Terms & conditions

Terms and Conditions of Delivery and Business of EBERLE GmbH & Co. KG

1. Scope

1.1 These Terms and Conditions of Delivery and Business apply only to companies within the meaning of § 14 of the German Civil Code (BGB).

1.2 We perform all our deliveries and services exclusively under these Terms and Conditions of Delivery and Business. We do not recognize any opposing or deviating terms and conditions of the customer unless we have expressly agreed to their validity.

1.3 Our Terms and Conditions of Delivery and Business also apply to future transactions, even if we do not specifically refer to them in individual cases.

2. Offer and conclusion of contract

2.1 Our offers are non-binding and without obligation unless they are expressly designated as binding offers.

2.2 The decisive document for the order is our written order confirmation. If the customer has objections to the content of the order confirmation, he must object to it immediately. Otherwise, the contract is concluded according to the order confirmation.

2.3 In the case of immediate execution of the order, the goods invoice or the delivery note shall be considered the order confirmation.

2.4 Samples, illustrations, weight, dimension and color specifications are only approximately authoritative unless they are expressly designated as binding.

3. Prices

3.1 The prices stated in the order confirmation are decisive. These do not include the statutory VAT. For goods with a value of €300 or more, delivery is made free of charge, including packaging. For deliveries with a goods value under €300, we charge a flat fee of €5 for packaging, freight, etc. For deliveries outside the Federal Republic of Germany, delivery is ex works.

4. Payment

4.1 Bills of exchange and checks are only accepted for payment based on express agreement. Discount charges and other costs are to be borne by the customer.

5. Offsetting and retention

The customer may only offset an undisputed or legally established counterclaim. The assertion of a right of retention is only permitted to the customer if it is based on the same contractual relationship.

6. Delivery

6.1 Delivery periods specified by us are non-binding unless they have been agreed upon as binding. The delivery period begins with the order confirmation, but not before the provision by the customer of the documents and information to be procured regarding technical details, approvals, releases, and any agreed down payments.

6.2 Delivery and performance delays due to force majeure and unforeseeable and unavoidable events that make delivery or performance significantly more difficult or impossible for us shall not be our responsibility, even for binding agreed deadlines and dates. They entitle us to postpone the delivery/service by the duration of the hindrance, plus a reasonable start-up period. If the hindrance lasts longer than three months, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract. Claims for damages by the customer are excluded in this case.

6.3 If we are delayed in delivery, we shall be liable in the event of gross negligence for the damage resulting from the delay incurred by the customer. In the case of slight negligence, our liability for proven damages resulting from the delay is limited to compensation for each completed week of delay of 0.5%, but in total not exceeding 5% of the price for the part of the delivery that could not be used for its intended purpose due to the delay.

7. Transfer of risk / shipment

7.1 Shipment and transport of the goods are at the expense and risk of the customer. The risk passes to the customer as soon as the goods leave our factory. This also applies even if, in individual cases, carriage-paid dispatch has been agreed by us.

7.2 If shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer from the date of readiness for shipment.

7.3 If we select the method of shipment, the route, or the carrier, we shall only be liable for gross negligence in the relevant selection.

8. Sterile packaged goods

8.1 Take-back of sterile packaged goods by us is excluded.

9. Defects in material

9.1 The customer is obliged to check each delivery for completeness and damage to the packaging upon receipt or delivery. Complaints must be sent to us immediately in writing. A statement of facts must be prepared with the carrier..

9.2 The customer is obliged to inspect the goods immediately and to report any visible defects to us immediately in writing. Hidden defects must be reported in writing immediately after their discovery. Otherwise, the delivery shall be deemed approved.

9.3 Insofar as a defect for which we are responsible exists, we are entitled to rectification, in that we, at our discretion, eliminate the defect or deliver a defect-free item. If we refuse rectification, if it fails, or if it is unreasonable for the customer, the customer may assert further statutory rights.

9.4 The customer shall not be entitled to any warranty claims insofar as goods delivered by us are worn or consumed due to their intended use.

10. Limitation of liability / compensation for damages

10.1 We are liable for damages, regardless of the legal basis, in cases of intent and gross negligence.

In the case of simple negligence, we are only liable
for damages resulting from injury to life, body, or health
for damages resulting from the violation of essential contractual obligations (contractual obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

10.2 These limitations of liability do not apply insofar as we have fraudulently concealed a defect, have assumed an express guarantee, or in cases of liability under the Product Liability Act.

10.3 The statutory provisions regarding the burden of proof remain unaffected by the foregoing provisions.

11. Limitation period

11.1 Unless otherwise stipulated below, the general limitation period for the customer’s claims arising from material and legal defects shall be one year from delivery. This limitation period also applies to the customer’s contractual and non-contractual claims for damages based on a defect in the goods.ie auf einem Mangel der Ware beruhen.

11.2 The statutory limitation periods apply

to claims for damages arising from injury to life, body, or health;
to liability under the Product Liability Act;
insofar as we have fraudulently concealed a defect;
insofar as we have assumed a guarantee;
insofar as the goods delivered by us constitute a building or an item which, according to its customary use, has been used for a building and has caused its defectiveness;
for claims in supplier recourse in the case of final delivery to a consumer (§ 479 BGB).

12. Retention of title

12.1 We retain ownership of all goods delivered by us until full payment of all claims arising from previous contracts. The claims also include bill of exchange and check claims as well as claims from current accounts. If a liability under a bill of exchange arises for us in connection with the payment, the retention of title shall not expire until our liability under the bill has been excluded.

12.2 If the customer defaults in payment or it becomes apparent that our payment claims are endangered due to the customer’s lack of financial capacity, we are entitled to demand the return of the goods based on the retention of title, even without setting a deadline under § 321 BGB.

12.3 In the event of attachments or other interventions by third parties, the customer must notify us immediately. The customer bears all costs necessary to remove the access and to recover the delivered goods, insofar as these cannot be collected from the third party.

12.4 The customer is entitled, subject to revocation permitted for good cause, to dispose of the delivered goods in the ordinary course of business. Security transfer of ownership and pledging are particularly inadmissible. The goods subject to retention of title may only be passed on by the customer to the purchaser if the customer is not in default with his obligations towards us.

In the event of resale, the customer hereby assigns to us all claims arising from the resale, in particular payment claims, but also other claims arising in connection with the sale, in the amount of our invoice final total (including VAT).

The customer is entitled, until revoked for good cause by us, to collect the assigned claims in trust. The resale of claims, within the framework of genuine factoring, requires our prior consent. For good cause, we are entitled to disclose the assignment of claims to the third-party debtors, also in the name of the customer. With the notification of the assignment to the third-party debtor, the customer’s authorization to collect shall expire. In the event of revocation of the collection authorization, we may require the customer to inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the related documents, and notify the debtors of the assignment.

Good cause within the meaning of these provisions exists in particular in the event of default in payment, cessation of payment, initiation of insolvency proceedings, protest of a bill of exchange, or justified indications of over-indebtedness or impending insolvency of the customer.

12.5 Processing of the delivered goods by the customer shall always be carried out for us. We shall be regarded as the manufacturer within the meaning of § 950 BGB without further obligation. If the delivered goods are processed with other goods not belonging to us, we acquire co-ownership of the new item in proportion to the value of the invoice amount to the purchase price of the other processed goods. For the item created by processing, the provisions applicable to the delivered goods shall otherwise apply.

12.6 In the event that the delivered goods are combined, mixed, or blended with the customer’s movable items in such a way that the customer’s item is to be regarded as the main item, the customer hereby transfers to us co-ownership of the entire item in proportion to the value of the delivered goods to the value of the other combined, mixed, or blended items. The customer shall store the property for us free of charge. If the delivered goods are combined, mixed, or blended with movable items of a third party in such a way that the item of the third party is to be regarded as the main item, the customer hereby assigns to us the compensation claim to which he is entitled against the third party in the amount corresponding to the invoice amount of the delivered goods.

The new item created by combination or mixing, or the co-ownership rights to the new item to which we are entitled or which are to be transferred to us, as well as the compensation claims assigned in accordance with the preceding paragraph, serve in the same way to secure our claims as the delivered goods themselves.

12.7 Insofar as the retention of title or the assignment of claims should be invalid or unenforceable due to non-derogable foreign legal provisions, the security corresponding to the retention of title or assignment of claims in this area shall be deemed agreed. If the customer’s cooperation is required for this, he must take all measures necessary to establish and maintain the security.

12.8 If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer’s request..

13. Acceptance

13.1 Insofar as we manufacture goods specifically according to the customer’s specifications, acceptance shall take place. The person acting on behalf of the customer for acceptance is authorized to make binding declarations required for acceptance on behalf of the customer.

13.2 If the customer does not attend the agreed acceptance date or refuses to participate in a joint acceptance date or to set such a date at all, the goods shall be deemed accepted after the expiration of 12 working days following notification of readiness for shipment.

13.3 The customer may refuse acceptance only due to significant defects until they are remedied. If defects are identified during acceptance, they shall be recorded in a defect list. Other defects may only be asserted during the warranty period if they could not have been detected at the time of acceptance.

14. Place of performance, place of jurisdiction, applicable law

14.1 The place of performance for delivery and payment is exclusively Wurmberg for both parties.

14.2 The place of jurisdiction for all legal disputes arising from the contractual relationship, as well as concerning its origin and validity, shall, in the case of merchants, be the court responsible for the registered office of our company for both parties. We may, at our discretion, also bring an action at the customer’s place of business.

14.3 The contractual relationship is governed exclusively by German law; the UN Convention on Contracts for the International Sale of Goods shall not apply.

14.4 In the event of discrepancies between the German and English versions of our General Terms and Conditions, the German version shall prevail.

Wurmberg, October 2016