ELECTROSTAR GmbH - AGB's for download
1.scope of application
1.1 These General Terms and Conditions of Sale (hereinafter: "Terms and Conditions of Sale") shall apply to all business transactions between ELECTROSTAR GmbH, (hereinafter: "ELECTROSTAR") and the Purchaser, even if they are not mentioned in subsequent contracts.
1.2 Any conflicting, additional or deviating terms and conditions of the Purchaser shall not become part of the contract unless ELECTROSTAR has expressly agreed to their applicability in writing. These Terms and Conditions of Sale shall also apply if ELECTROSTAR carries out a delivery to Purchaser without reservation in the knowledge of Purchaser's conflicting or deviating terms and conditions.
1.3 Additional or deviating agreements to these Terms and Conditions of Sale made between ELECTROSTAR and Purchaser for the performance of a contract shall be set forth in writing in the contract. This shall also apply to any waiver of this written form requirement.
1.4 Any rights to which ELECTROSTAR is entitled under statutory provisions beyond these Terms and Conditions of Sale shall remain unaffected.
2.conclusion of contract
2.1 Offers and cost estimates are subject to change without notice and are non-binding unless they are expressly designated as a binding offer.
2.2 Illustrations, drawings, weight and dimension specifications as well as other descriptions of the goods from the documents belonging to the offer are only approximately authoritative unless they are expressly designated as binding. They do not represent any agreement or guarantee of a corresponding quality of the goods.
2.3 An order shall not become binding until it has been confirmed by ELECTROSTAR by means of a written order confirmation. An order confirmation issued by means of automatic equipment, which lacks signature and name reproduction, shall be deemed to be in writing. ELECTROSTAR's silence in response to offers, orders, requests or other declarations by the Purchaser shall only be deemed to be consent if this has been expressly agreed in writing. If the order confirmation contains obvious errors, spelling mistakes or miscalculations, it shall not be binding on ELECTROSTAR.
3. delivery; delivery periods; delay
3.1 Unless expressly agreed otherwise, delivery shall be "ex works" (EXW according to Incoterms® 2010) (Hans-Zinser-Str. 1-3, 73061 Ebers-bach an der Fils), i.e. the goods shall be made available to the Purchaser for collection. Upon Purchaser's request and at Purchaser's expense, the goods shall be shipped to another destination (hereinafter: "Shipment Purchase"), in which case ELECTROSTAR shall be entitled to determine the mode of shipment itself. However, ELECTROSTAR shall, at Purchaser's request and at Purchaser's expense, insure the goods by transport insurance against the risks to be specified by Purchaser.
3.2 The written order confirmation of ELECTROSTAR shall be decisive for the scope of delivery. Changes to the scope of delivery shall require the written confirmation of ELECTROSTAR to be effective. ELECTROSTAR reserves the right to make changes to the design and form of the goods, provided that the changes are not substantial and are reasonable for the Purchaser.
3.3 ELECTROSTAR shall be entitled to make partial deliveries, provided that this is reasonable for the Purchaser.
3.4 The agreement of delivery periods must be in writing. Delivery periods shall not be binding unless they are expressly designated as binding.
3.5 A delivery period shall commence with the dispatch of the order confirmation by ELECTROSTAR, but not before the complete provision of any documents, approvals and releases to be procured by the Purchaser, the receipt of an agreed down payment and the timely and proper fulfillment of any other acts of cooperation by the Purchaser.
3.6 Agreed delivery periods shall be deemed to have been complied with if ELECTROSTAR has made the goods available at the place of delivery or - in the case of a sale by delivery to a place other than the place of performance pursuant to Clause 3.1, sentence 2 - has handed over the goods to the person designated to carry out the transport, or if the Purchaser has announced its refusal to accept the goods, by the expiry of such period. Delivery shall be subject to ELECTROSTAR's timely and proper delivery to itself.
3.7 If non-compliance with the delivery periods is due to force majeure and other disruptions for which ELECTROSTAR is not responsible, e.g. war, terrorist attacks, import and export restrictions, including those affecting ELECTROSTAR's suppliers, the agreed delivery periods shall be extended by the duration of the impediment. This shall also apply to industrial action affecting ELECTROSTAR and its suppliers.
3.8 The Purchaser shall only be entitled to rescind the contract due to a delay in delivery if ELECTROSTAR is responsible for the delay.
3.9 If the Purchaser has concluded a framework agreement with ELECTROSTAR for future deliveries with a fixed term and the Purchaser fails to call for the goods in due time, ELECTROSTAR shall be entitled, after fruitless expiry of a reasonable grace period, to deliver and invoice the goods, to rescind the contract or, if the Purchaser has acted culpably, to claim damages in lieu of performance.
3.10. If the goods have been handed over to the Purchaser on Euro pallets or lattice boxes (load carriers), the Purchaser shall hand over to ELECTROSTAR load carriers in the same number and of the same type and quality at the place of the original handover. Notwithstanding the provisions of Clause 7.1, Purchaser shall inspect the goods upon delivery for any externally visible damage and shall notify the carrier making the delivery of any damage and obtain a written confirmation thereof. If Purchaser fails to comply with this obligation, Purchaser shall be liable to ELECTROSTAR for any resulting damage.
4.Transfer of Risk
4.1 The risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser as soon as ELECTROSTAR makes the goods available at the place of delivery pursuant to Clause 3.1, Sentence 1 or - in the case of a sale by delivery to a place other than the place of performance pursuant to Clause 3.1, Sentence 2 - as soon as ELECTROSTAR hands over the goods to the person designated to carry out the transport. This shall also apply if partial deliveries are made or ELECTROSTAR has assumed the transport costs in deviation from Clause 3.1 sentence 2 in the individual case.
4.2 If the Purchaser is in default of acceptance, ELECTROSTAR may claim compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price of the delivery per day of delay, but in total not more than 5% of the net price of the delivery. The contracting parties reserve the right to claim further damages as well as the right to prove lesser damages. The risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser at the time the Purchaser is in default of acceptance.
4.3 Delivered goods shall be accepted by the Purchaser without prejudice to the Purchaser's claims for defects even if they have insignificant defects. The Purchaser shall also be obliged to accept the goods if the goods provided show quantity deviations of up to 5% or if the goods provided were delivered insignificantly too early.
5.1 The agreed price in EURO, which results from the order confirmation, plus value added tax, shall apply. The statutory sales tax is not included in the price and shall be shown separately in the invoice at the statutory rate applicable on the date of invoicing.
5.2 If the Purchaser does not receive an order confirmation or if the order confirmation does not contain any price information, the price list valid at the time of delivery shall apply.
5.3 In the absence of a special agreement, the prices shall apply "ex works" (EXW according to Incoterms® 2010) excluding packaging. In the event of a sale by delivery to a place other than the place of performance pursuant to Clause 3.1, sentence 2, the Purchaser shall bear the transport costs as well as the costs of any transport insurance requested by the Purchaser.
5.4 If more than four months elapse between the order confirmation and the delivery and if price increases occur during this period, in particular due to wage increases, increases in the cost of raw materials, general price increases due to inflation or comparable circumstances, ELECTROSTAR shall be entitled to charge a correspondingly higher price. This shall also apply if, between the submission of the offer and the issuance of the order confirmation by ELECTROSTAR or after the conclusion of a framework agreement with a fixed price agreement by ELECTROSTAR, the raw material prices of the respective goods concerned or other significant cost factors such as, in particular, energy, wage, transport or insurance costs change significantly (i.e. by at least 10%). In such case ELECTROSTAR shall be entitled to an appropriate increase of the prices to the extent they are affected by the cost increase. ELECTROSTAR shall take into account the legitimate interests of Purchaser, in particular with regard to any obligations already entered into by Purchaser to continue delivery of the goods at a certain price. ELECTROSTAR shall prove the price changing factors to Purchaser upon request.
5.5 For small orders with a net value of goods of less than EUR 50.00, we shall charge a pro rata handling fee of EUR 15.00.
5.6 Spare parts deliveries and returns of repaired goods shall be made, insofar as they are not covered by the liability for material defects, against payment of a reasonable flat-rate shipping and packaging fee, which in case of doubt shall amount to EUR 25.00, plus the remuneration for the service rendered by ELECTROSTAR.
5.7 Claims of ELECTROSTAR for payment of the purchase price shall become statute-barred after five years, notwithstanding § 195 BGB.
6. terms of payment
6.1. Unless otherwise agreed in writing, payment of the gross price plus possible costs for freight and insurance shall be made within 10 days of the invoice date with a 2% discount or within 30 days of the invoice date without any deduction.
6.2. Payment shall be deemed to have been made when ELECTROSTAR can dispose of the amount.
6.3. If the payment deadline is exceeded, ELECTROSTAR shall be entitled to charge default interest at the statutory rate (currently 9 percentage points above the base interest rate (§§ 247, 288 para. 2 BGB)). ELECTROSTAR reserves the right to claim further damages.
6.4 If the Purchaser is in default of payment, ELECTROSTAR shall be entitled to demand immediate payment of all claims arising from the business relationship, even if such claims are not yet due.
6.5 The Purchaser's counterclaims shall only entitle it to set-off and to assert a right of retention if they have been legally established or are undisputed. The customer may only assert a right of retention if its counterclaim is based on the same contractual relationship.
6.6 ELECTROSTAR shall be entitled to perform or render outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the Purchaser and which jeopardize the payment of outstanding claims of ELECTROSTAR by the Purchaser under the respective contractual relationship. This shall apply mutatis mutandis if Purchaser refuses or fails to pay outstanding claims of ELECTROSTAR and there are no undisputed or legally established objections against the claims of ELECTROSTAR.
7.1 The Purchaser's warranty rights shall be subject to the condition that the Purchaser has complied with its statutory obligations to inspect the goods and to give notice of defects (§§ 377, 381 of the German Commercial Code), in particular that the Purchaser inspects the delivered goods immediately upon receipt and notifies ELECTROSTAR without undue delay in writing of any obvious defects and of any defects which were detectable during such inspection. Purchaser shall notify ELECTROSTAR in writing of any hidden defects without undue delay after their discovery. The notification shall be deemed to be without undue delay within the meaning of sentence 1 if it is made within 8 working days, whereby the receipt of the notification by ELECTROSTAR shall be decisive for compliance with the deadline. If the Purchaser fails to duly inspect the goods and/or give notice of defects, ELECTROSTAR's liability for the defect shall be excluded. Purchaser shall describe the defects in writing when notifying ELECTROSTAR thereof.
7.2 If a notice of defect is unjustified, ELECTROSTAR shall be entitled to claim compensation from Purchaser for the expenses incurred, unless Purchaser proves that it is not at fault with regard to the unjustified notice of defect.
7.3 Claims for subsequent performance shall be excluded in the event of minor, technically unavoidable deviations in quality, color, width, weight, equipment or design.
7.4 In the event of defects in the goods, ELECTROSTAR shall be entitled, at its own discretion, to subsequent performance by remedying the defect or delivering goods free of defects.
7.5 If the goods are not at the place of delivery, the Purchaser shall bear all additional costs incurred by ELECTROSTAR in remedying defects, unless the transfer to another place is in accordance with the contractual use.
7.6 There shall be no rights in respect of defects - in the event of natural wear and tear; - in the event of defects in the goods or damage arising after the transfer of risk as a result of improper handling not in accordance with the operating instructions, improper storage, care or excessive stress or use; or - in the event of defects in the goods or damage arising as a result of force majeure, special external influences not assumed under the contract or as a result of the use of the goods outside the use assumed under the contract or normal use.
7.7 ELECTROSTAR shall not be liable for the quality of the goods based on the processing or the choice of the material, if the Purchaser has prescribed the design or the material in deviation from ELECTROSTAR's scope of services.
8.1 ELECTROSTAR's contractual liability for damages under the warranty shall in any case be subject to culpable conduct (intent or negligence), even if the law (in particular under the CISG in the context of international business transactions) provides for strict liability for damages. The mandatory statutory liability for product defects (in particular under the Product Liability Act) remains unaffected.
8.2 ELECTROSTAR shall have unlimited liability for damages - irrespective of the legal grounds - in the event of a breach of warranty or injury to life, limb or health. The same shall apply to intent and gross negligence, to mandatory statutory liability for product defects (in particular under the Product Liability Act) and to liability for fraudulent concealment of defects.
8.3 ELECTROSTAR shall be liable for slight negligence, subject to Section 8.2, only if material obligations are breached which arise from the nature of the contract and which are of particular importance for the achievement of the purpose of the contract. In the event of a breach of such obligations, ELECTROSTAR's liability shall be limited to such damages as may typically be expected to arise under the contract.
8.4 Subject to clause 8.2, ELECTROSTAR's liability for any damage suffered by the Purchaser as a result of the delay shall be limited to a maximum of 5% of the agreed net price.
8.5 To the extent that ELECTROSTAR's liability is excluded or limited, this shall also apply to the personal liability of ELECTROSTAR's legal representatives, employees, workers and vicarious agents.
9. limitation period
The limitation period for the Purchaser's claims based on defects shall be 12 months and shall commence upon delivery of the goods. Unless this is done as a gesture of goodwill, the limitation period shall not recommence as a result of subsequent performance. It shall also apply to claims in tort based on a defect in the goods. In cases pursuant to clause 8.2, the statutory limitation period shall apply.
10 Voluntary return
10.1 Outside of the warranty, goods shall only be taken back with the express consent of ELECTROSTAR. In any case, the goods may only be taken back if they are still in their original packaging and if the goods and packaging are undamaged.
10.2 If ELECTROSTAR gives its consent, the Purchaser shall receive a return number. This number must be clearly marked on the packaging of the returned goods. The return shipment shall be made to the registered office of ELECTROSTAR at the Purchaser's expense.
10.3 A handling fee shall be charged for each return, the amount of which shall be agreed on a case-by-case basis and which, in case of doubt, shall be EUR 25.00. If the goods or packaging are damaged contrary to clause 10.1 sentence 2, ELECTROSTAR shall be entitled to refuse to take back the goods or to charge the Purchaser for the costs of reprocessing. In the absence of any agreement to the contrary, these shall amount to 15% of the agreed net price, but at least EUR 25.00. 10.4 If the goods are returned without the express consent of ELECTROSTAR, ELECTROSTAR shall be entitled to refuse to take back the goods or to store the goods at the cost and risk of the Purchaser. The costs of storage shall amount to at least EUR 25.00 per week.
11. retention of title
11.1 The delivered goods shall remain the property of ELECTROSTAR until they have been paid for in full.
11.2 Furthermore, ELECTROSTAR shall remain the owner of the delivered goods until full payment of all claims arising from the business relationship between the Purchaser and ELECTROSTAR.
11.3 The Purchaser is obliged to treat the goods subject to retention of title (hereinafter also referred to as "Retained Goods") with care for the duration of the retention of title. In particular, it shall insure the goods at its own expense against fire, water damage and theft at their replacement value. Purchaser hereby assigns to ELECTROSTAR all claims for compensation arising from such insurance. ELECTROSTAR hereby accepts the assignment. If an assignment should not be permissible, the Purchaser hereby instructs its insurer to make any payments only to ELECTROSTAR. Any further claims of ELECTROSTAR shall remain unaffected. Upon ELECTROSTAR's request, the Purchaser shall provide ELECTROSTAR with evidence of the conclusion of the insurance policy.
11.4 If the Reserved Goods are combined with other items not belonging to ELECTROSTAR to form a single item, ELECTROSTAR shall acquire co-ownership of the single item in the ratio of the value of the Reserved Goods (final invoice amount including VAT) to the other items at the time of combination. If the Reserved Goods are combined with other items in such a way that the Purchaser's item is to be regarded as the main item, the Purchaser hereby assigns to ELECTROSTAR pro rata co-ownership of such item. ELECTROSTAR accepts this transfer. The provisions of this Clause 11.3 shall apply mutatis mutandis if the Retained Goods are processed with other items.
11.5 The Purchaser is revocably entitled to sell the Retained Goods in the ordinary course of business. Purchaser shall not be entitled to pledge the Retained Goods, to assign them by way of security or to make any other dispositions endangering ELECTROSTAR's title. In the event of seizure or other interventions by third parties, Purchaser shall immediately notify ELECTROSTAR in writing and provide all necessary information, inform the third party of ELECTROSTAR's ownership rights and cooperate in ELECTROSTAR's measures to protect the goods subject to retention of title.
11.6 The Purchaser hereby assigns to ELECTROSTAR the claims arising from the resale of the Retained Goods in the amount of the invoice amount including value added tax with all ancillary rights. ELECTROSTAR hereby accepts this assignment. If the Reserved Goods are sold together with other goods not delivered by ELECTROSTAR, the claim from the resale shall be assigned in the ratio of the value of the Reserved Goods (final invoice amount including VAT) to the other goods sold. If an assignment should not be permissible, Purchaser hereby irrevocably instructs the third party debtor to make any payments only to ELECTROSTAR.
11.7 Purchaser is revocably authorized to collect the claims assigned to ELECTROSTAR in trust for ELECTROSTAR in its own name. The collected amounts shall be paid to ELECTROSTAR immediately.
11.8 ELECTROSTAR may revoke the Purchaser's right to resell the goods and the authorization to collect if the Purchaser fails to meet its payment obligations to ELECTROSTAR in due form, is in default of payment, suspends payments or if insolvency proceedings are instituted against the Purchaser's assets.
11.9 ELECTROSTAR shall be obligated to release existing securities upon the Purchaser's request to the extent that the realizable value of the securities, taking into account customary bank valuation discounts, exceeds ELECTROSTAR's claims from the business relationship with the Purchaser by more than 10%. The selection of the securities to be released shall be at ELECTROSTAR's discretion.
11.10. In the case of deliveries of goods to other jurisdictions in which the retention of title provision under this Clause 11 does not have the same security effect as in the Federal Republic of Germany, the Purchaser hereby grants ELECTROSTAR a corresponding security interest. If further measures are required for this purpose, Purchaser shall do everything in its power to grant ELECTROSTAR such security interest without undue delay. Purchaser shall cooperate in all measures necessary and conducive to the effectiveness and enforceability of such security interest.
12 Withdrawal / Cancellation of Contract
12.1 In the event of a breach of contract by the Purchaser, in particular in the event of default in payment, ELECTROSTAR shall be entitled, without prejudice to other contractual and statutory rights, to rescind the contract after expiration of a reasonable grace period.
12.2 The Purchaser shall grant ELECTROSTAR or its agents access to the items subject to retention of title without undue delay after notice of rescission has been given and shall surrender such items. After due notice, ELECTROSTAR may otherwise dispose of the items subject to retention of title in order to satisfy its claims against Purchaser. The proceeds of such realization shall be credited against the Customer's liabilities - less reasonable costs of realization.
12.3 Statutory rights and claims shall not be restricted by the provisions contained in this Clause 12.
13.1 Purchaser shall keep confidential for an unlimited period of time all information which becomes accessible to it via ELECTROSTAR and which is designated as confidential or which is identifiable as business or trade secrets under other circumstances and shall neither record nor pass on or exploit such information.
13.2 The customer shall ensure by means of suitable contractual agreements with the employees and agents working for it that they also refrain for an unlimited period from any exploitation, disclosure or unauthorized recording of such business and trade secrets.
14 Applicable Law; Place of Jurisdiction
14.1 The legal relationship between Purchaser and ELECTROSTAR shall be governed by the laws of the Federal Republic of Germany.
14.2 Insofar as the United Nations Convention on Contracts for the International Sale of Goods (CISG) applies in international business transactions, i.e. vis-à-vis purchasers outside the Federal Republic of Germany, questions concerning items which are not governed by this Convention or which cannot be decided in accordance with its main features shall be decided in accordance with the law of the Federal Republic of Germany. This shall not apply to the provisions concerning supplier recourse pursuant to Sections 478, 479 of the German Civil Code (BGB), which shall not apply in international business transactions.
14.3 The exclusive place of jurisdiction for all claims arising from the business relationship shall be the registered office of ELECTROSTAR. ELECTROSTAR shall also be entitled to bring an action at the Purchaser's registered office as well as at any other admissible place of jurisdiction.
15.1 The transfer of rights and obligations of the Purchaser to third parties shall only be possible with the written consent of ELECTROSTAR.
15.2 The place of performance for all services of the Purchaser and ELECTROSTAR shall be the registered office of ELECTROSTAR.
Status: August 2019