General Terms and Conditions of Delivery at ERBÖ – Maschinenbau Erley & Bönninger GmbH & Co. KG
(hereinafter referred to as ERBÖ)
§ 1 Validity
(1) All deliveries, services and offers of ERBÖ shall take place exclusively on basis of these General Terms and Conditions of Delivery. These are a component of all contracts that ERBÖ concludes with its contract partners (hereinafter also referred to as the “Client”) regarding the deliveries or services offered. They shall also apply to all future deliveries, services or offers to the client, even if they have not been specially agreed again separately.
(2) General Terms and Conditions of the Client or of third parties shall not apply, even if ERBÖ does not specifically object to their validity in individual cases. Even if ERBÖ refers to the Terms and Conditions of Business of the Client in a letter, or refers to such, this does not constitute agreement with the validity of those Terms and Conditions of business.
§ 2 Offer and Contract Conclusion
(1) All offers from ERBÖ are without obligations and unbinding, insofar as there are not expressly labelled as binding or include a determined acceptance deadline. ERBÖ can accept orders or contracts within fourteen days of receipt.
(2) The written concluded delivery or other contracts are solely applicable for the legal relationship between ERBÖ and the client including these General Terms and Conditions of Delivery. These reflect all agreements between the contract parties on the object of the contract in its completeness. Verbal agreements of ERBÖ before conclusion of this contract are legally unbinding, and verbal agreements of the contract parties shall be replaced by the written contract, insofar as, in each case, it is not clear from their content that they should remain in force.
(3) Supplements and amendments to the concluded agreements including these General Terms and Conditions of Delivery require the written form to be valid. With exception of the Managing Directors or authorised representatives the employees of ERBÖ are not entitled to make deviating verbal agreement in this regard. Tele-communicative transfer, in particular in the form of Fax or e-mail shall suffice to uphold the written form, insofar as the copy of the signed declaration is transmitted.
(4) Information from ERBÖ on the object of delivery or service (for example weights, load-bearing capacity, tolerances, and technical data) as well as our description of the same (for example drawings and illustrations) are only estimated, insofar as precise compliance is required for the contractually envisaged purpose. They are not guaranteed characteristics of state, but descriptions or labelling of the delivery or service. Deviations and differences customary in the trade, which have taken n place on grounds of legal regulations or which represent technical improvements, as well as the replacement of components by equal value components are permitted, insofar as they do not damage the applicability for their intended purpose.
(5) ERBÖ retains the ownership or copyright of all the offers and cost suggestions as well as all drawings, illustrations, calculations, prospectuses, catalogues, models, tools and other documents and resources made available to the Client. The client may not make these items, either as such or the contents thereof available to third parties, make them known, or he or third parties use them or copy them without the express agreement of ERBÖ. On demand of ERBÖ he must return these items in their completion to ERBÖ and destroy any copies that may have been made, if they are no longer needed in the orderly course of business, or if negotiations do not lead to the conclusion of a contract.
§ 3 Prices and Payment
(1) The prices apply to the services and range of delivery listed in the confirmation of order. Extra of special services shall be invoiced separately. The prices are in EURO plus legal VAT. Delivery shall be ex works, workshop location in 45549 Sprockhövel, Germany (Incoterms 2010) plus packaging costs.
(2) Invoice sums are payable within thirty days without any discount, insofar as nothing other is agreed in writing. Decisive for the date of payment is receipt by ERBÖ. Cheques are only accepted as payment when they have been cashed. If the Client does not pay on the due date, the outstanding sum shall bear interest at 5 % p. a. From the due date; the application of higher and interest and further damages in case of delay remain unaffected.
(3) The offsetting of counter-claims of the Client or the retention of payments on grounds of such claims is only permitted, insofar as the counter-claims are undisputed or legally determined.
(4) ERBÖ is entitled to make any outstanding deliveries or perform services only against advance payment or provision of security, if after conclusion of the contract, circumstances become known, which are likely to significantly reduce the creditworthiness of the Client and through which the payment of ERBÖ’s outstanding claims by the Client in the respective contract relationship (including from other individual contracts, for which the same framework contract applies) is at risk.
§ 4 Deliveries and Delivery Times
(1) Deliveries are ex works, workshop location in 45549 Sprockhövel, Germany (Incoterms 2010) plus packaging costs.
(2) Deadlines and dates for deliveries and services given by ERBÖ are only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. Insofar as dispatch has been agreed, the delivery deadlines and delivery dates refer to the time of transfer to the shipper, haulage agent or other third parties contracted with the transport.
(3) ERBÖ can – without prejudice to its rights from delays of the Client – demand longer delivery and service deadlines or a postponement of the delivery and service dates for the time in which the Client does not fulfil his contractual obligations towards ERBÖ.
(4) ERBÖ is not liable for inability or delivery delays insofar as they are caused by forces majeure or other events that could not be foreseen at the time of conclusion of the contract (for example business breakdowns of any kind, difficulties in obtaining materials or energy, transport delays, strikes, lawful lockouts, shortage of workers, energy or raw materials, difficulties in obtaining necessary regulatory approvals, governmental actions or missing, incorrect or late delivery by suppliers), which ERBÖ is not responsible for. Insofar as such events complicate or prevent and the difficulty is not only of a temporary nature, ERBÖ is entitled to withdraw from the contract. In case of delays of a temporary nature the delivery or service deadlines shall increase or the delivery or service dates shall be postponed for the term of the hindrance plus a reasonable start-up period. Insofar as it is not reasonable for the Client to accept the delivery or service as a result of the delay, he may withdraw from the contract with immediate effect with a written declaration to ERBÖ.
(5) ERBÖ is entitled to make part deliveries only if
• the part delivery can be used by the Client in the framework of the purpose of the contract,
• delivery of the remaining goods ordered is assured, and
• the Client incurs no significant extra expenditure or addition costs (unless ERBÖ declares willingness to pay these costs).
(6) If ERBÖ is in delay with a delivery or service or a delivery or service becomes impossible, regardless of the reason, the liability of ERBÖ is limited to damage compensation pursuant to § 8 of the General Terms and Conditions of Delivery.
§ 5 Place of fulfilment, dispatch, packaging, risk transfer, Acceptance
(1) Delivery is ex works, works location in 45549 Sprockhövel, Germany (Incoterms 2010) plus packaging costs pursuant to the more detailed regulations of these General Terms and conditions of Delivery. The place of fulfilment for all obligations from the contract relationship is thus 45549 Sprockhövel, Germany, insofar as nothing other is determined. If ERBÖ is also undertaking installation, the place of fulfilment insofar is the location where the installation is to take place..
(2) Goods may only be delivered to a different destination at the costs of the client and the express agreement of ERBÖ (mail order). The dispatch method is subject to the dutiful discretion of ERBÖ, insofar as nothing other is determined.
(3) The risk transfers pursuant to ex works, place of works in 45549 Sprockhövel, Germany (Incoterms 2010).
In case of agreed mail order the risk transfers with the handover of the object of delivery (whereby the start of the loading procedure is decisive) from the shipper, haulage agent or other third party contracted with delivery to the Client. This shall also apply if part delivery takes place or ERBÖ has taken on other services (for example dispatch or installation). If dispatch is delayed on grounds the client is responsible for, the risk transfers to the client from that day forward, on which the object of delivery is ready for dispatch and ERBÖ has informed the Client of this.
(4) The client shall pay storage costs after the transfer of risk. If storage is by ERBÖ the storage costs are 0.25% of the invoice sum of the delivery objects to be stored per completed week. The application and evidence of further or lower storage costs remains reserved.
(5)The shipment shall be insured by ERBÖ on express agreement on the wish of the Client and at his own costs against theft, breakage, transport, fire and water damage or other insurable risks.
(6) Insofar as acceptance is to take place, the goods are deemed accepted if
• the delivery and, insofar as ERBÖ is also undertaking the installation, the installation is complete,
• ERBÖ informs the Client with reference to the notional acceptance pursuant to § 5 (6) of this contract and has demanded him to accept.
• twelve days have passed since the delivery or installation or the client has begun using the object (for example the delivered parts have been put into operation or inbuilt) and in this case six working days have passed and
• The client has failed to accept within this period for another reason than owing to a defect announced by ERBÖ, which makes the use of the purchased object impossible or significantly impaired.
(7) The packaging is at the dutiful discretion of ERBÖ insofar as nothing other is determined.
(1) The guarantee term is two years from delivery, if acceptance is necessary, from the date of acceptance. Insofar as claims on liability and damage compensation are concerned and ERBÖ is liable pursuant to § 8, the legal guarantee term shall apply..
(2) The Client or a third party contracted by the Client must check the items delivered immediately upon delivery. They are deemed approved by the Client in terms of obvious defects or other defects that would have been recognised with immediate, careful checking, if ERBÖ does not receive a written notice of defect within seven days from delivery. With regard to other defects the items delivered are deemed accepted by the Client if the notice of defect has not been received by ERBÖ within seven working days of the time in which the defect showed up; if the defect was recognised by the Client at an earlier point in time during normal use, this earlier time is, however, applicable for the start of the deadline for sending a notice of defect. On demand by ERBÖ a defective item of delivery shall be returned freight-free to it. In case of a justified complaint ERBÖ shall pay the costs of the most economical dispatch method; this shall not apply if the costs increase because the item of delivery is at another location than the location of its intended use.
(3) In case of material defects in the delivered items ERBÖ, having to make a choice following an appropriate internal deadline, is initially obliged and entitled to repair or make a replacement delivery. In case this is not possible, that it to say unacceptable, refused, or there is an unreasonable delay in the repair or replacement delivery, the Client may withdraw from the contract or reduce the purchase price accordingly.
(4) If a defect is based on a fault by ERBÖ, the Client may demand damage compensation pursuant to the conditions determined in § 8.
(5) In the case of defects or parts from other manufacturers, which ERBÖ cannot remove for licensing or factual reasons, then ERBÖ shall make the choice of making guarantee claims against the manufacturer and suppliers for account of the Client or assign them to the Client. Guarantee claims against ERBÖ only exist for such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery , if the enforcement of the aforementioned claims against the manufacturer and suppliers is unsuccessful or, for example owing to insolvency, is hopeless. . For the duration of the legal dispute the time-barring of the Client’s corresponding guarantee claims against ERBÖ shall be suspended.
(6) the guarantee shall lapse if the Client changes the delivery item or has it changed by third parties without the permission of ERBÖ and thereby makes the defect removal impossible or unreasonably difficult. In each such case the Client is liable for the extra costs involved of the defect removal.
(7) An delivery agreed with the Client in an individual case for used objects shall take place exclusive of any guarantee for material defects, insofar as claims for liability for damage compensations are not concerned; § 8 shall apply to these claims.
§ 7 Protection Rights
(1) ERBÖ shall ensure, pursuant to this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contract party shall inform the other contract party in writing immediately, if claims against him for the infringement of such rights are asserted.
(2) In the case that the delivery item breaches a third party industrial property right or copyright, ERBÖ shall at its option and are its own expense amend the delivery item or exchange it in such a way that third party rights are no longer violated, the delivery item, however, continues to service the contractually agreed functions, or create the usage right for the client by concluding a licensing contract. If this does not succeed within an appropriate period of time, the Client is entitled to withdraw from the contract, or appropriately decrease the purchase price. Any damage compensation claims by the Client are subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
(3) In the case of breach of rights by products of other manufacturers delivered by ERBÖ, ERBÖ shall make the choice of applying claims against the manufacturer and supply-chain for account of the Client or assign them to the Client. Claims against ERBÖ in these cases only exist if the legal enforcement of the aforementioned claims against the manufacture and supply-chain are unsuccessful or, for example owing to insolvency, hopeless.
§ 8 Liability for Damage Compensation on Grounds of Blame
(1) Liability of ERBÖ for damage compensation, regardless of what legal basis, in particular on grounds of impossibility, delay defective or incorrect delivery, breach of contract, breach of obligations in contract negotiations and unpermitted action is, insofar as blame can be proven in each case, limited to the conditions of this § 8.
(2) ERBÖ is not liable in cases of simple negligence of its bodies, legal representatives, employees or other vicarious aides, insofar as no breach of contractual obligations is concerned. Essential contractual obligations are for example the obligation to make timely delivery and installation of the delivered item, its freedom from any defects that impair its functionality or usability more than just insignificantly, as well as counselling, protection and care obligations, which enable the client to use the delivery item as intended by the contract or protect the health and life of the Client’s staff or protect their property from significant damages.
(3) Insofar as ERBÖ shall be liable for reasons for damage compensation pursuant to § 8 (2), this liability is limited to damages that ERBÖ had envisaged as a possible result of a breach of contract at contract conclusion or ERBÖ should have envisaged with by applying the usual care. Indirect or consequential damages resulting from defect in the delivery item can also be reimbursed only to the extent that such damages are typically to be expected under normal use of the delivered items.
(4) In case of liability for simple negligence the compensation obligation for material damages is limited to a sum of EUR 1.000.000,00 and for resulting further asset damages to a sum of EUR 5.000.000,00 per damage event (according to the current cover sum of his product liability insurance), even if it concerns a breach of significant contractual obligations.
(5) The aforementioned liability exclusions and limitations apply to the same extent to the bodies, legal representatives, employees and other vicarious aides of ERBÖ.
(6) Insofar as ERBÖ provides technical information or is active in an advisory capacity, and this information or advice is not part of the service contractually agreed, it will be free of charge and excluding any liability of any kind.
(7) The limitations of this § 8 shall not apply to the liability of ERBÖ on grounds of malicious intent, to guaranteed composition features, to damage to life, body or health or to the product liability law.
§ 9 Retention of Proprietary Rights
(1) The following agreed retention of proprietary rights serves as security of all existing current and future claims by ERBÖ against the Client from the business relationship existing between the contract partners (including balance claims from a current account limited to this business relationship).
(2) The good delivered by ERBÖ to the Client remain the property of ERBÖ until payment is received in full for all the insured claims. The goods and also the goods included in the retention of proprietary rights pursuant to the following regulations in lieu thereof are hereinafter referred to as “reserved goods”.
(3) The client shall store the reserved goods for ERBÖ free of charge.
(4) the Client is entitled to process and sell the reserved goods until the reclamation occurs (Paragraph 9) in the orderly course of business. Pledging and assignment of securities are not permitted.
(5) If the reserved goods are processed by the Client, it is agreed, that the processing shall be in the name and for the account of ERBÖ as the manufacturer, and ERBÖ shall acquire direct ownership - or if the processing uses the material of several owners of the value of the processed goods is higher than the value of the reserved goods – the co-ownership (fractional ownership) of the newly created goods in the relationship between the value of the reserved goods and the value of the newly created goods. In the case that ERBÖ does not acquire the ownership the Client shall already transfer his future ownership or – in the aforementioned ratio -, co-ownership to ERBÖ n the newly created goods for safekeeping. If the reserved goods are blended with other materials to a uniform product or inseparably mixed and one of the resulting items is to be regarded as the main item, then ERBÖ shall transfer, insofar as the main item belongs to ERBÖ, the pro-rata co-ownership in the uniform item to the Client in the ratio described in sentence 1.
(6) In case of resale of the reserved goods, the Client shall hereby already assign the resulting claim against the buyer by way of security – in co-ownership of the seller in the reserved goods pro-rata according to the ownership share – to ERBÖ. The same shall apply to other claims, which take the place of the reserved goods or arise in terms of the reserved goods, such as insurance claims for example or claims on unpermitted action on loss or destruction. ERBÖ empowers the Client revocably to collect the assigned claims in his own name. ERBÖ may only revoke this authorisation in case of realisation.
(7) If third parties seize the reserved goods, in particular by way of pledge, the Client shall immediately point out the ERBÖ ownership and inform ERBÖ in order to enable it to enforce its ownership rights. If the third party is not in a position to reimburse ERBÖ for the judicial or extra-judicial costs in this connection, ERBÖ’s Client shall be liable for these costs.
(8) ERBÖ shall release the reserved goods as well as the items taking their place or claims, insofar as their value exceeds the amount of the ensured claims by more than 50 %. The selection of the objects to be released thereafter is the task of the Client.
(9) If ERBÖ withdraws from the contract on grounds of contract breaches by the Client – in particular delay in payment – (case of realisation), it is entitled to demand the reserved goods.
§ 10 Final Provisions
(1) If the Client is a merchant, a legal entity under public law or a public law special fund, or has no general jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between ERBÖ and the Client, according to the choice of ERBÖ 45549 Sprockhövel or the headquarters of the Client..For complaints against ERBÖ, however, Sprockhövel is the exclusive place of jurisdiction. Mandatory statutory provisions on exclusive jurisdiction remain unaffected by this provision.
(2) The relationship between ERBÖ and the client is subject exclusively to the law of the Federal Republic of Germany. Insofar as Incoterms 2010 are referenced, these regulations shall also apply. The United Nations convention of contracts for the International Sale of goods of 11 April 1980 (CISG) shall not apply. Requirements and effects of retention of title pursuant to § 6 are subject to the law of the respective location of the matter, insofar as the choice of law in favour of German law is inadmissible or ineffective.
(3) If any provision of these General Terms and Conditions of Delivery or the contract is or becomes wholly or in part invalid or unenforceable, this shall not affect the remaining conditions of this contract. The same shall apply, if and insofar as a gap should be discovered in this contract. In place of the ineffective or unenforceable provision or to fill the gap, an appropriate provision shall apply which comes as close as possible, as far as legally permitted, or correspond to what the contract parties would wish economically, or according to the sense and purpose of this contract would have wished, if they had considered this point. This shall also apply if the ineffectiveness of a provision is based on a range of services envisaged in this contract regarding performance or time (deadline or date); in these cases they shall be replaced economically by as close to the original as possible, legally permitted range of services or time (deadline or date) in place of what was agreed.
(4) For the case that these General Terms and Conditions of Delivery are made available in translated form, the German version is binding equally in case of deviations or inconsistencies..
The Client shall take note that ERBÖ stores data from the contract relationship pursuant to § 28 Federal Data Protection Act for the purpose of data processing and reserves the right, insofar as necessary for fulfilment of the contract, to pass data on to third parties (for example insurance companies).
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