General terms and conditions of sale, delivery and payment of E&F Metall- und Rohrleitungsbau GmbH

Section 1 General information, scope 
(1) The present General Terms and Conditions of Sale, Delivery and Payment (GTCs) apply to all of our business relationships with our customers (hereinafter referred to as "Purchaser") with the exception of those in the area of staff deployment in relation to a third party. The GTCs only apply if the Purchaser is a contractor (Section 14 of the German Civil Code), a legal entity under public law or a special fund under public law.
(2) The GTCs apply in particular to contracts relating to the sale and/or delivery of movable objects (hereinafter also referred to as "Goods") regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 of the German Civil Code). The GTCs shall also apply in their respective version as a framework agreement for future contracts relating to the sale and/or delivery of movable objects with the same Purchaser, without our needing to refer to them again in each individual case.
(3) Our GTCs apply exclusively. Differing, contrary or supplementary General Terms and Conditions of the Purchaser shall only become part of the contract if and to the extent that we have explicitly consented to their applicability. This requirement for consent applies in every event, for example even if, being aware of the T&Cs of the Purchaser, we execute the delivery to it without any reservation.
(4) Individual agreements made with the Purchaser in an individual case (including subsidiary agreements, supplements and amendments) always have precedence over these GTCs. A written contract or our written confirmation is authoritative in dictating the content of such agreements. 
(5) Legally relevant declarations and notifications which the Purchaser needs to submit to us after a contract has been entered into (e.g. set deadlines, reports of defects, declaration of withdrawal or reduction) must be made in writing to be effective. 
(6) Any references to the validity of statutory regulations are for the purpose of clarification only. This means that even without such clarification the statutory regulations apply unless they are directly modified or explicitly ruled out in these GTCs.

Section 2 Formation of a contract
(1) Our quotations are subject to change and non-binding. This also applies if we have handed over to the Purchaser technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product specifications, illustrations or documents – including in electronic form – to which we reserve property rights and copyrights. The Purchaser may not without our explicit consent, either as such or in terms of content, make them accessible to third parties, disclose them, utilise or reproduce them itself or through third parties. At our request, it must return these objects to us in full and destroy any copies that may have been made if they are no longer required by it in the ordinary course of business or if negotiations do not result in the formation of a contract. 
(2) The placement of an order for the Goods by the Purchaser is deemed to be a binding offer of contract. Unless something to the contrary arises from the order, we shall be entitled to accept this contract offer within … days/weeks after we receive it. 
(3) The acceptance can be declared either in writing (e.g. with a confirmation of the order) or by the Goods being delivered to the Purchaser.

Section 3 Delivery deadline and delay in delivery
(1) The delivery deadline is agreed on an individual basis or specified by us when the order is accepted.
(2) The delivery deadline commences when the contract is entered into, but not before the Purchaser provides the documents, permits, approvals which need to be procured or before receipt of an agreed initial payment. 
(3) If we are unable to meet binding delivery deadlines for reasons that are beyond our control (non-availability of the service), we shall inform the Purchaser about this immediately and at the same time provide notification of the anticipated new delivery deadline. If the service is still not available within the new delivery deadline, we shall be authorised to withdraw from the contract in whole or in part; we shall immediately refund any service in return that has already been provided by the Purchaser. For this purpose, a case of the non-availability of the service shall be deemed to mean in particular the failure of our supplier to deliver goods to us on time if we have entered into a congruent hedging transaction. Our statutory rights of withdrawal and termination and the statutory regulations governing the handling of the contract in the event that the performance obligation is excluded (e.g. performance and/or subsequent performance is impossible or unreasonable) remain unaffected. The rights of withdrawal and termination of the Purchaser under Section 8 of these GTCs also remain unaffected. 
(4) The start of our delay in delivery shall be governed by the statutory regulations. But in any event a reminder from the Purchaser is required. If we delay in delivery, the Purchaser shall be entitled to demand flat-rate reimbursement for its loss caused by the delay. The flat-rate amount for the loss caused is, for each full calendar week of the delay, 0.5% of the net price (value of the delivery), but no more than a total of 5% of the value of the delivery of the Goods which are delivered late. We shall reserve the right to demonstrate that the Purchaser has not suffered any loss at all or only a much lower level of loss than the above flat-rate amount.

Section 4 Delivery, transfer of risk, acceptance, default in acceptance
(1) The delivery is made ex works, which is also the place of performance. At the request and expense of the Purchaser, the Goods shall be sent to a different designated destination (sale by dispatch). Unless something is agreed to the contrary, we shall be entitled to determine the nature of the shipment (in particular the shipping company, shipping route, packaging) ourselves. 
(2) The risk of accidental loss and accidental deterioration of the Goods shall be transferred no later than when the Goods are handed over to the Purchaser. However, with a sale by dispatch the risk of accidental loss and accidental deterioration of the Goods and the risk of delay is transferred when the Goods are delivered to the shipper, the freight carrier or the other person or institution designated to execute the delivery of the consignment. If an acceptance process has been agreed, this is decisive for the transfer of risk. In other respects too, the statutory regulations of service contract law apply accordingly to an agreed acceptance. It is deemed to be equivalent to handover or acceptance if the Purchaser is in default in acceptance. 
(3) If the Purchaser is in default in acceptance, if it fails to carry out an act of cooperation or our delivery is delayed for other reasons for which the Purchaser is responsible, we shall be entitled to demand compensation for the resulting loss, including any additional expenditure (e.g. warehousing costs). For this we shall charge flat-rate compensation amounting to 0.5 % of the amount of the invoice for the delivery items to be stored for each week commenced, starting with the delivery deadline or – if there is no delivery deadline – when notification is provided that the Goods are ready to be dispatched. 
The right to provide proof of a higher level of loss and our statutory claims (in particular reimbursement of additional expenditure, appropriate compensation, termination) remain unaffected; but the flat rate is to be offset against any further monetary claims. The Purchaser retains the right to provide proof that we did not suffer any loss at all or only a substantially lower level of loss than the flat-rate amount set out above.

Section 5 Prices and terms of payment
(1) Unless something to the contrary is agreed in an individual case, our prices apply ex works, plus packaging and plus statutory value added tax. 
(2) In the case of sale by dispatch (Section 4 (1)), the Purchaser shall pay the costs of transport ex works and the costs of any transport insurance that the Purchaser requires. The consignment shall only be insured by us against theft, breakage, transport, fire and water damage or other insurable risks at the explicit request of the Purchaser. If we do not invoice the transport costs which have actually been incurred in an individual case, a flat-rate charge for transport costs (excluding transport insurance) amounting to. … EUR shall be deemed to be agreed. The Purchaser shall pay any customs duties, charges, taxes and other official dues. 
(3) The purchase price shall be due and must be paid within 14 days of the invoice date without any deductions. 
(4) When the above payment deadline expires, the Purchaser shall be in default without the need for any reminder notice. The time when the vendor receives the payment shall dictate whether the payment has been received on time. During the default, interest shall be charged on the purchase price at the statutory rate of default interest which applies in each case. We reserve the right to assert a claim for a default loss which goes beyond this. With respect to traders, our entitlement to assert the commercial default interest (Section 353 of the German Commercial Code) remains unaffected.
(5) In the case of contracts with a delivery value of more than … EUR, we shall be entitled to demand an initial payment amounting to …% of the purchase price. 
(6) The Purchaser shall only enjoy rights of offset or retention to the extent that its claim has been declared final and absolute or is undisputed. In the case of delivery defects, Section 7 (6) remains unaffected. 
(7) If there are indications after the contract has been entered into that our entitlement to the purchase price is at risk through the Purchaser's lack of ability to make payment (e.g. as a result of an application for opening of insolvency proceedings), according to the statutory regulations we shall be entitled to refuse service and – if applicable after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code). In the case of contracts concerning the production of specific items (custom-made items), we can declare our withdrawal immediately; the statutory regulations concerning the lack of need to set a deadline remain unaffected.

Section 6 Reservation of title
(1)  We reserve the right to the title of the Goods sold until we have received full payment of all of our current and future claims arising from the purchase contract and a current business relationship (secured claims).
(2) The Goods subject to reservation of title may neither be pledged to third parties, nor assigned as collateral before the secured claims have been paid in full. The Purchaser must inform us immediately in writing if and to the extent that any third parties access the Goods which belong to us.
(3) If the Purchaser acts in a way that is in breach of contract, in particular if it does not pay the purchase price which is due, we shall be entitled, in accordance with the statutory regulations, to withdraw from the contract and/or reclaim the Goods on account of the reservation of title. The reclaiming does not at the same time include declaration of withdrawal; we are rather entitled merely to reclaim the Goods and reserve the right of withdrawal. If the Purchaser does not pay the purchase price which is due, we may only assert these rights if we have previously set it a reasonable deadline for payment without success or such a setting of a deadline is unnecessary under the statutory regulations. 
(4) The Purchaser is entitled to resell and/or to process the Goods which are subject to reservation of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
(a) The reservation of title covers the products which are produced by processing, mixing or combination of our Goods at their full value, whereby we are deemed to be the manufacturer.  If the ownership right of third parties continues to exist with a processing, mixing or combination with Goods of third parties, then we shall acquire joint ownership as a proportion of the value of the purchased item (final invoice amount, including VAT) compared to the other processed, mixed or combined goods.  In other respects, the same applies to the product that is produced as to the Goods delivered under reservation of title.
(b) The Purchaser now already assigns the claims against third parties arising from the resale of the Goods or product in total or in the amount of our possible joint ownership share to us as collateral in accordance with the aforementioned paragraph. We accept the assignment. The obligations of the Purchaser stated in Par. 2 shall also apply in view of the assigned claims.
(c) The Purchaser shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Purchaser meets its payment obligations towards us, is not in default of payment, no application has been filed for the opening of insolvency proceedings and there is no other deficiency to its ability to pay. However, if this is the case, we can demand that the Purchaser informs us of the assigned claims and their debtors, provides all of the details which are required for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the collateral items exceeds our claims by more than 10%, we shall at the Purchaser's request release collateral items at our choice.

Section 7 Claims for defects of the Purchaser
(1) The statutory regulations shall apply to the rights of the Purchaser in the event of defects of quality and title, insofar as not otherwise determined below. The special statutory regulations in the event that the Goods are finally delivered to a consumer remain unaffected in all cases (recourse against suppliers in accordance with Sections 478, 479 of the German Civil Code). 
(2) The Purchaser’s claims for defects presume that it has met its statutory obligations for inspection and reporting of complaints (Sections 377, 381 of the German Commercial Code). 
(3) If the delivered object is defective, we are entitled to choose whether we shall provide subsequent performance by remedying the defect (subsequent improvement) or by delivery of a new object without any defects (substitute delivery). 
(4) We are entitled to make the owed subsequent performance dependent on the fact that the Purchaser pays the purchase price which is due. However, the Purchaser is entitled to retain a part of the purchase price which is reasonable proportional to the defect. 
(5) The Purchaser must give us the time and opportunity required for the subsequent performance which is due, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of a substitute delivery, the Purchaser must return the faulty object to us in accordance with the statutory regulations. 
(6) The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, shall be borne by us if there is actually a defect. However, if it is determined that a request for remedy of a defect by the Purchaser is unjustified, we can request reimbursement of the costs incurred as a result of this from the Purchaser. 
(7) If the subsequent performance fails or a reasonable deadline which is to be set by the Purchaser for the subsequent performance has expired unsuccessfully or is not required according to the statutory regulations, the Purchaser can withdraw from the purchase contract or reduce the purchase price. However, no right of withdrawal exists in the case of an insignificant defect.
(8) Claims of the Purchaser for compensation or reimbursement of fruitless expenditure shall only exist in accordance with Section 8 and are excluded in other respects.

Section 8 Other liability
(1)  Unless something to the contrary emerges from these GTCs, including the following provisions, we shall be liable according to the relevant statutory regulations in the event of a breach of contractual and non-contractual duties. 
(2) We shall be liable to pay compensation – no matter on what legal ground – in the case of wilful intent and gross negligence. With ordinary negligence we shall only be liable 
a) for damages arising from loss of life, physical injury or harm to health,
b) for damages arising from the breach of an essential contractual duty (obligation which must be satisfied to enable the proper implementation of the contract in the first place and on whose satisfaction the contractual partner may regularly rely); but in this case our liability is limited to the reimbursement of the foreseeable level of damage which typically occurs.
(3)  The liability restrictions emerging from Par. 2 shall not apply to the extent that we have maliciously failed to disclose a defect or have provided a guarantee for the condition of the Goods. The same shall apply to claims of the Purchaser under the German Product Liability Act.
(4)  The Purchaser can only cancel or terminate the contract on account of a breach of a duty which does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to Sections 651, 649 of the German Civil Code) is excluded. In other respects, the statutory requirements and legal consequences shall apply.

Section 9 Statute of limitations
(1)  Notwithstanding Section 438 (1) No. 3 of the German Civil Code, the general statute of limitations for claims arising from defects of quality and title is one year from delivery. If an acceptance process has been agreed, the statute of limitations shall begin with the acceptance. 
(2) However, if the goods are a building or an object which has been used as a building in accordance with its normal use and which has caused its defectiveness (building material), according to the statutory regulation the statute of limitations is five years from delivery (Section 438 (1) No. 2 of the German Civil Code). Special statutory regulations for real claims for restitution of property of third parties (Section 438 (1) No. 1 of the German Civil Code), fraudulent intent of the vendor (Section 438 (3) of the German Civil Code) and for claims for recourse against suppliers for final delivery to a consumer (Section 479 of the German Civil Code) also remain unaffected. 
(3) The aforementioned statutes of limitations of the law governing purchases also apply to contractual and non-contractual claims for compensation of the Purchaser which are based on a defect to the Goods, unless the application of the regular legal statute of limitations (Sections 195, 199 of the German Civil Code) would lead to a shorter statute of limitations in an individual case. The statutes of limitations of the German Product Liability Act remain unaffected in any case. Otherwise the legal statutes of limitations shall apply exclusively to claims for compensation for damages of the Purchaser according to Section 8.

Section 10 Choice of law and jurisdiction
(1) The law of the Federal Republic of Germany applies; the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded. 
(2) If the Purchaser is a trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered place of business. However, we shall be entitled to institute legal proceedings at the Purchaser's general place of jurisdiction.