General Terms and Conditions of Delivery and Service of Ebser mechanical engineering e.K.
The following terms and conditions apply with regard to all current and future offers made by us and contracts concluded with us. Any general conditions of business of the customer shall become an integral part of the contract only if and to the extent that we have expressly consented to the application there of.
1. Conclusion of the Contract
1.1 Unless otherwise indicated our offers are subject to confirmation and are not binding; no contract shall come about until we have confirmed the order in writing, or by delivery. Solely our confirmation of the order shall be authoritative for the terms of the contract, in particular the scope of the goods/services. Any amendments and additions require our confirmation in writing.
1.2 We reserve the right to make changes to the pictures, descriptions, drawings, weights and dimensions and other details stated in our brochures, price lists, catalogues and our offer provided that they do not significantly alter or improve the quality of the goods/services to be delivered and the changes or deviations are reasonable for the Customer.
2. Prices and Payment Terms
2.1 Our prices for services apply ex works excluding transport insurance, packaging, dispatch and statutory value added tax; in the case of export deliveries excluding customs duties and charges and other official duties. Any support or repair services shall be charged in accordance with the price list applicable at the time the service was rendered.
2.2 Payment shall be due without any deductions upon delivery or upon acceptance of performance ("Abnahme") respectively. The customer shall be in default ("in Verzug") 14 calendar days following delivery and the issue of the invoice without there being any need for a payment reminder. Payment shall only be deemed to have been effected on the date of receipt thereof by us. Cheques and bills of exchange shall be deemed to be payment only once they have been honoured. Any and all discounts, charges for bills of exchange, taxes on bills of exchange and similar dues shall be borne by the customer.
2.3 If we must consider our claims as being at risk because of the customer's financial situation we shall be entitled to rescind the contract. If the customer is in default of payment, we can immediately call in the total debt due to us. In the aforementioned cases we shall furthermore be entitled to make further handling of all of the customer's orders dependent on a payment in advance or the safety performance.
2.4 The Customer shall not be entitled to set off claims or to withhold payments on the basis of any counterclaims that it may have unless such counterclaims are undisputed or have become legally binding ("rechtskräftig").
2.5 If delivery is made more than 6 months after the contract was concluded for reasons, for which we are not responsible, we can adjust the price as far as the list price applicable on the date of delivery less any agreed percentage or fixed discount.
3. Delivery Dates
3.1 Any delivery dates shall be as agreed in the individual case. A delivery deadline shall be deemed to have been met if the goods/services to be delivered have been handed over for transportation or they are ready for dispatch and notice thereof has been given.
3.2 Where we are unable to meet the agreed delivery date due to circumstances for which we are not responsible (operational breakdown, strike, lock-out, power supply problems, our own supplies having been delayed or omitted etc.), we shall inform the customer of this immediately. In such a case, the customer shall not be entitled to claim rescission.
However, if it seems unlikely that we will be able to effect performance within a reasonable time, and in any case not within four months at the latest, we and the customer may rescind the contract. The same shall apply mutatis mutandis where the background reasons continue to exist after four months have expired following our notification. If the background reasons are apparent to us when the contract is concluded, we shall not be entitled to claim rescission.
3.3 Where the customer defaults on acceptance, we shall charge for storage at 0.5% of the invoice amount per month, however a maximum of 5% of the invoice amount. After a reasonable period has expired, we may rescind the contract and demand a lump sum payment of damages in lieu of performance amounting to 80% of the order value. Both sides shall retain the right to show that they have incurred a greater or lesser degree of loss.
4.1 All deliveries shall be EXW ex works or ex distribution warehouse (Incoterms 2020). Where the customer defaults on acceptance, responsibility for the risk shall pass on notification that the goods are ready for dispatch. This applies irrespective of whether or not dispatch takes place from the place of performance and of who bears the transportation costs.
4.2 Part deliveries shall be permitted if the Customer can use the part delivery for the contractually stipulated purpose, delivery of the remainder of the goods ordered has been ensured and the Customer does not thereby incur considerable additional work and expense.
5. Reservation of Title
5.1 We shall retain title to goods supplied by us until settlement in full of all outstanding claims arising under the business relationship with the customer.
5.2 The customer shall be under a duty to store and label the goods subject to the reservation of title separately. At its own expense, the customer shall insure the goods subject to the reservation of title against fire, damage caused by water, burglary and theft. On request, the insurance policy must be submitted to us for inspection. The customer assigns to us in advance all rights to claim under the insurance policy. We accept said assignment.
5.3 The customer must inform us immediately in the event that the property subject to the reservation of title is seized by a third party. The customer shall bear the cost of reversing such seizure and reacquiring the goods supplied by us.
5.4 The customer shall be entitled to sell the goods subject to the reservation of title in the normal course of business provided he is not in default. Liens or assignments of title as security are not permitted. By way of security, the customer hereby assigns to us, in full, all claims, arising from the resale or based on other legal grounds (insurance, tort), which relate to the goods subject to the reservation of title. We revocably authorize the Customer to collect all accounts receivable assigned to us in his own name but for our account. At our request, the customer shall disclose the assignment and provide us with the information and documentation necessary to collect the accounts receivable.
5.5 If the goods subject to the reservation of title are combined with other items, the reservation of title shall continue to apply with respect to the newly created item. We shall thereby acquire a co-ownership share in the ratio of the value (invoice value) of the goods subject to the reservation of title to the value of the other combined items. If one of the combined items is regarded as the main item, the customer shall transfer to us a co-ownership share in the ratio of the value of the goods supplied by us (invoice value) to the value of the other combined items. As regards our co-ownership share, the customer shall keep the newly created item in safe custody, free of charge. If the goods subject to the reservation of title are resold as part of the newly created item, the assignment of future claims contained in Clause 5.4 shall only apply to the extent of the invoice value of the goods subject to the reservation of title.
5.6 In the event that the law applicable in the country, in which the subject matter of the delivery is located, does not permit the agreement of a reservation of title, or does so only in a limited form, we may reserve other rights over the delivered goods. The customer shall be obliged to assist with all measures (e.g. registration) necessary for effecting the reservation of title or rights in substitution of a reservation of title, and to assist in the safeguarding of such rights.
6. Warranty Claims
6.1 If any of our goods or services prove to be defective, we shall initially be under a duty to remedy the defects by, at our option, either rectifying the defect or by making a replacement delivery. In the case of a replacement delivery the customer must return the defective goods to us in accordance with the statutory provisions. We shall bear the costs of such supplementary performance ("Nacherfüllung"), in particular the transport costs, labour costs and cost of materials. This shall not apply if the cost is increased because the subject matter of delivery is located somewhere other than the intended place of use.
6.2 We shall be entitled to make the subsequent performance owed dependent on the customer paying the due purchase price. The customer shall, however, be entitled to withhold such part of the purchase price as is reasonable in proportion to the defect.
6.3 Save in the case of malice ("Arglist") and save as provided in Clause 7.3, the limitation period for warranty claims shall be 12 months calculated as of delivery or, if acceptance is required, as of acceptance.
6.4 If the defect is due to a faulty third-party product, we shall be entitled to assign our warranty claims against our supplier to the customer. In that case a claim can be asserted against us under the above provisions only if the customer has asserted the assigned claims against the supplier in court.
6.5 We shall be liable for defects in used goods, which we sell as "repaired" or "second-hand" goods and not as “reconditioned” or “as good as new”, only in accordance with Clause 7. If any used goods sold by us as “reconditioned” or “as good as new” prove to be defective, we shall only be under a duty to make one attempt to remedy such defect. If such attempt fails, the customer shall only be entitled to a reduction of the purchase price. Our liability according to Clause 7 remains unaffected.
6.6 Apart from that and in derogation from Clause 6.1 to 6.5, the customer shall have no rights.
7.1 We shall be liable for any culpable breach of our material contractual obligations in accordance with the statutory provisions. Material contractual obligations are obligations which characterise the typical purpose of the contract, the performance of which makes the proper implementation of the contract possible in the first place, and compliance with which the other contract party may rely on. However, unless our conduct has been either grossly negligent or intentional, we shall be liable only for the foreseeable damage, which typically occurs.
7.2 In all other cases we shall be liable if damage has been caused intentionally or grossly negligently by one of our statutory representatives or by a vicarious agent. Where we have given a guarantee, or for damage arising out of any injury to life, body or health, we shall be liable in accordance with the statutory provisions. Otherwise claims against us for damages arising out of a breach of duty are excluded.
7.3 Liability under the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected.
7.4 The claims for damages under Clauses 7.1 to 7.3 above shall be time-barred according to the statutory periods.
8. Drawings, Designs and other Documentation
8.1 Any drawings, designs, calculations and other documents, such as samples and models, provided by us or produced according to our specifications, shall become and remain our property. They may not be passed on to third parties nor may they be used for other purposes without our written consent. They must be returned to us after the order has been carried out or upon request.
8.2 In the case of deliveries made in accordance with drawings, models or details provided by the customer, the latter shall indemnify us against all intellectual property claims by third parties. Where the customer is in breach of contract, his intellectual property rights shall not prevent us from turning the goods to our own account.
9. Information and Technical Advice
Our information and recommendations are not binding and are made excluding all liability unless we have obligated ourselves expressly and in writing to give information and recommendations. The customer must investigate by ways of own series of tests whether a product is also suitable for the customer's particular applications. Furthermore, the details and information we provide do not constitute any promise as to the quality of our products.
10. Final Provisions
10.1 This Agreement shall be governed by German law. This does not include the UN Convention on Contracts for the International Sale of Goods, i.e. said convention does not apply.
10.2 The place of performance for all the obligations of both contracting parties shall be Todtnau / Germany.
10.3 The place of jurisdiction for all legal disputes in connection with this Agreement shall be Freiburg / Breisgau, Germany. Where we so choose, we may also bring an action against the customer in the place where his registered office is located.
10.4 The invalidity of individual provisions of this contract incorporating these General Terms and Conditions of Delivery and Service shall not affect the validity of the other provisions or the continued existence of the contract. The invalid provision - provided it is not a general term or condition - shall be replaced by a provision which, in its economic content, comes closest to the invalid provision. The same applies mutatis mutandis in the event of an omission.
As of January 1st, 2020