i.e. inapplicable, is the UN Convention on Contracts for the International Sale of Goods.
10.2 The place of performance for all obligations of both contracting parties shall be Todtnau / Germany.
10.3 The place of jurisdiction for all legal disputes in connection with this contract is Freiburg / Breisgau. In addition, the customer may - at our discretion - also be sued at his place of business.
10.4 The invalidity of individual provisions of the contract incorporating these Terms and Conditions of Delivery and Service shall not affect the validity of the remaining provisions and the existence of the contract. The ineffective provision shall be replaced - insofar as this does not concern general terms and conditions - by a provision which comes closest in its economic content to the ineffective provision. The same shall apply in the event of a loophole.

Status August 2023
Zurück zum Seiteninhalt