General terms and conditions (T&C)

 

General terms and conditions (T&C) of Elried Markierungssysteme GmbH

for selling to B2B customers

 

Non-binding translation - only the German version is relevant.

 

1.   Scope, form

(1)  These General Terms and Conditions (hereinafter: T&C) shall apply for all our business relationships with our customers (hereinafter: Purchasers). These T&C shall only apply if the Purchaser Contractor (Section 14 of the German Civil Code (BGB)) is a legal entity under public law or a special fund under public law.

(2)  These T&C apply in particular for offers and contracts concerning the sale and/or the delivery of goods and chattels (hereinafter also referred to as: Goods) and/or for services in connection with the purchase and/or delivery, notwithstanding whether they were rendered or concluded via our online shop, via email, fax, telephone or using another method. These T&C also apply without regard to whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 German Civil Code (BGB)). Unless otherwise agreed the T&C will apply as a framework agreement in the version valid at the time of the purchase made by the Purchaser or at least in the version that he has most recently been notified of for similar future contracts, without any requirement on our part to repeat reference to them in an individual case.

(3)  Our T&C shall apply exclusively. Purchaser’s deviating, contradictory or supplementary General Terms and Conditions shall only form a part of the agreement when and insofar as we expressly consent to their validity. This requirement of consent applies in any event, for example even if we, being aware of the Purchaser's T&C execute delivery to them without reservation.

(4)  Individual agreements made with the Purchaser (including ancillary agreements, supplements and amendments) in individual cases shall, in all events, have precedence over these T&C. A written contract or our written confirmation is decisive, subject to proof of the contrary, for the content of such agreements.

(5)  Material declarations and notifications which are made to us by the Purchaser (e.g. deadlines, notifications of defects, declarations on rescission or reduction of the price) with respect to the contract require the written form for their effectiveness (e.g. letter, email, fax).

(6)  The Purchaser will treat information and documents received from us (e.g. offers, price lists, technical documents) in the strictest confidence and only pass these on or disclose these to third parties with our written consent.

(7)  References to the application of statutory provisions are for the purposes of clarification only. Therefore, the statutory regulations shall also apply without such a clarification insofar as these T&C are not directly changed or are expressly excluded.

2.   Offers and conclusion of contract made via our online shop (https://shop.elried.de/)

(1)  Orders can only be made from our online store via the internet. The goods we offer on our online store are non-binding and without obligation. This also applies if we have entrusted the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, dimensions, weights) other product descriptions or documentations – including those in electronic form – in which we reserve ownership and copyright.

(2)  The Purchaser can select from our range of products and add these to a shopping basket by using the “Add to shopping basket” button. By clicking on the “submit order” button the Purchaser makes a binding request to purchase the goods contained in the shopping basket. However, the request may only be made and sent if the Purchaser has accepted these terms and conditions of contract by clicking on the “accept T&C” thereby incorporating these into his request.

(3)  We will then send the Purchaser an automatic acknowledgement of receipt via email, in which the Customer’s order will be listed again. The automatic acknowledgement of receipt only documents that we have received the Purchaser’s order and does not constitute an acceptance of the request. Notwithstanding the manner and time of the payment, the contract shall only be concluded by written confirmation of the order by electronic means (order confirmation) or by means of shipping of the goods. In doing so, the contract (consisting of the order, T&C and order confirmation) will be sent to the Customer in a durable medium (email or paper copy) (confirmation of contract). The contract will be stored in accordance with data protection legislation.

(4)  If and insofar as services are also included as part of the order (assembly/installation, repair, maintenance) our General Terms and Conditions for Services shall also apply, which are labelled accordingly in the internet on our website and are accessible at www.elried.de.

3.   Offers and conclusion of contract outside of our online shop

(1)  Our offers are non-binding and without obligation No. 2 (1) shall apply accordingly.

(2)  The order of the goods by the Purchaser (e.g. by telephone, fax; email, etc.) is valid as a binding offer of contract, which requires corresponding acceptance for conclusion of contract. Unless otherwise agreed in the order documentation, we are entitled to accept this offer of contract within 14 days of our receipt of it.

(3)  Acceptance can either be declared in writing (e.g. by means of order confirmation) or by means of the shipping of goods.

(4)  In the event of services also being commissioned, No. 2. (4) shall apply accordingly.

4.   Delivery period and delay in delivery

(1)  Deliveries shall be made ex works.

(2)  The delivery periods and delivery dates indicated in our online shop or upon acceptance of the order shall only be binding if they have been expressly marked as binding. Otherwise they are just an indication of an expected delivery period or date. If shipping has been agreed, delivery periods and dates refer to the time of transfer to the forwarder, carrier, or other third party assigned to transport the goods.

(3)  Notwithstanding our rights in connection with the delay by the Purchaser, we can request an extension to delivery and service periods or a postponement of delivery and service dates by the period of time during which the Purchaser fails to fulfil his contractual obligations towards us.

(4)  We shall not be liable should delivery be impossible or for delays in delivery due to force majeure or other events that were unforeseeable (e.g. operational disruptions of all kinds, problems in obtaining materials or energy, transport delays, strikes, legal lockouts; shortage of labour, energy or raw materials, delays in delivery or incorrect or untimely delivery by suppliers) for which we are not accountable. If such events significantly impair our delivery or service or render the same impossible, and if the hindrance is not of a temporary nature, we are entitled to withdraw from the contract. In the event of impediments that are of temporary duration, the deadlines for delivery or performance shall be extended or the delivery or performance shall be postponed by the period of the impediment plus a reasonable start-up period. Insofar as it is not reasonable for the Purchaser to accept the delivery or service as the result of the delay, the Purchaser shall be entitled to withdraw from the contract by an immediate written declaration addressed to us.

(5)  The occurrence of a delay in delivery is determined in accordance with legal provisions. In each case, however, a reminder is required from the Purchaser.

(6)  The Purchaser’s rights in accordance with No. 9 of these T&C and our legal rights, in particular in the event of the exclusion of the performance obligation (e.g. due to impossibility or it being unreasonable to perform the service and/or subsequent performance), remain unaffected.

5.   Delivery, transfer of risk, delay in acceptance

(1)  The place of performance for all obligations from the contractual relationship and the place of any subsequent performance is our registered office (Oberhaching). At the Purchaser’s request, the Goods will be sent to another destination at their cost (sales shipment).

(2)  Unless otherwise agreed we are entitled to determine the type of shipment (in particular transport companies, dispatch route, packaging) ourselves.

(3)  The Purchaser will ensure that appropriate access options are available (e.g. by means of a lorry) for proper delivery to be made. Late or non-deliveries caused by the lack of access options shall be charged in full to the Purchaser.

(4)  We are entitled to render partial deliveries and performance which will be invoiced individually. This will not apply if this is not acceptable for the purchaser.

(5)  The risk is transferred to the Purchaser no later than at the time the purchased items are handed over (whereby the commencement of the loading process is decisive) to the forwarder, carrier or other third party appointed to deliver the goods. This shall also apply in the case of partial deliveries or where we have agreed to undertake other services (e.g. shipping or installation). If the dispatch or the handover is delayed as a result of a circumstance for which the Purchaser is responsible, then the risk transfers to the Purchaser from the day on which the Goods are ready for dispatch and we have notified the Purchaser of this.

(6)  We will only arrange for the delivery to be insured against theft, breakage, transportation, fire and water damages as well as other insurable risks at the express wish and expense of the Purchaser.

(7)  If and insofar as we are also liable to carry out services (e.g. assembly/installation, maintenance, repair, etc.), our General Terms and Conditions for Services (cf. No. 2. (4)) shall also apply.

(8)  Should the Purchaser be in default of acceptance, fails to provide active cooperation or if our delivery is delayed due to other reasons for which the Purchaser is responsible we shall be entitled to demand compensation for any loss thereby incurred including any additional expenses (e.g. storage costs) in accordance with the statutory regulations.

6.   Prices and payment conditions, rights of off-setting and retention

(1)  Unless otherwise agreed for individual cases, the prices specified in the order confirmation shall apply, otherwise our current prices at the time of the conclusion of the contract plus statutory VAT. Our prices apply to ex-works, packaging costs are not included in this price.

(2)  Provided that it has been agreed in the order and/or conclusion of the contract that we will bear the transport/shipping costs to the Purchaser, this does not alter the fact that this is one of the Purchaser’s obligations. Such an agreement merely involves a variation of the provisions as to transportation costs, but does not change the aforementioned transfer of risk provision under No. 5 para. 5 unless otherwise agreed for the individual handover. In any event the Purchaser shall bear the costs of any requested insurance. Any customs, charges, taxes and other public duties shall also be borne by the Purchaser.

(3)  If the period between the day on which the contract is concluded and the day of delivery extends beyond more than 4 months, but this is not due to delays in delivery for which we are responsible and if during this period of time our valid price list has changed we are entitled to request the valid list price on the day of delivery instead of the agreed purchase price. We will send the Purchaser an appropriately amended order confirmation prior to delivery. In this event the Purchaser can cancel his order of the Goods for which the price has increased. He must declare his decision to withdraw from the contract no later than the fifth working day after receipt of the amended order confirmation, whereby a fax or email message will suffice.

(4)  Our prices are due and to be paid without delay within 10 days from order confirmation/invoicing and delivery or acceptance of the Goods, unless otherwise agreed, in particular by means of a payment method selected by the Purchaser. Even in the context of an ongoing business relationship, we are, however, entitled to make partial or complete delivery at any time only with prepayment if and insofar as an objective reason is given for this. We shall declare an appropriate reservation at the point of order confirmation at the latest. If and insofar as we are also liable to carry out services (e.g. assembly/installation, maintenance, repair, etc.), our General Terms and Conditions for Services (cf. No. 2. (4)) shall also apply.

(5)  Upon the expiry of the aforementioned term of payment the Purchaser will be in default of payment. Interest is to be paid on the purchase price at the respective applicable interest rate for default during the payment default period. We reserve the right to claim any further damages from default. Our claim for the commercial maturity interest (Section353 HGB [German Commercial Code]) against merchants remains unaffected.

(6)  The Purchaser is only entitled to rights to offset or retention to the extent that its entitlement has been determined as final and binding or is undisputed. In the event of defects in the delivery, the counter-rights of the Purchaser remain unaffected in accordance with No. 8 para. 10 sentence 2 of these T&C.

(7)  If, after the contract has been concluded, it becomes apparent that (e.g. due to an application for the opening of an insolvency proceeding) our entitlement to the purchase price is at risk due to insufficient ability of the Purchaser to pay, then in accordance with the statutory regulations we are entitled to refuse service and - if applicable after setting a deadline - to cancel the contract (Section 321 BGB). In the case of contracts for the manufacture of specific items (custom-built products), we can withdraw from the contract immediately; this shall not affect the legal provisions concerning the dispensability of fixing a time limit.

7.   Retention of title

(1)  We reserve the right to the property of the sold Goods until full payment is made for of all our existent current and future claims arising from the purchase agreement and an ongoing business relationship (secured claims).

(2)  The goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The Purchaser shall immediately inform us in writing concerning all damage to our property, in particular due to unauthorised access by third parties (e.g. by way of pledge) and also inform the third parties of our right of ownership. The Purchaser shall be liable for any damage and costs arising from a breach of this obligation and from action necessary for protection against third party access.

(3)  In the event of behaviour by the Purchaser contrary to the contract, in particular non-payment of the prices due, we are entitled, in accordance with the statutory regulations, to withdraw from the contract and/or demand that the goods be returned on the basis of the reservation of title. Any demand for the return of goods shall not be deemed to include a simultaneous declaration of withdrawal; on the contrary, we shall be entitled to demand solely the return of the Goods and reserve the right to withdraw from the contract. If the Purchaser does not pay the purchase price due, we may assert these rights only if we have first set the Purchaser an appropriate time limit for payment without result or if setting a time limit may be dispensed with in accordance with the statutory provisions.

8.   Claims for defects by the purchaser

(1)  The statutory regulations apply for the rights of the Purchaser in the event of material defects or defects of title (including incorrect supplies and shortfalls as well as incorrect assembly or faulty assembly instructions) insofar as nothing is stated to the contrary below. The special statutory provisions on final delivery of Goods to a consumer (supplier recourse in accordance with Sections478, 479 BGB(German Civil Code)) shall remain unaffected at any time. In respect of the rights of the Purchaser in the event of services due outside of the purchase agreement (assembly, installation, repair, maintenance, etc.) our General Terms and Conditions of Service shall apply.

(2)  The primary basis of our liability for defects shall be the agreement made concerning the quality of the Goods. Subject to No. 7 para. (3), all product and service descriptions which are the subject matter of the individual contract are considered to be an agreement concerning the quality of the goods. In the absence of any agreed specification of the goods, the existence of defects therein shall be determined in accordance with statutory provisions (Section 434 para. 1 sentence 2 and 3 German Civil Code (BGB)). However we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising messages).

(3)  We are committed to presenting correct and detailed information relating to the Goods. Details regarding the delivery item or service (e.g. weights, measurements, use values, load capacity, tolerances and technical data) as well as our illustrations of the same (e.g. drawings and figures) are just approximations, insofar as it has not been stipulated in the contract that exact details are a prerequisite. They are not a guaranteed characteristic of their condition, but a description or designation of the delivery or service. Standard variations or deviations do not constitute any defects.

(4)  In the event of defects in components provided by other manufacturers that cannot be eliminated by us for reasons of licensing or other practical reasons, we shall, at our own discretion, either enforce our claims under guarantee against the manufacturer and/or suppliers for the account of the Purchaser or assign such claims under guarantee to the Purchaser. Warranty claims asserted against us only exist for defects of this kind under other conditions and in accordance with these General Terms and Conditions if the legal enforcement of the abovementioned claims against the manufacturer and suppliers were unsuccessful or for example, there is no reasonable chance due to insolvency. During the legal dispute the statute of limitations of the relevant guarantee claims of the Purchaser against us do not apply.

(5)  The warranty ceases to apply if the Purchaser modifies the supplied item without our consent or allows it to be modified by third parties and the alteration makes repair of defects impossible or difficult to the point where they are unreasonable. In any case the Purchaser must bear the additional costs incurred for remedying the defect.

(6)  The warranty claims of the Purchaser are excluded:

a)   with respect to a deterioration of such parts, which 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 which relate to the operation, repair or maintenance are not observed, unless the defect or a deterioration has another cause other than the non-compliance of these instructions or regulations.

(7)  The warranty claims of the Purchaser require that the Purchaser has duly fulfilled his statutory inspection and notification duties (Sections 377, 381 of the German Commercial Code (HGB)). If a defect becomes apparent on delivery, inspection or later this is to be reported to us immediately in writing.

(8)  Obvious defects that are recognisable or recognised without inspection are to be reported within 2 days from delivery. In addition obvious defects are to be reported in writing within 5 working days from delivery and defects not recognisable during the inspection are to be reported in writing within the same deadline from the point of discovery. If the Purchaser fails to carry out the proper inspection and/or report the defect, our liability for the defect which was not reported or not properly reported is excluded in accordance with the statutory provisions.

(9)  If the delivered Goods are defective, we can then choose whether to make subsequent performance by removal of the defect (rectification of defects) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the legal requirements remains unaffected.

(10) We are entitled to make subsequent performance conditional upon the Purchaser paying the purchase price due. The Purchaser is, however, entitled to retain a reasonable portion of the purchase price which is relative to the defect.

(11) The Purchaser shall allow us the necessary time and opportunity for due subsequent performance and shall in particular hand over the goods concerned for inspection. In the event of replacement delivery, the Purchaser must return the defective item in accordance with the statutory provisions. Subsequent performance does not comprise the dismantling of the defective Goods nor the reassembly if we were not originally obliged to carry out the assembly.

(12) We will bear the expenses for inspection and subsequent performance, in particular the transport, travel, work and material costs when a defect actually exists. Otherwise we may demand reimbursement from the Purchaser for costs incurred as a result of an unjustified request for the rectification of a defect (in particular inspection and transport costs), unless it was not possible for the Purchaser to identify that there was no defect.

(13) In urgent cases e.g. when the operational safety is at risk, or to prevent disproportionate damage, the Purchaser has the right to remove the defect themselves and to demand reimbursement by us of the objectively necessary expenses incurred. We are to be advised without delay, if possible beforehand, of self-remedying of defects. The Purchaser's right to remedy the defect himself shall not apply if we would have been entitled to refuse subsequent performance in accordance with the statutory provisions.

(13) If the subsequent performance has failed or a reasonable deadline which is to be set by the Purchaser for the subsequent performance has expired unsuccessfully or it is dispensable according to the statutory provisions, the Purchaser can cancel the purchase contract or reduce the purchase price. There shall, however, be no right of rescission if the defect in the Goods is negligible.

(14) The Purchaser's claims for damages or compensation for wasted expenses exist only in accordance with No. 9 and are otherwise excluded.

(15) On a case-by-case basis, an agreed purchase of used items shall take place under exclusion of any warranty for material defects.

9.   Other liability

(1)  Unless otherwise stated in the following provisions of these T&C, we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual duties.

(2)  We shall be liable for damages, irrespective of the legal grounds, in the event of intent and gross negligence. In cases of minor negligence we are only liable, in accordance with the statutory provisions, subject to a more lenient standard of liability (e.g. for the diligence we exercise for our own affairs)

a)   for damages arising from injury to life, body and health,

b)   for damages resulting from not insignificant breach of a material contractual obligation (an obligation, fulfilment of which makes the proper execution of the contact possible and the observance of which the contracting party relies on, and may rely on, regularly); in this event our liability is however restricted to foreseeable and typically occurring damage.

(3)  The limitations of liability arising from para. 2 shall also apply in the event of infringement of obligations by or assist persons whose culpability can be attributed to us in accordance with the statutory provisions. They do not apply if we have wilfully withheld the defect or have assumed a guarantee for the condition of the goods and for the Purchaser’s claims in accordance with the German Product Liability Act.

(4)  In the event of a breach of obligation that is not attributable to a defect, the Purchaser can only withdraw or give notice if we are responsible for the infringement of obligation. A Purchaser’s free right of termination (in particular in accordance with Sections 650, 649 German Civil Code (BGB)) is excluded. Otherwise the statutory requirements and legal consequences shall apply.

10. Limitation period

(1)  Notwithstanding Section 438 para. 1 No. 3, the general limitation period for claims for material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period begins with the acceptance. Special regulations on the limitation period remain unaffected (in particular Section 438 para. 1 No. 1, para. 3, Sections 444, 479 German Civil Code (BGB)).

(2)  The aforementioned limitation periods shall also apply to the Purchaser's contractual and extracontractual compensation claims, based on defective goods, unless if the use of the standard legal limitation period (Sections 195, 199 German Civil Code (BGB)) results in a shorter limitation period in individual cases. Claims for damages by the Purchaser in accordance with the aforementioned No. 8.  para. 2 sentence 1 and sentence 2 (a) shall however become time-barred exclusively in accordance with the statutory limitation periods.

11. Data protection

We take the protection of personal data very seriously, in particular in accordance with the provisions of the GDPR and Federal Data Protection Act. Specific details and information in this respect are listed on our website under the “Data protection” menu within the privacy statement which can be retrieved there.

12. Governing law and jurisdiction, final provisions

(1)  For these T&C and all legal relationships between us and the Purchaser the law of the Federal Republic of Germany will apply to the exclusion of uniform international law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and consequences of the reservation of title are subject to the law of the respective location of the item, if under that law, the choice of German law would be inadmissible or invalid.

(2)  If the Purchaser is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a separate property under public law, the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly as a result of this contract is Munich. The same applies if the Purchaser is a Contractor within the meaning of Section 14 BGB. We will be entitled, however, to take legal action at the place of performance of the delivery obligation in accordance with these T&Cs or an individual agreement, which takes precedence or at the Purchaser’s general place of jurisdiction. Statutory provisions which take precedence, in particular those concerning exclusive jurisdiction remain unaffected.

(3)  To the extent that the contract or these General Terms and Conditions contain loopholes in the arrangements, it is agreed that the legally valid provisions that would have governed the parts of the contract by applying the economic objectives of the contract and the purpose of these General Terms and Conditions, had they been aware of these loopholes in arrangements, shall apply to close these loopholes.

(4)  These T&C are drafted in both German and English language. In the event of contradictions or interpretative problems only the German version of these T&C will be definitive. Translations are not legally binding.

Last updated: 01/01/2019