GENERAL TERMS AND CONDITIONS
OF ELSEN+HEMER BETRIEBS-GMBH FOR BUSINESSES
General – Scope of application
The following terms and conditions apply exclusively to all business relations with our customers who are merchants or entrepreneurs in accordance with § 14 BGB (German Civil Code). Conflicting terms and conditions of the customer shall have no validity unless Elsen + Hemer Betriebs GmbH agrees to these terms and conditions in writing.
Our General Terms and Conditions shall also apply exclusively if we accept or perform deliveries or services without reservation in the knowledge of conflicting terms and conditions of the customer. With the placing of an order, acceptance of services or goods by the customer, our terms and conditions shall be deemed agreed and accepted.
2 All other contractual agreements must be in writing in order to be effective.
3. rights of the customer from contracts with Elsen + Hemer Betriebs GmbH are only transferable with the consent of Elsen + Hemer Betriebs GmbH. In any case of transfer, the customer is obliged to inform Elsen + Hemer Betriebs GmbH immediately.
1 Offers and cost estimates of Elsen + Hemer Betriebs GmbH are subject to confirmation and non-binding.
2. orders of the customer represent a binding offer which Elsen + Hemer Betriebs GmbH can accept within two weeks by order confirmation, delivery of the goods, performance of the work or handover of the work.
Changes and additions to the order shall only be binding if confirmed in writing by Elsen + Hemer Betriebs GmbH.
Delivery/ Transfer of risk
1 Unless otherwise agreed, no fixed delivery times shall apply.
2 Our obligation to deliver and perform is subject to the timely and complete supply of our own goods.
Elsen und Hemer Betriebs GmbH is entitled to withdraw from the contract if its own supply is not made despite the existence of a congruent covering transaction for reasons for which it is not responsible. In this case, the customer shall not be entitled to any claims for damages.
A promised delivery period is met if the delivery item is dispatched or made available for collection within the period The delivery period is also met if dispatch or collection is delayed for reasons for which Elsen und Hemer Betriebs GmbH is not responsible, if notification of readiness for dispatch and collection has been given within the period.
Elsen und Hemer Betriebs GmbH is not liable for delays due to force majeure.
If the delivery or collection of the goods is delayed for reasons for which the customer is responsible, the customer shall bear the resulting additional costs.
If an agreed delivery period is exceeded, the customer has to pay a minimum charge.
to grant a two-week grace period. Only after their fruitless expiry shall he be entitled to rescind the contract. Damages due to delay can only be claimed from Elsen + Hemer Betriebs GmbH in cases of intent or gross negligence. In any case, the liability for damages is limited to the foreseeable, typically occurring damage, to a maximum of 15% of the net delivery value.
3. the delivery takes place in principle ex works, the dispatch takes place on danger and costs of the customer. If the customer so wishes, Elsen + Hemer Betriebs GmbH may take out transport insurance; the costs incurred in this respect shall be borne by the customer.
4. Elsen + Hemer Betriebs GmbH is entitled to make partial deliveries insofar as these are reasonable for the customer.
The risk of accidental loss or deterioration of the purchased item or work performance shall pass to the customer at the time when it is handed over to the freight forwarder or carrier, in any case upon leaving the delivery plant of Eisen + Hemer Betriebs GmbH.
terms of payment
1 The contractually agreed price shall be decisive. All individual factors forming the total price are listed in a cost estimate / quotation. Unless otherwise agreed, costs incurred for tool manufacture or the procurement of production materials within the scope of custom-made products shall be borne by the customer including taxes and levies.
The price is net plus statutory value added tax.
2 The deduction of cash discounts requires a separate written
3 Unless otherwise agreed, the total price is without deductions.
due within 30 days of the invoice date. The following apply
legal regulations concerning the consequences of late payment.
4. the customer may only offset claims of Elsen + Hemer Betriebs GmbH against counterclaims which have been recognised or legally established. This shall also apply to the assertion of rights of retention.
If the customer does not accept the purchase or work performance in due time, at the latest eight days after notification of readiness by Elsen und Hemer Betriebs GmbH, Elsen und Hemer Betriebs GmbH shall set the customer a reasonable grace period. After unsuccessful delivery
Liability for defects / damages
Elsen und Hemer Betriebs GmbH does not assume any warranty for the correctness and usability of the drawings, dimensions, samples, templates or materials submitted by the customer. Elsen und Hemer Betriebs GmbH is not obliged to inspect.
2 The customer must immediately inspect the services of Elsen + Hemer Betriebs GmbH for defects, quality and condition. Defects must be reported to Elsen + Hemer Betriebs GmbH in writing within two weeks; § 377 HGB (German Commercial Code) applies.
If there is a defect, Elsen + Hemer Betriebs GmbH may, at its discretion, effect subsequent performance by repair or delivery of a replacement item.
4. Elsen + Hemer Betriebs GmbH guarantees the customer freedom from defects for a period of one year from delivery, unless otherwise agreed with the customer. This does not apply if the law prescribes longer periods. The warranty for consequential harm caused by a defect is excluded to the extent permitted by law.
5, The assertion of rights of rescission by the customer requires two unsuccessful periods for subsequent performance by the customer vis-à-vis Elsen + Hemer Betriebs GmbH.
6 Further claims for compensation of damages of any kind exist only if
– in the event of intent and gross negligence on the part of Elsen + Hemer Betriebs GmbH or its employees and vicarious agents
– in the event of injury to life, limb or health
– in case of culpable violation of essential contractual obligations, insofar as the fulfilment of the purpose of the contract is endangered, but only with regard to the foreseeable damage typical for the contract
– in cases of liability under the Product Liability Act
– in the absence of properties which have been expressly warranted, if the purpose of the warranty was precisely to protect the customer against damage which did not occur to the delivery item itself
– defects which have been fraudulently concealed or whose absence has been guaranteed by Elsen + Hemer Betriebs GmbH.
7 Further claims, in particular for termination, reduction or damages, are excluded. If claims for damages exist, liability shall be limited to the foreseeable, typically occurring damage.
Ownership/ reservation of ownership l Copyrights
1 Elsen + Hemer Betriebs GmbH reserves all property rights and copyrights to offers, cost estimates, drawings and other documents originating from or produced by Elsen + Hemer Betriebs GmbH. These may not be made accessible to third parties and must be returned upon request.
2 Elsen+ Hemer Betriebs GmbH shall remain the sole owner of tools or other manufacturing materials even after completion and in the event of complete or pro rata payment by the customer.
Elsen + Hemer Betriebs GmbH retains title to all manufactured and delivered items until full payment of all claims arising from the supply contract. Elsen + Hemer Betriebs GmbH is entitled to take back the object of purchase / work performance if the customer behaves contrary to the terms of the contract.
The customer is obliged to treat the goods with care as long as the ownership has not yet been transferred to him. The customer is obliged to sufficiently insure these services at his own expense against theft, fire and water damage at replacement value. In the case of high-quality goods, maintenance and inspection work must be carried out; the purchaser must carry this out at his own expense and in good time. Before the final transfer of ownership to the customer, the customer must inform Elsen + Hemer Betriebs GmbH immediately in writing if the delivered item is seized or exposed to other interventions by third parties, so that Elsen + Hemer Betriebs GmbH can exercise its rights according to § 771 ZPO’. If the third party is not in a position to reimburse the costs of such an action, the customer shall be liable for the loss.
The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to Elsen + Hemer Betriebs GmbH the claims arising from the resale in the amount of the agreed gross final amount. This assignment shall apply irrespective of whether the object of sale was sold without or after processing. The customer remains entitled to collect the claim even after the assignment. The authority of Elsen + Hemer Betriebs GmbH to collect the claim against the customer’s buyer itself remains unaffected.
6. the treatment and processing or transformation of the goods by the customer shall always take place in the name of and on behalf of Elsen + Hemer Betriebs GmbH. In this case, the customer’s expectant right to the object of sale shall continue in the transformed object. Insofar as the object of sale is combined with other goods not belonging to Elsen + Hemer Betriebs GmbH, the customer’s expectant right to the transformed object shall continue.