General Terms and Conditions
- 1 Validity
(1) All offers, deliveries and other services shall be made exclusively on the basis of these General Terms and Conditions (hereinafter referred to as "GTC"). These are an integral part of all contracts concluded by ERBÖ GmbH with its contractual partners (hereinafter also referred to as "Customer"). They shall also apply to all future business relations, even if they have not been separately agreed again.
(2) Conflicting or deviating terms and conditions of the Customer shall not apply even if they are not expressly objected to. Different terms and conditions shall only become part of the contract with our express written consent.
(3) All agreements that lead to the conclusion of the contract and are to be part of the contract must be in writing.
(4) Our Terms and Conditions of Sale and Delivery shall only apply if the Customer is an entrepreneur (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.
- 2 Offer - Acceptance - Conclusion of Contract
(1) All our offers of ERBÖ GmbH are non-binding and subject to change. This shall also apply if we have provided the customer with technical documentation, drawings, other product descriptions or documents - also in electronic form.
(2) The order of the goods by the Customer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks of its receipt by us.
(3) Orders shall only be deemed accepted, subsidiary agreements, reservations, amendments or supplements to the contract, as well as agreements with our representatives or sales employees shall only be valid if they have been confirmed by us in writing or actually executed. Transmission by fax/mail shall also be sufficient to comply with the written form, provided that a copy of the signed declaration is transmitted.
(4) Information on the object of the delivery or service (e.g. weights, dimensions, load-bearing capacity, tolerances and technical data) as well as our representation of the same (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or services. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
(5) The Customer shall not have any right to identical construction in comparison to previous deliveries or existing drawings, unless this has been separately agreed in writing.
(6) We reserve the property rights and copyrights to technical documentation, drawings and other documents; they may only be made accessible to third parties with our express written consent.
(7) Insofar as we have delivered items according to drawings, models, samples or other documents provided by the customer, the customer shall guarantee that the property rights of third parties are not infringed thereby. The same shall apply if we develop or design the contractual goods on behalf of the Customer. The customer also undertakes to indemnify us immediately against all claims of third parties in connection therewith and to pay compensation for the damage incurred. If the customer is prohibited from manufacturing or delivering by invoking an industrial property right belonging to him, we shall be entitled - without examining the legal situation - to stop the work or delivery.
(8) In the case of call orders, the entire order quantity shall be deemed to have been called one month after expiry of the period agreed for the call, or, in the absence of such an agreement, six months after conclusion of the contract.
- 3 Assignments
ERBÖ GmbH is entitled to assign the rights arising from this contract to third parties, in particular to a banking or financing company or to a pre-supplier.
- 4 Prices - Terms of Payment
(1) The prices are valid for the scope of services and deliveries listed in the order confirmation. Additional or special services will be charged separately. Prices are quoted in EURO plus statutory value added tax ex our place of business, plus packaging, shipping and, in the case of export deliveries, customs duties, fees and other public charges. Costs for packaging and all freight and ancillary freight costs shall be borne by the customer. The currently valid Incoterms shall continue to apply.
(2) If the delivery is to be made within 4 months after conclusion of the contract, we shall be entitled to increase the prices if the relevant cost factors (wages, materials, taxes, etc.) change significantly. A change in the net price of each item and each service of more than 10% is considered to be substantial. In such cases, the Customer shall have the right to withdraw from the contract within 14 days after receipt of the notice.
(3) Repairs and overhauls shall be invoiced according to the cost of materials and time. If the submission of a cost estimate is desired prior to the execution of the repair, this must be expressly stated. Insofar as cost estimates make statements about the required quantity of material as well as the expenditure of time, these estimates shall only be binding insofar as the repair or maintenance work can be carried out without unforeseeable difficulties.
(4) Obvious and at any time recognizable calculation errors in the addition of the individual prices to a total invoice amount entitle us to withdraw from the contract.
(5) Unless otherwise stated in the order confirmation, invoice amounts shall be paid within thirty days without any deduction.
(6) If the customer is in default of payment, ERBÖ GmbH is entitled to demand interest on arrears in the amount of 8% above the respective base interest rate per annum. The assertion of further damages in case of default remains unaffected.
(6) New customers shall only be supplied against advance payment.
(7) If payment arrears or payment difficulties (insolvency proceedings, credit blocking, protests of checks and bills of exchange, etc.) occur with the Customer, all claims (including those for which bills of exchange have been given) shall become due immediately. The same shall apply if the customer has given us incorrect information about his business circumstances, in particular his business relations with his clients.
(8) In the event of payment difficulties, as well as gross breach of contract on the part of our contractual partner, we reserve the right either to withdraw from the contract or to make delivery only after provision of security of our choice.
(9) The Customer shall only be entitled to set-off rights and rights of retention if its counterclaims have been legally established, are undisputed or have been acknowledged by us. In such cases, the Customer shall also be entitled to exercise a right of retention only to the extent that its counterclaim is based on the same contractual relationship.
- 5 Delivery, Delivery Time - Rights in the Event of Delay
(1) Delivery shall be EXW, factory location in 45549 Sprockhövel, Germany (Incoterms 2010 or the currently valid Incoterms) plus packaging costs.
(2) Deadlines and dates for deliveries and services promised by ERBÖ GmbH shall always be approximate unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. We do not assume any liability for compliance with fixed delivery periods.
(3) ERBÖ GmbH is entitled to make partial deliveries.
(4) ERBÖ GmbH shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labor, energy or raw materials, difficulties in the procurement of necessary official permits, official measures or the failure to deliver, incorrect delivery or late delivery by suppliers) for which ERBÖ GmbH is not responsible. If such events make the delivery or service of ERBÖ GmbH considerably more difficult. Or make it impossible and the hindrance is not only of temporary duration, ERBÖ GmbH is entitled to withdraw from the contract. In the case of hindrances of temporary duration, the delivery and service dates are extended by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by immediate written declaration to ERBÖ GmbH.
(5) The occurrence of our delay in delivery shall otherwise be determined in accordance with the legal regulations.
(6) If ERBÖ GmbH is in default with a delivery or service or if a delivery or service becomes impossible for ERBÖ GmbH, for whatever reason, the liability of ERBÖ GmbH shall be limited to damages in accordance with these General Terms and Conditions
- 6 Shipping - Packaging - Transfer of Risk - Place of Performance - Acceptance
(1) Delivery shall be EXW, factory location in 45549 Sprockhövel, Germany (Incoterms 2010) plus packaging costs. The place of performance for all obligations arising from the contractual relationship is 45549 Sprockhövel, Germany, unless otherwise specified. If ERBÖ GmbH is also responsible for the installation, the place of performance shall be the place where the installation is to be carried out.
(2) Only upon request and at the expense of the client and with the express consent of Erbö GmbH, the goods will be shipped to another destination.
(3) The risk is transferred according to EXW, factory location in 45549 Sprockhövel, Germany (Incoterms 2010).
In the case of agreed sale by shipment, the risk shall pass to the Customer upon handover of the delivery item (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 also applies if partial deliveries are made or ERBÖ GmbH has assumed other services (e.g. shipping or installation). If the shipment or handover is delayed because of a circumstance caused by the customer, the risk shall pass to the customer on the day on which the delivery item is ready for shipment and ERBÖ has notified the customer of this.
(4) Loading costs after transfer of risk shall be borne by the customer. In case of storage by ERBÖ GmbH, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per completed week. ERBÖ GmbH reserves the right to claim and prove further storage costs.
(5) The consignment will be insured by ERBÖ GmbH against theft, breakage, transport, fire and water damage or other insurable risks upon express agreement at the request of the customer and at his expense.
(6) Insofar as acceptance is to take place, the item shall be deemed to have been accepted if
- a) the delivery and, if ERBÖ GmbH also owes the installation, the installation has been completed.
- b) twelve working days have passed since delivery or installation, or the customer has started using the item. (e.g. has put the delivered parts into operation or installed them) and in this case six working days have passed since delivery or installation.
- c) the customer has refrained from acceptance within this period for a reason other than a defect notified to ERBÖ GmbH which makes the use of the item impossible or significantly impairs it.
- 7 Warranty, Claims for Defects
(1) The warranty period shall be one year from the transfer of risk or, if acceptance is required, from acceptance. The period also applies to contractual claims for compensation for consequential damage caused by a defect. Insofar as claims for liability for damages are concerned and ERBÖ GmbH is liable for them, the legal warranty period shall apply.
(2) Claims for consequential harm caused by a defect are excluded.
(3) The customer's claims for defects presuppose that the customer has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). Upon discovery of a defect, the processing or treatment of the delivered goods must be stopped immediately. At the request of ERBÖ GmbH, a delivery item which is the subject of a complaint is to be returned to it carriage paid. In the event of justified claims for defects, ERBÖ GmbH shall reimburse the costs of the most favorable shipping route; this shall not apply insofar as the costs increase because the delivery item is located at a place other than the place of intended use.
(4) Incoming shipments shall be inspected for perfect condition of the packaging units. Damaged packaging resulting in complaints must have been confirmed in writing by the carrier.
(5) Erbö GmbH is to be given the opportunity to record any notified defects on site. Without the express consent of ERBÖ GmbH, no changes may be made to the defective item prior to inspection. Objected pieces are to be returned to ERBÖ GmbH immediately upon request, freight prepaid.
(6) For not insignificant defects for which ERBÖ GmbH is responsible according to the legal provisions, ERBÖ GmbH shall, at its own discretion, provide for rectification or replacement delivery. The right to refuse subsequent performance under the statutory conditions remains unaffected. The subsequent performance does not include the removal of the defective item or the renewed installation if ERBÖ GmbH was not originally obligated to install the item.
(7) ERBÖ GmbH is entitled to make the subsequent performance owed dependent on the customer paying the due purchase price. However, the customer is entitled to retain an appropriate part of the purchase price in relation to the defect.
(8) Insignificant reasonable deviations in the dimensions and designs and in the case of only insignificant impairment of the usability shall not entitle to complaints unless compliance with dimensions, color shades, etc. has been expressly agreed upon.
(9) Damage caused by negligent, improper handling or stress or by operational wear and tear shall be excluded from the warranty. This shall apply in particular to operational wear of the rubber pulley / idler lagging as well as the rubber moldings of support ring and impact idlers.
(10) The claims for defects shall lapse if the Customer modifies the delivery item or has it modified by a third party without our consent and the rectification of defects becomes impossible or unreasonable as a result. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
(11) Any delivery of used goods or goods of inferior quality agreed with the Customer in individual cases shall be made to the exclusion of any warranty.
- 8 Industrial property rights
(1) ERBÖ GmbH guarantees that the delivery item is free of industrial property rights or copyrights of third parties. Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, ERBÖ GmbH shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the customer by concluding a license agreement. If the Supplier does not succeed in doing so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Client shall be subject to the limitations of §9 of these General Terms and Conditions.
(3) In the event of infringements of rights by products of other manufacturers supplied by ERBÖ GmbH, ERBÖ GmbH shall, at its discretion, assert its claims against the manufacturer and upstream supplier for the account of the customer or assign them to the customer.
- 9 Liability for damages due to fault
(1) The liability of ERBÖ GmbH, whether arising from contractual or non-contractual claims, shall be governed exclusively by the following provisions:
(2) ERBÖ GmbH is not liable in the case of simple negligence of its organs, legal representatives, employees or other vicarious agents.
(3) Insofar as ERBÖ GmbH provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed service reception owed by it, this is done free of charge and to the exclusion of any liability.
(4) The restrictions of this §9 do not apply to the liability of ERBÖ GmbH due to intentional or fraudulent conduct, for guaranteed characteristics, for injury to life, body or health or according to the Product Liability Act. In this case, the statutory provisions on compensation for damages shall apply.
(5) ERBÖ GmbH shall also be liable in accordance with the statutory provisions insofar as the customer asserts claims for damages which are based either on intentional or gross negligent conduct on our part, including our representatives or vicarious agents, or on the fact that ERBÖ GmbH has culpably breached a material contractual obligation (obligation, the fulfillment of which makes the proper performance of the contract possible in the first place and the observance of which the contractual partner regularly relies on or may rely on). Insofar as ERBÖ GmbH is not accused of intentional conduct, the obligation to pay damages in these cases shall, however, be limited to foreseeable, typically occurring damages. Insofar as we violate an essential obligation within the scope of the contract through slight negligence, our obligation to pay compensation for property damage shall be limited in principle to the amount covered by our business liability/product liability insurance. Upon request of the client, Erbö GmbH will prove the amount of insurance coverage. If the insurance does not provide coverage, ERBÖ GmbH is obligated to step in itself.
(6) In all other respects, liability for damages is excluded. Unless otherwise stated in the above paragraphs, ERBÖ GmbH shall therefore not be liable for damages that have not occurred to the delivery item itself (for example, loss of profit, consequential damages, reimbursement of futile expenses or other pure financial losses of the customer), as well as for claims for damages arising from the violation of ancillary obligations (such as faulty advice, care or information, construction of the packaging and instruction with regard to handling) and for claims arising from non-contractual liability, including product liability pursuant to § 823 BGB.
- 10 Retention of title
(1) ERBÖ GmbH retains title to the goods until receipt of all payments under the delivery contract. In the case of a current account, the retained title shall be deemed security for our respective accounts receivable balance. In the event of behavior contrary to the contract on the part of the customer, in particular in the event of default of payment, ERBÖ GmbH is entitled to take back the goods after ERBÖ GmbH has set a reasonable deadline for performance. After taking back the goods, ERBÖ GmbH is authorized to utilize them. The proceeds of the realization are to be credited against the customer's liabilities - less reasonable realization costs.
(2) The customer may only utilize the reserved goods of ERBÖ GmbH for the contractually specified purpose.
(3) The customer is obligated to treat the goods with care and in particular to insure them adequately at replacement value against fire, water and theft damage at his own expense. The customer hereby assigns to ERBÖ GmbH all claims against the insurer to the extent that the goods delivered by us are affected.
(4) The pledging or transfer by way of security of goods on which our reservation of title rests is not permitted to the customer. In the event of seizure or other interventions by third parties, the customer must immediately draw attention to the property of ERBÖ GmbH and must immediately notify ERBÖ GmbH in writing in order to enable the enforcement of the property rights. If the third party is not in a position to reimburse the judicial or extrajudicial costs incurred by ERBÖ GmbH in this connection, the client shall be liable for these.
(5) The customer is entitled to resell the goods in the ordinary course of business, however, he already now assigns to ERBÖ GmbH all claims in the amount of the final invoice amount (including VAT) which accrue to him from the resale against his customers or third parties, irrespective of whether the goods have been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. The authority to collect the claim by ERBÖ GmbH itself remains unaffected by this. However, ERBÖ GmbH undertakes not to collect the claim as long as the customer meets his payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. If this is the case, however, Erbö GmbH can demand that the client disclose the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtor (third party) of the assignment.
(6) ERBÖ GmbH undertakes to release the securities to which ERBÖ GmbH is entitled at the request of the customer to the extent that their realizable value exceeds the value of the outstanding claims against the customer by more than 10%; the selection of the securities to be released shall be the responsibility of ERBÖ GmbH.
- 11 Final Provisions
(1) ERBÖ GmbH retains the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the place of business of Erbö GmbH 45549 Sprockhövel. However, we are also entitled to file a lawsuit at the general place of jurisdiction of the customer.
(2) The relations between ERBÖ GmbH and the client are exclusively subject to the law of the Federal Republic of Germany. Insofar as reference is made to Incoterms 2010, these regulations shall also apply. International uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
(3) Should any provision of these Terms and Conditions or the contract be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions of the contract shall not be affected. The same shall apply if and to the extent that a loophole is found in these Terms and Conditions. In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, comes closest to or corresponds to what the contracting parties intended economically or would have intended according to the sense and purpose of these Terms and Conditions if they had considered this point.
(4) In the event that these General Terms and Conditions are provided in translated form, the German version shall nevertheless be binding in the event of deviations or discrepancies.
The customer acknowledges that ERBÖ GmbH stores data from the contractual relationship in accordance with §28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to disclose the data to third parties (e.g. insurance companies), insofar as this is necessary for the fulfillment of the contract.