Terms & Conditions
Article 1. Applicability
1.1 These conditions apply for all offers, deliveries, operations and products.
1.2 The terms and conditions therefore also apply to future offers, activities, goods and deliveries from us to a buyer who has previously concluded a contract with us or has requested an offer, without the applicability of these terms and conditions being expressly agreed again in these cases.
1.3 Provisions deviating from these terms and conditions shall not bind us, unless these deviations are confirmed by us in writing.
Article 2. Offers
2.1 Offers that we have made on request or on our own initiative, e.g. in brochures, advertisements, etc., are always subject to change and non-binding.
2.2 If, in our opinion, there is a specifically prepared offer, we are bound to it for 30 calendar days, calculated from the date of the offer.
Article 3. Conclusion of the contract
3.1 The acceptance of orders as well as verbal or telephone agreements with the buyer are only valid if they have been confirmed in writing.
3.2 Information and specifications specified at the time of conclusion of the contract refer to the state of the art as it applies at the time. Design changes that come about after the conclusion of the contract are expressly reserved, but only insofar as these changes are not significant at our discretion and the agreed use of the object of purchase does not become predominantly impossible.
Article 4. Prices
4.1 Unless expressly agreed otherwise, our prices are in euros. The prices quoted are valid ex Saarlouis without loading, without packaging and only for the destination specified in the offer or in the order confirmation. Furthermore, the prices quoted are net prices plus VAT on the net prices. For contracts representing a maximum net value of EURO 250.00, administrative costs of at least EURO 15.00 will be charged.
4.2 In the case of contracts for which a price has not been expressly agreed, our prices shall be used as they apply on the day of delivery. In the case of partial deliveries, each individual delivery will be charged separately.
4.3 If there are more than three months between the date on which the contract is concluded and the date on which the agreed or de facto delivery of the goods takes place, the prices shall apply at the time of delivery.
4.4 If, at our discretion, there are extraordinary price increases for raw materials, we reserve the right to change prices.
Article 5. Delivery period
5.1 The agreed delivery period begins on the day on which the order is accepted, but at the earliest after all formalities and any other conditions for the execution of the contract have been fulfilled. We make every effort to comply with the planned delivery date as far as possible. The delivery periods and dates stated by us are not binding for us. Our delivery times depend, among other things, on the capabilities of our suppliers. We reserve all rights in this regard.
5.2 Delivery shall be deemed to have been completed on the date on which we notify the customer that the goods can be collected or on which the consignment is handed over to the carrier or on which it has otherwise left the premises. If shipment has become permanently impossible without our intervention, the risk shall pass to the buyer as soon as the items are ready for shipment. In that case, we shall also be entitled to invoice the consignment as delivered ex warehouse or ex works and to store it at our own discretion at the Buyer’s expense and risk.
5.3 We may extend the targeted delivery period until the time when the buyer has not fulfilled his obligations (such as the submission of documents, data, approvals, releases, advance payment) of any kind. In the event that we ourselves are in default, the Buyer shall grant us a reasonable period of time in which we can duly render the performance subsequently. If we fail to perform within the set time limit, the Buyer may cancel the contract, but only if the Buyer has not been notified that the consignment is ready for dispatch by the expiry of the said time limit. Compensation for damages due to a chargeable default in the fulfillment of our obligations to the buyer is limited to cases in which we or auxiliary persons and auxiliary objects engaged on our behalf have caused damage intentionally or through gross negligence.
5.4 Partial deliveries do not give the Buyer the right to cancel the contract or suspend the performance of its obligations.
5.5.1 Shipping is ex warehouse elpek GmbH. Express shipments only at the express request of the buyer. The method of shipment and the type of packaging are chosen exclusively at our discretion. Protective packaging and transport aids are not taken back.
5.6 The contract concluded by us with the buyer can be cancelled by us out of court as soon as we are unable to deliver or are unable to deliver on time due to force majeure in whatever form.
Article 6. Contract on call
6.1 In the case of orders on call, the Buyer shall provide us with the relevant specifications for approximately equal monthly quantities and the call date in good time. If the Buyer fails to comply with this obligation, we shall be entitled, after the expiry of a reasonable period to be set by us, to deliver without call or to set a reasonable deadline, after the expiry of which we may otherwise consider the contract to have been rescinded, without prejudice to the right to claim compensation for the damage caused by the imputable non-performance on the part of the Buyer.
Article 7. Warranty
7.1 We guarantee that our products have no manufacturing and material defects. The warranty period for mechanical and electronic parts is 6 months from the date of transfer of risk as defined in Article 7. For products not manufactured by us, our liability is limited to the assignment or other transfer of our rights to compensation from the supplier or the manufacturer of these items.
7.2 The Buyer shall immediately inspect our shipment for damage in transit upon its arrival and, in the event of such damage or in the event of loss, shall immediately, but no later than five days after the arrival of the shipment, provide us with a confirmation from the carrier who transported the goods or provide us with a third party notice of damage.
7.3 Visible defects must be reported to us in writing without delay, but at the latest within three working days of receipt of the delivery. Defects which could not be discovered within the aforementioned period of three working days even after careful examination must be notified to us in writing immediately after discovery of these defects. After notification of the defects, the buyer shall give us time and opportunity to determine the defect on site. Violation of the above obligations entails that we can not assume any liability. If a defect is detected on our part, we shall be free to repair the defective goods free of charge or to deliver a replacement product in return for the return of the defective goods free of charge. A right to full or partial cancellation of the purchase contract may be asserted by the Buyer only in the event of defects in the repair work or in the replacement delivery.
7.4 We expressly assume no liability for any other direct or indirect (consequential) damage to the buyer, regardless of the nature of such damage. This clause shall also expressly apply in the event of improper use of our products.
Article 8. Retention of title
8.1 All items delivered by us shall remain our property until such time as the Buyer has settled in full all outstanding invoices or other claims by us against the Buyer. The Buyer shall be entitled to put our goods, on which a reservation of title rests, into economic circulation in the correct manner or to use or consume them if and insofar as the Buyer is not in default vis-à-vis us. Pledges or other acts encumbering freehold property are not permitted. If the Buyer acquires claims from the resale of the items or from any other legal ground (claim for insurance benefits, damages due to tortious acts and the like) with respect to the items belonging to our property, the Buyer shall immediately assign them to us in full. We grant the purchaser the revocable power of attorney to collect the aforementioned claims assigned to us for our account in his own name. Upon our first request, the Buyer shall submit the assignments of the claim and provide the required information and documents without delay.
8.2 In the event of actions by third parties which relate or may relate to items belonging to our property, the Buyer undertakes to make our property known to such third parties and to inform us thereof without delay. Any costs, regardless of the name, incurred in such a situation are for the account of the buyer.
8.3 In the event that the Buyer does not fulfill the contract or does not fulfill it accurately, we are entitled to take back the items delivered under retention of title at the Buyer’s expense or to demand the waiver of the Buyer’s right to have the said items (re)delivered by third parties. The repossession or seizure of the items on which our retention of title rests does not mean that we have cancelled the contract.
Article 9. Payment
9.1 Our invoices are payable net, without set-off or set-off, in full no later than 30 days from the date of invoice, except for Monday invoices, which are payable in full within seven days from the date of invoice without set-off or set-off. We are entitled to demand payment in installments for orders with a total invoice value of more than EURO 5,000, which means that one third of the total invoice amount is to be paid before delivery of the items and two thirds of the total invoice amount is to be paid within 30 days from delivery of the items, unless otherwise agreed in writing.
9.2 The start of the payment period is the time of delivery, as specified in Article 5.
9.3 Furthermore, we reserve the right to make deliveries against cash on delivery or advance payment, if necessary in part.
9.4 In the event that the Buyer is in default at any time, we shall be entitled to charge statutory interest from that time, plus VAT.
9.5 In the event that the Buyer does not meet his payment obligations or does not meet them on time, in particular if his check cannot be cashed or if he stops his payments or if we become aware of any other circumstance that raises doubts about the creditworthiness of the Buyer, we shall be entitled to demand immediate payment of all outstanding claims, for whatever reason, without any further notice of default being required, and we shall also be entitled to demand sufficient security for future deliveries or full payment prior to delivery or prior to the transfer of risk to the Buyer. The Buyer shall only be entitled to offset or set off or withhold payments based on claims against us if such claims of the Buyer against us have been determined by a court of law in the highest instance or are otherwise not disputed by us.
Article 10. Limitation of liability
10.1 Claims for damages resulting from our inability to fulfill our contractual obligations to the buyer can only be asserted if we and/or persons and/or things involved by us or on our behalf in the execution of the contract can be proven to have acted with intent or gross negligence.
Article 11. Illegal export
11.1 The buyer is prohibited from exporting items that were not expressly purchased for export. The Buyer shall also be obliged, in the event of resale or resale, to expressly impose a prohibition to the same effect on its purchasers.
11.2 In the event of a breach of these provisions, the Buyer shall pay to us a contractual penalty in the amount of 30% of the purchase price, without prejudice to our right to claim full damages in this respect.
Article 12. Final provisions
12.1a The entire legal relationship between ELPEK GmbH and the Customer shall be governed by the laws of the Federal Republic of Germany. Place of performance for the obligations of ELPEK GmbH is D-66740 Saarlouis. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is D-66740 Saarlouis.
12.2 If one or more provisions of these terms and conditions are void or voidable, this shall not reduce the applicability and validity of the remaining provisions in these terms and conditions. In the event of invalidity or nullity of one or more provisions in these Terms and Conditions, the relevant provisions from the Incoterms shall replace them.
Saarlouis, March 2013
Limited liability company
(according to German law)