GTC for B2B
General terms and conditions of EHEIM GmbH + Co. KG for B2B customers
General terms and conditions of EHEIM GmbH & Co. KG solely for use with companies. Status 04/2020
§ 1 Scope of application, exclusion of third party terms and conditions
- All our offers, deliveries and services are based on these terms and conditions (hereinafter referred to as "GTC"). The following terms and conditions shall only apply to companies within the meaning of § 14 BGB (German Civil Code), a legal entity under public law or a special fund under public law (hereinafter referred to as "Customer").
- Our GTC apply exclusively. The applicability of other general terms and conditions of business is generally excluded, unless we have expressly agreed to this application in writing.
- Our General Terms and Conditions shall also apply if we carry out the delivery to the customer without reservation, in the knowledge of conflicting or deviating terms and conditions of the customer.
- In the case of ongoing business relations, our General Terms and Conditions shall apply to future offers, deliveries and services to the customer even without renewed express reference.
§ 2 Conclusion of contract, scope of delivery, non-assignment clause
- Our offers are always free of charge and are not binding, unless otherwise agreed in writing. Conclusions and agreements only become binding with our written order confirmation or with our delivery. The same applies to supplements, amendments or subsidiary agreements.
- Unless expressly agreed otherwise, the contract shall be concluded subject to correct and timely delivery by our suppliers. This shall only apply in the event that we are not responsible for non-delivery, in particular if a congruent covering transaction is concluded with our supplier. The customer will be informed immediately about the non-availability of the service. Any payments already made will be refunded
- Our written order confirmation or, if this is not available, our offer shall be decisive for the scope of the delivery and service.
- If the order is to be qualified as an offer according to § 145 BGB, we can accept it within 4 weeks.
- All information about our products, in particular the illustrations, dimensions and performance data as well as other information contained in our offers and brochures are to be regarded as approximate average values. Tolerances in quantities, weights and dimensions customary in the industry, are expressly reserved. We reserve the right to make technical changes.
- Documents and records on which our offer is based, such as technical drawings, illustrations, descriptions, weights and dimensions, shall only be subject of the contractual agreement if this has been expressly agreed in writing. We reserve the right to make such changes and adaptations as do not substantially affect the purpose of the contract and the delivery.
- All documents relating to offers, plans, drawings, cost estimates, records and documents - including those in electronic form - shall remain our property and may not be retained, copied or otherwise reproduced by the customer or made available to third parties and shall, at our request, either be handed over to us immediately or deleted at our discretion. All industrial property rights to these documents in our favour, shall remain in force even if we hand over the documents to the customer.
- We reserve the right to make changes to the object of purchase during the delivery period, provided that the object of purchase and its appearance are not fundamentally changed and the contractual purpose of the delivery is not restricted in a way that is unreasonable for the customer. Within a tolerance of 10% of the total order quantity, production-related excess or short deliveries are permissible.
- Our warranty does not extend to the suitability of the delivery item for the purpose intended by the customer if deviating from the usual purpose, unless this has been agreed in writing.
- Separate agreements shall apply to the taking back of packaging.
§ 3 Prices, payment, part payment
- Unless otherwise agreed, our prices shall apply to deliveries "ex works", Incoterms 2020, and are net prices, not including applicable sales taxes, even if not expressly stated, and not including costs for packaging, freight, installation, shipment, insurance expenses, customs clearance, any bank and transaction costs for payments and other costs incurred..
- Unless otherwise agreed in writing, our invoices are due for immediate payment without deduction.
- Depending on the progress of the order, we may demand reasonable partial payments for partial services already rendered.
- The customer shall be in default after 30 days of receipt of the invoice, unless other circumstances causing default have been agreed upon (e.g. a payment reminder or a shorter agreed payment period or a payment period determined by calendar). From the time of default, the customer shall owe interest on arrears at a rate of 9 percentage points above the base interest rate. In addition, we reserve the right to charge a lump sum of € 40.00 in case of default. Other contractual or statutory rights remain unaffected by this.
- In the event of default of payment, we shall be entitled to accept or decline further deliveries dependent on the full payment of the claims in default.
- Unless otherwise agreed in writing, we are entitled to adjust prices and/or freight tariffs accordingly if our costs for wages, salaries, raw materials, operating supplies, energy costs, freight costs, customs duties or other material increases. This right also applies to deliveries and services from a continuous obligation.
- If terms of payment are not complied with or circumstances become known or identifiable which, according to our dutiful commercial discretion, give rise to justified doubts about the creditworthiness of the customer, including such facts which were already present at the time of conclusion of the contract but which were not known or need not have been known to us, we shall be entitled in these cases, without prejudice to further legal rights, to cease further work on current orders or deliveries and to demand advance payments or the provision of securities acceptable to us for outstanding deliveries and to withdraw from the contract after the unsuccessful expiry of a reasonable period of grace for the provision of such securities - without prejudice to further statutory rights. The customer is obliged to compensate us for all damages resulting from the non-performance of the contract.
- With default of payment by our customer, cessation of payment or application for the opening of insolvency proceedings with regard to the customer's assets, all our claims shall become due immediately. This also applies if payment terms have been agreed or if the claims are not yet due for other reasons. Furthermore, this applies regardless of the term of bills of exchange which we have accepted.
- Offsetting against counterclaims by the customer is only permitted if the counterclaims are undisputed or legally established.
- Cheques and/or bills of exchange will only be accepted by us as means of payment if we have previously agreed to such a method of payment in writing. All costs incurred by us from such a payment in this case shall be borne by the customer.
- All payments are to be made in EURO exclusively to us. Any exchange rate risks shall be borne by the customer.
§ 4 Delivery times
- The delivery time is based on the agreements of the contracting parties.
- The agreed delivery period is a target delivery period, unless expressly agreed otherwise in writing.
- The agreed delivery period begins, at the earliest, upon conclusion of the contract and requires the clarification of all commercial and technical questions. The commencement of the delivery period is subject to the customer having provided all necessary documents or approvals and having made any agreed advance payments.
- Compliance with a delivery period is subject to correct and timely supplier delivery to us.
- Delivery is "ex works", Incoterms 2020, and the customer is obliged to collect the goods immediately after notification of readiness for dispatch.
- The delivery period for delivery "ex works", Incoterms 2020, is deemed to have been met if the purchased item is selected and ready for dispatch within the agreed period and the customer has been notified accordingly. In the case of a sale by delivery to a place other than the place of performance, the delivery period shall be deemed to have been met if the object of purchase was handed over to the forwarding agent within the agreed period or was ready for handover and could not be handed over through no fault of our own.
- Cases of force majeure, in particular, but not limited to, riots, strikes, war, floods, lockouts, fire, epidemics, outbreaks, seizures, boycotts, legal or governmental orders and restrictions or incorrect or late delivery by our suppliers and other unforeseeable, uncontrollable, extraordinary events coming from outside which cannot be prevented even by extreme care, that affect us or our suppliers, make our delivery and performance obligations unreasonably difficult or impossible and for which we are not responsible, and may extend the delivery and performance obligations for the duration of the existence of the cases or events plus a reasonable restart time, if we are unable to fulfil our delivery and performance obligations despite reasonable measures.
- The extension of the delivery and performance obligations according to paragraph (7) above shall also apply if these cases or events occur at a time when we are in default.
- If the delivery and performance obligations are extended to a reasonable period of time as a result of such cases or events in accordance with paragraph (7) above, the customer shall be entitled to withdraw from the contract after expiry of these extended delivery and performance obligations. If the customer is interested in partial deliveries, the customer may also withdraw from the contract in part. If we have already provided partial deliveries and/or partial services, the customer may only withdraw from the entire contract if he can prove that he has no interest in partial delivery and/or service on our part. Further legal or contractual rights to withdraw from the contract remain unaffected.
- If we are in default of delivery and after setting and fruitless expiry of a reasonable grace period by the customer, the customer is entitled to withdraw from the contract or, if the customer is interested in partial delivery on our part, from parts of the contract. Further claims of the customer - in particular claims for damages due to poor performance or damage caused by delay - are excluded, unless they are expressly granted in § 9 below.
- Deliveries before the expiry of the delivery period and partial deliveries are permissible, provided they are reasonable for the customer.
- If the customer is in default of acceptance or is otherwise responsible for a delay in dispatch, we may store the products at the customer's risk and expense and invoice them as delivered ex works. After setting and fruitless expiry of a grace period for acceptance of the products, we may withdraw from the contract and demand compensation for damages instead of performance. Further rights remain unaffected. There is no need to set a grace period if the customer seriously and finally refuses acceptance or if it is obvious that he is not able to pay the purchase price or accept the delivery even within the grace period. Damage is deemed to be an amount of 20% of the order value. The damage will be offset against any down payment made. The parties are free to prove that the damage was actually higher or lower.
§ 5 Transfer of risk, dispatch, packaging
- Unless otherwise agreed in writing, delivery is agreed in each case "ex works", Incoterms 2020.
- Accordingly, the risk of accidental loss and accidental deterioration of the delivery items shall pass to the customer upon notification of readiness for shipment and the separation of the purchased item. This also applies if we have assumed additional services such as loading, transport or unloading. Should the dispatch of the items be delayed due to circumstances for which the customer is responsible, the risk of accidental loss shall pass to the customer upon notification that the delivery is ready for dispatch.
- If a sale to destination has been agreed, the risk of accidental deterioration or accidental loss shall pass to the customer at the latest upon dispatch of the delivery item or handover to the transport person ex works or place of dispatch. If dispatch is delayed due to the customer's conduct, the risk shall pass to the customer upon notification that the goods are ready for dispatch. § 5 paragraph (2) sentence 3 applies accordingly.
- If we carry out the transport for the customer, the manner of packaging and dispatch of the items is left to us, unless otherwise agreed in writing.
- Unless otherwise agreed, the conclusion of transport insurance is the responsibility of the customer.
§ 6 Retention of title
- We reserve title to all items delivered by us until full payment of all our claims against the customer arising from the business relationship, including such claims arising from cheques and bills of exchange, is received. In the case of payments from cheques and bills of exchange, we reserve title to the delivered items until the risk of recourse has expired.
- The customer undertakes at any time at our request, and in the event of an application for insolvency, to visibly mark the subject matter of the contract which is subject to retention of title with "owned by EHEIM GmbH + Co KG".
- The customer is obliged to treat the reserved goods with care; in particular, they are obliged to insure them adequately at their own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
- If the customer processes the goods subject to retention of title, this shall be done for us as the manufacturer within the meaning of § 950 BGB. If the goods delivered by us are processed or inseparably mixed with other objects, we shall acquire co-ownership of the new objects in the ratio of the invoice value of the goods to the invoice value of the other goods used. The customer may further process the delivered goods within the framework of a local business transaction, provided that the aforementioned security interests are safeguarded.
- The customer may resell the delivered items in the ordinary course of business as long as our retention of title to the items is maintained in accordance with paragraph (6) below. Assignment, security transfer, pledging, or similar measures are not permitted to the customer.
- In the event of resale of the delivered items, the customer hereby assigns to us all claims against third parties arising from the resale. We hereby accept this assignment. If we are only co-owners of the goods sold, the assignment shall only be made up to the amount of our claims against the customer.
- We provisionally authorise the customer to collect the claim assigned to us for our account in his own name. This authorisation may only be revoked if the customer does not properly fulfil his obligations under this contract, in particular if he fails to meet his payment obligations, becomes insolvent or unable to pay, has filed a petition for the opening of insolvency proceedings or such a petition has been rejected for lack of assets. In the event of revocation of the authorisation to collect our claims, the customer must inform the debtor of the assignment of the claim to us. We are also free to disclose the extended reservation of title to the third party.
- The right of the customer to dispose of the goods subject to retention of title, to process them or to collect the assigned claims shall expire even without express revocation, if insolvency proceedings are opened regarding the assets of the customer or if they are rejected for lack of assets, if payments are suspended, if an application for the opening of insolvency proceedings is made by the customer or a third party or if insolvency or over-indebtedness occurs. In these cases, as well as in the cases of paragraph (7) above, we shall be entitled to withdraw from the contract after expiry of a reasonable period of time with the result that we may take back the reserved goods. The customer is obliged to hand over the reserved goods. The revenues from any sale of the reserved goods - less the costs of the sale - shall be credited to the customer against his obligations to us.
- In the event of revocation of the authorisation to collect the assigned claims, the customer is obliged to disclose to us immediately in writing against which third parties claims from the assigned right exist and in what amount.
- If the securities provided to us exceed the claims to be secured by more than 20%, we are obliged to release securities of an appropriate amount at our discretion at the customer's request.
- The customer must inform us immediately in writing if third parties gain access to the reserved goods, the assigned claims or other documents and records. All costs of the legal defence of our goods subject to retention of title, also against third parties, shall be borne by the customer.
§ 7 Warranty
- Insofar as the contractual relationship between us and the customer is a purchase or service contract, we shall be liable for material defects and defects of title of the delivery item already existing at the time of transfer of risk in accordance with the following provisions. In addition, the statutory provisions shall apply.
- Only the direct purchaser is entitled to warranty claims against us and these are not transferable without our consent.
- Certain properties are only considered as warranted by us if we have expressly confirmed this in writing. A guarantee shall only be deemed to have been assumed by us if we have designated a property as "guaranteed" in writing.
- Within the scope of the applicability of § 377 HGB (German Commercial Code), we must be notified in writing of any recognisable defects, shortfalls or incorrect deliveries immediately, within 14 days of delivery, but essentially before combination, mixing, processing or installation; otherwise the delivery item is deemed to be approved, unless we or our legal representatives or vicarious agents are guilty of fraudulent intent. Hidden defects must be reported to us in writing without delay, within 14 days after their discovery. Section 377 of the German Commercial Code (HGB) shall apply in addition.
- We shall be given the opportunity to jointly determine the reported complaints and to be present during the inspection of materials.
- Subject to the following provisions of this paragraph (6), the limitation period for the customer's claims for defects shall be one year, calculated from the statutory start of the limitation period. Should we have fraudulently concealed a defect, the statutory periods shall apply to any claims for damages. The statutory periods shall also apply to the limitation of any claims for damages by the customer due to defects if we are charged with intent or gross negligence or if the claim for damages is based on injury to life, body or health.
- Our warranty for material defects and defects of title is limited to subsequent performance. Within the scope of our obligation to supplementary performance, we are entitled to choose between repair or replacement. If we do not comply with this obligation within a reasonable period of time or if a subsequent performance fails despite repeated attempts, the customer is entitled to reduce the purchase price or to withdraw from the contract. Cancellation of the contract is excluded if there is only an insignificant defect. Furthermore, insofar as we have made partial deliveries free of defects, a rescission of the entire contract is only permissible if the customer's interest in the partial deliveries made has demonstrably ceased. Claims, in particular claims for reimbursement of expenses or damages, exist only within the framework of the provisions of § 9. Replaced parts become our property or remain our property and must be returned to us at our expense on request.
- The customer must send us the defective goods at his own risk for repair or replacement, unless the type of delivery does not allow the return of the goods. We shall bear the transport, travel, labour and material costs incurred for the purpose of subsequent performance, but only from the place to which the purchased goods were delivered in accordance with the intended purpose and only up to a maximum of the value of the delivered goods in a defect-free condition.
- The customer must give us the time and opportunity necessary for the repair or replacement delivery. Only in urgent cases where operational safety is endangered, to prevent disproportionate damage or in the event of a delay in rectification of defects on our part shall the customer have the right, after prior notification to us, to rectify the defect himself or have it rectified by third parties and to demand reimbursement of the necessary costs from us.
- Recourse claims in accordance with §§ 478, 479 BGB or in accordance with §§ 445 a, 445 b BGB shall only exist if the claim by the customer was justified and only to the extent permitted by law, but not for goodwill arrangements not agreed with us, and with the expectation that the party entitled to recourse observes its own obligations, in particular the observance of any obligations to notify defects.
- The further processing or installation of goods delivered by us shall always be deemed to be a waiver of the notice of defects insofar as the defect was recognisable.
- In the event of justified notices of defects, payments by the customer may only be withheld to an extent that is in reasonable proportion to the material defects that have occurred. If the notification of defects is unjustified, we are entitled to demand compensation from the customer for the expenses incurred by us as a result.
- Warranty claims do not exist in the case of only insignificant deviations from the agreed or customary condition or usability, e.g. insignificant deviations in colour, dimensions and/or quality or performance characteristics of the products.
- The acknowledgement of material defects must always be in writing.
- Our warranty does not extend to the suitability of the delivered item for any purpose intended by the customer that deviates from the usual purpose, unless this has been agreed in writing.
- Our warranty obligation extends only to the delivery of newly manufactured products. Unless otherwise agreed, used products are sold as seen, excluding any warranty.
- There are no warranty claims in the following cases in particular: Unsuitable or improper use, incorrect assembly or commissioning by the customer or third parties, wear and tear and natural wear and tear, incorrect or negligent handling, improper maintenance, mechanical, chemical, electronic, electrical and comparable influences that do not correspond to the intended, average standard influences.
- Furthermore, no warranty claims shall exist if the customer modifies the delivered item himself or has it modified by third parties, and/or if parts of the delivered item are not replaced by original spare parts from us, but by spare parts from, or replaced by, a third party. This does not apply if the customer proves that the defects in question were not caused by the modifications made by him or the third party or by the spare parts the third party used.
§ 8 Industrial property rights and defects of title
- Unless otherwise agreed, we are obliged to make delivery free of industrial property rights and copyrights of third parties (hereinafter jointly referred to as "property rights") only within the Federal Republic of Germany. If a third party asserts a justified claim against the customer due to an infringement of industrial property rights caused by deliveries made by us and used in accordance with the contract, we shall be liable to the customer in accordance with the following provisions.
- We shall, at our discretion and at our expense, either obtain a right of use for the deliveries concerned, modify them so that the property right is not infringed, or replace them. If this is not possible for us under reasonable conditions, the customer shall be entitled to the statutory rights of withdrawal and reduction.
- Our obligation to pay damages shall be governed by § 9.
- The aforementioned obligations on our part shall only exist if the customer has informed us immediately in writing of the claims asserted by the third party, does not acknowledge an infringement and leaves all defensive measures and settlement negotiations to our discretion. If the customer ceases to use the delivery for reasons of damage reduction or other reasons, he shall be obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement of property rights.
- Customer claims are excluded if they are responsible for the violation of property rights.
- Customer claims are further excluded if the infringement of property rights is caused by special specifications of the customer, by an application not foreseeable by us or by the fact that the delivery item was modified by the customer or used together with products not supplied by us.
- In case of other defects of title, the provisions of § 7 shall apply accordingly.
- Further or other customer claims against us, other than those regulated in § 8 and in § 7, are excluded.
§ 9 Liability
- We shall only be liable for damages, for whatever legal reasons, if we, our legal representatives or vicarious agents are guilty of intent or gross negligence
- We shall only be liable for damages, for whatever legal reasons, in case of culpable injury to life, body, health.
- We shall only be liable for damages, for whatever legal reasons, in case of culpable violation of essential contractual obligations.
- We shall only be liable for damages, for whatever legal reasons, in case of defects which we have fraudulently concealed or whose absence we have guaranteed.
- We shall only be liable for damages, for whatever legal reasons, to the extent that liability exists under product liability law for personal injury or property damage to privately used objects. We are not liable for further claims for damages.
- An essential contractual obligation is an obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the contractual partner regularly relies and may rely.
- In the event of a slightly negligent breach of material contractual obligations (excluding intent and gross negligence), however, our liability shall be limited to reasonably foreseeable damage typical of the contract.
- The contract-typical, foreseeable damage is to be assessed on the amount of the contract value of the affected service.
§ 10 Export authorisation requirement
- To the extent that an export licence is required for the customer's deliveries and services, the offer shall be subject to the proviso that all licences required for an export are granted in good time and to a sufficient extent.
- Sovereign acts of public authorities concerning export licences, in particular the revocation or limitation of licences granted, shall be considered as force majeure.
§ 11 Place of performance, place of jurisdiction, choice of law
- The place of performance for all claims from the business relationship between us and the customer is Deizisau, Germany.
- The exclusive place of jurisdiction for all claims arising from the business relationship, including those arising from cheques and bills of exchange, is our registered office, provided that the customer is a merchant, a legal entity under public law or a special fund under public law. However, we are also entitled to take action against the customer at his general place of jurisdiction.
- For all disputes arising from contracts to which these General Terms and Conditions apply and for all disputes arising from the business relationship between us and the customer, the law of the Federal Republic of Germany shall apply exclusively. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) as well as international private law, is excluded.
§ 12 Final clause
Should individual provisions of these terms and conditions be invalid in whole or in part, the validity of the remaining provisions shall remain unaffected.
EHEIM GmbH & Co. KG
Plochinger Straße 54