General Terms and Conditions

GTC

ErgoTek GmbH & Co KG
Status 04/2023

§ 1 Validity of the conditions

1. The deliveries, services and offers of the seller are made exclusively on the basis of these terms and conditions. These shall therefore also apply to all future business relationships, even if they are not expressly agreed again. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods or services. Counter-confirmations of the buyer with reference to his terms and conditions of business or purchase are hereby rejected.
2. Deviations from these terms and conditions are only effective if the seller confirms them in writing.

§ 2 Offer and conclusion of contract

The seller’s offers are subject to change and non-binding. Declarations of acceptance and all orders must be confirmed by the seller in writing or by telephone in order to be legally valid. The same applies to additions, amendments or ancillary agreements.

§ 3 Prices

1. Unless otherwise stated, the Seller shall be bound by the prices contained in its offers for thirty days from their date. The prices stated in the seller’s order confirmation plus the respective statutory value added tax shall apply. Additional deliveries and services shall be invoiced separately.
2. Unless otherwise agreed, prices are quoted free station or ex works including delivery. normal packaging.

§ 4 Delivery time

1. Delivery dates or deadlines, which can be agreed as binding or non-binding, must be in writing.
2. In the event of force majeure and other unforeseeable, extraordinary circumstances for which the Seller is not responsible – e.g. difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of means of transportation, official interventions, energy supply difficulties, etc. – even if they occur with upstream suppliers – the delivery period shall be extended to a reasonable extent if the Seller is prevented from fulfilling its obligations on time. The seller is entitled to withdraw from the contract in whole or in part due to the part not yet fulfilled. If the delay in delivery lasts longer than three months, the buyer is entitled to withdraw from the contract. If the delivery time is extended or if the seller is released from the delivery obligation, the buyer cannot derive any claims for damages from this. The seller can only invoke the aforementioned circumstances if he notifies the buyer immediately.
3. The seller is entitled to make partial deliveries and render partial services at any time.

§ 5 Packaging

1. Packaging, protective and transportation aids will not be taken back unless otherwise agreed.
2. Returnable packaging should be returned carriage paid to the seller’s address immediately after becoming available, but no later than six weeks. After expiry of the loan period, the seller is entitled to charge for the loaned packaging at the replacement value. The returnable packaging must be stored in such a way that no damage occurs.

§ 6 Shipment and transfer of risk

1. In the absence of a special agreement, the shipping route and the means of shipment shall be left to the seller’s choice.
2. The risk shall pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transportation or has left the Seller’s works for the purpose of shipment, irrespective of whether the shipment is made from the place of performance and irrespective of who bears the freight costs. If the goods are ready for shipment and shipment or acceptance is delayed for reasons for which the supplier is not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for shipment.

§ 7 Excess or short deliveries

The seller reserves the right to make excess or short deliveries for special settings of its products for technical formulation reasons.

§ 8 Warranty and notice of defects

1. Information on percentage contents or mixing ratios for the individual products should only be regarded as approximate mean values. We expressly reserve the right to deviations within the error limits possible in each individual case, which are unavoidable despite all care taken in the manufacture of the goods. The seller’s reference sample shall be authoritative for the assessment of the delivered goods; minor deviations shall not constitute grounds for complaint. The recipient is obliged to satisfy himself of the suitability of the goods by means of a preliminary test before using them.
2. Obvious defects must be reported in writing within a preclusive period of eight days after receipt of the goods. Defects that cannot be discovered within this period, even after careful inspection, must be reported to the seller in writing immediately after discovery.
3. In the event that the Buyer notifies the Seller that the Products do not comply with the warranty, the Seller shall, at its option, require that:
   a) the defective part is sent to the seller for repair and subsequent return;
   b) the buyer keeps the defective part ready and the seller carries out the repair at the buyer’s premises.
   If the Buyer requests that warranty work be carried out at a location specified by him, the Seller may comply with this request, whereby parts covered by the warranty shall not be invoiced, while working time and travel expenses shall be paid at the Seller’s standard rates.
4. If the rectification of defects fails after a reasonable period of time, the buyer may, at his discretion, demand a reduction in the price or rescission of the contract.
5. If the buyer proves damage caused by quality defects in the delivered goods, the maximum amount of the damage incurred shall be the purchase price attributable to the quantity of product consumed and delivered by the seller.
6. The Buyer shall be responsible for compliance with statutory and official regulations when using the Seller’s goods.
7. Liability for normal wear and tear is excluded.
8. Warranty claims against the seller are only available to the direct purchaser and are not transferable.
9. The above paragraphs conclusively contain the warranty for the products and exclude other warranty claims of any kind. This does not apply to claims for damages arising from warranties of quality which are intended to protect the buyer against the risk of consequential damages.

§ 9 Retention of title

1. Until the fulfillment of all claims (including all current account balance claims) to which the seller is entitled against the buyer now or in the future for any legal reason, the seller shall be granted the following securities, which he shall release on request at his discretion, insofar as their value exceeds the claim by more than 20% on a sustained basis.
2. The goods shall remain the property of the seller; processing or transformation shall always be carried out for the seller as manufacturer, but without any obligation for him. If the (co-)ownership of the seller expires due to combination, it is hereby agreed that the (co-)ownership of the buyer in the uniform item shall be transferred to the seller in proportion to the value (invoice value). The buyer shall store the (co-)ownership of the seller free of charge. Goods to which the buyer is entitled to (co-)ownership are hereinafter referred to as reserved goods.
3. The buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges and transfers of ownership by way of security are not permitted. The Buyer hereby assigns to the Seller in full by way of security any claims arising from the resale or any other legal grounds (insurance, tort) in respect of the reserved goods (including all current account balance claims). The seller revocably authorizes him to collect the claims assigned to the seller for the seller’s account in his own name. This direct debit authorization can only be revoked if the buyer does not properly meet his payment obligations.
4. In the event of access by third parties to the goods subject to retention of title, the Buyer shall draw attention to the Seller’s ownership and inform the Seller immediately.
5. In the event of breach of contract by the Buyer – in particular default of payment – the Seller shall be entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the Buyer’s claims for restitution against third parties. The taking back and planning of the reserved goods by the seller does not constitute a withdrawal from the contract, unless the Instalment Purchase Act applies.

§ 10 Payment

1. Unless otherwise agreed, the Seller’s invoices shall be payable without deduction within 30 days of invoicing.
2. When offsetting credit notes, the credit note amount must first be deducted from the invoice amount to be settled before any cash discount reductions and the cash discount amount only calculated from the remainder.
3. The seller expressly reserves the right to refuse bills of exchange. Acceptance is only on account of payment. Discount and bill charges shall be borne by the buyer and are due immediately.
4. Payment shall only be deemed to have been made when the seller can dispose of the amount. In the case of bills of exchange and checks, payment shall not be deemed to have been made until the bill of exchange or check has been cashed.
5. If the target is exceeded, 5% interest p.a. will be charged if the buyer is a merchant.
6. If the Buyer is in default, the Seller shall be entitled to charge interest from the relevant date at the interest rate charged by commercial banks for open overdraft facilities plus the statutory value added tax. They are to be set higher or lower if the seller provides evidence of a higher interest rate or the buyer provides evidence of a lower interest rate.
7. If the Buyer fails to meet its payment obligations or if the Seller becomes aware of other circumstances that call the Buyer’s creditworthiness into question, the Seller shall be entitled to declare the entire remaining debt due and payable, even if it has accepted bills of exchange or checks. In this case, the seller is also entitled to demand advance payments or security deposits.
8. The purchaser shall only be entitled to offset, withhold or reduce payment, even if charges for defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed.

§11 Limitation of liability

Claims for damages arising from impossibility of performance, from positive breach of contract, from culpa in contrahendo and from tort are excluded both against the seller and against his vicarious agents, unless intentional or grossly negligent action is involved.

§12 Place of performance, place of jurisdiction and partial invalidity

1. The place of performance for deliveries and payment is Ruppichteroth.
2. The place of jurisdiction for all disputes arising between the parties from the contractual relationship is Siegburg for both parties, insofar as the buyer is a registered trader, a legal entity under public law or a special fund under public law.
3. Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.