General Terms and Conditions (GTC) of Elried Markierungssysteme GmbH for sales to entrepreneurs
(1) These General Terms and Conditions (hereinafter: GTC) apply to all our business relations with our customers (hereinafter: Buyer). These 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.
(2) These GTC apply in particular to offers and contracts for the sale and/or delivery of movable goods (hereinafter also: Goods) or for services in connection with the purchase and/or delivery, regardless of whether they are made or concluded via our web store, by e-mail, fax, telephone or in any other way. They shall also apply irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the Buyer’s order or in any case in the version last notified to him in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our GTC 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 application. This requirement of consent 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 GTC.
(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing or text form (e.g. letter, e-mail, fax) in order to be effective.
(6) The Buyer shall treat the information and documents received from us (e.g. offers, price lists, technical documents) as confidential and shall only pass them on or disclose them to third parties with our written consent.
(7) References to the applicability of statutory provisions shall be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
2. offers and contract conclusion via our webshop ( https://shop.elried.de/ )
(1) Orders in our webshop are only possible via the internet. With regard to the goods offered by us there, 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, dimensions, weights), other product descriptions or documents – also in electronic form – to which we also reserve property rights and copyrights.
(2) The buyer can select products from our assortment and collect them in a so-called shopping cart via the button “add to shopping cart”. By clicking the button “order with obligation to pay”, the customer submits a binding request to purchase the goods in the shopping cart. However, the application can only be submitted and transmitted if the buyer has accepted these contractual terms and conditions by clicking on the button “Accept GTC” and thereby included them in his application.
(3) We will then send the purchaser an automatic confirmation of receipt by e-mail, in which the customer’s order is listed again. The automatic confirmation of receipt merely documents that we have received the Buyer’s order and does not constitute acceptance of the request. Irrespective of the type and time of payment, the contract shall only be concluded upon written confirmation of the order by electronic means (order confirmation) or upon delivery of the goods. In this case, the text of the contract (consisting of the order, GTC and order confirmation) is sent to the customer by us on a permanent data carrier (e-mail or paper printout) (contract confirmation). The text of the contract is stored in compliance with data protection.
(4) If and to the extent that the order also includes work services (assembly/installation, repair, maintenance), our General Terms and Conditions for Work Services shall apply in addition, which can be viewed on our homepage at www.elried.de, marked accordingly.
3. offers and conclusion of contracts outside our webshop
(1) Our offers are subject to change and non-binding, No. 2. (1) applies accordingly in this respect.
(2) The order of the goods by the Buyer (e.g. by telephone, fax, e-mail, etc.) shall be deemed to be a binding offer of contract, which requires a corresponding acceptance for a contract to be concluded. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the goods.
(4) No. 2. (4) shall apply accordingly in the case of work services which have also been commissioned.
4. delivery period and delay in delivery
(1) Deliveries shall be made ex works.
(2) Delivery periods and dates specified by us in the web store or upon acceptance of the order shall only be binding if they are expressly marked as binding. Otherwise, it is only an indication of the expected delivery period or delivery time. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) Without prejudice to our rights arising from default on the part of the Buyer, we may demand an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the Buyer fails to meet its contractual obligations towards us.
(4) We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, or the failure of suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and the hindrance is not only of temporary duration, we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. If the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to us.
(5) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required.
(6) The rights of the Buyer pursuant to. No. 9. of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
5 Delivery, Transfer of Risk, Default of Acceptance
(1) The place of performance for all obligations arising from the contractual relationship and the place of any subsequent performance shall be our registered office (Oberhaching). At the Buyer’s request, the goods shall be shipped to another destination at the Buyer’s expense (sale by delivery to a place other than the place of performance).
(2) Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(3) The Buyer shall ensure that appropriate access facilities are available for the proper delivery of the goods (e.g. by truck). Late deliveries or non-deliveries due to lack of access shall be borne in full by the purchaser.
(4) We shall be entitled to partial deliveries and services, which shall be invoiced individually. This does not apply if this is not reasonable for the buyer.
(5) The risk shall pass to the Buyer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if we have assumed other services (e.g. shipping or installation). If the shipment or handover is delayed due to a circumstance the cause of which lies with the Buyer, the risk shall pass to the Buyer from the day on which the goods are ready for shipment and we have notified the Buyer of this.
(6) We shall insure the delivery against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Buyer and at the Buyer’s expense.
(7) If and to the extent that work services (e.g. assembly/installation, maintenance, repair, etc.) are also owed on our part, our General Terms and Conditions for Work Services (cf. No. 2. (4)).
(8) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs), in accordance with the statutory provisions.
6. prices and terms of payment, rights of set-off and retention
(1) Unless otherwise agreed in the individual case, the prices stated in the order confirmation shall apply, otherwise our respective current prices at the time of conclusion of the contract, plus. statutory sales tax. Our prices are ex works, packaging costs are not included.
(2) If it is agreed at the time of ordering or conclusion of the purchase contract that we shall bear the transport/shipping costs for delivery to the Buyer, this shall not change the fact that this is part of the Buyer’s obligations. Such an agreement only results in a deviating regulation of the transport costs, but does not change the risk transfer rule under No. 5. para. 5, unless otherwise agreed in writing for the individual transfer relationship. In any case, the buyer bears the cost of any insurance requested. Any customs duties, fees, taxes and other public charges shall also be borne by the buyer.
(3) If there are more than 4 months between the date of conclusion of the contract and the date of delivery, without this being due to a delay in delivery for which we are responsible, and if our valid price list has changed during this period, we may demand the list price valid on the date of delivery instead of the agreed purchase price. We will send the buyer a correspondingly amended order confirmation before delivery. In this case, the Buyer may withdraw from his order with respect to the goods for which the price has been increased. He must declare the withdrawal in writing at the latest on the 5th working day after receipt of the amended order confirmation, a transmission by fax or e-mail is sufficient.
(4) Our prices are due and payable without deduction within 10 days from order confirmation/invoicing and delivery or acceptance of the goods, unless otherwise agreed – in particular by the payment method chosen by the Buyer himself. However, we are entitled at any time, also within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment, if and to the extent that there is an objectively justified reason for this. We declare a corresponding reservation at the latest with the order confirmation. If and to the extent that work services (e.g. assembly/installation, maintenance, repair, etc.) are also owed on our part, our General Terms and Conditions for Work Services (cf. No. 2. (4)).
(5) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay. With respect to merchants, our claim to the commercial due date interest (§ 353 HGB) shall remain unaffected.
(6) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, the purchaser’s counter rights shall remain unaffected, in particular in accordance with §§ 3 and 4 of the German Civil Code. No. 8. par. 10 sentence 2 of these GTC shall remain unaffected.
(7) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s inability to pay, 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 rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
7. retention of title
(1) 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 (reserved goods).
(2) 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 purchaser must inform us immediately in writing of all impairments of our property, in particular through access by third parties (e.g. through seizure), and inform the third parties of our right of ownership. The Buyer shall be liable for damages and costs arising from a breach of this obligation and necessary measures to protect against access by third parties.
(3) In the event of conduct by the Buyer in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand return of the goods on the basis of the retention 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 under the statutory provisions.
8. claims for defects of the buyer
(1) 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 improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB). With regard to the rights of the Buyer in the event of work services owed outside of the purchase contract (assembly, installation, repair, maintenance, etc.), our General Terms and Conditions for Work Services shall apply.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. Subject to No. 7 para. (3) all product and service descriptions which are the subject of the individual contract shall be deemed to be an agreement on the quality of the goods. Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not (§ 434 Abs. 1 S. 2 und 3 BGB). However, we do not assume any liability for public statements made by a manufacturer or other third parties (e.g. advertising statements).
(3) We are careful to present information about the goods correctly and in detail. However, information on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Customary deviations from this do not constitute a defect.
(4) In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the Purchaser or assign them to the Purchaser. In the event of such defects, warranty claims against us shall only exist under the other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations for the relevant warranty claims of the purchaser against us shall be suspended.
(5) The warranty shall not apply if the Buyer modifies the goods or has them modified by third parties without our consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Buyer shall bear the additional costs of remedying the defect resulting from the modification.
(6) The warranty claims of the purchaser are excluded:
a) with regard to deterioration of such parts that are subject to natural wear and tear, unless the deterioration has another cause; or
b) if operating, repair or maintenance instructions or mandatory legal regulations concerning operation, repair or maintenance are not followed, unless the defect or deterioration has another cause than the failure to follow these instructions or regulations.
(7) The Purchaser’s warranty claims shall be subject to the condition that the Purchaser has complied with its statutory duties to examine the goods and to give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during delivery, inspection or later, we must be notified of this in writing without delay.
(8) Obvious defects which are recognizable or detected without examination shall be notified within 2 days from delivery. In all other respects, obvious defects must be reported in writing within 5 working days of delivery and defects that are not apparent upon inspection must be reported within the same period of time after discovery. If the purchaser fails to properly inspect the goods and/or notify us of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions.
(9) If the delivered goods are defective, we may first choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(10) We are entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.
(11) The purchaser 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. In the event of a replacement delivery, the purchaser shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective goods nor the re-installation if we were not originally obliged to install them.
(12) The expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs, as well as, if applicable, the costs of the replacement parts, shall be borne by the customer. We shall bear or reimburse removal and installation costs if a defect is actually present. Otherwise, we may demand reimbursement from the purchaser of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the purchaser.
(13) 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 reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of any such self-execution, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse subsequent performance in accordance with the statutory provisions.
(13) If the supplementary performance has failed or if a reasonable period 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, in the case of an insignificant defect, there is no right of withdrawal.
(14) Claims of the purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with No. 9. and are otherwise excluded.
(15) A purchase of used items agreed with the buyer in an individual case shall be made to the exclusion of any warranty for material defects.
9. other liability
(1) Unless otherwise provided in these GTC including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to a milder standard of liability in accordance with statutory provisions (e.g. for diligence in own affairs) only
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the not insignificant breach of a material contractual obligation (obligation whose fulfillment is a prerequisite for the proper execution of the contract and on whose fulfillment the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The obligations arising from par. 2 shall also apply to breaches of duty by or in favor of persons for whose fault we are responsible in accordance with statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the purchaser under the Product Liability Act.
(4) The Buyer may only rescind or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the purchaser (in particular according to §§ 650, 649 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
10. statute of limitations
(1) Notwithstanding § 438 para. 1 No. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance. Special statutory provisions on the statute of limitations (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 479 BGB) shall remain unaffected.
(2) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the purchaser according to. above No. 8. par. 2 sentence 1 and sentence 2 (a) as well as under the Product Liability Act shall, however, become time-barred exclusively in accordance with the statutory limitation periods.
11. data protection
12 Choice of Law and Place of Jurisdiction, Final Provisions
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relationships between us and the Buyer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The prerequisites and effects of the retention of title shall be governed by the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
(2) 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 our registered office in Munich. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer. Overriding statutory provisions, in particular on exclusive responsibilities, shall remain unaffected.
(3) Insofar as the contract or these GTC contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had been aware of the loophole.
(4) These GTC are written in German and English. In the event of any contradictions or difficulties of interpretation, the German text version of these GTC shall be solely authoritative. Translations are not legally binding.
Status of the GTC: 01.01.2019