General Terms and Conditions of Sale (GTC)
Elkas Logistic Solutions GmbH
1 Scope of application
(1) Unless otherwise agreed in writing, only the following terms and conditions shall apply to sales, delivery and payment.
(2) The following General Terms and Conditions shall apply to the entire business relationship with the Buyer, even if they are no longer referred to in subsequent transactions.
(3) They shall also apply if the Buyer refers to other terms and conditions in his order or in a letter of confirmation, unless we have expressly agreed to them in writing. Any deviating terms and conditions of purchase of the Buyer are hereby expressly rejected. Conflicting terms and conditions of purchase of the Buyer shall not be binding on us even if they are not expressly rejected again upon conclusion of the contract.
(4) Our terms and conditions shall be deemed accepted at the latest upon acceptance of our goods.
2 Offer and conclusion of contract
(1) Our offers are subject to change. A legally effective contract shall only be concluded after a written order from the client and our written order confirmation. The order confirmation or an amended contractual offer shall be issued no later than 10 working days after receipt of the written order from the client. Order confirmations are also binding if they are sent without being signed.
(2) Amendments and/or additions to the contract must be made in writing.
(3) Specifications, drawings, illustrations, dimensions, weights or other specifications shall only become part of the contract if they have been expressly agreed in writing.
3 Documents provided
We reserve ownership rights and copyrights to all documents provided to the client in connection with the order placement, such as design data, drawings, etc.. These documents may not be made accessible to third parties unless we give the client our express written consent.
4 Prices and payment
(1) Unless otherwise agreed in writing, our prices are ex works excluding packaging and plus VAT at the applicable rate. Packaging costs shall be invoiced separately.
(2) Partial deliveries shall be invoiced immediately. Each invoice shall be due for payment separately, irrespective of the progress of the overall order. Any advance payments shall be offset against the individual partial deliveries on a pro rata basis.
(3) Payment of the purchase price shall be made exclusively by bank transfer to one of our bank accounts. The deduction of a discount is only permitted after a separate written agreement.
(4) Unless otherwise agreed in writing, the purchase price shall be due for payment within 14 days of invoicing. Interest on arrears shall be charged at a rate of 6% above the respective base interest rate per annum. We reserve the right to claim higher damages for default.
(5) Unless a fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and transportation costs for deliveries made 3 months or more after conclusion of the contract.
5 Offsetting and rights of retention
The client shall only be entitled to set-off if its counterclaims have been legally established or are undisputed. The client shall only be authorized to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
6 Delivery time
(1) Delivery periods and delivery dates are approximate and subject to change, unless they have been expressly agreed in writing.
(2) Delivery dates shall be deemed to have been met if we make the ordered goods available ready for dispatch within the agreed delivery time. Reasonable partial deliveries depending on the order volume are permissible.
(3) The delivery period shall commence at the earliest from the date of issue of our order confirmation. The commencement of the delivery period stated by us is subject to the timely and proper fulfillment of the customer's obligations. We reserve the right to plead non-performance of the contract.
(4) Debtor's default shall only occur on our part if we have received a written reminder from the client after expiry of the delivery period agreed in writing, the latter has set a reasonable grace period of at least 10 working days for performance and the grace period has expired. If we have already seriously and definitively refused performance beforehand, debtor's default shall already occur at the time of our refusal, notwithstanding the above provision; in this case, the client shall be entitled to withdraw from the contract.
(5) In the event of our default not caused intentionally or by gross negligence, the damages to be paid by us shall amount to a flat rate of 0.5% of the delivery value per completed week, but no more than 5% of the delivery value.
(6) Further statutory claims and rights of the customer due to debtor's delay remain unaffected.
(7) The delivery period may be extended by the duration of the hindrance due to the occurrence of extraordinary and unavoidable events or force majeure (e.g. natural disasters, operational disruptions, lack of raw material supply, labor disputes, official interventions, etc.), without debtor's default occurring during this period. Should delivery become impossible for the aforementioned or similar reasons, we shall be released from the obligation to deliver. In such cases, the client must be informed immediately of the impossibility of performance. In these cases, no claims for damages can be asserted by the client.
(8) 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. We reserve the right to assert further claims. If the above conditions 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.
7 Transfer of risk on shipment
If the goods are shipped to the buyer at the buyer's request, the risk, including confiscation, shall pass to the buyer when the goods are handed over to the forwarding agent or carrier, but at the latest when they leave the factory or warehouse, even in the case of carriage paid delivery. If the shipment is delayed by the buyer, he shall be charged the costs incurred for storage, starting one month after notification of readiness for shipment, but at least 0.7% of the invoice amount per month. Further claims arising from default of acceptance remain unaffected. If shipment is delayed for reasons for which the buyer is responsible, the risk shall pass on the day the goods are made available.
8 Retention of title
(1) We reserve title to the delivered goods until all claims arising from the delivery contract have been paid in full. This shall also apply to all future deliveries, even if we do not always expressly refer to this.
(2) The client is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. If maintenance and inspection work has to be carried out, the client must carry this out in good time at his own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(3) The client is entitled to resell the goods subject to retention of title in the normal course of business. The customer hereby assigns to us the claims of the purchaser from the resale of the reserved goods in the amount of the final invoice amount agreed with us, including value added tax. This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The client remains authorized to collect the claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the client meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.
(4) We undertake to release the securities to which we are entitled at the request of the customer if their value exceeds the claims to be secured by more than 20%.
9 Warranty and notification of defects as well as recourse/manufacturer recourse
(1) The customer must inspect the goods immediately after delivery by us, the carrier or forwarder. If a defect is discovered, he must notify us immediately and in writing. Defects that only become objectively recognizable later must be reported by the customer in writing immediately after their discovery. The timely dispatch of the notice of defects shall suffice to preserve the rights of the client. If the customer does not properly fulfill his obligation to give notice of defects, the customer shall be excluded from any claims for defects with regard to the defects not properly notified; the goods shall be deemed approved in this respect.
(2) Claims for defects shall become time-barred 12 months after delivery of the goods supplied by us to our customer. Our consent must be obtained before any return of the goods.
(3) If, despite all due care, the delivered goods have a defect that already existed at the time of the transfer of risk, we shall, at our discretion, either repair the goods or deliver replacement goods, subject to timely notification of defects. We must always be given the opportunity for subsequent performance within a reasonable period of time. Recourse claims shall remain unaffected by the above provision without restriction.
(4) If the supplementary performance fails, the client may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
(5) Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear and in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive use, unsuitable operating materials, defective construction work 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 client or third parties, no claims for defects shall exist for these and the resulting consequences.
(6) Claims on the part of the client for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods delivered by us have subsequently been taken to a location other than the client's branch office, unless the transfer corresponds to their intended use.
(7) Recourse claims of the client against us shall only exist insofar as the client has not made any agreements with its customer that go beyond the legally mandatory claims for defects. Paragraph 6 shall also apply accordingly to the scope of the client's right of recourse against the supplier.
10 Impossibility and other claims for damages
(1) If delivery is impossible, the buyer is entitled to demand compensation unless we are not responsible for the impossibility. However, the claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be put to the intended use due to the impossibility. This limitation shall not apply in cases of mandatory liability based on intent, gross negligence or injury to life, body or health; this does not imply a change in the burden of proof to the detriment of the buyer. The buyer's right to withdraw from the contract remains unaffected.
(2) Claims for damages and reimbursement of expenses by the Buyer (hereinafter: claims for damages), irrespective of the legal grounds, in particular due to the breach of duties arising from the contractual obligation and from tort, are excluded.
(3) This shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health, or breach of material contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability for injury to life, limb or health. A change in the burden of proof to the detriment of the buyer is not associated with the above provisions.
(4) Insofar as the Buyer is entitled to claims for damages under this provision, these shall become time-barred upon expiry of the limitation period applicable to claims for material defects in accordance with point 5. In the case of claims for damages under the Product Liability Act, the statutory limitation provisions shall apply.
§ 11 Confidentiality
(1) The contracting parties mutually undertake to treat as business secrets all commercial and technical details which are not in the public domain and which become known to them through the other contracting party.
(2) Order-specific data, drawings, samples or similar items may not be provided or made accessible to unauthorized third parties. The reproduction of such items is only permitted within the scope of operational requirements and copyright regulations.
12 Property rights
(1) The customer undertakes to inform us immediately of any claims by third parties regarding the delivered products and to leave the legal defense to us at his own expense. We shall be entitled to make any necessary changes to the product at our own expense as a result of third-party property right claims, even if the goods have been delivered and paid for.
(2) If we are prohibited from manufacturing or delivering by a third party with reference to an industrial property right to which it is entitled, we shall be entitled - insofar as we are not responsible for the infringement of the industrial property right - to suspend the work or deliveries until the legal situation has been clarified by the customer and the third party. If we can no longer reasonably be expected to continue the contract as a result of the delay, we shall be entitled to withdraw from the contract.
(3) The client shall be liable to us for ensuring that the services provided are free of third-party property rights and shall indemnify us against all third-party claims arising.
13 Insolvency, change in the legal form of the customer
(1) If the client suspends payments or if insolvency proceedings are instituted against the client's assets, we shall be entitled to withdraw from the contract in whole or in part.
(2) If the client undergoes a significant change in its legal form, ownership structure or financial situation which is likely to significantly impair the expected results of the business relationship, we shall be entitled to withdraw from our order without incurring any costs.
14 Right of withdrawal
(1) In the event of subsequent impossibility for which we are not responsible, we shall be entitled to withdraw from the contract in whole or in part. Further statutory rights of withdrawal shall not be affected by this provision.
(2) If the contract is rescinded due to a breach of contract for which the client is responsible, the (partial) services rendered up to that point shall be invoiced at the agreed prices. The damage incurred by us shall be taken into account in the settlement.
15 Place of jurisdiction, place of performance and applicable law
(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG). The contract language is German.
(2) The place of performance under this contract is Gladenbach, unless expressly stated otherwise in the written order confirmation.
(3) The place of jurisdiction for all disputes arising from the business relationship is Marburg (Lahn).
(4) Insofar as these Terms and Conditions or a contract concluded with the Client require the written form for the conclusion, amendment, supplementation or termination of the contract, this shall also apply to the waiver of the written form requirement.
16 Severability clause
Should individual provisions of these General Terms and Conditions or a concluded contract be or become invalid or contain a loophole, this shall not affect the validity of the remaining General Terms and Conditions and/or contractual provisions. The parties undertake to replace an ineffective contractual provision with a legally permissible provision that comes closest to the economic purpose of the ineffective provision or fills this gap.
Gladenbach, January 2024
