General Terms and Conditions for Deliveries and Orders of
Essedea GmbH & Co. KG
1. Area of validity
The following conditions apply exclusively to business relationships with our customers and also with regard to information and advice. Any General Terms and Conditions of the customer are expressly ruled out.
2. Information; advice; features of products
2.1. Information and advice with regard to our products are provided exclusively on the basis of our previous experience. The values indicated here are to be considered average values. Any information about our products, in particular the illustrations, drawings, measurements and performance values as well as other technical information contained in our quotations and brochures are provided to the best of our knowledge, are to be considered as average values and as such are not binding.
2.2. Unless there is a written agreement to the contrary, certain features or requirements of the customer shall apply only as assured if this has been expressly confirmed or agreed in writing. This also applies to the granting of guarantees.
2.3. All our products are continually being updated and adjusted to advancing technology. We therefore reserve the right to make changes to the products at our discretion even after the order has been placed (§ 315 German Civil Code). We do not assume liability for the usability of our products for the purpose intended by the customer, insofar as this has not been expressly agreed in writing.
3. Specimen copies; models
The features of specimen copies, models or other items made available are binding only if this has been expressly agreed in writing.
4. Conclusion of contract; scope of delivery; acceptance
4.1. Our quotations are made subject to change and in the case of special or introductory offers subject to being covered by our stocks. A contract arises only if we confirm the customer’s order in writing or deliver the goods. In the latter case, the order confirmation will be replaced by our invoice. If the customer orders the goods electronically, we will confirm receipt of the order immediately. The confirmation of receipt does not yet represent a binding acceptance of the order. The confirmation of receipt may be associated with a letter of acceptance.
Insofar a consumer orders the goods electronically, the text of the contract will be saved by us and sent to the customer by e-mail at his request, in addition to these General Terms and Conditions.
4.2. All contractual agreements must be made in writing. This also applies to the waiver of this requirement for the written form itself.
4.3. A procurement risk is not assumed by us – insofar as this has not been expressly agreed. This also applies to the sale or delivery of an item of a certain category.
4.4. With regard to call-off orders or acceptance delays attributable to the customer, we are entitled to obtain the material or the good for the entire order and to produce the entire order quantity immediately and/or purchase the latter. Any requests for alterations by the customer can therefore no longer be taken into account after the order has been issued, unless this has been expressly agreed in writing. Call-off orders are to be accepted within 3 months as of readiness for delivery.
4.5. If acceptance of the goods or dispatch are delayed for a reason for which the customer is responsible, after setting and the expiry of a 14-day period of grace, we are entitled to demand either immediate payment of the purchase price or to withdraw from the contract or to reject performance and demand compensation owing to non-performance. In the event of a demand for compensation, the compensation to be provided shall amount to at least 10% of the net delivery price. Evidence of a lower loss or non-occurrence of a loss remains reserved for the customer.
4.6. Statements in certificates or other documents, which have been transmitted, do not represent either a guarantee or the assurance of certain features.
4.7. We are entitled to deviations in quantity of up to 5% for deliveries to entrepreneurs.
5. Delivery period
5.1. Binding delivery dates and periods must be agreed expressly and in writing. We will make every effort to comply with non-binding or approximate (circa, about, etc.) delivery dates and periods.
5.2. Delivery periods begin with receipt of our order confirmation by the customer, however not before all the individual details of the implementation of the order have been clarified and other conditions have been fulfilled by the customer; this also applies to delivery dates. If the customer demands amendments after granting the order, a new delivery period shall begin with the confirmation of the amendment by us.
5.3. Deliveries before the expiry of the delivery period are permitted. The delivery date is the day when readiness for shipment has been notified, alternatively the date when the goods are dispatched. We are entitled to make partial deliveries.
5.4. If we fall behind with deliveries, the customer may set an appropriate period of grace and withdraw from the contract in full or in part after unsuccessful expiry of the latter. Claims for compensation owing to delayed delivery or non-performance – for any reason whatsoever – exist only in accordance with the regulation in Section 11. If the customer is an entrepreneur, we do not fall behind, as long as the customer has fallen behind with the performance of obligations to us, even from other contracts.
6. Subject to deliveries from our suppliers; force majeure and other impediments
6.1. If despite holding proper supplies we do not receive deliveries or services or not correctly or not on time from our sub-suppliers, for reasons for which we are not responsible, or if force majeure occurs, we will inform our customers promptly in writing. In this case we are entitled to extend the delivery by the duration of the impediment, or withdraw from the contract in full or in part owing to the part which has not yet been performed, insofar as we have complied with our duty to provide information and have not assumed the procurement risk. Force majeure is considered to be strikes, lock-outs, intervention by the authorities, energy and raw material shortages, transport bottlenecks, impediments to operation which are not our fault for example through fire, water and machinery damage and any other impediments, which have been caused by us culpably.
6.2. If a delivery date or a delivery period has been agreed bindingly and if the agreed delivery date or the agreed delivery period has not been exceeded negligibly owing to the events in accordance with 6.1, the customer is entitled to withdraw from the part of the contract, which has not been performed, insofar as the delivery delay is unreasonable for him from an impartial point of view.
7. Dispatch and transfer of risk
7.1. Insofar as nothing to the contrary has been agreed in writing, dispatch will be undertaken by us without insurance at the risk and at the expense of the customer. We retain the right to make the choice of transport route and means of transport.
7.2. The risk is transferred to the customer with the handing over of the goods being delivered to the customer, the forwarding agent, the freight forwarder or the companies appointed to undertake the dispatch, however no later than departure from our factory, the warehouse or the subsidiary.
7.3. If the shipment is delayed because we make use of our right of retention as the customer is in default of payment in full or in part or for another reason for which the customer is responsible, the risk is transferred to the customer no later than the date of notification of readiness for dispatch.
8. Notification of deficiencies and warranty
8.1. If there is only a slight infringement of the contract, in particular in the case of only slight deficiencies, the customer does not have a right to withdraw.
8.2. If the customer is an entrepreneur, the goods are to be examined on receipt in accordance with the statutory provisions. Obvious deficiencies are to be notified immediately, no later than 10 days after the delivery. If goods with recognisable deficiencies are delivered, a notification must also be made to the transport company and the latter must arrange for the deficiencies to be documented. Deficiencies which are not obvious are to be notified immediately they are detected. The deficiencies are to be documented. If the contract is a commercial transaction for the parties, then § 377 German Commercial Code shall apply additionally. Furthermore, if the customer is an entrepreneur, the warranty claims shall be time-barred after one year of the passage of risk.
8.3. Customers, who are not entrepreneurs, must inform us in writing about obvious deficiencies within a period of two months after the time when the condition of the goods contrary to the contract was detected. The decisive factor to comply with the period is receipt of the notification by us. If the customer fails to provide this notification, the warranty rights shall lapse two months after he has detected the deficiency. This does not apply in the event of fraudulent intent by the customer. The burden of proof for the time of detection of the deficiency is borne by the customer. If the customer was persuaded to purchase the goods by unfounded statements by the manufacturer, he has the burden of proof for his purchase decision.
8.4. Warranty claims by the customer are initially restricted to subsequent performance. If the customer chooses to withdraw from the contract after subsequent performance has failed twice owing to a legal or material deficiency, he has no entitlement to compensation additionally owing to the deficiency.
8.5. If the customer elects to receive compensation after subsequent performance has failed twice, the goods shall remain with the customer, if this is reasonable for him. The compensation is restricted to the difference between the purchase price and the value of the deficient good. This does not apply if we have caused the infringement of the contract intentionally or fraudulently and in the event of an injury to life, limb or health.
8.6. Our warranty and liability are ruled out, insofar as there is no evidence that deficiencies and losses associated with these are based on defective materials, defective design or defective construction. In particular, warranty and liability are ruled out for the consequences of incorrect use or wear and tear of the goods, excessive use or unsuitable handling and care.
9. Prices; payment terms
9.1. In principle all prices are in EURO including packaging, freight from the manufacturer or warehouse, plus value added tax to be borne by the customer at the relevant level prescribed by law.
9.2. Freight and transport costs are charged to the customer, unless something to the contrary has been agreed in writing.
9.3. Services, which are not part of the agreed scope of delivery, shall be carried out on the basis of our valid general product price list or price list for wage labour, unless something to the contrary has been agreed.
9.4. We are entitled to increase consideration appropriately unilaterally (§ 315 German Civil Code) in the event of a rise in material procurement costs, wage and ancillary wage costs as well as energy costs together with costs from environmental specifications. If the customer is a consumer, this shall apply only if there are more than four months between the conclusion of the contract and delivery.
9.5. Our invoices are payable immediately and without a discount, insofar as nothing to the contrary has been agreed in writing. As soon as there is default, interest on arrears will be charged amounting to 5% above the base interest rate of the European Central Bank, if the customer is not a consumer, 8% above the base interest rate of the European Central Bank, however at least 10.5%. The customer retains the right to provide evidence of a lower loss. The day of payment is the date the money is received by us or is credited to our account. The assertion of a loss in excess of this remains reserved.
9.6. If payment conditions are not complied with or circumstances are known, which give rise to justified doubts about the creditworthiness of the customer in our best commercial judgement, and also such facts, which already existed at the time the contract was concluded, but which were not known to us or did not have to be known to us, then in these cases we have the right to cease deliveries irrespective of more extensive statutory rights and to demand advance payments for outstanding deliveries or the provision of appropriate securities and after unsuccessful expiry of an appropriate period of grace for the provision of such securities to withdraw from the contract or to demand compensation owing to non-performance.
9.7. There is no right of retention or right to offset by the customer. The right to offset exists only with regard to such counterclaims, which are not being disputed or have been determined in law.
10. Retention of title
10.1. We reserve the ownership of all the goods delivered by us (hereinafter referred to in total as “goods subject to retention of title”), until our claims from the contract, which has been concluded, have been settled.
10.2. In the event of conduct contrary to the contract, in particular for late payments, we are entitled to take back all the goods subject to retention of title; the customer is obliged to surrender them readily.
10.3. The customer must inform us immediately in writing of any access by a third party to the goods subject to retention of title or claims transferred to us.
10.4. If the customer is not a consumer, the following provisions apply additionally: handling and processing of the goods subject to retention of title takes place for us as manufacturer within the meaning of § 950 German Civil Code, however without being an obligation. If the goods subject to retention of title are processed or inseparably combined with articles, which do not belong to us, we acquire co-ownership of the new item in relation to the invoice value of our good to the invoice values of the other processed or combined items. If our goods are combined with other movable items to a uniform object, which is considered the main object, then the customer already transfers co-ownership to us now in the same proportion. The customer keeps ownership or co-ownership for us free of charge. The rights of co-ownership arising from this are considered goods subject to retention of title. At our request the customer is obliged at any time to provide us with the information necessary to pursue our rights of ownership or co-ownership.
10.5. The customer shall insure the goods subject to retention of title sufficiently, in particular against fire and theft. Claims against the insurance from an occurrence of loss concerning the goods subject to retention of title are hereby already assigned to us at the level of the value of the goods subject to retention of title.
10.6. The customer is entitled to sell on the goods delivered in the course of normal business. Other acts of disposal, in particular pledging or granting title to the item transferred as security are not permitted. If the goods subject to retention of title are not paid for immediately by the third party acquirer in the event of a resale, the customer is obliged to resell only under retention of title. The entitlement to resell the goods subject to retention of title lapses without further ado if the customer ceases his payment or falls behind with his payments to us.
10.7. The customer already hereby assigns to us all the claims, including securities and ancillary rights, which accrue to him from or in connection with the resale of the goods subject to retention of title against the ultimate purchaser or against a third party. He must not make any agreement with his purchasers, which exclude or prejudice our rights in any way or cancel out the advance assignment of the claim. In the event of the disposal of the goods subject to retention of title with other items, the claim against the third party purchaser is considered assigned to the level of the delivery price agreed between us and the customer, insofar as the amounts in respect of the individual goods cannot be determined from the invoice.
10.8. The customer remains entitled to call in the goods assigned to us until withdrawal by us, which is permitted at any time. At our request he is obliged to give us the information and documentation necessary to call in the assigned claims and, insofar as we do not do these ourselves, inform his purchasers immediately of the assignment to us.
10.9. If the value of the securities existing in accordance with these provisions exceeds the secured claims by a total of more than 20%, we are obliged at the request of the customer to release the securities to this extent at our discretion.
11. Exclusion and limitation of liability
11.1. In the event of infringements of obligations, we are liable only in the event of intent and gross negligence. This also applies to infringements of obligations which are intentional or grossly negligent by our statutory representatives or auxiliary persons.
11.2. The above-mentioned limitations on liability do not apply to claims by the customer from product liability. In addition the restrictions on liability do not apply to bodily harm or harm to health attributable to us, the loss of the life of the customer, infringement of essential contractual obligations (cardinal obligations) and if there is compulsory liability owing to statutory provisions.
11.3. If the customer is an entrepreneur, claims for compensation may be asserted only within a preclusion period of one year as of the start of the statutory period of limitation.
12. Right of withdrawal of the consumer for distance contracts
12.1. If a consumer is granted a right of withdrawal by law for their contractual declaration, then the following applies to this:
In principle you may withdraw your contractual declaration within two weeks without indicating any reasons by an unequivocal statement (e.g. letter, fax, e-mail). You may use the attached model withdrawal form, but it is not obligatory. The withdrawal period will expire after 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.
If the consumer receives the information on the withdrawal after gaining physical possession of the goods but within a 12 months from the before mentioned day, the withdrawal period shall expire 14 days after the day upon which consumer receives that information.
If the customer was not provided with the information on the right of withdrawal, the withdrawal period shall expire 12 months and two weeks from the end of the initial withdrawal period.
In the event that you have to comply with a period of revocation, the prompt sending of the revocation [or the item] is sufficient to comply with this period of revocation.
The revocation is to be sent to:
Essedea GmbH & Co. KG,
Lothforster Str. 50,
41849 Wassenberg
+49 (0) 2432 / 964460
+49 (0) 2432 / 964455
info@essedea.de
12.2. Effects of withdrawal:
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the goods back or you have supplied evidence of having sent back the goods, whichever is the earliest. Moreover, you are liable for any diminished value of goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the goods. [Items which it is not possible to send by parcel post will be collected from you]. You shall bear the direct cost of returning the goods. The consumer shall only bear the direct cost of returning the goods unless we have agreed to bear them or failed to inform the consumer that the consumer has to bear them.
12.3. Special guidelines:
Your withdrawal right lapses early if we as a contractual partner have been fully performed the service and if the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed.
12.4. The customer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The customer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal.
13. Industrial property rights and copyright; Deficiencies in title
13.1. Insofar as nothing to the contrary has been agreed, we are obliged to deliver within the Federal Republic of Germany free of any industrial property rights and copyright of a third party (hereinafter referred to as “industrial property rights”). Insofar as a third party asserts a justified claim against the customer owing to the infringement of industrial property rights through a delivery used in accordance with the contract and supplied by us, we shall be liable to the customer as follows:
13.2. We will decide at our expense whether to obtain either a right of use for the deliveries concerned or alter them in such a way that the industrial property rights are not infringed or exchange them. If this is not possible for us under appropriate conditions, the customer is entitled to statutory withdrawal or to reduce the price. The customer may not demand compensation for futile expenditure. Our obligation to provide compensation is guided exclusively in accordance with Section 11.
13.3. The above-mentioned obligations on our part exist only insofar as the customer has informed us in writing immediately of the claims asserted by a third party, an infringement is not recognised and we have the right to all defensive measures and settlement negotiations. If the customer ceases to use the delivery to mitigate damage or for other reasons, he is obliged to point out to the third party that ceasing use is not associated with recognition of an infringement of industrial property rights.
13.4. Claims of the customer are ruled out, insofar as he is responsible for the infringement of the industrial property rights. Claims of the customer are also ruled out, insofar as the infringement of the industrial property rights was caused by special specifications of the customer, use not envisaged by us or that the delivery was used by the customer in a changed state or together with products not supplied by us.
14. Place of performance; law to be applied; place of jurisdiction
14.1. The place of performance for all contractual obligations is the registered office of our company in Wassenberg.
14.2. All legal relationships between the customer and us apply excluding the United Nations Convention on the Contracts for the International Sale of Goods and international private law exclusively under the law of the Federal Republic of Germany.
14.3. The sole place of jurisdiction for any disputes – insofar as this can be agreed effectively – is the court responsible at the registered office of the company. However, we are entitled to file claims against the customer at his general place of jurisdiction.
15. Severability clause
If individual provisions of the contract are ineffective for reasons other than §§ 305-310 German Civil Code, the remaining provisions remain effective in full. Instead of the ineffective provisions, a stipulation shall apply, which is as close as possible to what was intended and is permitted in law.
Note:
In accordance with the provisions of the Federal Data Protection Act, we would like to point out that our accounting is carried out via an EDP facility and in this connection we also store the data received on the basis of the business relationship with the customer.
Wassenberg, in April 2014