ES&S Oliver Reiners e.K.
Gewerbering 2, D-41751 Viersen
GTC based on ZVEI ( 1997 / 1999 )

 

I General terms and conditions

  1. The written declarations from both parties are decisive for the scope of supplies and services (hereafter: supplies). However, general business terms and conditions of the ordering party only apply in as far as the supplier or service provider (hereafter: supplier) has expressly agreed to them in writing.
  2. The supplier reserves the right to unlimited ownership and copyright rights to cost estimates, drawings and other documents (hereafter: documents). The documents can only be made accessible to third parties after prior agreement, If the order was not granted to the supplier to return them immediately on request. Clauses 1 and 2 apply accordingly for documents of the ordering party; however these can be made accessible to those third parties to whom the supplier has handed over supplies in accordance with the approvals.
  3. The ordering party has the non exclusive right to use of standard software with the performance characteristics agreed on in unchanged form on the equipment agreed on. The ordering party can make two back up copies without express consent.
  4. Part deliveries are permitted as long as the ordering party can be reasonably expected to accept them.

II. Prices and payment conditions

  1.  Prices are ex works, excluding packaging and including the legally valid sales tax in each case.
  2.  If the supplier has taken over the installation or assembly and nothing else has been agreed on, the ordering party will bear all required ancillary costs such as travel costs, costs for transporting the tools and personal luggage as well as product releases.
  3.  Payments shall be made without any deductions and free of transaction charges to the seller's designated account.
  4.  The ordering party can only charge those payments that are undisputed or legally determined.

III. Conditional sale

  1. The objects delivered (retained goods) remain the property of the supplier until the fulfilment of all claims he is entitled to from the ordering party arising out of the business relations. As long s the value of all rights to protection against risks to which the supplier is entitled exceed the amount of all covered claims by more than 20 per cent, the supplier will release a corresponding part of the rights to protection against risk on the request of the ordering party.
  2. The ordering party is not allowed to pledge goods or transfer goods by way of security during the existence of the conditional sale and further sale is only permitted to re-seller in the normal course of business and only under the condition that the re-seller receives payment from his customer or places the condition that the property will only be transferred to the customer after the customer has completely fulfilled his payment obligations.
  3. (3a) If the ordering party sells retained goods further, he will already transfer his future payments from further sales to the supplier now with all ancillary rights – including any claims for payment of account balance, for safety's sake., without there being a need for specific explanations later on. If the retained goods are sold together with other objects without agreeing on an individual price fro the retained goods, the ordering party transfers the part of the total payment to the supplier corresponding to the price of the retained goods invoiced by the supplier before the remaining payment is made.
    (3b) When furnishing prima facie evidence for a justified interest, the ordering party provide the supplier with the information required for enforcing his rights towards the customer and hand over the required documents.
    (3c) The ordering party is authorised to withdraw the transferred payment form further sales until it is revoked. If there is an important reason, such as a delay in payment, or withholding of payment in particular, or if bankruptcy proceedings have been opened, or there is an act of protest or there are comparable well-founded references, suggesting the inability of the ordering party to pay, the supplier is entitled to revoke the ordering party’s authorisation to withdraw. After an initial warning of disclosure of the withdrawal of the guarantee or the recovery of the withdrawn payments the supplier can disclose the withdrawal from the guarantee whilst maintaining an appropriate deadline, recover the withdrawn payments as well as request the disclosure of the withdrawal from the guarantee by the ordering party.
  4. (4a) The ordering party is permitted to process and re-model the retained goods or to connect it to other objects. The processing, re-modelling or connection takes place for the supplier. The ordering party stores the new object for the supplier with the care expected of a respectable businessman. The processed, re-modelled or connected object counts as retained goods.
    (4b) When processing, re-modelling or connection with other objects not belonging to the supplier the supplier is entitled to co-ownership of the new object amounting to the share resulting from the ratio of the value of the processed, re-modelled or connected retained goods to the value of the remaining processed goods at the time of processing, re-modelling or connection. As long as the ordering party acquires sole ownership of the new object, supplier and ordering party agree that the ordering party concedes the supplier co-ownership of the new object formed through processing, re-modelling or connection as a ratio of the value of the processed, re-modelled or connected retained goods to the remaining processed, re-modelled or connected goods at the time of processing, re-modelling or connection.
    (4c) In the case of sale of the new object the ordering party hereby transfers his claim from further sales towards the customer with all ancillary rights to the supplier for safety's sake, without it requiring further specific explanations. However, the transfer only applies for the amount that the supplier has invoiced for the processed, re-modelled or connected retained goods. The share in payment transferred to the supplier must be paid on a priority basis. As far as the authorisation to withdraw is concerned as well as the conditions for revoking it, number 3c) applies accordingly.
    (4d) If the retained goods are connected to property or movable assets by the ordering party, the ordering party will also transfer his payment to the supplier, without requiring any further specific explanation, to which he is entitled as compensation for the connection with all ancillary rights at the amount of the ratio of the value of the retained goods to the remaining connected goods at the time of the connection.
  5. In the case of seizures, confiscation or other decisions or interventions by third parties, the ordering party must inform the supplier immediately.
  6. In the case of culpable violation by the ordering party of important contractual obligations, particularly in the case of delay in payment, the supplier is entitled to a return of the goods after a warning has been issued. The ordering party is obliged to hand over the goods. When returning or enforcing the conditional sale or the seizure of a delivered object by the supplier, there is no withdrawal from the contract, unless the supplier has expressly declared this. The supplier is entitled after prior warning to sell the returned retained goods and benefit from its proceeds after charging for the open claims.

IV. Deadlines for deliveries and delays

  1. The maintenance of the deadlines agreed on for deliveries assumes the timely receipt of all documents to be supplied by the ordering party, the required permits and approvals, particularly plans, as well as the maintenance of the payment conditions agreed on and other obligations by the ordering party. If these conditions are not fulfilled on time, the deadlines will be extended accordingly. This does not apply if the supplier is responsible for the delay.
  2. If the non-maintenance of deadlines is due, for example, to force majeure, e.g. mobilisation, war , unrest, or similar events such as strikes or lock-outs, the deadlines will be extended accordingly.
  3. If the supplier delays delivery, the ordering party, if he can prove that damages have occurred to him due to this - claim damages for every complete week of delay of 0.5 % for each week, however a total of a maximum of 5 % of the price for the part of the delivery that could not be used purposefully due to the delay.
  4. Claims for damages by the ordering party, going beyond the limits mentioned in No.3 are excluded in all cases of late delivery even after a subsequent deadline set to the supplier after expiry. This does not apply in cases of deliberate acts or gross negligence if the supplier is forcefully made liable. An amendment to the burden of proof to the disadvantage of the ordering party is not connected to this. The right of the ordering party to withdraw after expiry of a subsequent deadline without results remains unaffected.
  5. If dispatch or delivery is delayed by more than a month upon the request of the ordering party after the readiness to dispatch has been reported, the ordering party can be charged storage charges amounting to 0.5 % of the price of the objects of delivery, however a maximum of 5 %. It is up to the contract parties whether they show proof of higher or lower storage costs.

V. Passing of risk

  1. The risk is also transferred to the ordering party in the case of delivery free of transportation charges as follows:
    (1a) during delivery without installation or assembly, if the goods have been brought to dispatch or picked up. Deliveries are insured against usual transportation risks by the supplier upon request of the ordering party and are charged to the ordering party.
    (1b) in the case of delivery with installation or assembly on the day it is taken over in their own business or, if agreed, after flawless trial of the goods.
  2. If the dispatch, the delivery, the start, the execution of installation or assembly, the taking over in their own business or the trial of goods is delayed for reasons for which the ordering party is responsible or the ordering party delays acceptance of goods for other reasons, the risk is passed on to the ordering party.

VI. Installation and assembly

Not applicable.

VII. Acceptance

Deliveries must be accepted by the ordering party even if they indicate defects that cannot be repaired.

VIII. Guarantee

The supplier is liable for defects including the missing out of promised items, as follows:

  1. All those parts or services must be improved on free of cost as per the supplier’s choice, delivered again or rendered again, whose usability has been considerably impaired within 24 months – without consideration for the duration of operation – from the day the risk was transferred due to circumstances occurring before the transfer of risk.
  2. Claims for guarantees expire 24 months after the complaint has been reported. The supplier must be informed of this immediately in writing.
  3. In the case of complaints about defects, payments by the ordering party can be withheld if they are at an appropriate ratio to the defects that have occurred. If the contract is part of the operation of his trade, the ordering party only withhold payments if a complaint for defects is enforced, about whose justification there can be no doubt.
  4. The supplier must be accorded the proper amount of time and opportunity to repair defects. If he is denied this time, he is exempt from the guarantee.
  5. If the supplier lets an appropriate subsequent deadline set for him pass, without repairing the defect, the ordering party can demand withdrawal from the contract (withdrawal) or a decrease in payment (reduction).
  6. The guarantee does not extend to natural wear and tear or damages occurring after the transfer of risk due to erroneous or negligent treatment, excessive stress, unsuitable operating means, defective construction work, unsuitable building ground or due to specific external influences that have not been laid down in the contract, as well as software errors that cannot be reproduced. If inappropriate changes have been made by the ordering party or third parties or repair work has taken place, there is no guarantee for this or for the consequences arising out of this.
  7. The guarantee period is 24 months for improvements, replacement of goods or replacement of services. It runs at least till the expiry of the original guarantee period for the object delivered. It is extended for those parts that cannot be operated purposefully due to the interruption, for the duration of the interruption of operations, caused by subsequent improvements, replacement of goods or replacement of services.
  8. The deadlines mentioned in numbers 1, 2 and 7 do not apply as long as the law prescribes longer deadlines in accordance with § 638 BGB.
  9. Further claims to guarantees by the ordering party against the supplier and his assistants do not arise; However, Art. XI (other liabilities) remains unaffected.

IX. Industrial property rights and copyright

  1. If a third party lays justified claim against the ordering party due to violation of an industrial property right (hereafter: property rights) due to products delivered by the supplier in accordance with the contract, the supplier is liable towards the ordering party as follows:
  2. (2a) The supplier will either effect a right of use of his choice at his own costs for the products, change the product in such a way that the property rights will not be violated, or exchange the product. If this is not possible for the supplier at appropriate conditions, he must take back the product against the purchasing price.
    (2b)The aforementioned obligations of the supplier only exist if the ordering party informs the supplier about claims enforced by third parties immediately in writing, does not acknowledge a violation and the supplier reserves the right to all defence mechanisms and comparative negotiations. If the ordering party stops using the product for reasons of reducing the damages or other important reasons, he is obliged to point out to the third party that stopping its use is not an acknowledgement of a violation of property rights.
  3. Claims by the ordering party are excluded as long as they are responsible for a violation of property rights.
  4. Claims by the ordering party are also out of the question if the violation of property rights was caused by specific specifications by the ordering party, through unpredictable use by the supplier or caused by the fact that the products was changed by the ordering party or was used together with products not delivered by the supplier.
  5. Further claims towards the supplier are excluded, however, Art XI (other liabilities) remains as unaffected as the right to withdraw from the contract.

X. Inability, contract adaptation

  1. If a supplier cannot deliver for reasons for which he is not responsible, the ordering party is entitled to demand claims for damages. However the claim for damages by the ordering party is limited to 10 % of the value of that part of the delivery that could not be used purposefully due to the inability to deliver. This does not apply in cases of deliberate acts, gross negligence or inability to comply liability is obligatory. A change in the burden of proof to the disadvantage of the ordering party is not connected to this. The right of the ordering party to withdraw from the contract remains unaffected.
  2. In as far as unpredictable events in accordance with Art. IV, No 2 considerably change the economic significance or contents of the delivered goods or have a significant effect on the supplier's business, the contract will be adapted accordingly in good faith. If this is not economically viable, the supplier has the right to withdraw from the contract. If he wants to make use of this right to withdraw, he must inform the ordering party of this immediately after he realises the extent to which this event will affect him, even if an extension of the delivery time was first agreed on with the ordering party.

XI. Other liabilities

Claims for compensation for damages by the ordering party for whatever legal reason at all, particularly from the point of view of a positive violation of claims, due to the violation of obligations arising out of contract negotiations and out of negotiations that are not permitted, are excluded. This does not apply if liability is obligatory, e.g. as per the product liability law or in cases of deliberate acts, gross negligence, missing of certain promised elements or the violation of important contract obligations. However, compensation for damages for the violation of important contract obligations is limited to foreseeable damages typical to the contract, as long s there is no deliberate act or gross negligence. An amendment to the burden of proof to the disadvantage of the ordering party is not connected to the aforementioned regulations.

XII. Jurisdiction

  1. Sole jurisdiction exists if the ordering party is a registered trader, with all the direct or indirect disputes resulting from the contract relations, based on the choice of the supplier, the headquarters or branch of the supplier.
  2. German law is applicable for the contractual relations excluding the United Nations Agreement on Contracts for International Sale of Goods (CISG) .

XIII. Extent to which the contract is binding

The contract remains binding in its remaining parts even in the case of legal ineffectiveness of individual points. This does not apply if the adherence to the contract would mean hardship which one of the parties cannot be expected to accept.

Viersen, 2007-1-1      Oliver Reiners (owner)