General terms and conditions
of ERET-Tortechnik GmbH
I Scope
1. The terms and conditions of ERET-Tortechnik GmbH apply exclusively; ERET-Tortechnik GmbH does not recognize any conflicting or differing terms and conditions of the contracting party unless it has expressly agreed to their applicability.
2. These terms and conditions also apply if ERET-Tortechnik GmbH performs its services without reservation while aware of conflicting or differing terms and conditions of its contracting party.
3. All agreements that deviate from the printed or written contract text must be in writing. Other deviations and additions only become part of the contract if confirmed in writing by ERET-Tortechnik GmbH.
4. These terms and conditions also apply to all future business with the contracting party. ERET-Tortechnik GmbH is entitled to affix a company mark or other identification to its products.
II General provisions
1. Our quotations are non-binding until order acceptance.
2. Orders become binding only upon our order confirmation.
3. The information and illustrations in brochures and catalogs are approximate values customary in the industry unless we expressly identify them as binding.
III Drawings, samples and descriptions
1. If one contractual partner provides the other with drawings or technical documents relating to the product/goods to be supplied or their manufacture , these remain the property of the contractual partner providing them.
2. ERET-Tortechnik GmbH reserves its copyright in illustrations, drawings , calculations and other documents; these documents must not be made accessible to third parties.
3. Unless otherwise agreed, the manufacturing costs for a sample will be charged separately.
4. If the contracting party of ERET-Tortechnik GmbH suspends or terminates the collaboration during sample production, it must bear all manufacturing costs incurred up to that point.
IV Prices
1. Our prices are in euros, strictly net, i.e. excluding statutory VAT, packaging, freight, postage and insurance.
2. Statutory VAT is calculated and shown separately at the time the service is performed.
3. Deduction of an early payment discount requires a separate agreement. If Eret GmbH offers an early payment discount agreement, a deduction is permitted only if the conditions stated therein are met and only to the extent specified.
4. For contracts with a term of more than 4 months, ERET-Tortechnik GmbH reserves the right to make an appropriate price adjustment if material and production costs rise above average.
V Packaging and delivery
1. Unless otherwise agreed, we deliver ‘ex works’.
2. We select the packaging (crates, cases, etc.) according to suitability and charge it to the contracting party at cost.
VI Dispatch and transfer of risk
1. Goods reported ready for dispatch must be accepted by the contracting party without delay. Otherwise, we are entitled, at our discretion, to dispatch the goods or store them at the contracting party's expense and risk.
2. In the absence of a special agreement, ERET Tortechnik GmbH selects the means of transport and transport route.
3. Risk passes to the contracting party when the goods are handed over to the railway, forwarding agent or carrier, or when storage begins, but no later than when they leave the factory or warehouse, even if ERET-Tortechnik GmbH has undertaken delivery.
VII Delivery date and delivery periods
1. Delivery dates are binding only if confirmed in writing by ERET-Tortechnik GmbH. Statements such as ‘approx.’, ‘around’, etc. do not indicate binding dates or deadlines, but only the anticipated delivery date.
2. Compliance with delivery dates or periods requires timely receipt of all documents, approvals and plans to be supplied by the contractual partner, as well as compliance with the agreed payment terms and fulfilment of the contractual partner's other obligations to cooperate.
3. The delivery period begins no earlier than receipt of the approval designations approved and released by the contracting party, or receipt of the approval drawings approved and released by the contracting party, or receipt of the site measurements approved and released by the contracting party.
4. The delivery period will be extended accordingly if unforeseen obstacles and/or obstacles beyond ERET-Tortechnik GmbH's control occur, insofar as they demonstrably affect completion and/or delivery of the goods.
5. In the event of strikes or lockouts requested by the employers' representative body – including at suppliers – the period will likewise be extended appropriately.
VIII Delay in delivery
1. Installation may only begin once the contractual partner has completed all preparatory work and fulfilled all obligations to cooperate, in particular obtaining all building permits.
2. If delivery is delayed by force majeure and/or by an act or omission of the contracting party, the delivery period will be extended by an amount appropriate to the circumstances.
3. The contracting party is entitled to withdraw from the contract only if we are responsible for missing the delivery date and it has granted us a reasonable additional period without success.
IX Installation, safety and equipment
1. Installation may only begin once the contractual partner has completed all preparatory work and fulfilled all obligations to cooperate, in particular obtaining all building permits.
2. Proper, professional installation is only possible with unobstructed pedestrian/vehicle access to the construction site.
3. The contractual partner must ensure the safety of the work/installation site, compliance with existing safety regulations and appropriate working and installation conditions.
4. The contracting party must provide technical assistance at its own expense. Specifically, this includes vehicle access to the construction site, accessibility and traffic safety at the installation location, provision of an electrical connection (400/230 V) no more than 25 m from the installation location, and short-notice provision of forklifts and lifting platforms.
X Acceptance
1. On acceptance, the risk relating to payment and performance passes to the contractual partner. Acceptance must take place immediately after completion has been notified, either by the contractual partner or by authorised personnel. This also applies to partial performance.
2. If ERET-Tortechnik GmbH products have been put into operation and/or use in whole or in part, acceptance is deemed to have taken place 14 calendar days after commissioning or first use (deemed acceptance).
XI Defects
1. ERET-Tortechnik GmbH is liable for the proper quality and functioning of its products.
2. Quality is generally determined by the agreements made. If ERET-Tortechnik GmbH is required to supply in accordance with drawings, specifications, samples, etc. provided by its contracting party, that party bears the risk of suitability for the intended purpose. The condition of the work at the time of transfer of risk determines whether it complies with the contract.
XII Warranty
1. If, despite all due care, the delivered product has a defect that already existed when the risk passed, ERET-Tortechnik GmbH will, at its discretion, repair it or supply a replacement, subject to timely notification of the defect. ERET-Tortechnik GmbH must always be given an opportunity to provide supplementary performance within a reasonable period.
2. If supplementary performance fails, the contracting party may withdraw from the contract or reduce the payment, without prejudice to any claims for damages.
3. No claims for defects arise from insignificant deviations from the agreed quality or insignificant impairment of usability, natural wear and tear, or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work, unsuitable ground conditions or particular external influences not envisaged in the contract. If the contracting party or third parties carry out improper repairs or modifications, no claims for defects arise in respect of these or their consequences either.
4. Claims by the contracting party for expenses required for supplementary performance, in particular transport, travel, labor and material costs, are excluded to the extent that such expenses increase because products supplied by ERET-Tortechnik GmbH have subsequently been moved to a location other than the contracting party's establishment, unless such relocation is consistent with their intended use. 5. Sections 439(3) and 445a, 445b BGB are expressly excluded.
XIII Limitation of liability
1. Unless otherwise stated below, other and further claims by the contractual partner against ERET-Tortechnik GmbH are excluded. ERET-Tortechnik GmbH is therefore not liable for damage that does not occur to the supplied goods themselves. In particular, it is not liable for loss of profit or other financial losses suffered by the contractual partner.
2. The above limitations of liability do not apply in cases of intent, gross negligence by the legal representatives or senior executives of ERET-Tortechnik GmbH, or culpable breaches of essential contractual obligations. In the event of a culpable breach of essential contractual obligations, ERET-Tortechnik GmbH is liable only for reasonably foreseeable damage typical of the contract, except in cases of intent or gross negligence by its legal representatives or senior executives.
3. The limitation of liability also does not apply in cases where liability arises under the German Product Liability Act for personal injury or damage to privately used property caused by defects in the supplied product. It also does not apply to death, bodily injury or damage to health, or to the absence of guaranteed characteristics if and insofar as the guarantee was specifically intended to protect the contractual partner against damage not occurring to the supplied product itself.
4. Where liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, legal representatives and vicarious agents.
XIV Set-off and right of retention
The contracting party of ERET-Tortechnik GmbH is entitled to set-off only if its counterclaims have been established by a final court decision or are undisputed. The contracting party may exercise a right of retention only insofar as its counterclaim arises from the same contractual relationship
XV Force majeure
Force majeure, industrial disputes, civil unrest, official measures, failure of deliveries from our suppliers and other unforeseeable, unavoidable and serious events release the contracting parties from their performance obligations for the duration of the disruption and to the extent of its effect. This also applies if these events occur while the affected contracting party is already in default. The contracting parties must, insofar as reasonably possible, promptly provide the necessary information and adapt their obligations to the changed circumstances in good faith.
XVI Place of performance, jurisdiction and applicable law
1. This contract and all legal relationships between the parties are governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
2. Unless otherwise stated in the order confirmation, our registered office is the place of performance and exclusive place of jurisdiction for all disputes arising from this contract.
3. For all legal disputes, including proceedings relating to bills of exchange and cheques, our registered office shall be the place of jurisdiction if the contractual partner is a merchant, a legal entity under public law or a special fund under public law. We are also entitled to bring proceedings at the contractual partner's registered office.
4. Amendments and additions to this contract must be made in writing. This also applies to amendments to this written-form clause. No oral side agreements have been made.
5. Should any individual provisions of this contract be or become invalid or contain a gap, the remaining provisions will remain unaffected.