General Terms and Conditions
(1) Our terms and conditions of sale apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale, unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer in the knowledge of conflicting or deviating terms and conditions of the customer.
(2) All agreements made between us and the customer for the purpose of executing a contract must be set out in writing in this contract.
(3) Our Terms and Conditions of Sale shall only apply to purchases within the meaning of §§ 1-7 HGB (German Commercial Code).
(4) Our terms and conditions of sale also apply to all future transactions with the customer.
§2 Offer – Offer documents
(1) Order is to be qualified as an offer within the meaning of § 145 BGB, this can be accepted by Etscheid within 4 weeks.
(2) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. This applies in particular to such written documents that are designated as “confidential”; before passing them on to third parties, the customer requires our express written consent.
§ 3 Prices – Terms of Payment
(1) Unless otherwise stated in the order confirmation, our prices apply “ex works”. Packaging will be invoiced separately.
(2) The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) The deduction of cash discount requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the invoice date. If the customer is in default of payment, we are entitled to demand default interest in the amount of 4% above the respective discount rate of the German Bundesbank p.a. If we are able to prove a higher damage caused by default, we are entitled to assert this claim. However, the customer is entitled to prove to us that we have incurred no or significantly less damage as a result of the delay in payment.
(5) The customer is only entitled to set-off rights within the meaning of §§ 387 ff BGB if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he is entitled to exercise a right of retention within the meaning of § 273 BGB from the same legal relationship to the extent that his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The beginning of the delivery period specified by us requires the clarification of all technical questions.
(2) If we are in default of delivery for reasons for which we are responsible, the customer is entitled to demand a lump-sum compensation for delay in the amount of 3% of the delivery value for each completed week of delay, but no more than 10% of the delivery value.
(3) If, after we have already been in default, the customer sets us a reasonable grace period with a threat of rejection, he is entitled to withdraw from the contract after fruitless expiry of this grace period; The customer shall only be entitled to claims for damages due to non-performance in the amount of the foreseeable damage if the delay is based on intent or gross negligence or on a material breach of duty; in all other respects, liability for damages is limited to 50% of the damage incurred.
(4) The limitations of liability acc. Abs. (2) and para. (3) shall not apply if a commercial fixed transaction has been agreed; the same applies if the customer can assert that his interest in the fulfilment of the contract has ceased to exist due to the delay for which we are responsible.
(5) Compliance with our delivery obligation presupposes the timely and proper fulfilment of the customer’s obligations.
(6) If the customer is in default of acceptance or violates other obligations to cooperate, Etscheid is entitled to demand the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the time when he is in default of acceptance.
§ 5 Transfer of risk
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
(2) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
§ 6 Warranty for defects
(1) The warranty rights of the customer require that he has duly fulfilled his obligations to inspect and give notice of defects in accordance with §§ 377, 378 HGB (German Commercial Code).
(2) Insofar as there is a defect in the purchased item for which we are responsible, we shall be entitled, at our discretion, to remedy the defect or to deliver a replacement. In the event of remedying the defect, we are obliged to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item was taken to a place other than the place of performance.
(3) If the remedy of the defect or replacement delivery fails, the customer is entitled, at his discretion, to demand rescission of the contract (conversion) or a corresponding reduction of the purchase price (reduction).
(4) Unless otherwise stated below (para. 5 and para. 6), further claims of the customer – regardless of the legal grounds – are excluded. We are therefore not liable for damage that has not occurred to the delivery item itself; in particular, we are not liable for lost profits or other financial losses of the customer.
(5) If the cause of the damage is based on intent or gross negligence, we shall be liable in accordance with the statutory provisions. This also applies if the customer asserts claims for damages due to non-performance in accordance with § 281 BGB (German Civil Code) due to the absence of a guaranteed property.
(6) If we culpably violate an essential contractual obligation or a “cardinal obligation”, the liability is limited to the contractually typical damage; in all other respects, it is in accordance with para. (4) excluded.
(7) The warranty period is 6 months, calculated from the transfer of risk. This period is a limitation period and also applies to claims for compensation for consequential damage caused by a defect, insofar as no claims from tort are asserted.
§ 7 Total liability
(1) A further liability for damages than in § 6 para. (4) to para. (6), regardless of the legal nature of the claim asserted, is excluded.
(2) The regulation referred to in para. (1) does not apply to claims pursuant to §§ 1, 4 Of the Product Liability Act. Unless the limitation of liability in accordance with § 6 para. (6) intervenes in the event of claims arising from producer liability pursuant to § 823 BGB (German Civil Code), our liability shall be limited to the replacement of the insurance. If this does not occur or does not occur in full, we are obliged to assume liability up to the amount of the sum insured.
(3) The regulation referred to in para. (1) shall also not apply in the event of initial inability or impossibility for which it is responsible.
(4) Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, employees, employees, representatives and vicarious agents.
§ 8 Retention of title
(1) We reserve title to the purchased item until receipt of all payments from the delivery contract. In the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to demand the return of the purchased item. The taking back of the purchased item by us does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. The seizure of the purchased item by us always constitutes a withdrawal from the contract. After taking back the purchased item, we are entitled to use it, the proceeds of the sale are to be set off against the liability of the customer – less reasonable exploitation costs.
(2) The customer is obliged to exercise peculiar care in the purchased item within the meaning of § 277 BGB, in particular he is obliged to insure it sufficiently at replacement value at his own expense against fire, water and theft damage. If maintenance and inspection work is required, the customer must carry it out in good time at his own expense.
(3) In the event of seizures or other interventions by third parties, the customer must notify Etscheid immediately in writing so that we can bring an action in accordance with § 805 ZPO. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount agreed with us (including VAT) that accrue to him from the resale against his customers or third parties, regardless of whether the purchased item has been resold without or after processing. The customer remains entitled to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of bankruptcy or composition proceedings has been filed or payment has been suspended. However, if this is the case, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and notifies the debtor (third party) of the assignment.
(5) The processing or transformation of the purchased item by the customer is always carried out for us. A special expectant right of the customer to the purchased item continues to apply to the transformed item.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer shall transfer proportionate co-ownership to us. The customer shall keep the resulting general property or co-ownership in safe custody for us.
(7) The customer also assigns to Etscheid the rights existing to secure its claim, which accrue against a third party through the combination of the purchased item with a property.
(8) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%; the selection of the securities to be released is incumbent on us.
§ 9 Place of jurisdiction – place of performance
(1) If the customer is a registered trader, our place of business is the place of jurisdiction; however, we are also entitled to sue the customer at his place of residence.
(2) Unless otherwise stated in the order confirmation, our place of business is the place of performance.