General Terms & Conditions EKULIT
Elektrotechnik Karl-Heinz Mauz GmbH
All our sales and deliveries, including advice and information, are based on the following terms and conditions. They shall be deemed accepted at the latest upon receipt of our goods or services.
Even if we do not expressly object, any conflicting general terms and conditions of the client shall be deemed excluded.
In the case of supplementary and follow-up orders, the following General Terms and Conditions shall apply accordingly.
Delivery or quality management agreements do not replace the following terms and conditions and are only valid if they have been expressly recognised by us. In the event of conflicting agreements, only the following clauses shall apply.
Offers, descriptions, cost estimates, prices and other pre-contractual communications are subject to change. Anything to the contrary shall only apply if expressly agreed. Unless otherwise agreed, information, the contents of brochures, leaflets and technical application notes shall not form part of the contract. They are only intended to be informative and to convey general knowledge. Amendments to the contract and verbal subsidiary agreements shall only become effective if confirmed in writing. Our written order confirmation shall be authoritative for the content and scope of a contract that is part of the business operations of an entrepreneur.
We are entitled to make technical changes in the execution of the order insofar as they result from the progress of technical development or prove to be appropriate in the interest of the product in the individual case.
In the event of an order increase, more favourable graduated prices can only be granted if the order has not yet been processed by us. Order reductions or order cancellations are only possible with our consent.
Unless otherwise stated, our price quotations do not include statutory value added tax. Increases in the statutory value added tax after conclusion of the contract entitle us to pass these on to the same extent.
Our prices apply to deliveries ex Ostfildern - without packaging. The following shall apply to price agreements: If a period of more than four months has been agreed for the delivery or service after conclusion of the contract, we shall nevertheless be entitled to adjust the prices if the delivery or service is subsequently affected and made more expensive, either directly or indirectly, by new public charges, ancillary charges, freight charges or their increase or other statutory measures or a change in the cost factors, such as wage and material costs, on which our prices are based. The contractor shall be entitled to withdraw from or terminate the contract if the price increase due to the aforementioned circumstances exceeds 10% of the agreed price. If we have promised a fixed price in writing, we shall be bound by this.
Delivery times, delivery, transfer of risk
Unless otherwise agreed, delivery shall begin as soon as possible. The execution time begins on the day of receipt of our order confirmation, but not before clarification of all execution details and fulfilment of all other prerequisites which the contractual partner must provide.
Due to unforeseeable, extraordinary and non-culpable circumstances as well as force majeure (in the case of material procurement difficulties, operational disruptions, strike, lockout, lack of means of transport, official interventions, energy supply difficulties, etc.), even if these occur with upstream suppliers, the execution period shall be extended for the duration of the hindrance as well as a reasonable start-up period if the contractor is prevented from fulfilling its obligations in a timely manner.
If delivery or performance becomes impossible or unreasonable due to the above circumstances, the contractor shall be released from the obligation to supply the client. If the delay in performance lasts longer than eight weeks, the Client shall be entitled to withdraw from the contract.
Liability for damages is excluded if the contractor has been released from the obligation to execute the order or if the order execution time has been extended and the client has been informed of this immediately after the occurrence of the circumstances.
In the event of our own delay or impossibility of performance for which we are responsible, we shall only be obliged to pay damages for non-performance in the event of intent or gross negligence.
However, if the contract has been concluded with an entrepreneur, our liability shall be limited to the damage foreseeable at the time of conclusion of the contract, even in the event of gross negligence. In this case, claims for damages in the event of gross negligence are excluded if the breach of a non-essential contractual obligation occurs through one of our vicarious agents.
The right of the client to withdraw from the contract after the fruitless expiry of a reasonable period of grace granted to us remains unaffected.
We are entitled to partial performance to a reasonable extent.
The risk shall pass to our contractual partner on the day of acceptance of our delivery or, in the case of shipments, after handover to the carrier. This also applies to partial acceptances if these can be carried out according to the type and condition of the subject matter of the contract.
If no acceptance is requested by the client or according to the circumstances of the contract, the performance shall be deemed to have been accepted after the expiry of ten working days after written notification of completion or after handover by the carrier. The commissioning or processing of our deliveries replaces the acceptance. This shall also apply to partial acceptance. Acceptance cannot be refused or delayed due to minor defects.
If the performance is delayed at the request of the contractual partner or for reasons for which he is responsible (creditor default), the risk shall pass to the client for the period of the delay. The resulting costs for waiting time, provision and storage as well as any further necessary travel by our vicarious agents shall be borne by the client.
The services rendered by us are in principle due immediately after invoicing and to be paid no later than 30 days after receipt of the invoice, unless other payment terms have been agreed. A 2% discount is granted for payment within 8 days of the invoice date.
In the event of default on the part of the Client, interest shall be charged in accordance with § 288 BGB, subject to the assertion of further damages.
All payments must not be made to agents, but only to us.
Advance payments or payments on account can be agreed in individual contracts. Payments not made on time entitle us to stop further work or to postpone it until payment has been made.
Cheques, bills of exchange and other securities are only accepted on account of performance subject to the usual reservation that they will be honoured, that they can be discounted and that the client will bear all costs in connection with the honouring. Discount and bill charges shall always be borne by the client and are due immediately.
In the event of partial performance, we shall be entitled to request corresponding partial payments.
If the contract is part of the business of an entrepreneur, all our claims shall become due immediately, irrespective of the term of any bills of exchange accepted or credited, if the terms of payment are not complied with or if we become aware of circumstances which are likely to reduce the creditworthiness of the customer.
In the event of withdrawal from the contract (cancellation by the client) without us having given a reason for this, or if we declare withdrawal or termination of the contract for reasons for which the client is responsible, the client undertakes to reimburse the costs already incurred as well as the lost profit. The client reserves the right to prove that costs and profit have not been incurred or have not been incurred in this amount or have been lost. In this case, the invoice shall only be made in the proven amount.
The client agrees that he is only entitled to offset a counterclaim if it is undisputed or has been legally established.
We only deliver on the basis of the reservation of title described in more detail below. This also applies to all future deliveries, even if we do not always expressly refer to this.
We retain title to all goods delivered by us until full payment of all claims arising from the delivery contract. We are entitled to take back the goods if the client behaves contrary to the contract.
The client is obliged to treat the goods with care as long as ownership has not yet passed to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value, provided they are as good as new.
As long as ownership has not yet been transferred, the client must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the client shall be liable for the loss incurred by us.
The client is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims of the purchaser arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the goods have been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we shall not collect the claim as long as the client meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments.
The processing or transformation of the goods by the client shall always be carried out in our name and on our behalf. In this case, the customer's expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our goods to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the client's item is to be regarded as the main item, it shall be deemed agreed that the client transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the client, the client also assigns to us such claims against a third party which accrue to him through the combination of the goods subject to retention of title with a property; we accept this assignment already now.
We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
If the contract is part of the business operations of a trader, the trader must inspect the goods delivered by us immediately after handover and notify us of any defects. Section 377 of the German Commercial Code (HGB) shall apply.
In the event of a justified notice of defect, our warranty obligation shall be limited to replacement delivery or withdrawal from the contract or reduction or subsequent performance, at our discretion.
In the event of delayed, refused or repeatedly unsuccessful subsequent performance, the right to withdraw from the contract or reduce the agreed price shall remain unaffected.
We shall not be liable for natural wear and tear or for damage caused as a result of incorrect or negligent handling, excessive stress or unsuitable operating materials, defective construction work or chemical, physical, electromechanical or electrical influences that lie within the sphere of the contractual partner. We do not assume any warranty for products or services provided by the client.
Claims not expressly granted in these terms and conditions, in particular claims for damages arising from impossibility, delay, positive breach of contract, culpa in contrahendo, tort and for compensation for consequential harm caused by a defect, also insofar as the aforementioned claims are in connection with the contractual partner's warranty rights, are excluded with the exception of bodily injury, unless they are based on an intentional or grossly negligent breach of contract by us, one of our legal representatives or one of our vicarious agents.
In the event that the contract is part of the commercial operations of an entrepreneur, our liability shall be limited to the damage foreseeable at the time of conclusion of the contract, even in the event of gross negligence, and gross negligence shall be excluded if the damage is based on a breach of a non-substantial contractual obligation by one of our vicarious agents.
Any liability on our part for damage caused by our representatives or vicarious agents shall only be assumed within the scope of the business liability insurance taken out by us.
We shall not be liable for the work of our vicarious agents insofar as the work is not connected with the agreed deliveries and services or insofar as the work is directly initiated by the contractual partner.
Any irregularities in the fulfilment of our contractual obligations must be reported to us immediately in writing for the purpose of rectification, as otherwise no rights can be derived from this.
Advice given by our staff or by representatives commissioned by us is non-binding. They are based on the current state of our knowledge and experience and are given to the best of our knowledge. Liability claims are excluded insofar as we cannot be proven to have acted with intent or gross negligence.
We shall not be liable for loss of profit or financial losses of the customer which arise, for example, in connection with the delivery and installation of our goods, unless mandatory statutory provisions on liability for intent or gross negligence conflict with these limitations of liability.
Applicable law, place of performance and jurisdiction
The law of the Federal Republic of Germany shall apply to all our legal relationships.
If the contract is part of the business of a contractor, the exclusive place of performance and jurisdiction shall be the contractor's registered office.
We are entitled to process and store the data about the contractual partner received in connection with the business relationship within the meaning of the Federal Data Protection Act, insofar as this appears expedient in the context of the performance of the contract.
The protection of data transmitted to us takes place within the framework of legal and contractual obligations imposed on us.
Our planning documents and offers are subject to copyright protection and may not be reproduced or passed on without our written permission. In the event of infringement, the client is obliged to pay damages.
In principle, we are entitled to use other reliable contractors to fulfil our obligations.
Should any of the above provisions be legally invalid, this shall not affect the validity of the remaining provisions.