An ELBE Industrietechnik GmbH Company
OSWALD METZEN GmbH
Our General Terms and Conditions.
Sec. 1 General
1.1 These Terms and Conditions apply to persons who, upon conclusion of the contract, act while pursuing their occupation as a commercial or self-employed professional (business persons), or as legal entities under public law or a special fund under public law.
1.2 All deliveries and services are subject to these Terms and Conditions and any other separate contractual agreements. In addition to these Terms and Conditions, both the Technical Terms and Conditions referred to in the Contract, and the technical documents supplied to the customer, to which we make express reference here also apply expressly. In the event of contradictions in the Contract, the following apply in the given order:
1. Service Description
2. Special Terms and Conditions of Contract
3. Additional Terms and Conditions of Contract
4. Terms and conditions of the customer that differ from these Terms and Conditions are not included in the Contract, even if the order is accepted. Unless otherwise agreed, a contract comes into existence when we issue a written order confirmation.
1.3 When installation services are rendered, our current Terms and Conditions of Installation apply exclusively. They take precedence over these General Terms and Conditions and exclude them.
1.4 If commercial clauses are agreed upon, the interpretation rules of the Incoterms in the current version apply, unless otherwise stated below.
1.5 Documents including figures, illustrations, drawings weights and dimension data and service details are only to be considered approximate, unless expressly stated as binding; Estimates, drawings and other documents are not allowed t be reproduced or forwarded to third parties. All property and usage rights remain with us. Customer documents that are marked confidential will only be made accessible to third parties with the consent of the customer.
1.6 Our offers are non-binding. We are entitled to accept the contractual offer contained in an order within two weeks of receiving it. By ordering an item of work or goods, the customer bindingly declares that they want to place the order, which we can then accept within three weeks.
1.7 All contracts for our deliveries and services that do not comply with the written form need to be confirmed in writing by us to be legally valid. Unilateral legal declarations regarding the contractual relationship, and, in particular, terminations, need be made in writing in order to be valid. Written declaration can also be sent by fax or e-mail.
1.8 We reserve the right to make changes to the subject matter of the Contract to the extent permitted by law. In particular, we reserve the right to make design changes in the interests of technical progress. If we have stated certain types, makes, shapes or colours in our offer, we are entitled to deviate from these, provided that the deviations can be considered equivalent and the customer considers them reasonable.
1.9 If we promise to render contractual services that are subject to regulatory approvals, we may make changes in order to obtain said regulatory approvals. All changes to the Contract once the contract has been concluded can only be taken into account if the customer bears the additional costs for these and also provides us with sufficient time to make the changes. The customer undertakes to ensure that the necessary official approvals are available. In this respect, the customer undertakes to obtain the necessary official approvals and bears the resulting costs and fees. The customer also undertakes to provide the support required for the activities necessary for producing the work. Specifically, here, the customer creates free of charge all the conditions required within his sphere of operation for producing the work. Workrooms must be made accessible during business hours and all the work equipment required must be made available. Test data and other information must be provided in good time.
1.10 If there is outstanding work to be performed, the customer shall delegate the supervision of this work to a specific person. The person delegated is the Customer’s representative on-site. This person is entitled to order amendments to the Contract and assign additional services and hourly contract work.
1.11 We are obliged to carry out modified and/or additional services at the request of the customer, if these become necessary for performing the contractual services. This does not apply if our company is not set up for this purpose. Remuneration to us is calculated based on the price determined for the contractual services, taking into account the special costs of the services required.
Sec. 2 Price and Payment
2.1 All prices are quoted exclusive of the applicable sales tax. This also applies to all-inclusive prices. If hourly contract work is agreed upon or required, hours which have been commenced are treated as full hours.
2.2 We reserve the right to adjust our prices for services and goods to then-applicable wage and material costs, unless they are rendered or delivered within four months of the contract being concluded, or a fixed price for the duration of the contract has been agreed expressly. Bills of exchange and cheques are only accepted for processing purposes.
2.3 Invoices are payable without deductions within 10 days of the invoice date.
2.4 If the customer defaults on a payment, interest at eight percentage points above the base interest rate shall be due subject to Sec. 247 GCC.
2.5 The right to withhold payment subject to Sec. 273, 320 GCC, or offset payment against counter claims is only granted to the customer insofar as said counter claims are undisputed or legally ascertained.
2.6 Depending on the scope of the project, we will agree on payment according to the progress made in the delivery or service, or corresponding evaluation criteria. These are due for payment no later than 10 days after the agreed date.
2.7 If a cash discount is agreed in individual cases, the amount is deductible upon payment, provided that the invoice or advance payment made in accordance with the contract is paid in full within the applicable period. The agreed discount period begins when the customer receives the invoice.
2.8 A payment is accepted as being made on time if we receive a cash payment within the respective period, or if the amount transferred to our account is credited within the period.
2.9 In the event that provision of security has been agreed, we shall be entitled to surrender the security by transferring an unconditional or irrevocable guarantee from a credit institution or credit insurer approved in the European Communities. The customer is to return the guarantee immediately after the warranty period has expired. If the customer fails to return the guarantee bond on time, he is obliged to bear all the costs resulting from the late return.
Sec. 3 Performance Period, Delay in Performance
3.1 The performance period results from the agreements made between the Contracting Parties. The agreed deadlines are to be kept to. They become material if the parties have expressly agreed to this and they are marked as such with regard to their effectiveness or liability. Performance periods begin when all commercial and technical issues have been resolved and the customer has fulfilled all their obligations, such as the submission of the official certificates or authorisations required or payment of a deposit. This shall not apply we are responsible for the delay. Otherwise, the start of the work is specified in the work contract and the remaining arrangements between the parties.
3.2 The performance period is accepted as having been complied with if the delivery item has left our premises or has been declared ready for dispatch, or performance has been rendered in effective terms in accordance with the Contract. If acceptance is to be carried out, the acceptance deadline is decisive, except in cases of the justified refusal of acceptance, as is the notification of readiness for acceptance.
3.3 If the shipment or acceptance of the delivery or service is delayed for reasons for which the customer is responsible, the costs incurred by the delay will be charged for. Beginning ten days after notification of readiness for dispatch or acceptance, we can, alternatively, calculate and assert flat-rate storage costs or a risk premium of at least 0.3% of the net invoice amount per day up to a value of 5% of the net amount to be settled. Without prejudice to further claims, after the fruitless expiry of a reasonable period of grace, we can otherwise dispose of the delivery or service, and deliver or perform within a reasonably extended deadline.
3.4 If the failure to meet the delivery deadline can be attributed to force majeure, labour disputes or other events outside of our sphere of influence, the delivery time will be extended accordingly. We will shall immediately inform the customer of when such circumstances begin and end.
3.5 If, in the event of default, the customer grants us a reasonable period of grace – when statutory exceptions apply – and we fail to meet the deadline, the customer is entitled to withdraw within the scope of the statutory provisions. Further claims due to delay are governed by Sec. 7 of these Terms and Conditions.
Sec. 4 Risk Transfer, Acceptance, Obligation to Inspect
4.1 For deliveries, risk is transferred to the customer when loading the delivery items at our premises begins, even if partial deliveries are made or we provide other services, such as shipping, delivery and installation.
4.2 If acceptance is to be performed, this is decisive for the transfer of risk. It must be carried out immediately after acceptance has been declared. The customer is obliged to accept the correctly produced work. If a material defect exists, the customer cannot refuse acceptance provided that we expressly acknowledge our obligation to remedy the defect. Acceptance is also seen to take place if the work is accepted without complaint. This shall be deemed to have taken place if the customer does not reject the work as defective or in breach of contract within 14 days of delivery. The complaint must be submitted in writing.
4.3 If, owing to circumstances which are not attributable to us, the shipment or acceptance is delayed, or does not take place, the risk transfers to the customer on the date the notification of shipment or readiness for acceptance was made.
4.4 We undertake to take out the insurance the customer requires at his expense.
4.5 Partial deliveries and services are permitted.
4.6 4.6.1 The customer is obliged to inspect the goods delivered and notify us in writing of any defects without delay, no later than 8 days after receiving the goods. This period starts on the date on which we receive the complaint. A written complaint which is made after the 8-day period has expired and is received in writing, is considered late. Any defects that are not identified despite careful inspection must be reported immediately on discovery. Once these periods of notice for complaints have expired, the delivered goods are deemed as accepted and the customer can no longer derive any rights from alleged defects.
4.6.2 If the defect is due to the delivery being short, the full invoice amount is to be paid. If the delivery contains an excess, the price for the actually goods delivered is to be paid.
Sec. 5 Retention of Title
5.1 All delivered goods remain our property until all claims have been settled, and, in particular, the relevant account balance requirements which are due to us within the context of the business relationship with the customer (goods subject to retention). We are entitled to insure the delivery items against theft, breakage, fire, water and any other damage at the expense of the customer, insofar as the customer has not taken out demonstrable insurance himself.
5.2 If the goods subject to retention of title are combined with other items in such a way that they become an essential part of the other item, then we acquire co-ownership of said other item. The creation of a new item by combining or processing the goods subject to retention of title takes place in such a way that we always acquire a corresponding share of co-ownership, which the customer then immediately transfers to us.
5.3 If the customer sells the delivered or manufactured goods on in accordance with Sec. 5.2 as intended, he hereby assigns to us the claims arising from the sale, or a corresponding part of the sale, vis-a-vis his customers, including all ancillary rights, until complete settlement of said claims.
5.4 We are entitled to collect claims on the resale or balance of claims unless the customer revokes the direct debit authorisation.
5.5 In the event of breach of Contract by the customer, and, in particular, default payment, we are entitled to demand the return of the delivered items once a reminder has been sent. The customer is neither entitled to withdraw from the contract in this case, nor in the case of seizure. The customer shall notify us immediately of all transactions that affect retention of title, and, in particular, of foreclosure measures or actual impairments of the goods subject to retention of title.
5.6 An application to open insolvency proceedings entitles us to withdraw from the Contract and demand the immediate return of the delivery item.
Sec. 6 Warranty
For defects in material and workmanship, or legal deficiencies, with regard to the deliver or service, we shall provide the following, subject to the exclusion of further claims:
6.1 Defects in Material and Workmanship
6.1.1 All those parts or services which prove to be defective owing to a circumstance that took place prior to the transfer of risk shall be repaired free of charge at our discretion or delivered or rendered new (supplementary performance). The determination of such defects must be provided to us in writing immediately. Parts which are replaced are transferred into our ownership.
6.1.2 The warranty for essential third-party products is limited to the assignment of our warranty claims against our supplier. The warranty claims against us will be resumed if fulfilment of the assigned warranty claims following a judicial claim and foreclosure measures against the supplier fail.
6.1.3 Statements we make about the features of our products and services correspond to the results of measurements and calculations we have made and are to be regarded as quality features, but not as warranted features or guarantees. We assume no any guarantees in terms of Sec. 443, 444 and 639 GCC.
6.1.4 Following agreement with us, the customer must provide us with the necessary time and opportunity to perform any supplementary performance operations we deem necessary; otherwise, we are released from the liability for the consequences that result from this. Only in urgent cases of endangerment to operational safety and to the defend against disproportionately large damages, the Customer has the right to the remedy the defect himself or have it remedied by a third party, and to demand reimbursement of the necessary expenses.
6.1.5 We shall bear the costs of subsequent performance, insofar as the complaint proves to be justified, and the costs of the replacement part, including domestic shipping, and the reasonable costs of removal and installation, and, also, if it can be demanded under the circumstances of the individual case, the cost of providing our fitters and support staff if required.
6.1.6 Within the scope of the statutory provisions, the customer has the right to withdraw from the Contract, taking the statutory exceptions into consideration, if we let a reasonable deadline for supplementary performance owing to a material defect elapse fruitlessly. The Customer is only entitled to a reduction in the Contract price if only an insignificant defect exists.
6.1.7 We cannot not be made liable for any defects resulting from measures or constructions that the Customer expressly requested, or arising from materials or products that the Customer supplied. In particular, a warranty is not provided in the following cases: Unsuitable or improper use, incorrect assembly, installation or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating equipment, defective construction work, unsuitable foundations, chemical, electrochemical or electrical influences – insofar as we were not at fault.
6.1.8 We are not liable for the resulting consequences if the customer or a third party makes improper repairs. The same applies to changes to the delivery or service made without our prior consent.
6.1.9 The customer shall return defective parts to us at our request.
6.2 Legal Defects
6.2.1 If the use of the delivery or service results in the infringement of industrial property rights or copyrights in Germany, we shall ensure that the customer has the right to continue using the delivery or service at out own expense, or modify it in such a way reasonable for the customer, so that the property rights are not longer infringed upon. The customer is entitled to withdraw from the Contract should this not be possible under commercially reasonable conditions and within a reasonable period of time. We are also entitled to withdraw from the Contract under the foregoing conditions. In the event of default, we shall also exempt the customer from undisputed or legally established claims made by the relevant property rights holder.
6.2.2 In the event of property rights or copyright infringement, our obligations stated in Sec. 6.2.1 are subject to Sec. 7. They only exist if – the customer informs us immediately of property rights or copyright infringements asserted, – the customer supports us to a reasonable extent in defending against the claims asserted or enables modification measures according to Sec. 6.2.1 to be implemented, – all defensive measures including out-of-court settlements remain reserved for us, – the legal defect is not based on an instruction by the customer and – the infringement was not caused by the customer changing the delivery or service on his own initiative or using it in a manner not in accordance with the Contract.
6.3 A mere written notice of defect does not inhibit the expiry of the warranty period.
6.4 As long as we comply with our obligations to remedy the defects, the customer is not entitled to demand a reduction in the remuneration or cancel the contract, if we do not fail to remedy the defects.
6.5 The limitation period for claims and rights and defects in the goods and services delivered is one year for whatever legal reason. However, this does not apply in the case of Sec. 438 Para. 1 (1) GCC, Sec. 438 Para. 1 (2) GCC and Sec. 479 para. 1 GCC. In case of malice or intent, the statutory limitation periods shall apply instead of the periods specified in Sentence 1 here.
6.6 The statutory limitation period can be inhibited if the contractor acknowledges the deficiencies, the customer initiates legal proceedings or the customer launches an action.
6.7 Furthermore, the limitation periods do not apply to claims for damages in the event of loss of life, limb or health or freedom, claims under the German Product Liability Act in the event of grossly negligent breach of duty or the breach of essential contractual obligations.
6.8 The limitation period for all claims begins on the date of delivery, and, in the case of works performed, in their acceptance.
6.9 Unless expressly stated otherwise, the legal provisions concerning the commencement of the limitation period, the suspension of proceedings and the suspension and beginning of periods shall remain unaffected. Our Terms and Conditions also apply if we render our services to the customer without reservation in the knowledge of conflicting or deviating terms and conditions.
6.10 Claims for reduction or exercising a right of withdrawal are excluded insofar as the claim for supplementary performance is time-barred.
Sec. 7 Liability
7.1 If the goods delivered or service rendered cannot be used subject to the contract, owing to negligence on our part as a result of proposals or consultations that were omitted or provided incorrectly prior to or following conclusion of the Contract, or owing to the violation of other ancillary contractual obligations, and, in particular, operating and maintenance instructions, the provisions of Sec. 7 and 8.2 apply accordingly under exclusion of any further claims.
7.2 We are only liable for damages that do not arise from the delivery or service itself, for whatever legal reason whatsoever, in the case of intent and gross negligence by our agents or executives in cases of culpable loss of life, limb or health, and for defects in delivery or service, insofar as we are liable subject to the German Product Liability Act for personal injury or damage to privately used objects. We are also liable for non-management employees in the case of the culpable infringement of key contractual obligations.
7.3 In the foregoing cases – with the exception of liability subject to the Product Liability Act – liability is always limited to the contractually typical, reasonably foreseeable damage and indemnification by our insurance policy. The insurance certificate stipulates the following maximum compensation per claim: For personal injury and/or property damage, up to €5,000,000.00; for processing damages, up to €250,000.00; for pecuniary loss, up to €200,000.00. The annual maximum amount is twice the foregoing amounts. Further claims for damages, and, in particular, for compensation for indirect damages, such as losses in profit and production, are excluded, for whatever legal reason.
Sec. 8 Defence of Insecurity
If it becomes apparent to us that our claim for counter performance is jeopardised by the customer’s inability to perform, we shall be entitled to refuse to render the service incumbent upon us until counter performance has been effected or security has been provided.
Sec. 9 Force Majeure
Cases of force majeure and other disruptive events that were unforeseeable at the time the Contract was concluded (e.g. operational disruptions, delivery delays or failure by suppliers, shortages in energy or raw materials, traffic disruptions and strikes, lockouts and official decrees) exempt us from the obligation to deliver goods or render services to the extent of the effect of the disruption for the duration of the disruption. If this results in a delay in the delivery or service of more than one month, we are entitled to withdraw from the Contract with regard to the amount affected by the disruption in the delivery or service.
Sec. 10 Applicable Law/Jurisdiction
10.1 The law of the Federal Republic of Germany, that governs legal relations between domestic parties, applies exclusively to all legal relations between us and the customer.
10.2 If the customer is a merchant, a legal entity under public law or a special fund under public law, place of jurisdiction is the court responsible for our registered office. We are also entitled to file a claim at the customer’s headquarters however.
Sec. 11 Duty of Cooperation
The customer ensures that our employees have free access to the workplace during the agreed working hours. If we need to perform clearing work to prepare for performing the work, this will be billed for separately. The customer shall ensure that the workplace is equipped free of charge with air, ventilation, electricity, sockets, heating and a locked storage room for work equipment and replacement parts.
Sec. 12 General Provisions, Contract Term, Customer Cooperation
12.1 Place of performance for mutual obligations arising from the contractual relationship is our registered office. This also applies when commercial clauses have been agreed.
12.2 Statements that serve to establish, maintain or exercise rights must be made in writing.
12.3 The customer is not permitted to transfer his contractual rights to third parties without our written consent.
12.4 Our Special Terms and Conditions also apply as a priority to repair and assembly/installation contracts.