For sale and supply, installation and commissioning, as well as after sales services of ERC Emissions-Reduzierungs-Concepte GmbH ('ERC')
- The following terms and conditions of business apply exclusively for all business with the customer. They apply for business with companies, legal persons under public law, and legal entities under public law. Contradictory general terms and conditions of the customer shall only apply if this has been expressly confirmed in writing.
- These terms and conditions also apply without express agreement for all future business between the parties, even if ERC provides a delivery or service while fully aware of conditions of the customer which are contradictory to or deviating from its contractual conditions.
- Insofar as the written form is required in these conditions, this requirement is fulfilled via fax or electronic data transfer.
2. Offers and prices
- ERC's offers are non-binding, insofar as nothing different has been expressly agreed upon.
- All prices are to be understood as net prices without a cash discount or other rebates, with delivery ex works, plus the legally stipulated value-added tax. Additional services (e.g. import costs) and any other costs (e.g. transport or packaging costs, loading, freight fees, and customs fees) shall be borne by the customer, insofar as nothing different has been agreed upon.
- Insofar as ERC assumes the installation or commissioning, or provides after sales services (Article 5), remuneration shall be provided as agreed upon by the parties. If the amount of the remuneration has not been agreed upon between the parties, it shall be based on the expenditures according to the valid charge rates of ERC. In addition to the remuneration, the customer shall bear all additionally accruing costs, such as travel, accommodation, and transport costs. ERC shall choose the best suitable transport, haulage, and accommodations according to its own discretion. Should remuneration based on hours be agreed upon between the parties, the travel time of ERC personnel shall apply as working time.
- ERC shall only provide a cost estimate for installation and commissioning or after sales services on express request. It is non-binding for ERC. ERC assumes no guarantee for the correctness of the cost estimate.
- The indicated prices are based on the valid material costs and hourly wages at the time of the order confirmation. If there are changes to these cost bases between the time of the order confirmation and the agreed delivery date, ERC is entitled to make an appropriate price adjustment after the lapse of four weeks following order confirmation. ERC shall furnish the customer with proof of the changes to the costs bases on request. If this should lead to a price increase, which does not significantly exceed the increase in general living costs or the increase in prices for equivalent products during the same period, the customer shall not be entitled to cancel the contract. A cancellation must be declared immediately after notification of the price increase by means of a written letter (with reply advice). Otherwise, the cancellation is invalid. It is also invalid if ERC immediately declares after receipt of the cancellation that ERC shall adhere to the originally agreed prices for the execution of the contract.
- If the performance should take place more than four months after the conclusion of contract, and ERC's list prices have changed in the meantime, ERC shall be entitled to demand prices which are changed corresponding to the change of the list prices in percentage instead of the agreed prices without entitling the customer to a right of cancellation, unless something different has been agreed upon ahead of time.
3. Conclusion of contract and contractual content
- The contract is concluded once ERC has confirmed the purchase order and/or order for the installation and commissioning or after sales services or the delivery or service has been carried out. Any request by ERC for the return of a copy of the signed order confirmation only takes place for the purpose of improved verifiability.
- The written order confirmation of ERC is definitive for the type and scope of ERC's duties, insofar as the customer does not immediately object to the contents of the order confirmation on receipt.
- Insofar as no limitations have been defined for permissible deviations in the order confirmation, and none arise from expressly recognised order specifications, deviations in line with the industry standard shall be permissible. A guarantee (Article 443 of German Civil Code) is only assumed by ERC if it has been expressly identified as such in writing.
- Insofar as the liability between the parties has not been expressly agreed upon in writing, the following applies: Information about the processing and application possibilities of ERC products, technical advice, and other information are provided according to the best knowledge, but shall remain non-binding and to the exclusion of any liability, unless ERC should act in a grossly negligent manner. Examples and samples are only provided as approximations with respect to analyses and properties and apply as non-binding.
- Export law provisions:
a.) If a required export approval is not issued or the requirements for an already issued export approval are subsequently no longer fulfilled for reasons for which ERC is not responsible, or if the customer is listed on a national or international sanctions list, or is listed there after the conclusion of contract, ERC shall be entitled to a right of withdrawal or cancellation. The customer shall immediately inform ERC in writing about any relevant circumstances in this connection. The scheduling shall be delayed in a reasonable manner in proportion to the temporal delay arising from the subsequent review of the requirements.
b.) If ERC should exercise its right of withdrawal or cancellation in accordance with Article 3.5(a), the customer shall be liable for all direct and indirect damages (including loss of profit, monetary fees, costs of legal defence, etc.) which ERC incurs as a result of the premature termination of contract. In this case, the customer is not obligated to provide service in return and shall receive a refund of payments which it has furnished, insofar as ERC has not offset said payments with any counterclaims; the customer shall not be entitled to any further claims against ERC, particularly damage claims.
c.) The contractual subject matter provided by ERC is intended to remain in the destination country agreed upon with the customer. The customer is obligated to observe that the re-export of the subject matter of the contract is subject to the foreign trade and export inspection regulations of the Federal Republic of Germany, of the destination country, and, if applicable, other countries, and can then be subject to approval for the customer. It is incumbent on the customer to learn about the applicable foreign trade law in the individual case and to apply for and pursue the necessary approvals on their own account.
d.) The customer is solely responsible for observance of all import and approval regulations, as well as for the acquisition of any required technical approvals or operating or type approvals, etc., with respect to the contractual subject matter in countries outside of Germany. The non-issuance of permits, approvals, etc., which may be necessary for use of the goods outside of Germany shall not be considered deficiencies or grounds for cancellation or refutation for the customer. However, on request, ERC will support the customer in acquiring such approvals, etc. by providing documentation for the contractual subject matter; all costs arising in this connection (e.g. for translations, authentications, etc.) shall be borne by the customer.
4. Terms of payment
- The purchase price and/or remuneration is due within 14 days of the date of invoice.
- If payment periods are not observed, ERC shall charge interest amounting to eight (8) per cent above the respective basic interest rate of the European Central bank per annum, unless ERC proves that it has incurred higher damages.
- With reservation of other claims, ERC has the right to demand payment in advance or provision of securities and to delay the fulfilment of its duties until such demands are met, if ERC should become aware of a situation in which the reliability of the customer, particularly their ability to make payments, is called into question after the conclusion of contract. ERC is entitled to withdraw from the contract if the customer provides false information about its creditworthiness or the customer's creditworthiness is not objectively satisfactory according to reliable information. Claims for indemnification of the customer based on withdrawal are excluded.
- The customer is not entitled to reduce the claims of ERC with counterclaims or to assert a right of retention unless the counterclaims or right of retention are recognised by ERC or have been determined to be legally valid.
5. After sales services
- After sales services are all performances which ERC offers via its customer service for follow-up product support, particularly installation, commissioning, maintenance, repairs, installation of replacement equipment and spare parts, as well as consultation.
- Offers, prices, and payment:
a.) The customer shall bear all costs for replacement equipment, spare parts, packaging, and the transport and insurance of materials.
b.) After provision of service, the ERC service shall present the customer with an itemisation of the hours worked and the materials used (work report). Confirmation of this work report by the customer is binding for the customer.
c.)If an order is cancelled or cannot be carried out on grounds for which ERC is not responsible, the customer must nevertheless bear the expenses proportional to the services rendered and the costs incurred. This applies especially if errors which have been objected to should fail to occur in inspection, if the order should be cancelled by the customer, or if necessary parts cannot be acquired within a reasonable period.
d.) If the customer should cancelled an agreed service appointment within three (3) work days of the agreed appointment, or the customer misses an agreed appointment, the customer shall be obligated to pay a flat rate of 30% of the order value, unless the customer is not responsible for this. Further damage claims of ERC remain unaffected.
- Contents and scope of the service contract:
a.) ERC is entitled to commission third parties with the provision of after sales services.
b.) ERC reserves the right to provide additional services not provided in the order, if this is in the interest and the actual or presumed will of the customer. ERC shall always strive to obtain customer approval prior to providing services exceeding the commission.
c.) ERC service personnel may only issue legally-binding statements for ERC in the scope of the issued service order.
- Duties and obligations of the customer:
a.) The client shall provide the service personnel with the equipment, materials, personnel, and devices, as well as sanitary facilities which are necessary for the provision of services. Costs arising from a failure to meet this obligation shall be borne by the customer.
b.) The customer shall provide the service personnel with suitable facilities for safe storage of supplied parts and tools of the service personnel, in particular. The customer is responsible for the security of the workplace, observance of safety regulations, and appropriate working conditions. The service personnel must be notified of the special regulations in the customer's operations. Internal approvals, authorisations, and identification cards shall be provided by the customer at its own expense.
c.) The services must be accepted by the customer immediately after notification of their completion. If the customer fails to accept the services within a period of three (3) days of notification of completion for reasons for which ERC is not responsible, the services shall apply as accepted.
- Insofar as nothing different is regulated in this Article, the remaining provisions of these General Terms and Conditions shall also apply for after sales services.
- If and insofar as agreed upon, Incoterms 2010 shall apply.
- The choice of the means and type of shipment shall be made by ERC. ERC shall strive to take into account the requests of the customer; additional costs arising in this connection shall be borne by the customer.
- The dates or periods mentioned by ERC are always non-binding, unless they are expressly identified as binding in the order confirmation. Fixed dates must be specifically identified as such with a corresponding suffix. Periods begin after provision of the agreed payments and receipt of all order documentation and unobjectionable clarification of all details of the order, as well as the provision of necessary official certifications, if applicable. Retroactive contractual changes shall result in a reasonable rescheduling of dates. Dates and periods for installation and commissioning shall also remain subject to the fulfilment of the obligations of the customer as identified in Article 10.
- Two weeks after a non-binding date or a non-binding period has passed, the customer can issue a written demand for provision of delivery or installation by ERC within a reasonable period. After the lapse of this delivery period, ERC shall enter into default unless ERC is not responsible for the non-performance.
- ERC is entitled to provide partial deliveries and can bill these deliveries separately.
- The definitive dimension and weight specifications for the pricing relate to the delivery locations of the factories of ERC. If the customer should request an official railway weighing at the station of departure, this shall take place at the customer's expense.
- ERC's contractual obligation is suspended in cases of force majeure (particularly operational or traffic disruptions, shipping disturbances, technically-based operational interruptions, war, strikes, lockouts, insufficient supply of operating materials, official measures, and comparable events), insofar as ERC is not responsible for them, as well as in the case of the non-supply, incorrect supply, or late supply of ERC itself, for which it is not responsible. ERC shall immediately inform the customer about the unavailability of the service. In these cases, ERC is entitled to delay the performance for the duration of these events, however not longer than four months. In the case of a permanent default in performance or for longer than four months, ERC is entitled to partial or complete withdrawal from the contract. In case of a (partial) cancellation, the customer shall not be obligated to provide (proportional) service in return and shall immediately receive a refund of the (proportional) payments rendered; the customer shall not be entitled to damage claims from the cancellation.
- The customer is liable for damage or loss of the packaging which has been transferred to them, or a third party which they have designated, starting on the day of shipment until the day of return to the address specified by ERC. The customer must empty packaging immediately, within 48 hours, and immediately return it to the return address in clean condition, freight paid, and exempt from charges.
- In the event of a delayed return for which the customer is responsible, the customer must pay for the demurrage or delay charges, and rent for packaging. ERC is entitled to initiate repair of packaging at the customer's expense if the customer is responsible for the damage. Additional claims of ERC remain unaffected.
- In the case of customer-provided packaging, particularly containers, tank cars, and road tankers, ERC shall not be obligated to inspect said containers for suitability and cleanliness.
Transfer of risk / default in acceptance
- All sales are quoted ex works.
- Shipping and transport always take place at the customer's risk The risk transfers to the customer, even with partial deliveries, no later than the time at which the shipment has been handed over to the transport person - regardless of whether it relates to goods belonging to ERC companies or a third party - or has left the ERC factory for the purpose of shipment. The transfer of risk also takes place in case of a default in acceptance on the part of the customer.
- If the customer enters into default of acceptance, ERC is entitled to demand compensation for the additional costs which it has incurred as a result thereof. Any damage claims of ERC due to culpable (additional) breaches of duty on the part of the customer remain unaffected.
- Article 9.3 applies accordingly for no calling for delivery on a timely basis, insofar as delivery on call has been agreed upon, as well as in the case of an omission of the duty of cooperation on the part of the customer.
- ERC shall only be liable for intent and gross negligence during the default in acceptance.
- If ERC should continue to store the contractual subject matter at the request of the customer after the delivery date, the transfer of accidental loss and accidental worsening of the contractual subject matter transfers to the customer on the originally agreed acceptance date. ERC shall only be liable for intent and gross negligence during storage period.
10. Installation and commissioning
- If ERC should assume the installation and commissioning of the contractual subject matter, the customer is obligated to carry out the necessary preparatory measures on a timely basis and at their own expense. In particular, the customer must carry out and ensure the following:
a.) all preparatory and extra work which are outside the respective industry, such as structural, excavation, foundation, masonry, and breaking work;
b.) the supply of the installation location with power, water, lighting, heating, computer connections, and network supply lines;
c.) the availability of articles and materials such as scaffolding, lifting vehicles, fuels, lubricants, and suitable personnel for the unloading of the contractual subject matter and transport on the customer's company grounds;
d.) the availability of suitable rooms for safe storage, particularly of supplied parts and tools of the installation personnel, as well as suitable work and rest areas and sanitary facilities for the installation personnel.
- The customer is responsible for the safety of the installation location and the observance of safety regulations. The customer shall provide the installation personnel, with any necessary protective equipment and clothing. In addition, the customer must notify the installation personnel of special dangers and regulations in the customer's operations and provide the necessary company-internal approvals, authorisations, and identification cards at their own expense.
- The customer shall, without the need for a reminder, provide all necessary information for the structural engineering and concealed water, power, and gas lines, as well as similar systems prior to the beginning of installation.
- The installation location must be in appropriate, installation-ready condition by the agreed time of the beginning of installation. All necessary preliminary work must have been concluded to the extent that installation can commence and be carried out without interruption; the installation location must be paved, cleared, and accessible.
- Costs which arise due to the non-observance of the duties specified in this Article for which the customer is responsible shall be borne by the customer.
- ERC is entitled to commission third parties with the installation and commissioning work.
- Article 5.2(c) (discontinuation or infeasibility of an order) and Article 5.2(d) (cancellation of an appointment) apply accordingly.
11. Retention of title
- All delivered products remain the property of ERC (goods subject to retention of title) until the customer has provided payment in full for all existing claims or claims arising after the conclusion of contract from the business relationship with ERC.
- The customer is obligated to handle the goods subject to retention of title with care. For the duration of the retention of title, the customer is entitled to the possession and use of the goods subject to retention of title as intended.
a.) Processing or reworking of the goods subject to retention of title shall take place on behalf of ERC as the manufacturer in the sense of Article 950 of German Civil Code, without ERC undertaking any duties. Processed and reworked goods apply as goods subject to retention of title. In the event of processing, reworking, and combination of the goods subject to retention of title by the customer with goods of other origins to create a new item and/or a mixed composition, ERC is entitled to co-ownership proportional to the invoice value of the goods subject to retention of title at the time of the delivery in relation to the value of the other reworked and/or combined goods. The co-ownership share applies as goods subject to retention of title.
b.) If the goods subject to retention of title are combined with other items and an item belonging to the customer should be considered the main item in the sense of Article 947 of German Civil Code, it is hereby already agreed that a co-ownership which is proportional to the invoice value of the goods subject to retention of title to the value to of the main item shall transfer to ERC and the customer shall store the item for ERC free of charge. The co-ownership share applies as goods subject to retention of title.
- The customer must store the goods subject to retention of title for ERC free of charge. On request, ERC must be allowed to inspect the goods at the storage location at any times and ensure sufficient identification. The customer must immediately notify ERC of seizures or other infringements on ERC's rights by third parties with specification of all details which enable ERC to take counteractive measures with all legal means.
- The customer may only sell the goods subject to retention of title in the course of normal business according to their normal conditions and in agreement of a retention of title, if it has been assured that the customer's claims from the sale shall transfer to ERC in accordance with Article 11.4:
a.) The customer hereby assigns the claims from the sale of goods subject to retention of title (also in the scope of service contracts or contracts for work and materials) with all ancillary rights to ERC. They serve in the same scope for ERC's security for the goods subject to retention of title.
b.) The customer is only permitted to assign the claims from the sale of goods subject to retention of title to third parties with the prior written approval of ERC.
c.) If the customer sells the goods subject to retention of title together with other goods not supplied by ERC, the assignment of the claim from the sale shall only apply for the amount of the invoice value of ERC's goods subject to retention of title at the time of delivery. With the sale of goods of which ERC is a co-owner in the sense of Article 11.2(a) or 11.2(b), the assignment of claims in the amount of this share of co-ownership shall apply.
d.) If the assigned claim is incorporated in an account current, the customer hereby assigns a part of the balance corresponding to the amount in accordance with this claim, including the final balance from the account current, to ERC.
e.) Until cancelled, the customer is entitled to collect claims from the sale of the goods subject to retention of title.
- If the customer should fail to fulfil their duties from this contract or other contracts with ERC, or ERC should become aware of circumstances which cast the customer's creditworthiness in doubt, ERC may:
a.) withdraw from the contract after the lapse of an unsuccessful grace period; then the right of the customer to possession of the goods subject to retention of title is voided and ERC can demand the handover of the goods subject to retention of title;
b.) prohibit the sale, processing and reworking, as well as mixture or combination of goods subject to retention of title;
c.) have the customer specify the names of debtors of the claims assigned to ERC
d.) revoke the issued collection authority.
Further claims of ERC, particularly for damages, remain unaffected.
- ERC is obligated, at the request of the customer, to release existing securities, insofar as the current value exceeds the overall amount of claims of ERC by more than 20 %.
12. Duty of inspection and to give notice of defects
- The customer must carefully inspect the delivered goods immediately upon arrival at the destination, particularly in regard to the condition and quantity, even if samples or prototypes had been sent in advance. In the case of installation and commissioning of the contractual subject matter by ERC, the customer must immediately inspect the installed contractual subject matter for visible defects after being notified of completion by ERC; this applies accordingly for after sales services and installation and commissioning. The customer must report visible defects to ERC immediately, however within 10 days after delivery and/or completion at the latest. The customer must notify ERC of concealed defects in writing immediately, however no later than 7 days after discovery of the defect. In the event of a breach of this duty to give notice, the assertion of claims for defects is excluded in this respect.
- On request ERC must be provided with samples of the objectionable material immediately. In the negotiations over complaints, ERC shall not refrain from the objection that the notice of defects was not timely and/or not sufficient.
- Transport damages must be shown to the freight carrier immediately; in this respect, the duties of notification of the General German Freight Carrying Conditions (ADSp) shall apply.
13. Material and work defects
- Insofar as there is a defect and notice of said defect has been given in good time in the sense of Article 12.1, ERC is entitled, according to its own discretion, to carry out subsequent fulfilment in the form of rectification of defects or the delivery of the contractual subject matter free from defects within a reasonable period. If the subsequent fulfilment should be unsuccessful, the customer shall be entitled, according to their own discretion, to a lowering of the remuneration (reduction) or to demand cancellation of the contract (withdrawal). The customer shall not be entitled to a right of withdrawal in the case of insignificant defects.
- ERC shall bear the necessary expenses for subsequent fulfilment. Excluded from this are such objections which arise due to a removal or installation of the defective contractual subject matter.
- In addition, such objections which are raised as a result of the relocation of the contractual subject matter to a different location than the main subsidiary of the customer shall not be accepted by ERC. The same also applies if ERC provides delivery directly to a third party at the request of the customer.
- For damage claims of the customer on the basis of or in connection with defects of the contractual subject matter or its installation, ERC shall be liable exclusively according to the stipulation of Article 14.
- The customer's claims for defects are excluded insofar as the defects are in a causal connection such that:
a.) the customer has not given notice of them on a timely basis in the sense of Article 12.1 and immediately given ERC the opportunity for rectification of defects;
b.) the contractual subject matter has been handled improperly,
c.) if the customer fails to refute a substantiated assertion on the part of ERC that one of these circumstances has caused the defect.
- All of the customer's claims for defects shall expire within one year, calculated from the beginning of the statutory period of limitation. This does not apply if ERC has fraudulently concealed the defects, as well as for the mandatory liability of ERC for compensation for damages according to the stipulation of Article 14. Agreements between the customer and their customers, which extend beyond the legal claims for defects, shall not be borne by ERC.
- The customer is obligated at ERC's request to initially pursue all claims towards ERC's suppliers which come into consideration. For this purpose, ERC is obligated to assign any warranty and replacement claims towards their suppliers to the customer. If laying claims to ERC's suppliers should not succeed, the customer shall be entitled to make demands on ERC according to the stipulation of these terms and conditions, insofar as the customer then transfers the claims assigned to the customer back to ERC.
- Insofar as it is later revealed that there is not material or work defect, the customer is obligated to provide compensation for the services rendered by ERC for the purpose of subsequent fulfilment in accordance with respective valid cost rates of ERC.
- Damage claims of the customer, regardless of the legal grounds on which they are based, e.g. default, deficient supply or service, breach of duties from a contractual obligation or of duties in contractual negotiations, tortious acts - are excluded, insofar as liability is not mandatory; this is the case, for instance with injury to the life, limb or health, as well as with intent, gross negligence or a breach of significant contractual duties, the fulfilment of which is required for the proper execution of the contract and the observance of which the customer may normally have faith in, by ERC, its legal representatives or vicarious agents, and additionally for the liability in accordance with the German Product Liability Act, insofar as ERC has expressly provided a guarantee (Article 443 of German Civil Code) in writing for the condition of an item or assumed a procurement risk. A change to the burden of proof to the detriment of the customer is hereby not associated.
- The liability of ERC in case of gross negligence or a culpable breach of significant contractual duties is limited to the foreseeable damages typical for the type of contract.
- ERC is not liable, in particular, for damages which arise due to an improper use of the contractual subject matter by the customer.
- Insofar as the liability in accordance with the above provisions is limited, this shall also apply for the personal liability of employees, wage earners, staff members, representatives, and vicarious agents of ERC.
- Furthermore, ERC is not liable for gross negligence of its simple vicarious agents, insofar as it does not involve a breach of significant contractual duties in the sense of Article 14.1; without prejudice to any liability of ERC for organisational negligence according to the stipulation of Article 14.
- The customer is obligated to provide ERC with immediate notification in writing with respect to damages and losses for which ERC is responsible.
15. Intellectual property
- ERC is and shall remain the owner of all intellectual property rights to the sold goods, to all software programs (including script), software components, offers, costs recommendations, drawings, figures, brochures, catalogues, models, and/or other documentation handed over to the customer by ERC. Insofar as the goods sold by ERC include software programs (including script) or software components or software programs (including script) or software components are sold together with goods, ERC grants the customer a simple, worldwide right to use this software program (including script) and/or software component with the sold goods without time limitation. The customer is not entitled to an editing or further development right to this software program and/or the software components (including script) beyond the scope of Article 69d or Article 69e of the German Copyright Act.
16. Legal venue / applicable law / miscellaneous
- The place of fulfilment and legal venue are the location of the registered office of ERC. ERC is also entitled to take legal action against the customer before any other legally responsible court.
- The contractual relationship and any associated actions in tort are exclusively subject to German law to the exclusion of the Viennese United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG).
- Transfers of rights and duties of the customer from the contract require the written approval of ERC.
- ERC is entitled to use data of the goods and payment traffic with the customer in observance of data privacy regulations.
- All agreements must be made in writing, insofar as a more stringent form is not required by law. Changes and supplements to these General Terms and Conditions, including this written form clause, also require the written form for their validity. The same applies for side and supplementary agreements.
- Insofar as one or multiple provisions of these General Terms and Conditions should be or become invalid or infeasible, the validity of the remaining provisions remains unaffected.
Version: 01 October 2011