General delivery and sales conditions
of evopro systems engineering AG
(As of January 2020)
§ 1 General Provisions
- All our deliveries, services and offers are made exclusively on the basis of these general terms and conditions of delivery and sale, regardless of the legal nature of the contract on which the service is based.
- These conditions only apply if the customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
- Deviating, conflicting or supplementary terms and conditions of the customer or third parties do not apply, even if we do not separately contradict their validity in individual cases. Deviating conditions do not become part of the contract, even if the order is accepted without reservation.
- We reserve all property rights and copyrights to our drawings, models, samples, cost estimates and similar documents and resources; A transfer in any form to third parties is only permitted with our prior consent. The same applies to the use or reproduction by third parties.
§ 2 prices and payment
- Unless otherwise agreed in individual cases, our prices apply to the scope of services and scope of delivery listed in the order confirmations. The prices are in EUR ex works plus Packaging, the statutory VAT as well as for export deliveries plus Customs, import sales tax, fees and other public charges.
- If we take over the installation and assembly according to the contractual agreement and have not agreed otherwise, the customer bears all necessary ancillary costs (e.g. travel expenses) in addition to the agreed remuneration.
- Unless otherwise agreed, payments by the customer are due and payable within 14 days of invoicing and delivery or acceptance of the goods.
- The customer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed.
§ 3 delivery and delivery time
- Deliveries are made ex works.
- Our delivery times result from the contractual agreements. Deadlines and dates for deliveries and services promised by us are always approximate, unless a fixed period or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
- Compliance with our delivery deadlines assumes that the customer fulfills all of his obligations (e.g. providing necessary documents, data and permits, compliance with payment obligations) and that all technical and other questions required to fulfill the obligation to deliver have been finally clarified. If the aforementioned requirements are not met, we can – without prejudice to our rights in the event of default – demand an appropriate extension of delivery and service deadlines from the customer. This does not apply if we are responsible for the delay.
- Compliance with the delivery time is subject to the fact that we are supplied correctly and on time by our suppliers. If this is not the case, we are not liable to our customers for any resulting impossibility or delay in delivery. This only applies if we are not responsible for incorrect or late delivery to ourselves despite a congruent hedging transaction. In the event of delivery obstacles of a temporary nature, our delivery and service deadlines are extended appropriately. We will inform the customer about this immediately. If delivery obstacles from our suppliers make a service or delivery significantly more difficult or impossible and are not only of a temporary nature, we are entitled to withdraw from the contract (in whole or in part). We will immediately reimburse any services already provided by our customers.
- Furthermore, we are not liable for the impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, lack of Labor, energy or raw materials, difficulties in obtaining the necessary official permits, official measures) for which we are not responsible. In these cases, the deadlines are extended appropriately. The provisions of the preceding paragraph (5) (in particular on the right of withdrawal) apply accordingly.
- We are entitled to make partial deliveries if this is reasonable for the customer with a reasonable assessment of the customer’s situation and his own interests worthy of protection. This is especially the case when
- the partial delivery can be used by the customer within the scope of the contractual intended purpose,
- the delivery of the remaining goods ordered is ensured and
- This does not result in any significant additional work or costs for the customer (unless we have agreed to assume these costs).
- Should we be in default with a delivery or service or should a delivery or service be impossible for us, for whatever reason, our liability is limited to compensation in accordance with Section 7 of these General Terms and Conditions of Delivery.
§ 4 Place of performance, transfer of risk, acceptance
- The place of performance for all obligations arising from the contractual relationship is the registered office of our company in Regensburg, unless otherwise specified. If we also owe the installation, the place of performance is the place where the installation has to take place.
- If no acceptance has to take place, the following applies to the transfer of risk: The risk of accidental loss and accidental deterioration is transferred to the customer at the latest when the delivery item is handed over to the forwarding agent, carrier or other third party appointed to carry out the shipment. The beginning of the loading process is decisive for the handover of the delivery item. This also applies if we make partial deliveries or have taken on additional services (e.g. shipping, assembly or installation).
- If an acceptance has to take place, the following applies to the transfer of risk: The acceptance or the acceptance fiction is decisive for the transfer of risk. The delivery applies – regardless of the acceptance fiction according to § 640 para. 2 BGB – as accepted (acceptance fiction), if
- the delivery and, if we also owe the installation, the installation has been completed,
- we have communicated this to the customer with reference to the acceptance fiction and asked him to accept,
- 21 working days have passed since delivery or installation or the customer has started using or commissioning the delivery item and in this case six working days have passed since delivery or installation and
- the customer has omitted the acceptance within this period for a reason other than a defect notified to us that makes the use of the delivery item impossible or significantly impairs it.
- If dispatch or acceptance is not carried out or is delayed as a result of a circumstance, the cause of which lies with the customer, the risk is transferred to the customer on the day of notification of readiness for dispatch or acceptance.
§ 5 Warranty, Material Defects
- The warranty period is one year from delivery or, if acceptance is required, from acceptance or acceptance. This period does not apply if the law in accordance with §§ 438 Para. 1 no. 2 BGB, 634 a para. 1 no. 2 and no. 3 BGB, 445 b BGB provides for longer periods. The one-year warranty period also does not apply to claims for damages by the customer according to § 7 (2) of these conditions.
- The customer’s warranty rights require that the customer has properly complied with his obligation to inspect and notify pursuant to Section 377 of the German Commercial Code (HGB). The delivered items are to be carefully examined immediately after delivery to the customer or to the third party appointed by him. Notices of defects must be made immediately in writing.
- Insofar as our expenses for subsequent performance increase due to the fact that the delivery item was moved to a location other than the place of performance after delivery, the additional costs incurred as a result must be borne by the customer. This does not apply if the shipment of the delivery item corresponds to its intended use.
- The warranty does not apply if the customer changes the delivery item or has it changed by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer must bear the additional costs of remedying the defect resulting from the change.
- A delivery of used items agreed with the customer in individual cases takes place under exclusion of any warranty for material defects.
§ 6 retention of title
- We reserve title to the delivered goods until all of our current and future claims from the contractual relationship on which these terms and conditions are based and our ongoing business relationship have been paid in full. If the realizable value of the securities exceeds our claims by more than 10%, we will release securities at the customer’s request. In the case of various security interests, we are entitled to decide which security is released.
- We are entitled to insure the collateral against theft, fire, water and other damage at the customer’s expense, unless the customer has taken out insurance himself and has proven this to us immediately by presenting the insurance policy or comparable documents.
- The delivery items that are subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties have accessed the goods belonging to us (e.g. seizures).
§ 7 liability
- Our liability for damages, for whatever legal reason, is limited in accordance with the following paragraphs.
- We are only liable for damage, regardless of the legal reason
- in the event of culpable harm to life, body or health
- in the event of willful intent and gross negligence
- in the case of fraudulent intent, especially in the case of fraudulently concealed defects
- Failure to comply with our guarantee commitments
- in the case of liability under the Product Liability Act
- In the event of culpable breach of essential contractual obligations, we are also liable for simple negligence. In this case, liability is limited to damage that we foresaw as possible consequences of a breach of contract at the time the contract was concluded or that we should have foreseen with due diligence.
- Insofar as we provide technical information or act in an advisory capacity and this information or advice does not belong to the contractually agreed scope of services owed by us, this is done free of charge and with the exclusion of any liability.
§ 8 Final provisions
- For all legal relationships between us and the customer, the law of the Federal Republic of Germany applies exclusively to the exclusion of uniform international law, in particular the UN sales law.
- The exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Regensburg. In all cases, however, we are also entitled to take legal action at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular those relating to exclusive responsibilities, remain unaffected.
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