General Terms & Conditions of Sale
E.I.W. Production & Trading GmbH
1. Scope and form
(1) These General Terms & Conditions of Sale (T&Cs) apply for all business relationships with our Customers (the Buyer). The T&Cs only apply where the Buyer is a contractor (sec. 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
(2) The T&Cs apply in particular for contracts pertaining to the sale and/or delivery of moveable goods (the Goods), regardless of whether we manufacture the Goods ourselves or purchase these from Suppliers (sec. 433, 650 BGB). Unless otherwise agreed, the T&Cs apply in the version valid at the time of the Buyer’s order, and in any case in the most recent text form circulated to the Buyer, and serve as a framework agreement for similar future contracts without us having to refer to these in each individual case.
(3) Our T&Cs apply exclusively. Deviating, contradictory or supplementary General Terms & Conditions of the Buyer shall only form part of the contract where we have explicitly consented to their validity. This consent shall in any case apply where we perform delivery without reservation to the Buyer in acknowledgement of the Buyer’s T&Cs.
(4) Individual agreements made with the Buyer (including collateral agreements, changes and amendments) in any case take precedence over these T&Cs. Subject to evidence to the contrary, the content of such agreements shall be governed by a written contract and/or our written confirmation.
(5) Any declarations and notifications relevant in law by the Buyer relating to the contract (e.g. deadlines, notice of defects, withdrawal or price reduction) must be made in writing in written or text form (e.g. letter, e-mail, fax). Formal statutory provisions and additional verifications, in particular in the event of doubt surrounding the legitimacy of the party making the declaration, remain unaffected.
(6) Any reference to the validity of statutory provisions is for the purpose of clarification only. These statutory provisions also apply without such clarification insofar as they have not been directly changed or explicitly excluded.
2. Conclusion of contract
(1) Our offers are non-obligatory and non-binding. This also applies where catalogues, technical documentation (e.g. designs, calculations), other product specifications or documents owned by us and reserved under copyright have been transferred to the Buyer, including in electronic form.
(2) Ordering of the Goods by the Buyer constitutes a binding contractual offer. Unless otherwise stated in the order, we are authorised to accept this contractual offer within two weeks of receipt of such.
(3) Acceptance may be given in writing (e.g. in the form of an order confirmation) or by way of delivery of the Goods to the Buyer.
3. Delivery period and delayed delivery
(1) The delivery period shall be agreed on an individual basis and specified by us upon acceptance of the order.
(2) Where we are unable to comply with an agreed delivery period through no fault of our own (e.g. non-availability of the service), we shall immediately inform the Buyer of such and provide the new, estimated delivery period. Where the service is still not available within the new delivery period, we are authorised to withdraw from the contract in full or in part; any consideration already provided by the Buyer shall be reimbursed immediately. To this end, the non-availability of a service is deemed to include the delayed delivery by our suppliers where we have concluded a congruent hedging transaction, the non-availability of the service is not the fault on our part or on the part of the supplier, or where we are not liable for procurement.
(3) Delayed delivery is governed by the statutory provisions. In any case, the Buyer is required to provide a reminder notice. In the event delivery is delayed, the Buyer may request flat-rate compensation for damage caused by the delay. Flat-rate compensation is awarded in the amount of 0.5% of the net price (delivery value) for each full calendar week that delivery is delayed and in any case amounts to no higher than 5% of the delivery value of the Goods in delay. We reserve the right to prove that the Buyer has incurred no damage or significantly fewer damage than the amount of the aforementioned flat-rate compensation.
(4) The rights of the Buyer under sec. 8 of these T&Cs and our statutory rights, in particular pertaining to an exclusion of the obligation to perform (e.g. owing to the impossibility or unreasonableness of the performance and/or supplementary performance), remain unaffected.
4. Delivery, passing of risk, acceptance, delayed acceptance
(1) Delivery is performed ex stock, at the place of performance for the delivery and any potential supplementary performance. Upon request and at the cost of the Buyer, the Goods may be delivered to a different destination (sale intended for shipment). Unless otherwise agreed, we are authorised to determine the type of shipment (in particular pertaining to the selection of transport companies, transport route, packaging).
(2) The risk of accidental loss and/or deterioration or the Goods shall be passed to the Buyer at the latest upon transfer of the Goods to it. In the event of sale intended for shipment, such risk, as well as any risk of delay, is transferred to the haulier, carrier or any other person or institution specified to perform shipment, upon delivery of the Goods. Where acceptance has been agreed, the passing of risk shall be subject to this acceptance. In addition, the statutory provisions governing contracts for work and services also apply for agreed acceptance accordingly. Such passing of risk upon acceptance remains unaffected in the event of delayed acceptance.
(3) In the event the Buyer is delayed in its acceptance, fails to cooperate or our delivery is delayed owing to reasons for which the Buyer is responsible, we are authorised to seek compensation, including additional expenses (e.g. storage costs) for any damage incurred as a result.
5. Prices and payment conditions
(1) Unless otherwise agreed on an individual basis, our current, ex stock prices at the time of concluding the contract plus VAT apply.
(2) In the event of sale intended for shipment (sec. 4 par. 1), the Buyer shall bear the transport costs ex stock and, as the case may be, the cost of any transport insurance required by the Buyer. The Buyer shall bear any potential customs duties, fees, taxes or other public charges.
(3) The purchase price is payable within 14 days of invoicing and delivery and/or acceptance of the Goods. We are, however, even as part of an ongoing business relationship, authorised at any time to withhold delivery in full or in part until receipt of an advance payment. The Buyer shall be notified of such withholding of delivery at the latest as part of the order confirmation.
(4) The Buyer is deemed to be in default of payment upon expiration of the aforementioned payment period. Interest is charged at the relevant applicable rate during any period of default. We reserve to right to seek additional damage caused by the delay in payment. Our right to claim commercial default interest (sec. 353 HGB [German Commercial Code]) against traders remains unaffected.
(5) The Buyer’s right to offset with counter-claims or withhold payment due to such claims only applies insofar as such claims are undisputed or established by way of a final judgement. In the event of defects upon delivery, the Buyer’s opposing rights, in particular in accordance with sec. 7 par. 6 sentence 2 of these T&Cs, remain unaffected.
(6) In the event that it becomes apparent (e.g. by way of an application to open insolvency proceedings) upon conclusion of the contract that our claim to the purchase price is in jeopardy, we shall be authorised in accordance with the statutory provisions to withhold performance and, as the case may be upon specifying a deadline, withdraw from the contract (sec. 321 BGB). For contracts pertaining to the manufacture of custom-made items (one-off production), we may withdraw immediately; the statutory regulations relating to the dispensability of fixing a deadline remain unaffected.
6. Reservation of ownership
(1) We reserve ownership of sold Goods until payment in full of all present and future claims arising from the purchase agreement and an ongoing business relationship (secured claims).
(2) The Goods under such reservation of ownership may not be pledged to third parties nor assigned as security until payment in full of all secured claims. The Buyer must notify us in writing immediately where an application to open insolvency proceedings has been made or where third parties have been granted access to the Goods remaining under our ownership (e.g. by way of seizure).
(3) In the event of a contractual breach on the part of the Buyer, in particular failure to pay the purchase price due, we are authorised in accordance with the statutory provisions to withdraw from the contract and/or reclaim the Goods on the grounds of reservation of ownership. Such reclaiming of the Goods shall not constitute notification of withdrawal from the contract; we are authorised to solely reclaim the Goods and still reserve the right to withdraw from the contract. In the event the Buyer does not pay the purchase price due, we may only exercise these rights where the Buyer has already been previously and unsuccessfully notified of a suitable payment deadline or where such deadline is unnecessary in accordance with the statutory provisions.
(4) The Buyer is authorised to process and/or sell the reserved goods by way of proper business transactions until withdrawal pursuant to (c) below. In this case, the following provisions apply in addition.
(a) The reservation of ownership includes any products at their full value arising as a result of the processing, mixing or combining of our Goods, whereby we are deemed the manufacturer. Where third party ownership rights exist as part of processing, mixing or combining our Goods with those of third parties, we shall obtain co-ownership in the ratio of the invoiced value of the Goods duly processed, mixed or combined. In addition, the same applies for such products as those delivered Goods reserved under our ownership.
(b) Claims against third parties arising from the resale of the Goods or related products shall be transferred by the Buyer to us as security in total or in the amount of our proportion of any co-ownership in accordance with the above paragraph. We accept such transfer. The obligations of the Buyer set out in par. 2 also apply to the transferred claims.
(c) The Buyer shall remain authorised to collect such claims in addition to us. We are not obliged to collect any claim where the Buyer meets its payment obligation towards us, the Buyer’s ability to perform is not hindered and where we do not reserve ownership by way of exercising a right pursuant to par. 3. In this event, however, we may require the Buyer to notify us of the transferred claims and corresponding obligors, provide all information necessary for the collection of these claims as well as any related documents, and notify the obligor (third party) of such transfer taking place. Furthermore, we are authorised in this event to revoke the Buyer’s permission to resell and process the Goods under our reservation of ownership.
(d) Where the possible value of securities exceeds our claims by more than 10%, we shall upon request of the Buyer release securities of our own choice.
7. Buyer’s claims for defects
(1) Unless otherwise agreed hereinafter, the statutory provisions apply for the Buyer’s rights in the event of defect of quality and title (including incorrect and under-delivery). In any case, the special statutory provisions of final delivery of the unprocessed Goods to a consumer shall remain unaffected, even where the latter has further processed these Goods (supplier’s redress pursuant to sec. 478 BGB). Any claims arising from supplier’s redress are excluded where the defective Goods have been further processed by the Buyer or other contractor e.g. by way of installation of another product.
(2) The basis of our liability for defects is the agreement made pertaining to the features of the Goods. All product specifications and manufacturer information deemed to be the subject of the relevant contracts or which were made public (in particular in catalogues or on our website) at the time of concluding the contract, are deemed to constitute an agreement on the features of the goods.
(3) Where features have not been agreed, it must be confirmed in accordance with the statutory regulations whether a defect is present (sec. 434 par. 1 pg. 2 and 3 BGB). We assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising messages) to which the Buyer makes reference as not being a factor in its decision to buy.
(4) The Buyer’s claims for defects shall not be accepted where it has not satisfied its legal obligations pertaining to the inspection and notification of defects (sec. 377, 381 HGB). For goods intended for installation or other further processing, an inspection must take place in any case prior to processing/installation. Where a defect becomes apparent upon delivery, inspection or at a later point in time, the Buyer must notify us in writing immediately. In any case, we must be notified of apparent defects within 10 working days of delivery and, where no recognisable defects are discovered upon inspection, within 10 days of discovery of the defect. Where the Buyer fails to perform the proper inspection and/or notification of defects, we are not liable in accordance with the statutory provisions for any defects not reported within the aforementioned timescale or which were improperly reported.
(5) Where the delivered item is defective, we may first choose to rectify the defect by way of removal of the defect (repair) or by way of delivery of a non-defective item (replacement). Our right to refuse such supplementary performance under the statutory provisions remains unaffected.
(6) We are authorised to render any due supplementary performance conditional upon payment of the purchase price due. The Buyer is authorised, however, to withhold an appropriate sum of the purchase price proportionate to the defect.
(7) The Buyer must allow us the time and opportunity necessary for the due supplementary performance; this includes returning the defective Goods to us for inspection purposes. In the event of replacement of the Goods, the Buyer must return the defective item to us in accordance with the statutory provisions. The supplementary performance does not involve removal of the defective item nor installation of its replacement where we were not liable for its original installation.
(8) Any expenses incurred for the purposes of inspection and supplementary performance, in particular transport costs, travel costs, labour costs, material costs, as well as removal and installation costs are borne by us or we shall refund such costs in accordance with the relevant statutory provisions. We may otherwise request the Buyer to refund all costs arising from an unjustified request for the repair of a defect (in particular inspection and transport costs), unless the Buyer was fully unaware of any absence of defects upon making the request.
(9) In urgent cases, e.g. danger to operational safety or to prevent excessive damage, the Buyer reserves the right to repair the defect itself and request reimbursement of any objectively necessary costs incurred for this purpose. We must be notified immediately, and where possible in advance, of any such self-repair. The Buyer’s right to repair defects itself shall not apply where we would have been otherwise authorised to refuse the relevant supplementary performance in accordance with the statutory provisions.
(10) In the event the supplementary performance is unsuccessful or the suitable timescale set out by the Buyer for us to carry out the supplementary performance has expired or is not necessary in accordance with the statutory provisions, the Buyer may withdraw from the purchase agreement or reduce the purchase price. The right to withdraw from the contract does not apply for insignificant defects.
(11) The Buyer’s claims for damages and/or compensation for wasted expenses only applies for defects in accordance with sec. 8 and is otherwise excluded.
8. Other liability
(1) Unless otherwise agreed in this T&Cs, including the provisions below, we are liable in accordance with the statutory provisions for any breaches of contractual and non-contractual obligations.
(2) We are liable for damages, irrespective of their legal ground, arising as a result of intent and gross negligence. In the case of ordinary faults, we are only liable subject to a lower standard of liability in accordance with the statutory provisions (e.g. for the same due care as we usually employ in our own affairs) for
a) damage arising from injury to life, body or health;
b) damage arising from a significant breach of a contractual obligation (any obligation of which fulfilment is essential for the due implementation of the contract and on which the contracting partner regularly relies and may rely); in this case our liability is limited to compensation of any foreseeable, typically occurring damage.
(3) The limitations to liability set out in par. 2 also applies for any breaches of obligations by or in favour of any persons whose fault we are liable for in accordance with the statutory provisions. They shall not apply where we maliciously concealed a defect or have undertaken a guarantee for the quality of the Goods and for claims by the Buyer under the German Act on Liability for Defective Products.
(4) The Buyer may only withdraw from or terminate the contract as a result of a breach of obligation that does not consist in a defect where we are liable for such breach. A free right to terminate on the part of the Buyer (in particular in accordance with sec. 650, 648 BGB) is excluded. In addition, the statutory provisions and legal consequences apply.
9. Statute of limitations
(1) Contrary to sec. 438 par. 1 no. 3 BGB, the general statute of limitations for all claims arising from defect of quality and title is one year from delivery. Where acceptance has been agreed, the statute of limitations shall begin upon acceptance.
(2) The aforementioned statute of limitations for purchase rights also applies for any contractual and non-contractual claims for damages on the part of the Buyer based on a defect of the Goods, unless the application of a regular, statutory limitation period (sec. 195, 199 BGB) would result in a shorter statute of limitations in the relevant case. In accordance with sec. 8 par. 2 sentence 1 and 2(a) of these T&Cs and pursuant to the German Act on Liability for Defective Products, the statute of limitations for any claims for damages on the part of Buyer is based exclusively upon the statutory limitation period.
10. Applicable law and venue
(1) The applicable law for these T&Cs and the contractual relationship between us and the Buyer is the law of the Federal Republic of Germany under exclusion of international uniform law, in particular the UN Sales Convention.
(2) Where the Buyer is a contractor under the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive and international venue for all disputes arising directly or indirectly from the contract is our registered office in Göttingen. The same also applies where the Buyer is a contractor under sec. 14 BGB. We are, however, in any case authorised to take legal action at the place of performance of the delivery obligation in accordance with these T&Cs, or any individual agreement taking precedence, or at the general place of jurisdiction of the Buyer. Any statutory provisions taking precedence, in particular those pertaining to exclusive jurisdiction, remain unaffected.