GENERAL TERMS OF BUSINESS, SALE, DELIVERY AND PAYMENT
of Endress Holzfeuerungsanlagen GmbH
1. Scope of application
1.1. Our GTC apply only to entrepreneurs, legal entities under public law and special funds under public law.
1.2. Our GTC apply exclusively. Deviating terms and conditions of the customer shall not be recognised unless we have expressly agreed in writing to the validity of the customer's deviating terms and conditions. Our GTC shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our GTC.
1.3. Our GTC shall also apply to all future transactions with the customer, even if no express reference is made to them.
2. Offers, order confirmation, offer documents
2.1. We shall be bound by our offers and cost estimates for 14 days, unless expressly agreed otherwise.
2.2. The order is a binding offer. We may accept this offer within two weeks either expressly or by sending the goods to the customer and - if agreed - assembling them.
2.3. We reserve all property rights and copyrights to all documents prepared by us (e.g. cost estimates, drafts, sketches, drawings, plans, models, calculations). Such documents may not be used, reproduced or made accessible to third parties without our consent and must be returned to us upon request.
3. Scope of delivery and service
3.1. Our written order confirmation shall be exclusively decisive for the scope of delivery and performance.
3.2. Approval for the installation of the equipment to be supplied by us must be obtained by the customer or builder from the relevant authorities at his own expense.
3.3. In the case of deliveries abroad, the customer must take care of any import formalities himself and bear all import duties (e.g. customs duties) and other costs arising from the import himself. Import or foreign exchange restrictions of the foreign state do not affect the validity of our contract with the customer. If acceptance is therefore impossible for the customer or if the customer refuses acceptance, the customer shall compensate us for all resulting damage.
4.1. The prices stated by us are net prices ex works. They do not include the costs of packaging, transport, transport insurance, installation and assembly as well as the statutory value added tax. The applicable statutory value added tax shall be charged separately in each case.
4.2. Changes in the VAT rate shall entitle us to adjust the prices in accordance with the change in the VAT rate that has occurred.
4.3. The Contractor reserves the right to increase prices in accordance with any increases in labour costs or material prices that have occurred in the case of contracts with an agreed delivery period of more than 4 months from the conclusion of the contract. If the increase is more than 5% of the agreed price, the customer has the right to terminate the contract.
5.1. Unless otherwise expressly agreed in writing, 30 % of the total price shall be due upon order confirmation, a further 60 % shall be due upon readiness for delivery, and the remaining 10 % shall be due for payment upon commissioning, but no later than 30 days after delivery or 60 days after readiness for delivery.
5.2. The invoiced costs or prices for freight, assembly and other services are due for payment without deduction immediately after receipt of the invoice by the customer.
5.3. The claims arising from our deliveries and services shall be settled by the customer by cash payment to us or transfer and credit to one of our business accounts. Insofar as we receive cheques from the customer, these shall be accepted by us on account of performance subject to final encashment. Payment shall only be deemed to have been made after the cheque has been finally credited to our account - without the possibility of a chargeback by the bank.
5.4. Our representatives are not authorised to collect payments. They are not entitled to grant deferment of payment. In the event of default in payment by the customer, interest shall be charged at the current rate of 9 percentage points above the respective base interest rate. Higher interest may also be demanded on another legal ground. The assertion of further damages resulting from the delay in payment is not excluded. The customer may only offset counterclaims that have been legally established, are undisputed by us or are ready for a decision and are based on the same legal relationship.
5.5. If the customer remains in arrears with his payment obligation for more than 14 days after the due date or if he suffers a financial collapse or if insolvency proceedings are applied for or opened against his assets or if the opening of such proceedings is refused due to lack of assets, we shall be entitled to make outstanding deliveries only against advance payment or provision of security and to withdraw from the contract if the customer refuses to do so.
6.1. All delivery periods are only binding if expressly confirmed by us in writing.
6.2. The start of the delivery period is subject to the clarification of all technical questions and the availability of all necessary approvals and releases. Compliance with our delivery obligation further requires the timely and proper fulfilment of the customer's obligations; in particular also the receipt of the down payment by us. The defence of non-performance of the contract remains reserved. The delivery period shall be deemed to have been complied with if, by the time of its expiry, the delivery item has left the factory or a notice for readiness for delivery has been given and the customer has been notified. The occurrence of default shall in any case require a reminder with a reasonable period of grace to be sent to us.
6.3. Delivered goods are to be accepted by the customer, even if they are delivered late.
6.4. Compensation for damages due to exceeding a bindingly agreed delivery deadline is limited to the foreseeable and typical damage and only arises if we are responsible for exceeding the deadline. In the event of slight negligence, the claim for compensation for damage caused by delay shall be limited to 5% of the agreed order price.
6.5. In the event of unavoidable events for which we are not responsible (force majeure), which occur at our premises, at our suppliers' premises or at third-party premises, and on which the maintenance of our operations or our ability to deliver depend, we shall be entitled to withdraw from the contract in whole or in part. Such events are in particular war, riots, transport delays, operational disruptions, delayed delivery of materials by suppliers, lockouts or strikes. We are obliged to inform the customer immediately about the unavailability of the service. In the event of withdrawal from the contract for any of the aforementioned reasons, the customer shall have no claim for damages against Endress Holzfeuerungsanlagen GmbH.
7. Dispatch, transfer of risk
7.1. Deliveries are made ex works, so that the goods are shipped for the account and at the risk of the customer, unless otherwise stated in the order confirmation.
7.2. The risk shall pass to the customer when the goods have left the factory by our handing over the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
7.3. If dispatch is delayed as a result of circumstances for which we are not responsible, the risk shall pass to the customer from the date of readiness for delivery and notification thereof to the customer.
8. Transport insurance, transport damage
We are entitled, but not obliged, to take out transport insurance at the customer's expense. The sum insured is based on the value of the goods. If goods are delivered with obvious transport damage, the customer is requested to complain about such damage as soon as possible to the deliverer (e.g. railway, post office or forwarding agent) and to contact us immediately so that we can assert claims against the carrier or any transport insurance. The customer's statutory rights and obligations shall not be limited as a result of this.
9. Installation, commissioning and assembly
9.1. Insofar as we receive and accept an order to perform the installation work, we shall invoice the installation work in accordance with the time spent according to our hourly rates plus the statutory turnover tax applicable at the time. Overtime and work on Sundays and public holidays shall be subject to the surcharges set out in the collective agreement. The journey times shall be fully remunerated as travelling times in addition to the transport costs. Accommodation costs and other expenses shall also be borne by the customer. Our installation work does not include all bricklaying and mortising work for openings, insertion openings and recesses as well as the electrical installation including the supply and laying of the electrical cables from the control cabinet to the drive elements and the sensors as well as the entire heating installation on the water side including return lift, safety devices, heating circuit and pump control with the associated pumps, mixers, valves and heating pipes. Scaffolding, forklift trucks and crane trucks will be provided by the client.
9.2. We are entitled to use contract assemblers and subcontractors to carry out assembly work.
10. Retention of title
10.1. Delivered items remain our property until full payment of the remuneration. We reserve title to delivered items until all claims - including those arising in the future - which we have against the customer from the business relationship have been settled. The retention of title also extends to the recognised balance insofar as we book accounts receivable from customer in the current account (current account retention).
10.2. The customer is obliged to treat the object of sale with care; in particular, he is obliged to insure it adequately at his own expense against damage by fire, water and theft at its replacement value. If maintenance and inspection work is required, the customer must perform this in good time at his own expense.
10.3. The customer is obliged to notify us immediately in writing of any seizure of the objects subject to retention of title or other interventions by third parties and to inform the lien creditors of our retention of title so that we can bring an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with Section 771 ZPO, the customer shall be liable for the loss incurred by us.
10.4. The customer may resell or process the delivered items in the ordinary course of business, unless he has already effectively assigned the claim against his contractual partner to a third party in advance or has agreed a prohibition of assignment. To secure the fulfilment of our claims, the customer hereby assigns to us as a priority all claims, including those arising in the future, in the amount of the final invoice amount including value added tax from a resale of the delivered items with all ancillary rights in the amount of the value of the items delivered by us. We hereby accept the customer's declarations of assignment.
10.5. If objects subject to retention of title are installed as essential components in the customer's property, the customer hereby assigns to Endress Holzfeuerungsanlagen GmbH the claims arising from a sale of the property or of property rights in the amount of the invoice value of the objects subject to retention of title together with all ancillary rights.
10.6. If the items subject to retention of title are installed by the customer or on the customer's behalf as essential components in the property of a third party, the customer hereby assigns to Endress Holzfeuerungsanlagen GmbH any claims for remuneration arising against the third party or the party to whom it relates in the amount of the invoice value of the items subject to retention of title together with all ancillary rights.
10.7. In the event of the processing, combination and mixing of the reserved goods with other items by the customer, we shall be entitled to co-ownership of the new item based onthe ratio of the invoice value of the reserved goods to the value of the other items. If the combination or mixing is performed in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer is obliged to keep our sole ownership or co-ownership for us free of charge.
10.8. We are obliged to release the securities to which we are entitled at the customer's request insofar as the value of the securities exceeds the accounts receivables to be secured by more than 10%.
11.1. For commercial purchases with merchants as defined by the German Commercial Code (HGB), Section 377 HGB shall apply.
11.2. The limitation period for claims for defects is 12 months.
11.3. Our warranty for the functional capability of the machines and systems supplied by us shall only apply if no structural, technical or other changes have been made to the data originally specified to us or on which the order was based. Should such changes occur, we shall be released from the warranty in this respect.
11.4. If there is a defect in the purchased item, we are entitled to choose between subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the case of rectification of defects or replacement delivery, we are obliged to bear all expenses necessary for the purpose of subsequent performance, 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.
11.5. If the rectification of defects fails, the customer may, at his discretion, demand a reduction or, if a construction work is not the subject of the liability for defects, withdraw from the contract.
11.6. Insofar as the components, machines and systems supplied by us are combined with other components from third party suppliers and thus become part of the overall system, we shall only assume a warranty for the functionality of the entire system for the systems and components supplied by us if the project planning and the calculation of the overall system has been entirelyperformed by us and we have in this respect given an express written promise of warranty for the entire system.
11.7. We do not accept any liability for damage caused by unauthorised commissioning or modifications without our express consent, incorrect or violent handling, excessive stress, inadequate maintenance, unsuitable and non-permitted fuels, unsuitable operating materials, natural wear and tear or external influences.
12. Taking back spare parts
The customer is entitled to return to us spare parts in their original packaging and unused within 14 days of receipt of the goods. The return of the goods to us shall be at the expense and risk of the customer. The credit note will be issued minus a processing fee of 15% of the returned goods value. Custom-made products and goods that have been individually manufactured at the request of the customer are excluded from the right of return
13. Liability regulation
13.1. Unless otherwise agreed below, we shall be liable for damages - in particular in the event of culpa in contrahendo, due to other breaches of duty or due to tortious claims for compensation for property damage in accordance with Section 823 of the German Civil Code (BGB) and indirect damage or consequential damage, including loss of profit - only limited to the amount covered by our liability insurance. The customer can ask us for the amount covered by our liability insurance.
13.2. In the event of a slightly negligent breach of essential contractual obligations, compliance with which is essential for the proper fulfilment of the contract and compliance with which the customer may regularly rely on (so-called cardinal obligations), our liability for further claims shall be limited to compensation for the foreseeable damage typical for the contract.
13.3. Otherwise, except in the case of intent and gross negligence, we shall not be liable for indirect damage or consequential damage, in particular not for loss of profit.
13.4. Clauses 13.1. to 13.3. shall not apply in the event of intent or gross negligence on our part, on the part of a legal representative or on the part of one of our vicarious agents.
13.5. Our liability under the provisions of the Product Liability Act shall remain unaffected by the above provisions of Sections 13.1. to 13.3. Furthermore, the above clauses 13.1. to 13.3. shall not apply in the event of culpable injury to life, limb or health or in the event of breach of a warranty by us, our legal representative or vicarious agent.
14. Place of performance
Unless expressly agreed otherwise, the place of performance shall be D-91593 Burgbernheim.
15. Applicable law, place of jurisdiction
15.1. German substantive law shall apply to the exclusion of the CISG and to the exclusion of private international law.
15.2. If the customer acts as a merchant as defined by the German Commercial Code (HGB), the place of jurisdiction shall be the registered office of Endress Holzfeuerungsanlagen GmbH. However, we are also entitled to sue the customer at his general place of jurisdiction.
Status July 2016