General Terms and Conditions of the ETG Elevator Trading GmbH, Kömmlitzer Str. 5, 04519 Rackwitz
§ 1 General, scope of application
- The present General Terms and Conditions (GTC) shall apply to all our business relations with our customers and buyers (hereinafter: „Buyer“).The GTC shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. The GTC shall also apply as a framework agreement for future business relations with the same Buyer without us having to refer to them again in each individual case.
- Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.
- Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements. Text form (e.g. fax) shall suffice for our written declarations.
- References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
- Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, samples, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.
- The order of the goods by the Buyer shall be deemed to be a binding offer of contract. This contractual offer shall remain valid for at least 2 calendar weeks after receipt by us, unless a shorter binding period is specified. We confirm the acceptance of the offer in writing by order confirmation. Changes which are insignificant for the usability, e.g. of a technical or optical nature, remain reserved and do not constitute a deviation from the order.
§ 3 Delivery period and delay in delivery
- The delivery period shall be agreed individually or stated by us upon acceptance of the order. The delivery period shall only be binding on condition that all technical questions have been clarified and that the purchaser fulfils the actions incumbent upon him in the individual case (e.g. provision of instructions for execution, official certificates or approvals) in good time.
- If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time specify a new delivery deadline which is reasonable under the respective circumstances. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer.
- A case of non-availability of the performance in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction.
- Our statutory rights of rescission and termination as well as the statutory provisions on the performance of the contract in the event of an exclusion of the obligation to perform (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The rights of the purchaser shall also remain unaffected.
- The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the buyer is required.
- If we are in default of delivery, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but not more than a total of 5% of the delivery value. We reserve the right to prove that the Buyer has not suffered any damage or that the damage is significantly less than the above lump sum.
The Buyer shall only be entitled to withdraw from the contract and to claim damages in lieu of performance – taking into account the lump sum – in accordance with § 9 of these General Terms and Conditions. In any case, the Buyer shall declare upon our request within a reasonable period of time whether he insists on delivery.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
- Delivery is made ex warehouse, which is also the place of performance. At the request of the purchaser, the goods will be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
- The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
- If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance.
- Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.
- If the Buyer is in default of acceptance, fails to cooperate or delays our delivery for other reasons for which the Buyer is responsible, we shall be entitled to demand lump-sum compensation for the resulting damage. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but not more than a total of 5% of the delivery value. The proof of higher damages and our legal claims (in particular compensation for additional expenses, reasonable compensation, termination) shall remain unaffected – taking into account the lump sum. The Buyer shall be entitled to prove that we have suffered no damage at all or only significantly less damage than the aforementioned lump sum.
§ 5 Prices and terms of payment
- Our prices are ex warehouse plus statutory value added tax. In the case of sale by delivery to a place other than the place of performance, the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
- The purchase price is due and payable within 14 days from the date of invoice and delivery or notification that the goods are ready for shipment. Upon expiration of the payment period, the buyer is in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to claim further damages caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.
- The purchaser shall only be entitled to set-off rights insofar as the counterclaim has been legally established or acknowledged by us. The same shall apply to rights of retention; in the event of defects in the delivery, § 7 clause 8 shall remain unaffected.
- If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer’s inability to pay (e.g. by an application for the institution of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately. The legal regulations concerning the dispensability of setting a deadline remain unaffected.
§ 6 Retention of title
- Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain title to the goods sold.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if and to the extent that third parties have access to the goods belonging to us.
- In case of breach of contract by the buyer, in particular in case of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the purchaser does not pay the purchase price due, we may only assert these rights if we have previously set the purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
- The Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
4.1 The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under reservation of title.
4.2 The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our co-ownership share, if any, in accordance with clause 4.1 above. We accept the assignment. The obligations of the Buyer set forth in Clause 2 shall also apply in respect of the assigned claims.
4.3 The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the Buyer discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
4.4 If the value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.
§ 7 Claims for defects of the purchaser
- The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including wrong delivery and short delivery as well as faulty assembly instructions), unless otherwise stipulated in the following.
- The basis of our liability for defects is above all the agreement reached on the quality of the goods. Product descriptions to which the purchaser refers in his order and which have been accepted by us shall in any case be deemed to be an agreement on quality. In case of doubt, the product description according to our order confirmation shall be decisive.
- An agreement on the quality of the goods does not constitute a warranty promise. We shall only assume special guarantees on the basis of a separate agreement which regulates the content and scope of the guarantee independently of these General Terms and Conditions and the statutory rights of the purchaser.
- Insofar as the quality has not been agreed, the goods shall be free from material defects if they are suitable for the use presumed under the contract. Furthermore, in addition to the statutory provisions, the goods shall also be free of material defects if they have the properties which the Buyer can expect according to the product description (also of the manufacturer) delivered together with the goods or later. However, we shall not be liable for public statements made by the manufacturer or other third parties (e.g. advertising statements).
- The purchaser’s claims for defects presuppose that he has fulfilled his statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this immediately. The same shall apply if a defect is only discovered by a third party from the time at which the Buyer becomes aware of it. The notification shall be deemed to be immediate if it is made within 10 calendar days from the date of discovery or knowledge – in the case of obvious defects from the date of delivery. Timely dispatch of the notification shall be sufficient to meet the deadline. The notification must be made in writing. If the purchaser fails to carry out the aforementioned inspections or to give notice of defects, our liability for the defect shall be excluded.
- Insofar as a defect was caused exclusively or predominantly by the purchaser or a third party, there shall be no claims for defects. This is to be assumed in particular if the defect is based on the following circumstances:
- Defectiveness or unsuitability of the instruction given by the purchaser for the execution or of the material to be supplied by him, if the defect was not recognizable for us or if the purchaser rejects the concerns expressed by us;
- Unsuitable or improper use, faulty assembly or commissioning, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable foundation soil, chemical, electrochemical or electrical influences – in each case caused by the Buyer or third parties.
- Our statutory rights in the event of responsibility or failure to cooperate on the part of the Buyer (§§ 645; 642, 643 BGB) shall remain unaffected. Notwithstanding the statutory provisions (§ 651 p. 3 BGB), these rights shall apply irrespective of whether the goods to be delivered are fungible or non- fungible items (custom-made products).
- If the delivered goods are defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse the chosen type of subsequent performance under the statutory conditions shall remain unaffected.
- We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to withhold a part of the purchase price which is reasonable in relation to the defect.
- The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes if possible. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.
- In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and to demand compensation from us for the defective component. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
- If the supplementary performance has failed or a deadline to be set by the purchaser for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price. However, a right of withdrawal does not exist in the case of an insignificant defect. Upon declaration of withdrawal or reduction, the purchaser’s claim to delivery of a defect-free item shall lapse.
- Claims of the purchaser for damages or reimbursement of futile expenses exist only in accordance with § 9, otherwise they are excluded.
§ 8 Software, industrial property rights, defects of title
- Insofar as our delivery includes software, we grant the Buyer the non-exclusive right to use the delivered software including its documentation. The software shall only be provided for use on the delivery item intended for this purpose. The granting of sublicenses is not permitted.
The purchaser may only copy, revise, translate or convert the software to the extent permitted by law (§ 69 a ff. Copyright Act). The purchaser may not remove or change manufacturer’s information – in particular copyright notices.
- If the use of the goods leads to the infringement of industrial property rights or copyrights in Germany or if there is another defect of title, we shall, in accordance with § 7 clause 7, procure for the Buyer the right to continue using the goods (subsequent improvement) or modify the subject matter of the contract in a manner reasonable for the Buyer so that the defect of title no longer exists (replacement delivery). Section 7 shall also apply mutatis mutandis to defects of title.
§ 9 Other liability
- Unless otherwise stipulated in these General Terms and Conditions including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
- We shall only be liable for damages – irrespective of the legal grounds – in the event of intent and gross negligence. In addition, we shall also be liable for simple negligence,
- for damages resulting from injury to life, body or health,
for damages resulting from the breach of an essential contractual obligation; in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage. The above limitations of liability shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the Buyer under the Product Liability Act.
- Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty. A free right of termination of the buyer (especially according to §§ 651, 649 BGB) is excluded. Withdrawal or termination must be declared in writing. Otherwise, the statutory requirements and legal consequences shall apply.
§ 10 Limitation
- The mutual claims of the contracting parties shall become statute-barred in accordance with the statutory provisions, unless otherwise stipulated below.
- Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. However, claims arising from defects of title shall not become statute-barred as long as the third party can still assert its right against the Purchaser in the absence of a statute of limitations.
- For buildings and newly manufactured items that have been used for a building in accordance with their normal use and have caused its defectiveness, the limitation period shall be two years from delivery. However, if the defect in the construction work has occurred in the case of a consumer, the statutory limitation period of five years from delivery shall apply.
- If acceptance has been agreed, the limitation period shall commence upon acceptance. In all cases, the statutory limitation provisions in the case of fraudulent intent and in the case of supplier recourse (§ 479 BGB) shall remain unaffected.
- Insofar as we owe the purchaser contractual compensation for damages due to or as a result of a defect in accordance with § 9, the unabridged statutory limitation periods of the law on sales (§ 438 BGB) shall apply. These limitation periods shall also apply to competing non-contractual claims for damages, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) leads to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act shall remain unaffected.
§ 11 Choice of law and place of jurisdiction
- These General Terms and Conditions and all legal relations between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the retention of title pursuant to § 5 shall be subject to the law at the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
- If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the court responsible for our registered office in Hohenossig. However, we shall also be entitled to bring an action before another competent court.