GENERAL TERMS AND CONDITIONS OF BUSINESS, SALE, DELIVERY AND PAYMENT
of Endress Holzfeuerungsanlagen GmbH
1. Area of application
1.1. Our general terms and conditions only apply to other companies, legal persons governed by public law and special trusts.
1.2. Our general terms and conditions apply exclusively. Terms and conditions of the customer that deviate from our general terms and conditions will not be recognised unless we expressly agree upon them in writing. Our general terms and conditions also apply to any delivery of goods or services provided by our company unconditionally, regardless of our knowledge of differing terms and conditions of the customer.
1.3. Our terms and conditions also apply to all future business transactions with the customer even if no reference is expressly made to them.
2. Offers, order confirmation, offer documents
2.1. We shall be bound to our offers and cost estimates for 14 days unless other arrangements have expressly been made.
2.2. The order is a binding offer. We can either expressly accept this offer within two weeks or have the goods sent to the customer and - where agreed - installed.
2.3. We reserve the right of ownership and copyright of all documents created by us (e.g. cost estimates, drafts, sketches, drawings, plans, models, calculations). Documents of this kind shall not be used, duplicated or made available to third parties without our consent and must be returned to us on request.
3. Scope of delivery and service
3.1. Our written order confirmation shall be used exclusively for the scope of delivery and service.
3.2. Authorisation for installation of the plant equipment supplied by us is to be obtained by the customer or site manager from the authorities responsible, the cost of which is to be covered by said customer or site manager.
3.3. For deliveries overseas, the customer must deal with any import formalities himself and provide all import information (e.g. customs and excise) as well as cover any costs that may arise from the import. Import or currency restrictions of a foreign state do not affect the validity of our contract with the customer. If, for this reason, the customer is prevented from taking receipt of the goods or refuses to accept the goods, he shall compensate us in full for any damages that arise as a result.
4.1. The prices provided by us are net prices ex-works. They do not include the cost of packaging, transport, transport insurance, set-up and assembly nor do they include statutory sales tax. The respective statutory sales tax will be invoiced separately in each case.
4.2. Changes to the sales tax rate authorise us to adjust the prices commensurate with the relevant sales tax rate change.
4.3. The contractor reserves the right to increase prices commensurate with a relevant increase in labour costs or material prices for contracts with an agreed delivery time in cases where the contract was agreed more than 4 months ago. If the increase is more than 5% of the agreed price, the customer has the right to cancel.
5.1. Unless otherwise expressly agreed in writing, 30% of the overall price is due upon order confirmation, an additional 60% is due when the goods are ready to be dispatched, the remaining 10% shall be paid once the equipment has been successfully commissioned, though no later than 30 days after delivery or 60 days after dispatch readiness.
5.2. The invoiced costs and prices for freight, assembly and other services are to be paid immediately without deductions by the customer on receipt of the invoice.
5.3. The customer shall settle all accounts in connection with our deliveries and services through cash payment to us or bank transfer and credit to one of our business accounts. If we receive cheques from the customer, these will be accepted by us in the interest of fulfilment as conditional payment until final redemption. Payment is not made until funds from the cheque have cleared in our account with no opportunity of cancellation.
5.4. Our representatives are not authorised to collect. They are not authorised to defer payments. Should payment by the customer be delayed, interest at the current rate of 9% will be charged above the respective base rate. A higher interest rate may be demanded on a different legal basis. Claim for additional damage arising from the delayed payment is not excluded. The customer can only make counter claims that are legally valid, undisputed or ready for a decision by us and are of the same legal nature.
5.5. If the customer neglects his obligation to pay by more than 14 days after the due date, or falls into financial collapse, or bankruptcy proceedings are instigated against his assets, or opening was refused due to lack of assets, we are authorised to make any outstanding deliveries only if payment is made or securities are provided in advance, and we are authorised to withdraw from the contract in the event of refusal.
6.1. We shall only be bound to delivery deadlines if expressly confirmed by us in writing.
6.2. The prerequisite for commencement of the delivery period is clarification of all technical queries along with the presence of any approvals and authorisations that may be necessary. Adherence to our delivery commitment also requires timely and correct fulfilment of the obligations of the customer; particularly also receipt by us of the deposit. The right is reserved to object to non-fulfilled contracts. The delivery period is honoured if, until its completion, the goods have left the factory or dispatch readiness is reached and announced to the customer. A delay requires a reminder to be sent to us in any case with a reasonable period of grace before claiming default of delivery.
6.3. The customer is to take receipt of the goods that are delivered even if they are delivered late.
6.4. Compensation arising from a binding delivery deadline not being kept is restricted to foreseeable and typical damage and shall only be honoured if we are to be blame for not keeping to the deadline. For minor negligence, compensation for damages caused by delay shall be restricted to 5% of the agreed order price.
6.5. Should events beyond our control (force majeure) occur at our location, at our suppliers' locations or in third party workshops upon which we rely to maintain our operation or delivery capability, we are entitled by law to withdraw fully or partially from the contract. Such events are, in particular, armed conflict, riots, transport delays, interruption of operations, late delivery of material by suppliers, lockout or strike. We are obligated to inform the customer without relay should it not be possible to deliver our services. In the event of a party withdrawing from the contract due to one of the aforementioned reasons, the customer cannot claim compensation against Endress Holzfeuerungsanlagen GmbH.
7. Shipping, transfer of risk
7.1. Deliveries are ex-works so that the dispatch of goods is at the expense and risk of the customer unless otherwise stated in the order confirmation.
7.2. The risk is transferred to the customer when the goods leave the factory and comes into place by us delivering to the logistics company, haulier or other person or organisation specifically charged with their delivery.
7.3. If the shipment is delayed due to circumstances that are beyond our control, the risk is transferred to the customer from the day of dispatch readiness and its notification to the customer.
8. Transport insurance, transport damage
We are authorised, though not obliged, to arrange transport insurance at the customer's expense. The insurance premium depends on the value of the goods. If goods are delivered with obvious signs of transport damage, the customer is required to submit a claim for this damage as soon as possible to the person/company delivering (e.g. rail, post or haulier) and to contact us without delay so that we can claim against the haulier or any other transport insurance. The statutory rights and obligations of the customer are not restricted by this.
9. Set-up, commissioning and assembly
9.1. Where we receive and accept an order to assemble the equipment, we will invoice for the assembly according to the time expenditure based on our hourly rates plus the relevant statutory sales tax. For overtime and work on Sundays and public or bank holidays, the collectively-agreed supplements shall apply. Travelling times are to be remunerated as travelling time costs in addition to the transport costs. Overnight costs and other expenses shall also be covered by the customer. Not included in our assembly service are any masonry and chiselling work for making holes, openings and recesses as well as electrical installation incl. supply and routing of electrical cables from the electrical cabinet to the drive elements and sensors as well as the whole heating installation on the water side incl. return rise, safety devices, heater circuit and pump controls with associated pumps, mixers, valves and heater pipes. The provision of scaffolding, fork-lift trucks and overhead cranes is to be made on-site.
9.2. We are authorised to appoint authorised fitters and sub-contractors to carry out assembly work.
10. Reservation of ownership
10.1. Delivered objects remain our property until complete remuneration of costs. We reserve the right to retain ownership of the delivered objects until all demands – including future demands – made against the customer from the business relationship have been fulfilled. The reservation of ownership also extends to the recognised accounting balance insofar as we include any demands against the customer in the current invoice (current account reservation).
10.2. The customer is obligated to treat the purchase item with care; he is especially obligated to insure it at his expense against fire, water and theft damage sufficiently to restore the new value. In the event of maintenance and inspection measures being necessary, the customer shall perform these at his expense and in a timely manner.
10.3. The customer is obligated to report in writing and without delay any seizure of goods subject to retention of ownership or any other third party intervention and to instruct pledgees of our reservation of ownership so that we can take legal action in accordance with § 771 ZPO. Where the third party is unable to reimburse us the judicial and extra-judicial costs of legal action in accordance with § 771 ZPO, the customer is liable to us for any deficit arising from it.
10.4. The customer is permitted to sell on or process the delivered objects in the normal manner of business unless he had effectively assigned his claim against its contractual party to a third party in advance or agreed to a prohibition of assignment. To secure the fulfilment of all our claims, the customer cedes to us, with effect of this date, all claims including all future claims to the extent of the value of the final invoice amount including sales tax resulting from resale of the goods supplied by us and all ancillary rights to the extent of the value of the goods supplied. We hereby accept the customer's declarations of assignment.
10.5. In the event that goods subject to reservation of ownership are installed on the premises of the customer, the customer, with effect of this date, assigns any claims resulting from the sale of the property or of property rights to the amount of the invoice value of the goods delivered by us with all ancillary rights to Endress Holzfeuerungsanlagen GmbH.
10.6. In the event that goods subject to reservation of ownership are installed on the premises of a third party by the customer or by the customer's agent/contractor, the customer hereby assigns the assignable claims to payment from the third party or the party concerned to the sum of the goods under reservation of ownership with all ancillary rights to Endress Holzfeuerungsanlagen GmbH.
10.7. In the event of processing, combination, mixing of the goods subject to reservation with other goods by the customer, we shall be entitled to co-ownership of the new goods in the relation to the invoice value of the goods subject to reservation at the invoice value of the other used goods. If the combination or the mixing takes place in such a way that the object of the customer is considered to be the main item, it will be considered to be agreed that the customer proportionally transfers joint ownership to us. The customer is obligated to preserve for us the sole or joint ownership free of charge.
10.8. We are obligated to release the securities granted to us at the customer's request to the extent that the value of the security exceeds the claims to be secured by more than 10%.
11.1. For commercial purchases with merchants in the sense of the German Commercial Code (HGB), § 377 HGB applies.
11.2. The period of limitation is 12 months.
11.3. Our warranty for the serviceability of the machines and plant systems supplied by us only takes effect if no constructional, technical or other changes are made that do not agree with the original data specified by us or those specified in the order. Should changes of this kind be made, we are absolved from the warranty.
11.4. Insofar as the purchased item is defective, we shall be entitled at our discretion to fulfil our obligations by either rectifying the fault or by delivering a new product without defects. In the event of fault rectification or delivery of a replacement, we are obligated to bear all costs relating to restitution, especially transport, work and material costs, provided the purchased item has not been moved to a place other than the place of fulfilment.
11.5. If the restitution is not successful, the customer can choose to claim a reduction of the purchase price or withdraw from the contract as long as the subject of the warranty for defects is not construction work.
11.6. If the components, machines and plant systems supplied by us are incorporated with other components from third party suppliers and thereby form part of a larger plant system, we will only provide a warranty for the plant systems and components supplied by us for the serviceability of the whole plant system if the projection and calculation of the whole plant system was carried out by us in full and we have expressly provided a written statement confirming the warranty insofar as the whole plant system is concerned.
11.7. We accept no liability for damage caused by unauthorised commissioning or modification without our express consent, by incorrect or forceful handling, excessive strain, poor maintenance, unsuitable and prohibited fuels, unsuitable operating equipment, natural wear and tear or external influences.
12. Return of spare parts
The customer is authorised to return to us unused spare parts in their original packaging within 14 days of receipt of goods. The goods are returned to us at the customer's expense and risk. The cost is credited minus a handling fee of 15% of the value of the returned goods. Excluded from the right of return are custom made items and goods that were made according to the individual requirements of the customer.
13. Liability provision
13.1. Unless otherwise agreed hereafter, we are liable to pay compensation for damages – particularly due to culpa in contrahendo, due to other violations of obligations, or due to tortuous claims for compensation for material damage in accordance with § 823 BGB and indirect or consequential damages, including loss of earnings – limited only by the sum covered by our liability insurance. The sum covered by our liability insurance can be requested from us by the customer.
13.2. In the event of a minor negligent breach of essential contractual duties, which are indispensable for the attainment of the contract purpose and which the customer must therefore be able to rely upon (so-called cardinal duties), our liability for further claims is restricted to compensation for foreseeable damage which is typical of the contract.
13.3. Unless caused intentionally or through gross negligence, we shall otherwise not be liable for incidental or subsequent damage, especially not for loss of earnings.
13.4. Items 13.1. to 13.3. do not apply for damage caused intentionally or through gross negligence by us, a legal representative or one of our vicarious agents.
13.5. Our liability according to the German Product Liability Act remains unaffected by the aforementioned provisions of items 13.1. to 13.3. Furthermore, the aforementioned provisions of items 13.1. to 13.3. do not apply in the event of culpable damage resulting from injury to life, physical injury or impairment of health as well as a violation of the guarantee by us, our legal representatives or vicarious agents.
14. Place of fulfilment
Unless expressly agreed otherwise, the place of fulfilment is D-91593 Burgbernheim.
15. Applicable law, place of jurisdiction
15.1. German law shall apply with exclusion of the provisions of CISG and international private law.
15.2. If the customer is a merchant as defined in the German Commercial Code, the place of jurisdiction shall be the location of Endress Holzfeuerungsanlagen GmbH. However, we shall also be entitled to take action against the customer at his place of general jurisdiction.
Status July 2016