General Terms of Delivery and Sales of evopro systems engineering AG
(Status: January 2020)
§ 1 General provisions
- All our deliveries, services and offers are exclusively based on these General Terms and Conditions of Delivery and Sale, irrespective of the legal nature of the contract on which the service is based.
- These terms and 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 shall not apply, even if we do not separately object to their validity in individual cases. Deviating terms and conditions shall not become part of the contract, even if we accept an order without reservation.
- On our drawings, models, samples, cost estimates and the like documents and auxiliary materials, we reserve all property rights and copyrights without restriction; passing them on to third parties in any form 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 shall apply to the scope of services and delivery specified in the order confirmations. The prices are in EUR ex works plus packaging, the statutory value added tax and, in the case of export deliveries, plus customs duty, import turnover tax, fees and other public charges.
- Insofar as we assume responsibility for installation and assembly according to the contractual agreement and unless otherwise agreed, the customer shall bear 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 shall only be 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 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 deadline or 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.
- The observance of our delivery periods presupposes that the customer fulfils all his obligations (e.g. provision of necessary documents, data and approvals, observance of payment obligations) and that all technical and other questions necessary for the fulfilment of the delivery obligation have been finally clarified. If the aforementioned conditions are not fulfilled, we can - without prejudice to our rights arising from default - demand an appropriate extension of delivery and performance deadlines from the customer. This shall not apply if we are responsible for the delay.
- Compliance with the delivery time is subject to the proviso that we receive correct and timely deliveries from our suppliers. If this is not the case, we shall not be liable to our customers for any impossibility of delivery or delay in delivery caused thereby. This shall only apply if we are not responsible for the incorrect or untimely supply to ourselves despite congruent hedging transactions. In the event of delivery hindrances of a temporary nature, our delivery and performance deadlines shall be extended accordingly. We will inform the customer of this immediately. If delivery hindrances of our suppliers make performance or delivery considerably more difficult or impossible for us and are not only of temporary duration, we shall be entitled to withdraw from the contract (in whole or in part). We will immediately reimburse any services already rendered by our customers.
- Furthermore, we shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lock-outs, lack of labour, energy or raw materials, difficulties in procuring necessary official permits, official measures) for which we are not responsible. In such cases, the deadlines shall be extended accordingly. The provisions of the above paragraph (5) (in particular regarding the right of withdrawal) shall apply accordingly.
- Wir sind zur Teillieferung berechtigt, wenn dies dem Kunden bei verständiger Würdigung der Lage des Kunden und seiner eigenen schutzwürdigen Interessen zumutbar ist. Dies ist insbesondere dann der Fall, wenn
- die Teillieferung für den Kunden im Rahmen des vertraglichen Bestimmungszwecks verwendbar ist,
- die Lieferung der restlichen bestellten Ware sichergestellt ist und
- dem Kunden hierdurch kein erheblicher Mehraufwand oder zusätzliche Kosten entstehen (es sei denn, wir haben uns zur Übernahme dieser Kosten bereit erklärt).
- 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 for damages shall be limited in accordance with § 7 of these General Terms 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 shall be the place where the installation is to be carried out.
- If no acceptance is to take place, the following applies to the transfer of risk: The risk of accidental loss and accidental deterioration shall pass to the customer at the latest when the delivery item is handed over to the forwarding agent, carrier or other third party designated to carry out the shipment. The beginning of the loading process is decisive for the handover of the delivery item. This shall also apply if we make partial deliveries or have taken over further services (e.g. dispatch, assembly or installation).
- Insofar as acceptance is to take place, the following shall apply to the transfer of risk: The acceptance or the fiction of acceptance is decisive for the passing of risk. Irrespective of the fiction of acceptance according to § 640 para. 2 BGB (German Civil Code), the delivery shall be deemed accepted (fiction of acceptance) if
- the delivery and, if we also owe the installation, the installation is completed,
- we have informed the customer of this with reference to the fiction of acceptance and have requested him to accept,
- 21 working days have elapsed since delivery or installation or the customer has started to use or commission the delivery item and in this case six working days have elapsed since delivery or installation and
- the customer has failed to accept the goods within this period of time for a reason other than a defect notified to us, which makes the use of the delivery item impossible or significantly impairs it.
- If dispatch or acceptance is omitted or delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer on the day of notification of readiness for dispatch or acceptance.
§ 5 Warranty, material defects
- The warranty period shall be one year from delivery or, if acceptance is required, from acceptance or fiction of acceptance. This period shall not apply if the law according to §§ 438 para. 1 No. 2 BGB, 634 a para. 1 No. 2 and No. 3 BGB, 445 b BGB provides for mandatory longer periods. Furthermore, the one-year warranty period shall not apply to claims for damages by the customer pursuant to § 7 (2) of these terms and conditions.
- Warranty rights of the customer presuppose that the customer has properly fulfilled his obligation to examine the goods and make a complaint in accordance with § 377 HGB. The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by the customer. Notices of defects must be made immediately in writing.
- Insofar as our expenses for subsequent performance are increased by the fact that the delivery item was taken to a place other than the place of performance after delivery, any additional costs incurred as a result of this shall be borne by the customer. This does not apply if the transfer of the delivery item corresponds to its intended use.
- The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without our consent and the elimination of the defect is thereby rendered impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of the removal of defects arising from the modification.
- A delivery of used objects agreed upon with the customer in individual cases shall be effected under exclusion of any warranty for material defects.
§ 6 Retention of title
- We reserve title to the delivered goods until all our present and future claims arising from the contractual relationship underlying these General Terms and Conditions and our ongoing business relationship have been paid in full. If the realisable value of the securities exceeds our claims by more than 10%, we will release securities at the customer's request. In the case of different security rights, we are entitled to decide which security is released.
- We are entitled to insure the objects of security against theft, fire, water and other damage at the customer's expense, unless the customer has taken out insurance himself and has provided proof of this to us immediately by presenting the insurance policy or comparable documents.
- Wir sind berechtigt, die Sicherungsgegenstände auf Kosten des Kunden gegen Diebstahl, Feuer, Wasser und sonstige Schäden zu versichern, sofern nicht der Kunde selbst die Versicherung abgeschlossen und uns dies unverzüglich durch Vorlage der Versicherungspolice oder vergleichbarer Dokumente nachgewiesen hat.
§ 7 Liability
- Our liability for damages, for whatever legal reason, is limited in accordance with the following paragraphs.
- We are liable for damages - regardless of the legal basis - only
- culpable injury to life, body, health
- for intent and gross negligence
- in case of fraudulent intent, especially in case of fraudulently concealed defects
- failure to comply with our warranty promises
- for liability according to the product liability law
- In the event of culpable violation of essential contractual obligations, we shall also be liable for simple negligence. In this case, liability is limited to damages which we foresaw as possible consequences of a breach of contract at the time of conclusion of the contract or which we should have foreseen with due diligence.
- Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
§ 8 Final provisions
- All legal relations between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Sales Convention.
- The exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Regensburg. However, in all cases we are also entitled to bring an action at the customer's general place of jurisdiction. Priority statutory provisions, in particular those concerning exclusive jurisdiction, shall remain unaffected.