General Terms and Conditions for
Supplies/Services, Assembly, Installation, Commissioning and Repairs
ErsaTec GmbH
§ 1 Validity
Our deliveries, services and offers of ErsaTec are made exclusively on the basis of these General Terms and Conditions.
Terms and conditions of our clients or third parties shall not apply, even if we do not separately object to their validity in individual cases. Our offers are subject to confirmation and non-binding.
The legal relationship between us and our customer shall be governed solely by the contract concluded in writing, including our General Terms and Conditions. Our customers are obliged to check our order confirmation immediately.
The conclusion of the contract and the delivery itself shall be subject to the correct and timely delivery by our suppliers to us, unless we are responsible for the non-delivery. We will inform the customer immediately about the non-availability of the service.
Claims arising from the contractual relationship shall not be transferable without our written consent.
Our General Terms and Conditions shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB (German Civil Code).
§ 2
Information in catalogues, sales documents, sketches, drawings, price lists on the Internet, etc. are only approximate, but determined in the best possible way. We reserve the title or copyright to all offers, cost estimates and drawings, illustrations, calculations, brochures, catalogues, models, etc. made available to us.
§ 3 Internet sales
Business transactions within the framework of electronic business transactions shall take place to the exclusion of §§ 312 i Paragraph 1 Sentence 1 Nos. 1 to 3 BGB (German Civil Code).
§ 4 Prices/Conditions of payment/Invoicing
Our prices shall apply to the services and scope of delivery listed in the order confirmations; additional or special services shall be invoiced separately, including packaging, value added tax, customs duties, fees, etc.
Invoice amounts are to be paid within 14 days without any deduction.
The offsetting against counterclaims of our customer or the retention of payments due to such claims is only permissible if the counterclaims are undisputed or legally established. We are entitled to carry out or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which could significantly reduce the creditworthiness of the customer and which endanger the payment of our outstanding claims from the respective contractual relationship (including from other individual orders to which the same framework contract applies), see also § 321 BGB (German Civil Code).
§ 5 Delivery
We are entitled to partial deliveries and partial performances if the partial delivery/partial performance can be used by the customer within the scope of the contractual purpose, if the delivery of the remaining ordered goods is ensured and if the customer does not incur any considerable additional expenditure or additional costs – unless we declare our willingness to bear the costs.
We shall not be liable for the 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 all kinds, difficulties in procuring materials or energy, transport delays, strikes, legal lock-outs, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the lack of correct or improper delivery by suppliers) and we are not responsible for them. If the customer cannot reasonably be expected to accept a further delay, he may withdraw from the contract by immediate written declaration to us.
Any agreed delivery periods with documents to be provided, service/delivery components shall not begin to run for us until we have received approvals from authorities to be obtained from us at the request of the customer as well as agreed down payments.
§ 6 Place of performance, dispatch, transfer of risk, acceptance
The place of performance for all obligations arising from the contractual relationship shall be our registered office.
If we also owe the installation/assembly/installation, the place of performance shall be the place where the installation/assembly/installation takes place.
The risk shall pass to the customer at the latest when the ordered item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party appointed to carry out the consignment. This shall also apply to partial deliveries or if we have assumed other services, e.g. dispatch of installation/assembly/ erection material. Upon notification that the goods are ready for dispatch, the risk shall pass to the Customer if dispatch or handover is delayed due to circumstances for which the Customer is responsible.
We insure consignments only upon express request against reimbursement of costs.
As far as an acceptance has to take place, the object is considered as accepted if
- the delivery and, if we owe the assembly/installation/installation, the assembly/installation/installation has been completed,
- we have informed the customer of this with reference to the acceptance fiction and have requested him to accept the goods,
- twelve working days have elapsed since delivery or assembly/installation or the customer has begun using the item, e.g. the delivered/assembled system has been put into operation and in this case six working days have elapsed since delivery or assembly/installation, and
- our customer has omitted acceptance within this period for a reason other than a defect notified to us which makes the use of the item impossible or significantly impairs it.
§ 7 Defects, Warranty, Obligations to Investigate
The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty on our part or on the part of our vicarious agents, which in each case shall become statute-barred in accordance with the statutory provisions or insofar as longer statutory periods exist (exception: § 12).
Delivery items must be carefully inspected immediately after delivery. § 377 BGB applies.
Defects are to be reported immediately.
We shall be obliged, at our discretion, to remedy the defect or to replace the goods in the event of defects.
§ 8 Limitation of liability
In the event of defects in components of other manufacturers which we cannot remedy for licensing or actual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the customer or assign them to the customer. Warranty claims against us for such defects shall only exist under the other conditions and in accordance with these General Terms of Delivery if the judicial enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or has no prospect of success. During a legal dispute, the statute of limitations of the relevant warranty claims against us shall be suspended.
§ 9 Liability for damages due to culpa in contrahendo
(1) Our liability for damages, for whatever legal reason, in particular impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with the provisions of this § 9, insofar as this depends on culpability.
(2) We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, insofar as this is not a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and material defects which more than insignificantly impair its functionality or fitness for use, as well as obligations to provide advice, protection and care which are intended to enable the customer to use the delivery item in accordance with the contract or which are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable damage.
(3) Insofar as we are liable for damages on the merits pursuant to § 9 (2), this liability shall be limited to damages which we foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen if we had exercised due care. Indirect damages and consequential damages resulting from defects of the delivery item shall also only be eligible for compensation if such damages are typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, our liability for damages to property and further financial losses resulting therefrom shall be limited to an amount of EUR 3,000,000.00 per claim (corresponding to the current sum insured under its product liability insurance or liability insurance), even if it is a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of our executive bodies, legal representatives, employees and other vicarious agents.
(6) Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
(7) The limitations of this § 9 do not apply to our liability for intentional behaviour, for guaranteed characteristics, for injury to life, body or health or in accordance with the Product Liability Act.
§ 10 Retention of title
(1) The retention of title agreed below serves to secure all our existing, current and future claims against the purchaser arising from the supply relationship between the contracting parties (including balance claims arising from a current account relationship limited to this supply relationship).
(2) The goods delivered by us to the Buyer shall remain our property until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title and replacing them in accordance with this clause shall hereinafter be referred to as goods subject to retention of title.
(3) The purchaser shall store the reserved goods for us free of charge.
(4) The purchaser is entitled to process and sell the reserved goods in the ordinary course of business until the event of realisation (paragraph 9) occurs. Pledges and transfers by way of security are not permitted.
(5) If the reserved goods are processed by the buyer, it is agreed that the processing is carried out in our name and for our account as manufacturer and that we directly acquire the ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – the co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur with us, the purchaser hereby transfers his future ownership or – in the above-mentioned proportion – co-ownership of the newly created item to us as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, we shall transfer to the Buyer, to the extent that the main item belongs to us, pro rata co-ownership of the uniform item in the proportion stated in sentence 1.
(6) In the event of resale of the reserved goods, the purchaser hereby assigns to us by way of security the resulting claim against the purchaser – in the event of co-ownership of the reserved goods pro rata in accordance with the co-ownership share. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. We revocably authorise the purchaser to collect the claims assigned to us in his own name for our account. We may only revoke this direct debit authorisation in the event of realisation.
(7) If third parties have access to the reserved goods, in particular by seizure, the buyer shall immediately inform them of our ownership and inform us thereof in order to enable him to enforce our ownership rights. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the purchaser shall be liable to us for such costs.
(8) We shall release the reserved goods as well as the items or claims replacing them at our discretion upon request if their value exceeds the amount of the secured claims by more than 50%.
(9) If we withdraw from the contract in the event of breach of contract by the purchaser – in particular default in payment – we shall be entitled to demand the return of the reserved goods.
§ 11 Place of jurisdiction, applicable law
The exclusive place of jurisdiction shall be our registered office. The contractual relationships shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Note: Our customers are aware that we store data from the contractual relationship for the purpose of data processing. We reserve the right to determine the data to third parties (e.g. insurance companies) to the extent necessary for the fulfilment of the contract.
§ 12 Special agreement
Warranty claims do not extend to such damage for which the customer is responsible, e.g. damage caused by improper handling or temperature or weather influences or by natural wear and tear or contamination of gas-carrying parts.
§ 13 Special regulations for assemblys/installations/installations
The installation/installation/assembly and commissioning by us presupposes that the object of performance has been unloaded by our customer, completely unpacked and taken to the final installation site.
All supply connections, in particular gas connections and electricity connections, must be available and free of charge. This also applies to auxiliary personnel to the extent necessary.
Waiting times caused by our customer, including additional journeys, shall be borne by the customer.
Expenses for assembly, installation, assembly, commissioning and instruction shall be invoiced separately.
§ 14 Special rules for repairs
Quotations for quotations are valid for one month.
We are entitled to return the item to be repaired only after prior payment of the invoice amount. In addition to the statutory lien, we shall also be entitled to a contractual lien on the items to be repaired which we have taken possession of. The contractual lien shall be extended to claims from previously performed repair services insofar as they are connected with the object of the order.
Defects in the object to be repaired become statute-barred one year after delivery of the object to be repaired.
The assembly/repair site shall be set up and prepared in compliance with the applicable statutory provisions so that execution of the order can commence immediately after arrival of our personnel. Necessary plans or information must be submitted to us in good time before the start of work.
Our customer is obliged to accept our work as soon as he has been notified of its completion. Non-essential defects do not entitle the customer to refuse acceptance.
Repairs and assemblies, installations and installations shall be invoiced on a time basis. Spare parts and other materials shall be invoiced separately. All allowances shall be invoiced on a working day basis. Travel and waiting times of our employees shall be charged as working time.
The provisions of § 6 shall also apply to repairs.
§ 15 Statute of limitations for warranty defects in used equipment
The warranty period is 12 months, but is excluded in the case of wearing parts and/or natural wear and tear, excessive strain, etc..