1. General information
The following T&Cs apply to our deliveries/services. The foregoing also applies if we do not make explicit reference to such T&Cs during the business relationship in the future. Deviating T&Cs shall only apply provided we have recognised them in writing theretofore. By receiving partial deliveries/ partial services at the latest, the Client agrees with the validity of our T&Cs even if he has excluded the validity of deviating T&Cs in his T&Cs within standard terms and conditions.
2. Offers / Order Confirmation
Our offers are without engagement. Orders and all other arrangements shall only be taken as authoritative for us if we issue a confirmation in writing. The delivery note or the invoice for goods shall also be construed as such confirmation. Amendment to the form of the product which proved to be necessary for technical or legal reasons and which was reasonable for the Client are also admissible following conclusion of the contract.
3. Scope of delivery, lead time, delivery conditions
(1) As a system supplier, EPS only delivers components (semi-finished and, if ordered, prefabrications). The specific project of the Client and its feasibility are not part of the scope of delivery. The Client is exclusively responsible for its technical implementation including the necessary static calculations and documentary evidence. The foregoing shall also apply if EPS performs assembly training at the Client’s premises; such training serves as a general instruction on the products delivered by EPS, not cooperation in the specific project or verification of the same project. If requested to do so, EPS shall make the latest processing regulations and the various current general static values available.
(2) The day of delivery is the day of release for shipment. If shipment is delayed through no fault of ours, the day of provision shall be construed as the delivery day. Even if a deadline has been agreed upon, we shall be considered in default only upon renewed attempt to provide notice hereof. Partial deliveries/partial services are admissible provided that acceptance thereof is acceptable to the Client on taking all circumstances into account. If we are prevented from delivering on time due to unforeseen circumstances or events arising through no fault of our own, the delivery period shall be extended appropriately. The foregoing shall also apply to industrial disputes, disruptions in own operating procedures which were unavoidable despite reasonable care, disruptions among hauliers, disruptions of the transport system, shortage of raw materials and intervention by officials.
(3) We shall not assume liability for deliveries/services delayed / not performed through the fault of our supplier; conversely, we are required to assign our claims for compensation against our suppliers or third parties to the Client in the corresponding amount. If the Client ultimately fails to indemnify our supplier, we shall be subsidiarily liable in this context with respect to said T&Cs. It does not entail an increase in the limitation period. If the Client can prove that the supplementary performance is not of interest to him as a result of the delay, he shall have the right to rescind the contract to the exclusion of further claims.
4. Assigned documents, proprietary rights
Any resources, documents and data which we have provided shall remain our property. The proprietary rights to products delivered by us are not conferred.
5. Transfer of risk
The risk of accidental loss or accidental depreciation of the deliveries/services, even when we by way of exception bear the cost of shipment, shall pass to the customer from the time the good has left the shipping office in Siegen. If shipment is delayed through no fault of our own, the good shall be stored at the cost and risk of the Client; in any case, the notification of readiness for dispatch to the Client shall be equivalent to shipment. If the good is taken back, the Client shall bear the risk until receipt of the latter by us.
Our prices shall be ex works and exclude packaging, freight costs and custom duties (export, import duties etc.) as well as import taxes; statutory value added tax shall be added. The costs of packaging shall be invoiced separately.
(1) Our invoices are due for payment immediately. Discounts are not granted unless they have been explicitly agreed in advance. If the receipt of the invoice is contested, the Client shall be in default without further warning thirty days after receipt of the good at the latest.
(2) Bills of exchange and cheques shall only be accepted if this has been explicitly arranged theretofore. They are only used as conditional payment and without prejudice to their discountability. Discount and exchange fees shall be borne by the Client. The same applies to costs for collection and posting back. Discounts may not be deducted from bills of exchange, the residual maturity may not exceed sixty days from the date of the invoice.
(3) Payments shall, in the first instance, be offset against any costs, then against interest, thereafter against primary debt, and first and foremost against informal, thereafter against older debt. The Client is not entitled to withhold and set off payment in case of any counterclaims including claims for defects unless the counterclaims are not at issue or have been found to be legally binding.
(4) In the case of matters of which come to our attention after the contract has been concluded and which justify doubts concerning the credit-worthiness of the Client, we are entitled to immediately declare due all our receivables including bills receivable. The latter shall apply above all for creditworthiness downgradings by credit information files or if the rating on our trade credit insurance depreciates. We are then entitled to demand advance payment; in lieu thereof, the Client shall have the right to concurrently demand provision of services from our domestic business address.
8. Liability for defects
(1) The Client shall examine the delivered goods without undue delay and contest in writing any defects within seven days at the latest after receipt at the destination; uncovered defects shall be contested immediately upon their discovery. Otherwise the good shall be construed as approved. Specimens, images and drawings provided shall only include a warranty or the agreement of a guarantee of quality if theretofore explicitly confirmed in writing to this effect.
(2) Claims for defects are not considered if there is substantial deviation from the agreed condition or if usability is impaired considerably. The right to rescind the agreement is excluded for reduced quantities up to ten percent. With regard to defects in the condition of the material we shall only be liable within the scope of the liability of our relevant supplier towards us. Conversely, we are required to assign our claims for compensation against our suppliers or third parties to the Client in the corresponding amount. If the Client ultimately fails to indemnify our supplier, we shall be subsidiarily liable in this context with respect to said T&Cs. It does not entail an increase in the limitation period.
(3) If we are liable for defects, we are entitled to choose between rectifying the defects and new delivery in return for return of the material objected to. If the Client wishes to rescind the agreement, reduce the price, demand indemnity in lieu of payment or undertake to remedy the defects himself, supplementary performance shall have only failed after we have attempted to remedy the defect for a second time. The statutory instances concerning the dispensability of setting a deadline shall remain unaffected.
Claims of the Purchaser due to expenses required for the purpose of supplementary performance, e.g. transport, travel, labour and material costs are excluded if the expenses increase because the good which we delivered has subsequently been taken to a place other than the location of the shipto address of the Client, unless such shipment was carried out as part of intended business transactions.
(5) Rights of recourse vis-à-vis EPS shall not apply if the Client has conveyed to his purchasers rights other than the imperative claims for defects within Germany.
(6) All claims concerning liability for defects shall become time-barred within a year, within three years in the case of construction materials, unless the law necessarily requires a longer period. The period of limitation commences with receipt of the good by the Client.
9. Limitation of liability
(1) We shall only be liable if damage has been caused by flagrant breach of a duty relevant to the agreement in a manner that jeopardises the attainment of the contractual purpose or is attributable to gross negligence or deliberate intent.
(2) The claim for compensation for the breach of essential contractual duties is limited to the foreseeable damages typical of the contract; the same applies in the case of gross negligence. Our liability for damages on account of the deliverable/scope of delivery to other legally protected interests of the Client shall be excluded; this does not apply in the case of deliberate intent or gross negligence. The provisions set forth in no. 9 shall apply for indemnity in addition to the payment as well as in lieu of the payment irrespective of the legal ground, especially with respect to defects, the breach of duties arising from the contractual obligation or from tortuous conduct as well as for the reimbursement of futile expenses (see 3 for delay in delivery). They shall not apply for violation of life, limb and health.
10. Retention of Title
(1) The good shall remain our property until all the receivables including incidental claims, claims for damages and the cashing of cheques and bills of exchange. The foregoing shall also apply if the price for a particular good designated by the Client has been paid. In case of a current account, the retained title shall be construed as security for our claims. If the utilisation value of the reserved goods exceeds our receivables by more than twenty per cent, we are required upon request by the Client to carry out conveyance whereupon the reserved goods to be transferred in particular is to be determined by us.
(2) If the Client makes the reserved goods into a movable item, the processing shall take place on our behalf without us being obligated in this regard. The new item becomes our property. When processing, combining or amalgamating with the good which does not belong to us, we acquire coownership of the new item according to the ratio of the value of our reserved goods to the overall value of the processed, combined or amalgamated items.
(3) The Client is entitled to process and sell the reserved goods in the course of ordinary business. He shall herewith assign to us in advance all claims arising from the use of the reserved goods including value-added tax and rights arising from builders’ collateral (the latter in the amount of the hedged receivable assigned to us). If the reserved goods are sold or used in combination with other objects that do not belong to us, the assignment only includes a part of the receivable which correlates with the ratio of the delivery value of the reserved goods to the delivery value of the objects which do not belong to us. The competence of the Client to sell or process the reserved goods in the course of ordinary business shall end with revocation by us as a result of a persistent deterioration in the financial position of the Client, at latest however with his suspension of payment. If the Client has sold the receivable in the course of a genuine factoring, he shall assign us the receivable that takes its place in return for the factor with immediate effect. If the purchaser of our Client pays to one of his bank accounts, the Client shall assign to us the claim arising from the credit memo to his financial institution with immediate effect. We shall accept the above assignments.
(4) The Client is authorised to collect the assigned receivables during a period in which he fulfils his payment obligations. The authorisation for collection shall become void once revoked by us, however at the latest if the Client has arrears and/or the financial position of the Client deteriorates considerably. In any case we are entitled to notify the customers of the Client of the assignment and to collect the receivable itself while insolvency proceedings have not yet been initiated and orders of the insolvency court do not conflict with this. The Client is required to submit to us upon request an exact list of the receivables to which we are entitled with the name and address of his customers, the amount of the individual receivables, the date of the invoice etc. and to provide us with all the necessary information in order to enforce the assigned receivable and permit us to review such information. (5) If the case of breach of duty by the Client, e.g. arrears, we are also entitled without prior rescission from the agreement and without prior setting of a deadline, respectively, to seize the reserved goods and to enter the factory premises of the Client to that end while insolvency proceedings have not yet been initiated and orders of the insolvency court do not conflict with this The costs resulting therefrom shall be borne by the Client. If we take back the goods for reasons of retention of title, the agreement may only then be rescinded if we explicitly declare this.
(6) Pledges or transfers of ownership of the reserved goods and the assigned receivables, respectively, are not admissible. The Client shall notify us immediately of if third parties access the reserved goods or the assigned receivables. The Client shall bear the costs of interventions against the access of third parties, unless they are reimbursed by the third party.
(7) The Client shall store the reserved goods for us free of charge. He shall provide adequate insurance for the reserved goods against the usual dangers (fire, theft, water etc.). The Client herewith assigns his claims for compensation which are due to him from damage of the above-mentioned type against insurance companies or other entities liable for damages to us in the amount of the value of the reserved property but no more than the amount of our security. We shall accept such assignment.
11. Validity, Applicable Law, Place of Performance, Venue, Language
(1) In any case one or more of the provisions contained in these General Terms and Conditions shall be or become void in whole or in part, the validity of all remaining provisions contained herein shall not in any way be affected thereby. The Parties shall then agree on a provision which comes closest to the intent of the legally invalid provision.
(2) The contractual relations between the Client and us shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Our registered office shall be the place of performance for deliveries/services and payments. The venue including that for disputes concerning the validity of the agreement or said venue arrangement shall be the court of competent jurisdiction for our registered office, unless an arbitration agreement exists. The applicable agreement is the text composed in German language.