§ 1 Scope, Contract Language
§ 2 Offer and conclusion of contracts
§ 3 Prices, shipping costs and payment
§ 4 Delivery and delivery time
§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance
§ 6 Warranty and material defects
§ 7 Liability
§ 8 Retention of Title
§ 9 Final provisions (in particular choice of law)
§ 1 Scope, Contract Language
(1) All deliveries, services and offers of ELOORAC GmbH & Co. KG, Schnellweg 47, 33397 Rietberg (hereinafter referred to as the Seller) are made exclusively on the basis of these General Terms and Conditions (GTC). They become part of all contracts that the Seller concludes with its contractual partners (hereinafter referred to as the Customer).
They also apply to all future deliveries, services and offers to the customer, even if they have not been separately agreed again and made the basis of the contract.
(2) The General Terms and Conditions apply exclusively. Any conflicting terms and conditions of the customer or third parties do not apply. This also applies if the seller does not specifically object to their validity. Reference to letters that contain or refer to the General Terms and Conditions of the customer or third parties does not constitute consent to the validity of these terms and conditions.
(3) The contract language is German.
§ 2 Offer and conclusion of contracts
(1) All offers from the seller are non-binding and subject to change unless they are expressly declared as binding or are subject to a specific acceptance period. The seller may accept orders or contracts within a period of 14 days from receipt.
(2) The sole determining factor for the legal relationship between the seller and the customer (if any) is the written purchase contract, including these General Terms and Conditions. The contract fully reflects all agreements between the contracting parties. In this respect, in particular, verbal promises made by the seller before the conclusion of the contract are legally non-binding.
Any oral agreements shall be deemed to be replaced by the contract unless it is apparent from them that they continue to be binding.
(3) Additions and changes to the agreements made, including these General Terms and Conditions, must be made in writing to be effective. With the exception of any transactions by managing directors or authorized representatives, employees of the seller are not authorized to make oral agreements deviating from this.
(4) The Seller's information on the object, on the delivery of the service (e.g. weights, dimensions, utility values, load capacity, tolerances, etc.) as well as the Seller's representations (e.g. drawings, illustrations) are only approximately relevant, unless the usability for the contractually intended purpose requires exact conformity.
(5) Furthermore, the Seller retains ownership/copyright of all offers and cost estimates submitted by him as well as drawings made available to the Client.
(6) The seller reserves ownership and copyright of all offers and cost estimates made by him, as well as images, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. The customer may not make these items accessible to third parties, either as such or in terms of content, without the express consent of the seller, or disclose them, use them or have them used or reproduced by third parties. At the seller's request, the customer must return these items in full to the seller and destroy any copies made. This does not include the storage of data made available electronically for the purpose of normal data backup.
§ 3 Prices, shipping costs and payment
(1) The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services will be charged. The prices are in euros ex works plus packaging, statutory VAT, fees and other public charges.
(2) Invoice amounts are to be paid within 30 days without any deductions, unless otherwise agreed in writing. The date of receipt of payment by the seller is decisive. Payments by check are excluded unless they are separately agreed in individual cases.
(3) In the event that the Seller becomes aware of circumstances after conclusion of the contract which are likely to significantly reduce the Customer's creditworthiness and which endanger the payment of the Seller's outstanding claim by the Customer from the respective contractual relationship, the Seller is entitled to carry out or provide outstanding deliveries or services only against advance payment or security.
§ 4 Delivery and delivery time
(1) Deliveries are made ex works.
(2) The deadlines and dates for deliveries and services promised by the seller are always approximate, unless a fixed deadline or date has been expressly promised or agreed. In the case of agreed shipment, the delivery deadlines or delivery dates refer to the time of handover to the shipping agent, freight carrier or other transport company.
(3) To the extent that the Customer fails to comply with its contractual obligations towards the Seller, the Seller may – without prejudice to its rights arising from default – demand from the Customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Customer fails to comply with its contractual obligations towards the Seller.
(4) The Seller is entitled to make partial deliveries if
• the partial delivery can be used by the customer within the scope of the contractually intended purpose,
• the delivery of the remaining part of the goods is ensured and
• the customer does not incur any significant additional effort or costs as a result (unless the seller agrees to cover these costs).
§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contract is Rietberg, unless otherwise specified. If the seller is also responsible for installation, the place of performance is the place where the installation is to take place.
(2) The method of shipping and packaging are at the sole discretion of the Seller.
(3) The risk of accidental loss passes to the customer at the latest when the delivery item is handed over to the forwarding agent, freight carrier or other third party appointed to carry out the shipment. This also applies if partial deliveries are made or the seller has undertaken other services (e.g. shipping or installation). In the event of shipping delays caused by the customer, the risk of accidental loss passes to the customer on the day on which the delivery item is ready for shipment and the seller has notified the customer of this.
(4) Insurance for theft, breakage, transport, fire and water damage or other insurable risks will only be taken out by the Seller at the express request of the Customer.
§ 6 Warranty, material defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which in each case become time-barred according to the statutory provisions.
(2) The customer must carefully inspect the delivered items immediately after delivery to him or to a third party designated by him. Obvious defects that would have been apparent upon immediate, careful inspection are deemed to have been approved if the seller does not receive a written notification of defects within seven working days after delivery.
At the request of the seller, a defective delivery item must be returned to the seller carriage paid. If the notification of defects is justified, the seller will reimburse the costs of the cheapest shipping method; this does not apply if the costs increase because the item is located at a location other than the place of intended use.
(3) In the event of material defects in the delivered item, the seller is initially obliged and entitled to repair or replace the item at his discretion within a reasonable period of time. In the event of failure (i.e. unreasonableness, impossibility, refusal or unreasonable delay of repair or delivery), the customer may withdraw from the contract or reduce the purchase price.
(4) The warranty is void if the customer modifies the delivery item or has it modified by a third party without the consent of the seller and this makes the rectification of the defect impossible or unreasonably difficult. In any case, the customer must bear the additional costs of rectifying the defect resulting from the modification.
Any delivery of used items agreed with the customer on a case-by-case basis is subject to the exclusion of any warranty and liability for material defects.
§ 7 Liability
(1) The Seller's liability for damages, regardless of the legal basis, in particular for impossibility or delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this Section to the extent that fault is relevant in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of essential contractual obligations.
Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from legal defects and material defects that impair its functionality or usability to a greater than insignificant extent, as well as advisory, protective and care obligations that are intended to enable the customer to use the item in accordance with the contract or that are intended to protect life and limb, the customer's personnel or the customer's property from significant damage.
(3) To the extent that the seller is liable for damages as described above, he shall only do so to the extent that he could have foreseen the damage as a possible consequence of his breach of contract when the contract was concluded or that he should have foreseen when exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation to the extent that such damage is typically to be expected when the delivery item is used as intended.
(4) The above restrictions shall apply to the same extent to the Seller’s bodies, legal representatives, employees and other vicarious agents.
(5) If the Seller provides technical information or advice and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and to the exclusion of any liability.
(6) The limitations of this Section shall not apply to the Seller’s liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§ 8 Retention of Title
(1) The seller reserves title to the goods delivered until the purchase price for these goods has been paid in full. While the retention of title exists, the customer may not sell the goods (hereinafter: "reserved goods") or otherwise dispose of the title thereto.
(2) In the event of third parties – in particular bailiffs – accessing the reserved goods, the customer will point out that they are the property of the seller and notify the seller immediately so that the seller can enforce its property rights.
(3) In the event of the processing of the reserved items, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer and that the latter immediately acquires ownership or - if the processing is carried out using materials owned by several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership of the newly created item in the ratio of the value of the reserved item to the value of the newly created item. In the event that no such acquisition of ownership should occur in favor of the seller, the customer hereby transfers his future ownership - or in the above-mentioned ratio - co-ownership of the newly created item to the seller as security. If the reserved item is combined with other items to form a single item or is inseparably mixed and one of the other items is to be regarded as the main item, the seller, insofar as the main item belongs to him, transfers to the customer proportionate co-ownership of the single item in the ratio specified in sentence 1.
(4) If the customer acts in breach of contract, in particular if he defaults on payment, the seller is entitled to demand the return of the reserved goods, provided that the seller has withdrawn from the contract.
§ 9 Final provisions (in particular choice of law)
(1) If the Customer is a merchant, a legal entity under public law, a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from the business relationship between the Seller and the Customer shall be Rietberg or the Customer's registered office, at the Seller's discretion.
In these cases, however, Rietberg is the exclusive place of jurisdiction for claims against the seller. Mandatory statutory provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.
(2) The relationship between the seller and the customer is subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) If the contract or these General Terms and Conditions contain regulatory gaps, the legally effective provisions that the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions if they had known about the regulatory gap shall be deemed to have been agreed upon to fill these gaps.