General Terms and Conditions
§ 1 General Provisions, Scope of Application
(1) These General Terms of Sale (the “Terms”) apply to all of our business relationships with our customers (hereinafter: the “Buyer”). The Terms only apply if the Buyer is a business (Section 14 of the German Civil Code, BGB), a legal entity under public law, or a special fund under public law.
(2) The Terms apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also: the “Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). In their respective version, the Terms also apply as a framework agreement to future contracts for the sale and/or delivery of movable goods with the same Buyer, without our having to refer to them again in each individual case.
(3) Our Terms apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their validity. This consent requirement applies in any case, for example, even if we carry out the delivery to the Buyer without reservation, knowing the Buyer’s terms and conditions.
(4) Individual agreements made with the Buyer in specific cases (including collateral agreements, supplements, and amendments) shall in all cases take precedence over these Terms. A written contract or our written confirmation shall be decisive for the content of such agreements.
(5) Legally relevant declarations and notices to be submitted by the Buyer to us after conclusion of the contract (e.g., setting deadlines, notices of defects, declaration of withdrawal or reduction) require written form to be effective.
(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, statutory provisions shall apply even without such clarification, unless they are directly amended or expressly excluded in these Terms.
§ 2 Conclusion of Contract
(1) Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, costings, references to DIN standards), other product descriptions, or documents – also in electronic form – to which we reserve proprietary and copyright rights.
(2) The Buyer’s order of the Goods shall be considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt by us.
(3) Acceptance can be declared either in writing (e.g., by order confirmation via letter, fax, or email) or by delivery of the Goods to the Buyer.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery period is agreed upon individually or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately 4-6 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of performance), we will inform the Buyer immediately and at the same time communicate the estimated new delivery period. If the performance is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the Buyer. A case of unavailability of performance in this sense is, in particular, the untimely self-delivery by our supplier if we have concluded a congruent hedging transaction. Our statutory rights of withdrawal and termination, as well as the statutory provisions on the handling of the contract in the event of an exclusion of the obligation to perform (e.g., impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected. The Buyer’s rights of withdrawal and termination pursuant to § 8 of these Terms also remain unaffected.
(3) The occurrence of delay in delivery is determined by statutory provisions. In any case, however, a reminder from the Buyer is required. The Seller’s liability for damages incurred by the Buyer due to the delay only exists if the delay arose due to a breach of essential contractual obligations or was caused by intent or gross negligence. The claim for damages due to delay is limited to 5% of the net price (delivery value), but in total to a maximum of 5% of the delivery value of the delayed Goods. We reserve the right to prove that the Buyer incurred no damage at all or only significantly less damage than the aforementioned lump sum.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery is made ex warehouse, which is also the place of performance. At the Buyer’s request and expense, the Goods will be shipped to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the type of shipment ourselves (in particular, transport company, shipping route, packaging).
(2) The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer no later than upon handover. In the case of a sale by dispatch, however, the risk of accidental loss and accidental deterioration of the Goods, as well as the risk of delay, passes upon delivery of the Goods to the forwarder, carrier, or other person or institution designated to carry out the shipment. If acceptance has been agreed upon, this is decisive for the transfer of risk. In all other respects, the statutory provisions of contract for work and services law apply mutatis mutandis to an agreed acceptance. Handover or acceptance is deemed to have occurred if the Buyer is in default of acceptance.
(3) If the Buyer defaults on acceptance, fails to cooperate, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this, we charge a flat-rate compensation of EUR 250.00 per calendar day, starting from the delivery period or – in the absence of a delivery period – from the notification of readiness for dispatch of the Goods.
The right to claim higher damages and our statutory claims (in particular, reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum shall be credited against further monetary claims. The Buyer remains entitled to prove that we incurred no damage at all or only significantly less damage than the aforementioned lump sum.
(4) Pre-determined quantities of goods that we must produce/provide on call within framework agreements must be called off within one year from the conclusion of the contract. Upon expiry of the one-year period, the customer defaults on acceptance of the remaining quantity of goods not yet called off at that time. Uncalled-off goods will be stored at the customer’s expense. The obligation to accept remains unaffected by this.
§ 5 Prices and Payment Terms
(1) Unless otherwise agreed in individual cases, our prices valid at the time of contract conclusion apply, ex warehouse, plus statutory value-added tax.
(2) In the case of a sale by dispatch (§ 4 Para. 1), the Buyer bears the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer. We do not take back transport and all other packaging in accordance with the Packaging Ordinance; they become the property of the Buyer, with the exception of pallets.
(3) The purchase price is due and payable within 10 days of invoicing and delivery or acceptance of the Goods. For contracts with a delivery value of more than EUR 20,000.00, however, we are entitled to demand an advance payment of 30% of the purchase price. The advance payment is due and payable within 10 days of invoicing.
(4) Upon expiry of the aforementioned payment period, the Buyer will be in default. During the default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim further damages due to default. Our claim to commercial interest due (§ 353 HGB) remains unaffected with respect to merchants.
(5) The Buyer is entitled to offset or retention rights only insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, § 7 Para. 6 remains unaffected.
(6) If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is jeopardized by the Buyer’s inability to perform (e.g., by an application for the opening of insolvency proceedings), we are entitled, in accordance with statutory provisions, to refuse performance and – if necessary, after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made products), we can declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.
(7) For a net goods value under €200, eloona GmbH is entitled to charge a minimum quantity surcharge of €49 plus the currently applicable statutory value-added tax.
(8) For issuing a works certificate 3.1, we charge €15.
§ 6 Retention of Title
(1) We reserve title to the sold Goods until full payment of all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The Goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The Buyer must notify us immediately in writing if and to the extent that third parties access the Goods belonging to us.
(3) In the event of breach of contract by the Buyer, in particular non-payment of the due purchase price, we are entitled, in accordance with statutory provisions, to withdraw from the contract and demand the return of the Goods on the basis of the retention of title and the withdrawal. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously unsuccessfully set the Buyer a reasonable deadline for payment or if such a deadline is dispensable according to statutory provisions.
(4) The Buyer is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The retention of title extends to the products resulting from the processing, mixing, or combining of our Goods at their full value, whereby we are considered the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same applies to the resulting product as to the Goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security all claims against third parties arising from the resale of the Goods or the product, or in the amount of our possible co-ownership share according to the preceding paragraph. We accept the assignment. The Buyer’s obligations mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The Buyer remains authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer fulfills his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed, and there is no other defect in his ability to perform. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents, and notifies the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the Buyer’s request.
§ 7 Buyer's Claims for Defects
(1) For the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or faulty assembly instructions), the statutory provisions apply, unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the Goods to a consumer (supplier recourse pursuant to §§ 478, 479 BGB) remain unaffected.
(2) The basis of our liability for defects is primarily the agreement made regarding the quality of the Goods. Product descriptions designated as such (also by the manufacturer), which were provided to the Buyer before his order or were included in the contract in the same way as these Terms, are considered an agreement on the quality of the Goods.
(3) Insofar as the quality has not been agreed upon, it shall be assessed according to statutory regulations whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB). However, we assume no liability for public statements by the manufacturer or other third parties (e.g., advertising statements).
(4) The Buyer’s claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during inspection or later, we must be notified immediately in writing. Notification is deemed immediate if it is made within two weeks, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Buyer must notify us in writing of obvious defects (including incorrect and short delivery) within two weeks of delivery, whereby timely dispatch of the notification is also sufficient to meet the deadline. If the Buyer fails to properly inspect and/or give notice of defects, our liability for the unnotified defect is excluded.
(5) If the delivered item is defective, we can initially choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). Our right to refuse the chosen type of subsequent performance under the statutory conditions remains unaffected.
(6) We are entitled to make the owed subsequent performance dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
(7) The Buyer must grant us the time and opportunity required for the owed subsequent performance, in particular to hand over the complained-about Goods for inspection purposes. In the event of replacement delivery, the Buyer must return the defective item to us in accordance with statutory provisions.
(8) We bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor, and material costs, if a defect actually exists. However, if a Buyer’s request for defect rectification proves to be unjustified, we can demand reimbursement of the resulting costs from the Buyer.
(9) In urgent cases, e.g., to avert operational safety hazards or disproportionate damages, the Buyer has the right to remedy the defect himself and demand reimbursement from us for the objectively necessary expenses incurred. We must be notified immediately, if possible beforehand, of such self-remedy. The right to self-remedy does not exist if we would be entitled to refuse corresponding subsequent performance according to statutory provisions.
(10) If subsequent performance has failed or a reasonable deadline to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable according to statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal for an insignificant defect.
(11) The Buyer’s claims for damages or reimbursement of futile expenses exist only in accordance with § 8 and are otherwise excluded.
§ 8 Other Liability
(1) Unless otherwise stipulated in these Terms, including the following provisions, we are liable for breaches of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We are liable for damages – regardless of the legal reason – in cases of intent and gross negligence. In cases of simple negligence, we are only liable
a) for damages resulting from injury to life, body, or health,
b) for damages resulting from the breach of an essential contractual obligation (an obligation whose fulfillment is essential for the proper execution of the contract and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 do not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the Goods. The same applies to the Buyer’s claims under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. In all other respects, the statutory conditions and legal consequences apply.
§ 9 Statute of Limitations
(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed upon, the limitation period begins with acceptance.
(2) The special statutory provisions for third-party claims for surrender in rem (§ 438 Para. 1 No. 1 BGB), in the event of fraudulent intent on the part of the seller (§ 438 Para. 3 BGB), and for claims in supplier recourse upon final delivery to a consumer (§ 479 BGB) remain unaffected.
(3) The aforementioned limitation periods of sales law also apply to the Buyer’s contractual and non-contractual claims for damages based on a defect in the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, for the Buyer’s claims for damages pursuant to § 8, only the statutory limitation periods apply.
§ 10 Choice of Law and Jurisdiction
(1) These Terms and all legal relationships between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, to the exclusion of all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the retention of title pursuant to § 6 are subject to the law of the respective location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereunder.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch), a legal entity under public law, or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Ansbach. However, we are also entitled to bring an action at the Buyer’s general place of jurisdiction.