General sales conditions of Erich Stallkamp ESTA GmbH Dinklage, January 2016 (Replaces previous general terms and conditions)
I. General – Scope
Our sales conditions apply exclusively to all contracts between us and the purchaser; we do not accept the purchaser’s contradictory conditions or conditions which differ from our sales conditions unless we have expressly confirmed their validity in writing. Our sales conditions also apply when we perform the delivery to the purchaser unconditionally while aware of the purchaser’s contradictory conditions or conditions which differ from our sales conditions.
All agreements concluded between us and the purchaser concerning performance of this contract, are stipulated in the contract in writing. Verbal agreements, promises, undertakings and warranties in connection with the conclusion of the contract require written confirmation to become binding.
Our sales conditions shall also apply for all future business dealings with the purchaser.
Our sales conditions only apply for traders in the sense of § 310 Para. 1 BGB (German Civil Code).
For contracts about construction work, the validity of the German contractual conditions concerning the performance of construction work (VOB Part B) in the latest applicable version is hereby agreed.
In connection with the purchase of one of our products, the corresponding operating instructions in the latest applicable versions always apply. The operating manual contains fundamental information which must be observed during installation and operation as well as when performing maintenance work on the device.
In accordance with the German Data Protection Act, we are entitled to save and process information concerning the customer gathered as part of the business relationship
We reserve the right to use equal or higher quality of the material.
If the order is to be qualified as an offer in accordance with §145 BGB (German Civil Code), we have the right to accept this offer within 4 weeks by submitting an order confirmation or deliver the order within this period. The written order confirmation is decisive for the scope of the deliveries. Subsidiary agreements and changes expressly require our written confirmation.
Documents forming part of our offer such as figures, drawings, weight specifications and dimension specifications are only approximate insofar as they are not expressly designated as binding. We reserve all property rights and copyrights to quotations, drawings and other documents; they must not be made accessible to third parties. We are similarly obligated only to allow third parties access to plans designated by the purchaser as confidential with the latter’s express permission.
III. Prices – Payment conditions
Insofar as the order confirmation does not specify anything to the contrary, all prices apply “ex works”.
Statutory value added tax (VAT) is not included in our prices; it is separately listed in the invoice at the legal rate applicable on the date the invoice is issued.
We reserve the right in cases of contracts with agreed terms of more than six months to increase or reduce the prices in accordance with the arising cost changes, particularly based on collective labour agreements or material price changes. For the container product range, these provisions shall apply for contracts with an agreed term of three months. These cost changes are often the result of fluctuating purchase prices for stainless steel materials and can be justified to the customer on request. If the increase exceeds 5% of the agreed price, the purchaser has the right to annul the contract.
Insofar as the order confirmation does not specify anything to the contrary, the purchase price is due for payment net (with no discount) within 14 days of the invoice date. Once this period has expired, we are entitled to apply the statutory default interest. We reserve the right to assert claims for further damages caused by default.
The purchaser shall only have setoff rights and rights of retention if his counterclaims are res judicata or recognized by us.
IV. Delivery period
Our obligation to deliver is subject to our receiving our deliveries from suppliers correctly and punctually, unless we are responsible for the incorrect or late delivery.
The delivery period is provided as an approximation and commences with the mailing of the order confirmation, however not prior to the furnishing of the documents, authorisations and approvals to be submitted by the purchaser for the performance of this contract and prior to the receipt of any agreed advance payment.
In addition, the adherence to our obligation to deliver requires the punctual, correct performance of all of the purchaser’s obligations. Among other things, the purchaser’s obligations include timely payment of the purchase price. We reserve the defence of lack of performance of the contract.
The time of dispatch from the factory or warehouse is decisive for the compliance with delivery periods and dates. They shall be deemed complied with when it is reported that the goods are ready for dispatch, unless the goods cannot be dispatched punctually for reasons attributable to us.
In cases of force majeure arising with us or our suppliers, we are released from the obligation to deliver and perform services punctually. The same shall apply as to cases of force majeure for incidents of monetary policy, trade policy and other sovereign measures, business disruptions through no fault of our own (e.g., fire, machine damage, power shortages or raw material shortages), floods, obstruction of traffic infrastructures, strikes, lockouts, official measures and all other circumstances which arise through no fault of our own and which render delivery and performance considerably more difficult or impossible. If the performance of the contract should become unreasonable for a contracting party as a result of the circumstances specified above, the party may withdraw from the contract.
If the purchaser fails to accept delivery when offered by the seller or otherwise culpably breaches other obligations to cooperate, we are entitled to claim compensation for any damages we incur including any additional expenses. Beginning one month after the goods are reported as ready for dispatch, the purchaser will be invoiced the costs arising from their storage, when storage is in our factory, however, at least 0.5% of the invoice total. We are entitled, after establishing a suitable time deadline and this deadline expiring without results, to use the items to be delivered and to deliver to the purchaser within a suitably extended deadline (at least the production time). We reserve the right to assert additional claims.
Insofar as the prerequisites of Para. (6) are present, the risk for accidental perishing or accidental deterioration of the sales items passes to the purchaser at the time in which he fails to accept the delivery when offered by the seller or falls into default of the debtor.
V. Shipping, passing of risk, packaging costs, partial delivery, installation
Insofar as the order confirmation does not specify anything to the contrary, delivery is agreed “ex works”.
Insofar as shipping of the goods is agreed, we define the delivery route and means as well as the carrier and freight operator. The shipping costs and risk are borne by the purchaser.
The risks, including for seizure of the goods, passes to the purchaser when the goods are transferred to the carrier or freight operator, at the very latest, however, when the goods leave the factory or warehouse.
The goods are delivered packaged for general truck transport. Insofar as agreed, we will cater for all other packaging, protection and/or goods carriers at the expense of the purchaser.
Insofar as the purchaser submits a request, we can also take out a transport insurance for the delivery, with the incurred costs being borne by the purchaser.
Transport packaging and all other packagings as stipulated in the German Packaging Regulation are non-returnable with the exception of containers, pallets and similar. This must be returned to us by the purchaser immediately cleaned and in perfect condition at his expense. In all other cases, the purchaser is obligated to dispose of the packagings at his own expense.
Contrary to § 412 HGB (German Commercial Code), the purchaser / freight operator is obliged to load the freight securely and unload it again. When doing so, he must follow the general regulations for load securing (especially VDI (Association of German Engineers) guidelines).
We are entitled to perform partial deliveries to a reasonable extent.
If we are required to perform the installation in the scope of the order, the purchaser must provide the necessary auxiliary materials at his own expense. In addition, our general terms of installations shall also apply.
VI. Assurance of retention of title
We reserve ownership of the delivery items until all payments from the delivery agreement have been received. Should the purchaser act in breach of contract, particularly by failing to pay in due time, we are entitled to take back the delivery items. Our taking back of the delivery items does not constitute a rescission of the contract, unless we had expressly declared this in writing. Our seizure of the delivery items always constitutes a rescission of the contract. Having taken back the delivery items, we are then entitled to utilize them. The profit from their utilization is then calculated against the purchaser’s payables – minus appropriate utilization costs.
The purchaser is obligated to handle the delivery items carefully; in particular he must insure them against fire damage, water damage and theft up to their replacement value at his own expense. Insofar as maintenance and inspection work is required according to the operating instructions, the purchaser must perform this at this own expense in due time at the stipulated intervals.
If the goods are seized or third parties intervene in other forms, the purchaser must inform us in writing immediately so that we may institute legal proceedings in accordance with §771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us the judicial and extrajudicial costs for legal proceedings in accordance with §771 ZPO, the purchaser accepts liability for the loss we sustain.
The purchaser is entitled to resell the delivery items in the ordinary course of business. However, he assigns us now all claims in the sum of the end amount of the invoice (including VAT) of our claim which arise for him in the scope of the reselling against his customers or third parties, and this irrespective of whether the delivery items have been processed or not prior to their reselling. The purchaser remains entitled to collect this claim even after its assignment. This does not affect our authority to collect the claim ourselves. However, we undertake not to collect the claim as long as the purchaser meets his payment obligations from the collected profits, does not fail to pay in due time and in particular no application is filed for bankruptcy, composition or insolvency proceedings or cessation of payment is present. If this is the case, however, we may demand that the purchaser inform us of the assigned claims and his debtors, provide all the necessary information for the collection, furnish all the corresponding documentation and notify the debtors (third parties) of the assignment.
The processing or transformation of the delivery items by the purchaser is always performed for us. If the delivery items are processed with other objects not belonging to us, we acquire co-ownership of the new goods in the ratio of the value of the delivery items (final invoice amount including VAT) to the other processed objects at the time of processing. In all other aspects, the same shall apply for the items resulting from the processing as for the delivery items delivered with reservation.
If the delivery items are mixed with other objects not belonging to us and cannot subsequently be separated therefrom, we acquire co-ownership of the new goods in the ratio of the value of the delivery items (final invoice amount including VAT) to the other mixed objects at the time of mixing. If the mixing is performed in such a way that the purchaser’s items are deemed the main item, it is agreed that the purchaser transfer us co-ownership on a pro rate basis. The purchaser preserves this sole ownership or co-ownership for us.
We undertake to release the securities due to us at the purchaser’s demand to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is incumbent on us.
VII. Liability for defects
Claims for defects from the purchaser require that the latter report obvious defects immediately after delivery (§377 HGB (German Commercial Code)), in other cases, we shall be exempted from liability for the defect.
Insofar the delivery items display a defect, we are entitled to resolve the defect or deliver a new, defect-free item at our discretion (supplementary performance). If the supplementary performance fails, the purchaser may elect to demand a reduction of the purchase price or, if construction work is not part of the object of the guarantee, rescission.
In the case of supplementary performance, we are obligated to bear all required, proportional expenses associated with the supplementary performance, in particular transport, infrastructure, labour and material costs, insofar as these are not increased by the fact that the delivery items have been relocated to somewhere other than the residence or company headquarters of the purchaser. Especially, we shall only cover transport costs to the residence or company headquarters of the purchaser.
In the case of the supplementary performance, we will only bear expenses insofar as they are appropriate in the individual case, in particular in relation to the purchase price of the goods. In particular, we shall not cover expenses exceeding 150% of the purchase price.
Fundamentally, we exclude the liability for defects if our respectively applicable operating instructions have not been followed and the defect can be traced back to failure to follow the operating instructions.
Liability for defects including the liability as a result of deficiency loss or consequential damage caused by a defect is excluded if the cause of a defect can be traced to unsuitable and improper use. For example, use for longer than normal and standard application periods, incorrect installation and/or commissioning by the purchaser or third parties, the delivery item has worn out naturally, particularly insofar as wearing parts are concerned within the scope of usual wear, errors or negligence in the scope of handling or maintenance, unsuitable resources or substitute materials have been used, defective construction work has been performed on an unsuitable substratum, chemical, electrochemical or electrical factors (e.g., incorrect control or insufficient power supply) are the cause.
In cases of unjustified claims for defects, we are entitled to invoice the purchaser the verification costs including travel costs.
Our further liability for damage claims operates in accordance with Point VIII of these conditions.
The limitation period for the purchaser’s claims for defects for supplementary performance (§ 437 No. 1 and 3 BGB) is set at 12 months, calculated from the delivery of the bought items. This does not apply for claims in accordance with § 438 Para 1 No. 2 BGB and § 634a No. 2 BGB. These become statute-barred in accordance with the statutory regulations.
VIII. Claims for damages, limitation of actions
We only assume liability for breaches of contractual or non-contractual obligations, in particularly for impossibility, delay, negligence in contract negotiations and tort – also for damage claims for our executives and other agents employed to perform obligations – in cases of intent or gross negligence. Insofar as we are not accused of an intentional breach of contract, the liability for damage claims is restricted to the foreseeable, typically arising damages.
The above-mentioned restrictions do not apply for culpable infringement of basic contractual obligations insofar as the performance of the aim of the contract is endangered or for culpably caused damages to life, limb or health; in addition, they also do not apply insofar as we have accepted a warranty for the nature of the subject matter sold and in cases of mandatory liability in accordance with the German Product Liability Law (Produkhaftungsgesetz). The regulations concerning the onus of proof remain unaffected. In the case of a breach of basic contractual obligations, the liability for damage claims is restricted to the foreseeable, typically arising damages.
Further liability for damage claims including for deficiency loss or consequential damage caused by a defect – not taking into account the legal nature of the asserted claim – is hereby excluded. This applies particularly for claims for damages arising from negligence in contract conclusion, from other obligation infringements or from claims in tort for the compensation of material damages in accordance with § 823 BGB.
Insofar as the liability for damage is excluded or restricted for us, this also applies with regard to the personal liability for damages of our employees, colleagues, staff, representatives and other agents employed to perform obligations.
The limitation period for the above-mentioned liability for damages is 12 months. This does not apply for claims for culpably caused damage to life, limb or health and in cases of intent or gross negligence, and in cases of mandatory liability in accordance with the German Product Liability Law. These claims become statute-barred in accordance with the statutory regulations.
The limitation period begins in accordance with the statutory regulations, whereby the claims must become statute-barred at the latest 5 years after the passing of risk, i.e., the delivery of the bought items.
IX. Legal venue – Place of performance
The place of performance for our deliveries ex works is the supply plant insofar as the purchaser is a merchant and otherwise our warehouse. The legal venue for all claims arising from the business relations, in particular from our deliveries, is Dinklage, Germany.
The place of performance for our supplementary performance for our deliveries ex works is the supply plant and otherwise our warehouse.
Without taking the sum of the value of the matter in dispute into account, we are entitled to institute legal proceedings at the Amtsgericht Vechta (Vechta Municipal Court); at our discretion we may also institute legal proceedings at the courts responsible for the purchaser’s headquarters.
Federal German Law shall apply; the validity of the United Nations Convention on Contracts for the International Sale of Good (CISG) is excluded.