GTC

General Terms and Conditions of Sale, Delivery and Assembly of EKK Anlagentechnik GmbH & Co. KG for entrepreneurs

(As at: December 2017)

1. General – Scope of application

1.1. Deliveries, services and quotations are made exclusively on the basis of these General Terms and Conditions of Sale, Delivery and Assembly (GTC), which apply equally to purchase and work contracts as well as to future contracts. We shall only recognise terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale if we expressly agree to their validity in writing. Our GTC shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our GTC.
1.2. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
1.3. These GTC only apply to entrepreneurs within the meaning of Section 310 para. 1 BGB.

2. Quotation documents

We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. The customer requires our express written consent before passing them on to third parties.

3. Prices – Terms of payment

3.1. The prices are based on the respective individual quotation or order confirmation. Notwithstanding the above, we reserve the right to change our prices appropriately if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective labour agreements or changes in material prices. We will provide evidence of this to the customer on request. Unless otherwise stated in the order confirmation, our prices are "ex works". Packaging, shipping costs, transport and assembly insurance, installation and instruction are charged separately.
3.2. Customs duties and the statutory value added tax will be charged separately.
3.3. The deduction of a discount requires a special written agreement.
3.4. Unless otherwise stated in the order confirmation, the purchase price or labour costs shall be due for payment without deduction within 30 days of the invoice date.
3.5. In the event of default or deferral of payment, default or deferral interest of 9% above the respective base interest rate p.a. plus a flat-rate fee of € 40.00 shall be payable, unless we can prove that we have been charged a higher interest rate. Otherwise, the statutory provisions regarding the consequences of default in payment shall apply.
3.6. The customer shall only be entitled to offsetting rights if his counter-claims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only authorised to exercise a right of retention to the extent that his counter-claim is based on the same contractual relationship.

4. Delivery dates

4.1. Delivery dates are based on our order confirmation and are only approximate. Fixed dates require an specific and separate agreement.
4.2. The start of the delivery period stated by us is subject to the clarification of all technical questions. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the obligations of the customer and persons commissioned by the customer, such as change requests, late delivery of materials, etc. The defence of non-performance of the contract remains reserved. The agreed deadlines shall be postponed for the aforementioned delays originating from the sphere of the customer. There is no entitlement to preferential processing in these cases. The same shall apply if official or other necessary authorisations or information from the customer, which subsequently become necessary for the execution of the delivery, are not received in good time. Partial deliveries and subsequent delivery of the documentation are permissible.
4.3. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved.
4.4. If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
4.5. We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 para. 2 no. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that its interest in the further fulfilment of the contract has ceased to exist.
4.6. We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. If the delay in delivery is not due to a wilful breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.7. We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
4.8. Otherwise, in the event of a delay in delivery, we shall be liable for each full week of delay within the scope of a lump-sum compensation for delay in the amount of 0.5 % of the delivery value, but not more than 5 % of the delivery value, unless we can prove lower damages.

5. Plans and documents

5.1. The information on weight, dimensions, capacity, price, performance and the like contained in catalogues, brochures, advertisements, illustrations and price lists are only approximate unless they are expressly designated as binding. We reserve the property rights and copyrights to cost estimates, drawings and other documents. These may not be made accessible to third parties.
5.2. There is no obligation on our part to check the design and planning data supplied by the customer or a third party.

6. Transfer of risk/packaging costs/insurance

6.1. Unless otherwise stated in the order confirmation, delivery "ex works" is agreed irrespective of the agreement to provide a means of transport and the risk is transferred to the customer upon dispatch ex works or the storage location. The above shall also apply if we deliver freight paid. If dispatch is delayed through the fault of the customer, the risk shall pass at the time of readiness for dispatch.
6.2. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back, with the exception of pallets. The customer is obliged to dispose of the packaging at its own expense.
6.3. Unless otherwise agreed in writing, we shall only be liable for transport damage if the customer notifies the carrier of the transport damage after discovering it and has the facts recorded. The customer shall receive compensation if it submits the statement of facts, consignment note or express goods card and transfer of rights signed by the customer.
6.4. The contractor shall be entitled to take out assembly insurance at the expense of the customer and transport damage insurance for all consignments.

7. Liability for defects

7.1. Claims for defects on the part of the customer presuppose that it has duly fulfilled its obligations to inspect and give notice of defects in accordance with Section 377 HGB (German Commercial Code).
7.2. If there is a defect in the purchased item, the customer may demand subsequent fulfilment from us in the form of rectification of the defect or delivery of a new item free of defects, notwithstanding
Section 439 para. 3 BGB. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
7.3. If the subsequent fulfilment fails, the customer shall be entitled, at his discretion, to declare his withdrawal or to demand a reduction in price.
7.4. Liability for material defects is excluded if the defect is based on special instructions of the customer regarding design and material. We are obligated to point out recognisable dangers. Claims for defects shall not exist in the case of only insignificant deviations from the agreed usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable equipment or due to special external influences which are not provided for in the contract. If improper repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.
7.5. We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence as well as fraudulent intent, including intent or gross negligence as well as fraudulent intent on the part of our representatives or vicarious agents. This does not include gross negligence on the part of simple vicarious agents outside of essential contractual obligations. Insofar as we are not accused of wilful breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
7.6. We shall otherwise be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation. In this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
7.7. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
7.8. Unless otherwise stipulated above, liability is excluded.
7.9. The limitation period for claims for defects is 12 months, calculated from the transfer of risk or completion of installation. The limitation period in the case of a delivery recourse according to Sections 478, 479 BGB remains unaffected; it is five years, calculated from the delivery of the defective item.
7.10 If the purchaser is an intermediary for the item delivered and the final purchaser of the goods is a consumer, the statutory provisions apply to the limitation period of any recourse claim of the purchaser against us.

8. Total liability

8.1. Any further liability for damages other than that provided for in Section 7 is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with Section 823 BGB.
8.2. Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our managing directors, employees, workers, staff, representatives and vicarious agents.

9. Retention of title

9.1. We reserve title to the purchased item until all claims arising from the business relationship with the customer have been paid in full. The inclusion of individual claims in a current account as well as the balance relationship and its acknowledgement shall not affect the retention of title. This shall also apply if the purchase price has been paid for certain deliveries of goods designated by the customer.
9.2. The customer is obligated to treat the purchased item with care. In particular, it is obligated to insure them adequately at its own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
9.3. The purchaser is authorised to resell the reserved goods in the normal course of business. Pledging is not permitted. In the event of pledging by third parties, we must be informed of this immediately. The purchaser hereby assigns to us by way of security all claims of the purchaser arising from the resale of the reserved goods until all claims of the contractor have been settled in full, including all ancillary rights. We accept this assignment.
9.4. Notwithstanding the assignment and our right of collection, the customer shall be entitled to collect as long as it fulfils its payment obligation to us and does not fall into asset forfeiture. At our request, the customer must inform the debtors of the assignment and provide us with the information and documents required to collect the claim.
9.5. If the customer culpably fails to meet its payment obligations, we may, at any time, demand the return of the goods, collect them, for which purpose the customer shall permit us to enter its business premises, and collect the goods, offsetting the proceeds of collection against the purchase price. The taking of possession of the delivered goods and the collection of the goods to secure our claim to the purchase price shall not be deemed to be a withdrawal from the contract unless we expressly declare this in writing.
9.10. Any treatment or processing of the reserved goods shall be carried out by the customer on our behalf without any obligations arising for us. In the event of processing, combining, mixing or blending with other items not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in proportion to the invoice value of the processed, combined, mixed or blended reserved goods and shall store them for us free of charge.
9.11. If the reserved goods are resold together with other goods, the agreed advance assignment shall in any case only apply to the amount of the invoice value of the reserved goods that are resold together with the other goods.
9.12. We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion at the request of the customer to the extent that the value exceeds the claim to be secured by 10 % or more. The retention of title is also effective if the objects are firmly connected and anchored to the foundation of a building.
9.13. If both a cheque and a bill of exchange are presented to us and accepted by the customer for payment of the goods subject to retention of title, the retention of title shall continue to apply until the end of the term of the bill of exchange.

10. Withdrawal from the contract in the event of insolvency

If insolvency proceedings are opened against the customer's assets, an application for the opening of insolvency proceedings is filed or the opening of insolvency proceedings is rejected for lack of assets, this shall entitle us to withdraw from the contract.

11. Place of jurisdiction and place of fulfilment

11.1. If the purchaser is a merchant, a legal entity under public law or a special fund under public law, Aichach shall be the agreed place of jurisdiction. However, we shall also be entitled to sue the customer at the court of its place of residence.
The law of the Federal Republic of Germany shall apply without exception, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of law rules of private international law, even if the customer is domiciled abroad.
11.2. Unless otherwise stated in the order confirmation, our place of business shall be the place of fulfilment.
11.3. Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or closes this loophole.

GTC (End consumer)

General Terms and Conditions of Sale, Delivery and Assembly of EKK Anlagentechnik GmbH & Co. KG for consumers

(As at: December 2017)

1. General – Scope of application

2. Quotation documents

We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. The customer requires our express written consent before passing them on to third parties.

3. Prices – Terms of payment

3.1. The prices do not include the applicable value added tax and are based on the respective individual quotation or order confirmation. Insofar as services are not to be provided until more than four months after conclusion of the contract, we reserve the right to change our prices proportionally if cost reductions or cost increases occur after conclusion of the contract due to collective labour agreements or changes in material prices. We will provide evidence of this to the customer on request. Unless otherwise stated in the order confirmation, our prices are "ex works". Packaging, shipping costs, transport and assembly insurance, installation and instruction are charged separately.
3.2. Customs duties and the statutory turnover tax will be charged separately.
3.3. The deduction of a discount requires a special written agreement.
3.4. Unless otherwise stated in the order confirmation, the purchase price is due for payment immediately.
3.5. In the event of default or deferral of payment, default or deferral interest of 5 % above the respective base interest rate p.a. shall be payable, unless we can prove that we have been charged a higher interest rate. Otherwise, the statutory provisions regarding the consequences of default in payment shall apply.
3.6. The customer shall only be entitled to offsetting rights if his counter-claims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only authorised to exercise a right of retention to the extent that his counter-claim is based on the same contractual relationship.

4. Delivery dates

4.1. Delivery dates are based on our order confirmation and are only approximate. Fixed dates require an specific and separate agreement.
4.2. The start of the delivery period stated by us is subject to the clarification of all technical questions. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the obligations of the customer and persons commissioned by the customer, such as change requests, late delivery of materials, etc. The defence of non-performance of the contract remains reserved. The agreed deadlines shall be postponed for the aforementioned delays originating from the sphere of the customer. There is no entitlement to preferential processing in these cases. The same shall apply if official or other necessary authorisations or information from the customer, which subsequently become necessary for the execution of the delivery, are not received in good time. Partial deliveries and subsequent delivery of the documentation are permissible.
4.3. If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved.
4.4. If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
4.5. We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a fixed-date transaction within the meaning of Section 286 para. 2 no. 4 BGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that its interest in the further fulfilment of the contract has ceased to exist.
4.6. We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. If the delay in delivery is not due to a wilful breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4.7. We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
4.8. Otherwise, in the event of a delay in delivery, we shall be liable for each full week of delay within the scope of a lump-sum compensation for delay in the amount of 0.5 % of the delivery value, but not more than 5 % of the delivery value, unless we can prove lower damages.

5. Plans and documents

6. Transfer of risk/packaging costs/insurance

7. Liability for defects

7.1. If there is a defect in the purchased item, the customer may at its discretion demand subsequent fulfilment from us in the form of rectification of the defect or delivery of a new item free of defects, notwithstanding Section 439 para. 3 BGB. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
7.2. If the subsequent fulfilment fails, the customer shall be entitled, at his discretion, to declare his withdrawal or to demand a reduction in price.
7.3. Liability for material defects is excluded if the defect is based on special instructions of the customer regarding design and material. We are obligated to point out recognisable dangers. Claims for defects shall not exist in the case of only insignificant deviations from the agreed usability, natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable equipment or due to special external influences which are not provided for in the contract. If improper repair work or modifications are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.
7.4. We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence as well as fraudulent intent, including intent or gross negligence as well as fraudulent intent on the part of our representatives or vicarious agents. This does not include gross negligence on the part of simple vicarious agents outside of essential contractual obligations. Insofar as we are not accused of wilful breach of contract, liability for damages shall be limited to the foreseeable, typically occurring damage.
7.5. We shall otherwise be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation. In this case, however, liability for damages shall be limited to the foreseeable, typically occurring damage.
7.6. Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
7.7. Unless otherwise stipulated above, liability is excluded.
7.8. The limitation period for claims for defects is 24 months, calculated from the transfer of risk or completion of installation. The limitation period in the case of a delivery recourse according to Sections 478, 479 BGB remains unaffected; it is five years, calculated from delivery of the defective item.

8. Total liability

9. Retention of title

9.1. We reserve title to the purchased item until all claims arising from the business relationship with the customer have been paid in full. The inclusion of individual claims in a current account as well as the balance relationship and its acknowledgement shall not affect the retention of title. This shall also apply if the purchase price has been paid for certain deliveries of goods designated by the customer.
9.2. The customer is obligated to treat the reserved goods with care. In particular, it is obligated to insure them adequately at its own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at its own expense.
9.3. The customer is not authorised to resell the reserved goods.
9.4. If the customer culpably fails to meet its payment obligations, we may, at any time, demand the return of the reserved goods, collect them, for which purpose the customer shall permit us to enter its premises, and collect the goods, offsetting the proceeds of collection against the purchase price. The taking of possession of the delivered goods and the collection of the goods to secure our claim to the purchase price shall not be deemed to be a withdrawal from the contract unless we expressly declare this in writing.
9.10. Any treatment or processing of the reserved goods shall be carried out by the customer on our behalf without any obligations arising for us. In the event of processing, combining, mixing or blending with other items not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the invoice value of the goods subject to retention of title to the other processed goods at the time of processing, combining, mixing or blending. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in proportion to the invoice value of the processed, combined, mixed or blended reserved goods and shall store them for us free of charge.
9.11. We undertake to release the securities to which we are entitled in accordance with the above provisions at our discretion at the request of the customer to the extent that the value exceeds the claim to be secured by 10 % or more. The retention of title is also effective if the objects are firmly connected and anchored to the foundation of a building.
9.13. If both a cheque and a bill of exchange are presented to us and accepted by the customer for payment of the goods subject to retention of title, the retention of title shall continue to apply until the end of the term of the bill of exchange.