TERMS AND CONDITIONS OF SALE AND DELIVERY OF EXPRESSO Deutschland GmbH & Co. KG
- The following terms and conditions apply to our deliveries and services – insofar as the purchaser is an entrepreneur, a legal entity under public law or a special fund under public law. Any conflicting or deviating terms and conditions of purchase of the Purchaser shall not apply unless we have expressly agreed to them in text form in the individual case. The unconditional delivery of goods, performance of services or acceptance of payments by us shall not constitute any acknowledgement of deviating provisions.
- These terms and conditions shall also apply to all future deliveries to the customer.
- Our deliveries and services comply with the applicable German regulations and standards. We do not assume any liability for compliance with other national regulations (cf. clause 9).
- Insofar as necessary for business purposes, we are authorized to store and process the customer’s data digitally within the framework of the data protection laws (in particular § 28 BDSG).
2. Contract declarations
- Our offers are subject to change regarding price, quantity, delivery period and delivery possibility.
- Our order confirmation in text form shall be exclusively authoritative for the acceptance of the order, the scope of delivery and the delivery date.
3. Prices, terms of payment, set-off
- Our prices shall be understood in accordance with the terms of our price list valid at the time of conclusion of the contract, unless otherwise agreed. They shall apply “ex works” (EXW Incoterms 2010), i.e. plus freight, customs, import duties, insurance, value added tax and plus packaging. VAT will be charged by us at the rate applicable on the date of performance. Costs for installation, assembly or other services shall be invoiced by us on a time and material basis.
- Unless otherwise agreed, the customer shall pay the invoice amount to us 30 days after the invoice has been issued. Payments are to be made in Euro without any deductions. After expiry of this period, the purchaser shall be in default in accordance with § 286 Para. 2 No. 2 BGB (German Civil Code). Cheques are only accepted on account of performance, bills of exchange only on the basis of a special agreement. Bills of exchange and other charges shall be borne by the customer and are due for payment immediately.
- We may demand payment on account or advance payment, in particular if the customer is ordering from us for the first time, if the customer is domiciled abroad or if delivery is to be made abroad, or if there are reasons to doubt timely or full payment by the customer. If one of the above conditions occurs after conclusion of the contract, we shall be entitled to revoke agreed payment terms and to make payments due immediately.
- The Purchaser may only set off counterclaims which are undisputed or have been established by a court of law; this shall not limit its rights in respect of defects. The customer shall only be entitled to rights of retention insofar as they are based on the same legal transaction.
4. Time of performance
- The commencement of and compliance with the performance time specified by us shall be subject to the clarification of all technical issues and the timely and proper fulfillment of the Purchaser’s obligations.
- If an agreed date of performance is exceeded for reasons for which we are responsible, the customer shall grant us in writing a reasonable period of grace for performance. This period of grace shall be at least two weeks for standard products and six weeks for special constructions. If performance is not effected after expiry of the period of grace and if the customer therefore wishes to withdraw from the contract or claim damages in lieu of performance, he shall be obliged to notify us thereof in advance in text form with an express request for performance together with a further reasonable period of grace. At our request, the Purchaser shall be obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in performance and/or claim damages in lieu of performance or insist on performance.
- If the installation, assembly, or commissioning is delayed due to circumstances for which we are not responsible, the customer shall bear the reasonable costs for waiting time and any additional travel required by our assembly personnel.
5. Shipment and transfer of risk
- Our deliveries shall be made “ex works” (EXW Incoterms 2010). The risk of destruction, loss or damage of the goods shall pass to the customer upon loading in our warehouse or, if the goods cannot or are not to be shipped, upon dispatch of the notification of our readiness to deliver. This shall also apply if partial deliveries are made or if we have assumed other services such as transport or delivery and installation.
- If we have been commissioned with the delivery, we reserve the right to choose the shipping route and the shipping method. If customary in the trade, we shall deliver the goods packaged. We will provide packaging, protection and/or means of transport according to our experience at the expense of the purchaser. Additional costs caused by special shipping requests of the customer shall be borne by the customer. The same shall apply to increases in freight rates occurring after conclusion of the contract, any additional costs for rerouting, storage costs, etc., unless freight-free delivery has been agreed.
- Partial deliveries and corresponding settlements are permissible unless they are unreasonable for the purchaser.
- In the case of call-off orders, the goods shall be accepted in approximately equal monthly quantities, unless otherwise agreed. The total order quantity shall be deemed to have been called one month after expiry of the period agreed for the call, in the absence of such an agreement twelve months after conclusion of the contract. If the customer fails to classify the ordered goods within one month after the expiry of the period agreed for the classification at the latest, or, in the absence of such an agreement, within one month after our request at the latest, we shall be entitled to classify and deliver the goods at our discretion and at the customer’s expense.
- We shall be entitled to use subcontractors for the performance of our contractual services.
7. Force majeure
- In the event of force majeure, our delivery obligations shall be suspended; if there is a significant change in the circumstances existing at the time of conclusion of the contract, we shall be entitled to withdraw from the contract. The same shall apply in the event of energy or raw material shortages, labor disputes, official decrees, traffic or operational disruptions or if sub-suppliers do not supply us, do not supply us on time or do not supply us properly for the aforementioned reasons.
8. Retention of title
- Goods sold shall remain our property (“Reserved Goods”) until all claims arising from the business relationship have been satisfied.
- If goods subject to retention of title are processed by the customer, our retention of title shall extend to the entire new item. In the event of processing, combination or mixing with other items by the customer, we shall acquire co-ownership of the fraction corresponding to the ratio of the invoice value of our goods to that of the other items used by the customer at the time of processing, combination, or mixing.
- If the goods subject to retention of title are combined or mixed with a main item of the purchaser or a third party, the purchaser shall furthermore transfer to us already at this stage his rights to the new item. If the purchaser combines or mixes the reserved goods with a main item of a third party against payment, he hereby assigns to us his claims for compensation against the third party.
- The customer shall be entitled to resell goods subject to retention of title in the ordinary course of business. If the purchaser sells these goods on his part without receiving the full purchase price in advance or step by step against handover of the purchased goods, he shall agree a reservation of title with his customer in accordance with these conditions. The purchaser hereby assigns to us his claims arising from this resale as well as the rights arising from the retention of title agreed by him. At our request, he shall be obliged to inform his customer of the assignment and to provide us with the information and documents required to assert our rights against his customer. Despite the assignment, the customer shall only be authorized to collect the claims arising from the resale as long as he duly fulfills his obligations towards us.
- If the value of the securities provided to us exceeds our claims by more than 10 percent in total, we shall be obliged to release securities of our choice at the request of the Purchaser.
9. Rights of the purchaser in case of defects
- We only guarantee the conformity of the products delivered and services rendered by us with the applicable German regulations and standards. Execution shall be in accordance with the agreed technical regulations with tolerances customary in the industry. If the products are used abroad, the purchaser undertakes to check the conformity of the products with the relevant legal systems and standards himself and to make any necessary adjustments.
- The Purchaser may not assert any rights due to defects in our deliveries and services if the value or the suitability of the delivery and service is only insignificantly reduced.
- Insofar as the delivery or service is defective and the purchaser has complied with the inspection and notification obligations of § 377 of the German Commercial Code (HGB), we shall, at our discretion, make a subsequent delivery or rectify the defect (subsequent performance).
- The Purchaser shall grant us the opportunity to do so within a reasonable period of at least 20 working days.
- The customer may demand reimbursement of the expenses incurred for the purpose of subsequent performance, provided that the expenses are not increased by the fact that the subject matter of the delivery has subsequently been taken to a place other than the original place of delivery, unless the transfer is in accordance with its intended use.
- If the subsequent performance fails, the Purchaser may reduce the remuneration or withdraw from the contract. However, withdrawal from the contract shall only be permissible if the Purchaser first expressly threatens us with this in text form with a reasonable further period of grace.
- The Purchaser shall only have a right of recourse against us pursuant to Section 478 of the German Civil Code (BGB) to the extent that the Purchaser has not entered into any agreements with its customers exceeding the scope of the statutory claims for defects.
10. Liability for damages
- Unless otherwise provided for in the following, any claims of the Purchaser exceeding the provisions of Clause 9 shall be excluded, irrespective of the legal grounds on which they are based. We shall therefore not be liable for any damage not caused to the goods themselves; in particular, we shall not be liable for loss of profit or for any other financial loss suffered by the customer. Insofar as our contractual liability is excluded or limited, this shall also apply to the personal liability of employees, representatives, and vicarious agents.
- The above limitation of liability shall not apply insofar as the cause of the damage is based on intent or gross negligence, personal injury is involved, a claim for damages exists under the Product Liability Act or insofar as we have assumed a guarantee.
- In the case of negligently caused damage to property and financial loss, we (and our vicarious agents) shall only be liable in the event of a breach of a material contractual obligation, but limited in amount to the damage foreseeable at the time of conclusion of the contract and typical for the contract; material contractual obligations are those whose performance characterizes the contract and on which the customer may rely.
- In all other respects our liability for damages is excluded.
- The assignment of the claims of the purchaser regulated in clauses 9 and 10 is excluded. § 354 a HGB remains unaffected.
- The period of limitation for the claims regulated in clauses 9 and 10 shall be one year. This shall not apply in the cases of clause 10 para. 2 (liability in the event of intent, gross negligence, personal injury and under the Product Liability Act) and insofar as longer periods are prescribed by law in accordance with § 438 para. 1 no. 2 BGB (buildings and things used for a building), § 479 para. 1 BGB (right of recourse) and § 634a para. 1 no. 2 BGB (defects of a building) or in other cases.
12. Product specifications
- Our “general technical information” in the manual, which we will be pleased to send to the purchaser on request, shall apply to the designs of all our products. The customer is obliged to check our products and services for their suitability for the intended use himself.
13. Place of jurisdiction, choice of law, effectiveness clause
- If the purchaser is a merchant, a legal entity under public law, or a special fund under public law, the parties agree that the place of jurisdiction shall be the registered office of EXPRESSO Deutschland GmbH & Co. KG. If we file a lawsuit, the general place of jurisdiction of the purchaser shall also apply.
- The law of the Federal Republic of Germany applies to all legal relationships between the purchaser and us.