General Terms and Conditions, Eberhardt GmbH
As of October 4th, 2021
1. Scope, basis, and conclusion of the contract
1.1 The following General Terms and Conditions (hereinafter referred to as "GTC") shall apply to the purchase contract concluded between you as the buyer and us as the seller for the delivery of goods. All agreements made between you and us regarding this purchase contract shall be based primarily on these GTC, as well as on the written order confirmation and declaration of acceptance.
1.2 For entrepreneurs according to Sec. 14 BGB, our GTC apply exclusively. Thus, deviating, conflicting or supplementary GTC of the buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall always apply and shall also apply, among other things, if we have delivered to the buyer without reservation in the knowledge of pre-formulated contractual terms and conditions.
1.3 Individual agreements made between the contracting parties in individual cases - including collateral agreements, supplements, and amendments - shall always take precedence over these GTC. Our written confirmation shall be authoritative for the content of such agreements, subject to proof to the contrary. This shall also apply in particular, but not conclusively, to agreements made verbally by our field staff.
1.4 All offers are subject to change and do not oblige us to accept orders. Illustrations contained in our advertisements, brochures and other offer documents are only approximately authoritative. This shall apply if the information contained therein has not been expressly designated by us as binding.
1.5 References to the applicability of statutory provisions shall in any case be for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless otherwise provided for in these GTC.
1.6 Entrepreneurs shall submit legally relevant declarations with regard to the contract (e.g. notice of defects, setting of deadlines, withdrawal, or cancellation) in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Further proofs, especially in case of doubt about the legitimacy of the declarant and legal formal requirements remain unaffected.
1.7 The order of the goods by the buyer shall be deemed to be a binding offer to conclude a purchase contract. Unless otherwise stated in the order, we shall have the right to accept this contractual offer within a period of 4 weeks after receipt. The acceptance can be declared either in writing (e.g. by order confirmation in text form by e-mail, fax, or mail) or by delivery of goods to the buyer.
2. Prices, terms of payment, set-off and right of retention
2.1 The prices stated by us in EURO shall apply "ex works" (i.e. factory or distribution warehouse). The costs for area freight or the payment of so-called "cartage" at the place of receipt shall be borne or paid by the buyer. The packaging required for the shipment will be charged to the buyer at cost. If the net value of the goods is less than EURO 100.00, the Buyer shall pay a surcharge (for shortage in quantity) of EURO 10.00.
2.2 Unless we have agreed otherwise with you in writing, the purchase price for entrepreneurs is due "NET" within 30 days after our invoice has been received by you. Discounts can, however, no longer be granted if the buyer is in arrears with the payment of earlier deliveries. However, even in the context of an ongoing business relationship with you, if you are an entrepreneur, we are entitled at any time to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
2.3 Offsetting against our claims is only possible if your claims have been legally established, if your claims are undisputed or if we have acknowledged them. You shall also be entitled to offset against our claims if you assert notices of defects or counterclaims from the same purchase contract. As the purchaser, you may only exercise a right of retention if your counterclaim is based on the same purchase contract.
2.4 If you are in default as a businessman, the default interest shall be 9 % above the respective base interest rate of the European Central Bank. With respect to merchants, our claim to the commercial due date interest rate (Sec. 353 HGB) shall remain unaffected. We shall be at liberty to prove higher damages.
2.5 If, in the relationship with entrepreneurs, it becomes apparent after conclusion of the contract (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - under certain circumstances after setting a deadline - to withdraw from the contract (Sec. 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal directly, i.e. immediately; the statutory provisions concerning the dispensability of setting a deadline shall remain unaffected. Furthermore, in such a case we shall be entitled to carry out outstanding deliveries only against advance payment or security.
2.6 In the event that the delivery agreed between us entrepreneurs is to take place later than 4 months after the conclusion of the contract, we have the right to adjust our prices upwards in the same ratio as the prices of the goods and / or raw materials we have purchased increase. We will disclose our calculation to you. We will be happy to provide you with evidence of such price changes for raw materials and purchased goods. You are also entitled to a special right of termination in such a case constellation. The special right of termination must be asserted up to 14 days after becoming aware of the price adjustment. If the purchase costs are lower, you are also entitled to a right to a price reduction.
3. Retention of title
3.1 If you are an entrepreneur, we retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims). All goods delivered shall remain our property until all our claims have been satisfied, even if payments are made for specifically designated claims.
3.2 Before full payment of the secured claims, the goods subject to retention of title may neither be assigned as security nor pledged to third parties. The Buyer shall immediately notify us in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) have access to the goods which are our property.
3.3 In particular in the event of non-payment of the purchase price due, i.e. generally in the event of conduct by the buyer in breach of contract, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. However, the demand for return does not constitute a declaration of withdrawal at the same time, because we are entitled to demand only the return of the goods and to reserve the right of withdrawal. We may only exercise these rights in the event that the buyer fails to pay the purchase price due if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
3.4 Entrepreneurs shall be entitled until revoked in accordance with (3.7) below to process and/or sell the goods subject to retention of title in the ordinary course of business. In this case, the following provisions from 3.5 to 3.7 shall apply in addition.
3.5 The retention of title shall extend to the products resulting from the processing, mixing, or combining of our goods at their full value, and we shall still be deemed to be the manufacturer. We shall acquire co-ownership - should the ownership rights of third parties remain in the event of processing, mixing, or combining with goods of third parties - in proportion to the invoice values of the processed, combined, or mixed goods. Otherwise, the same shall apply to the resulting product as to the goods owned by us (delivered under retention of title).
3.6 The buyer hereby assigns to us any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share according to the preceding paragraph. We accept this assignment. The obligations of the buyer set forth herein shall also apply with respect to the assigned claims.
3.7 The buyer shall remain authorized to collect the claim in addition to us. We will not collect the claim insofar and as long as the buyer meets his payment obligations, we do not assert the reservation of title by exercising a right and there is no deficiency in his ability to pay. However, if such a case exists, we may demand that the buyer informs us of the assigned claims and their debtors, hands over the relevant documents or provides all information required for collection and notifies the debtors (third parties) of the assignment. In addition, we shall then be entitled to revoke the buyer's authorization to further sell and process the goods subject to retention of title.
3.8 If the realizable value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the Buyer's request.
4. Performance and delivery time
4.1 Our delivery dates or delivery periods are exclusively non-binding information. Anything to the contrary shall only apply if they have been expressly agreed between you and us as binding.
4.2 You may request us in writing to deliver within a reasonable period of time 4 weeks after a non-binding delivery deadline/delivery date has been exceeded. If we culpably fail to comply with a delivery date/delivery period expressly agreed as binding or if we are in default for any other reason, you shall grant us a reasonable period of grace to effect our performance. If we do not perform within this period of grace, you shall have the right to withdraw from the purchase contract. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), entrepreneurs as purchasers must be informed of this immediately and at the same time informed of the new (expected) delivery deadline. If the service is again not available within this new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the buyer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, delayed self-delivery by our supplier if we had to conclude a congruent covering transaction, neither our supplier nor we are at fault or we are not obliged to procure in the individual case.
4.3 Apart from the restrictions under Sec. 6 GTC, we shall be liable to you in accordance with the statutory provisions if the contract is a transaction for delivery by a fixed date or if, as a result of a delay in delivery for which we are responsible, you are entitled to invoke the lapse of your interest in the performance of the contract. If this is reasonable for you, we shall always be entitled to make partial deliveries and render partial services.
4.4 If we are in default of delivery, the buyer, as an entrepreneur, may claim lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay. However, the lump-sum compensation may not exceed a total of 5% of the delivery value of the goods delivered late. However, we shall have the possibility to prove that the Buyer has only suffered a significantly lower damage than the above lump sum or no damage at all.
4.5 In the event of force majeure, we shall have the right to withdraw from the contract for the part not yet fulfilled or to postpone delivery for the duration of the hindrance and an appropriate start-up period. In this context, force majeure shall be understood to mean, in particular, lockouts, strikes, pandemics and other circumstances which make delivery completely impossible for us or, in any case, make it considerably more difficult for us. In this context, it is completely irrelevant whether these circumstances occur with us or with a subcontractor. The buyer can demand a statement from us as to whether we will deliver or withdraw within a reasonable period of time. If we do not make a statement, the buyer may withdraw.
5. Transfer of Risk, Acceptance, Inspection and Delivery
5.1 If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to claim compensation for the resulting damage and all related additional expenses (e.g. storage costs). We shall charge a lump-sum compensation in the amount of EUR 500.00 per calendar day, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment.
5.2 The proof of a higher damage and our legal claims shall remain unaffected. However, the lump sum shall be credited against any further monetary claims. The buyer may further furnish proof that we have suffered only substantially less damage than the aforementioned lump sum or no damage at all.
5.3 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon handover at the latest. In the case of a sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall, however, pass to the buyer as soon as the goods are delivered to the carrier, the forwarding agent or any other institution or person designated to carry out the shipment. Insofar as we have agreed on acceptance, this shall be decisive for the transfer of risk. In all other cases, too, the statutory provisions of the law on contracts for work and services shall apply mutatis mutandis to an agreed acceptance. Acceptance or handover shall be deemed equivalent if the buyer is in default of acceptance.
5.4 For entrepreneurs, delivery shall be made ex warehouse, which shall also be the place of performance for the delivery itself and any subsequent performance that may be required. Unless otherwise agreed, we shall have the right to choose the type and method of shipment (in particular the transport company, packaging, and shipping route) ourselves.
5.5 In the case of a sale by delivery to a place other than the place of performance, the goods shall be shipped to another destination at the request and expense of the buyer. In the event of no other agreement between us, we shall be entitled to determine the type of shipment (in particular transport company, packaging and shipping route) ourselves. By way of clarification, we would like to point out that we are under no obligation to take out transport insurance. We shall only be obliged to take out such insurance at the express request of the buyer, whereby the buyer shall bear the costs thereof.
6. Delay and (liability for material defects), defect rights, liability
6.1 If we cannot provide the quality agreed between you and us through the delivered item or if the goods are not suitable for the use assumed under our contract or if they are not suitable for general use or if the goods do not have the properties that you could expect according to our public statements, we shall provide subsequent performance. Anything else shall only apply if we are entitled to refuse subsequent performance on the basis of statutory provisions. ´
6.2 Subsequent performance shall be affected at your discretion either by delivery of new goods or by remedying the defect as subsequent improvement. If you are an entrepreneur, we may determine the type of subsequent performance (rectification or subsequent delivery). For this purpose, you must grant us a reasonable period of time for subsequent performance. During the period of subsequent performance, you shall not be entitled to withdraw from the contract or even to reduce the purchase price. If we have attempted to remedy the defect twice in vain, the remedy has finally failed. Entrepreneurs shall not be entitled to withdraw from the contract despite failed subsequent performance.
6.3 Claims for damages due to a defect can only be asserted if the subsequent performance has also failed. This shall not affect your right to assert further claims for damages in accordance with the following paragraphs.
6.4 In accordance with the statutory provisions, we shall be liable for damages to body, health and life which are based on a culpable breach of duty by us, our vicarious agents, or our legal representatives. Furthermore, we shall be liable in accordance with the statutory provisions for other damages which are due to grossly negligent or intentional breaches of contract as well as fraudulent intent by us, our vicarious agents, or our legal representatives.
6.5 If the scope of application of the Product Liability Act should be opened, we shall also be liable without limitation in accordance with the provisions of this codification of the law. Furthermore, we shall also be liable within the scope of a durability and/or quality guarantee, provided that we have also given such a guarantee with regard to the delivered item. If damage actually occurs which is based on the fact that the durability or quality guaranteed by us is lacking and if, however, this damage does not occur directly to the goods delivered by us, we shall only be liable for this if the risk of such damage is also obviously covered by our durability and quality guarantee.
6.6 Our liability shall be limited to the damage typical for the contract and foreseeable at the time of conclusion of the contract if damage due to delay or due to a defect is based on the simple negligent breach of a material contractual obligation, i.e. an obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the fulfillment of which you as the buyer may regularly rely on has been breached by simple negligence. Nothing else applies to your claims for damages instead of performance.
6.7 Further liability claims against us are excluded. This shall apply irrespective of the legal nature of the claims you ultimately raise against us.
7. Other liability
7.1 Unless otherwise stated in these GTC, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
7.2 Within the scope of liability for fault, we shall be liable for damages - completely irrespective of the specific legal grounds - exclusively in the event of gross negligence and intent. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (for example: insignificant breach of duty or care in own affairs), only for a) Damages resulting from injury to body, life, or health, b) damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the amount of the typically occurring and thus also regularly foreseeable damage.
7.3 The limitations of liability resulting from this provision shall also apply in relation to and thus vis-à-vis third parties as well as in the event of breaches of duty by such persons (including in their favor) whose fault we must represent according to statutory provisions. However, they shall not apply if a guarantee for the quality of the goods has been assumed or a defect has been fraudulently concealed and for claims of the buyer under the Product Liability Act.
7.4 The buyer may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect if we are also responsible for this breach of duty. We expressly exclude any free right of termination on the part of the buyer (in particular pursuant to Secs. 650, 648 BGB).
8. Limitation period
8.1 For entrepreneurs, in deviation from Sec. 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the start of the limitation period shall be the acceptance itself.
8.2 If the goods are a building or an object which has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (Sec. 438 para. 1 no. 2 BGB). Again, further special statutory provisions on the statute of limitations (in particular Sec. 438 para. 1 no. 1, para. 3, Secs. 444, 445b BGB) shall remain unaffected.
8.3 The above limitation periods of the law on sales shall apply not only to contractual but also to non-contractual claims for damages of the buyer based on a defect of the goods. This shall not apply if the application of the regular statutory limitation period (Secs. 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the buyer pursuant to Sec. 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become statute-barred only or exclusively in accordance with the statutory limitation periods.
9. Final provisions
9.1 Our contracts shall be governed by the laws of Germany; we expressly exclude the UN Convention on Contracts for the International Sale of Goods.
9.2 The buyer as a merchant (“Kaufmann”) within the meaning of the German Commercial Code, special funds under public law or legal persons under public law shall have our place of business in Lichtenau as the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same shall apply to entrepreneurs within the meaning of Sec. 14 of the German Civil Code (BGB).
9.3 However, we shall be entitled in all cases to bring an action at the place of performance of the delivery obligation according to these GTC or at the general place of jurisdiction of the buyer or at the place of jurisdiction of an overriding individual agreement. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.