§ 1 Scope(1) These General Business Terms and Conditions (German abbreviation: AGB) shall apply to all business relationships between ETN Elastomer-Technik Nürnberg GmbH (hereinafter: "ETN") with its customers (hereinafter: "Orderer"). The General Business Terms and Conditions shall only apply if the Orderer is an entrepreneur (Section 14 German Civil Code [Bürgerliches Gesetzbuch - BGB]), a legal entity under public law or a special fund under public law.
(2) The following terms and conditions shall apply both to current as well as to future business, with which reference has not explicitly been made hereto. Insofar as not otherwise agreed the General Business Terms and Conditions shall apply in the version that is valid at the time of the Orderer’s order respectively in any case in the version last communicated to it in a text form as a framework agreement also for similar future contracts, without ETN having to refer hereto again in each individual case.
(3) The inclusion of the General Business Terms and Conditions of the Orderer is explicitly objected to. Business Terms and Conditions of the Orderer shall only apply if they have been explicitly recognised by ETN. This approval requirement shall apply in all cases, for example also if we carry out the service to it without reservation in the knowledge of the Orderer’s General Business Terms and Conditions.
(4) Individual agreements reached with the buyer in an individual case shall in any case have precedence over these General Business Terms and Conditions.
§ 2 Conclusion of contract(1) The prerequisite for the conclusion of a contract between the Orderer and ETN in the event of an order via the web-shop of ETN is the registration of the Orderer in the web-shop of ETN and a price enquiry, insofar as a requested product is to be ordered in a certain number of units for the first time. An order in the web-shop of ETN is not possible without this procedure. A price enquiry is also necessary in the event of an order by fax or email, insofar as a requested product is to be ordered in a certain number of units for the first time. With an order by telephone a binding price can be communicated to the Orderer and the order can be accepted directly.
(2) In the event of an order via the web-shop, the Orderer can choose products from the range of ETN and collect these – after making a price enquiry – in a so-called shopping basket by clicking the button "place in the shopping basket". No purchase contract is concluded between the Orderer and ETN yet through this process. Via the button "send order" the Orderer submits a binding application for the purchase of the goods in the shopping basket. Before sending the order the Orderer can cancel the process at all times, change and view the data at all times. The application can, however, only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking of the button "accept General Business Terms and Conditions" and has filed its application hereby.
(3) ETN shall send the Orderer a confirmation of receipt by email with an order via the web-shop, in which the order will be carried out once again and which the Orderer can print out via the "print" function. This confirmation of receipt shall only confirm the receipt of the order by ETN and shall not constitute an order confirmation. With an order via the web-shop the contract shall only be concluded through the sending of the separate order confirmation by ETN.
(4) ETN reserves the right to also refuse an order. The acceptance of the order shall be carried out through an explicit declaration by ETN or by the delivery of the goods.
§ 3 Prices(1) All prices concern net prices without value added tax or shipping costs, insofar as not explicitly stated otherwise.
(2) The prices of ETN shall be deemed ex works excluding freight, customs duties, secondary import duties and packaging plus the value added tax valid at the time of the delivery if not otherwise agreed.
(3) In case of unforeseeable changes to the price-determining factors after conclusion of the contract, ETN will adjust the price in line with these changes at the time of the delivery/service. The adjustment will be made both by an increase as well as by a reduction in the price, whereby the amount of the change shall correspond with the percentage change in the price-determining factors. Should changes arise in the price-determining factors, ETN will notify the Orderer hereof without delay.
(4) In case of follow-up orders, ETN shall not be bound to previous prices.
§ 4 Terms of payment(1) All payments are to be made in EUR (EURO)
(2) The Orderer can make the payment by advance payment or on account. In case of payment by bank transfer the customer number as well as the invoice number are also to be cited.
(3) ETN is, however, also entitled at all times, within the scope of an ongoing business relationship, to only carry out a delivery against advance payment in full or in part.
(4) If not otherwise agreed the purchase price for deliveries or other services is payable without deduction within 30 days after invoicing and delivery. After expiry of this deadline the Orderer shall be deemed in default without the setting of a further deadline.
(5) If the agreed payment date is exceeded interest will be charged in the amount of the statutory interest of 9 percentage points p.a. above the respective base lending rate, insofar as ETN does not prove greater damages. The Orderer reserves the right to prove less damages. Moreover, ETN is entitled to payment of a flat rate amount of EUR 40.00, regardless of the amount in which a damage has actually been suffered.
(6) The Orderer can only offset or assert a right of retention if its claims are undisputed or have been declared final and binding. In the event of the existence of defects the buyer shall be entitled to a right of retention if the delivery is obviously defective or the buyer obviously has a right to refuse acceptance of the work. In such a case the buyer is, however, only entitled to retention insofar as the retained amount is reasonably in proportion to the defects and the expected costs of the subsequent performance, in particular the remedy of a defect.
(7) If it becomes recognisable after conclusion of the contract that ETN’s claim to the purchase price is jeopardised due to insufficient payment ability of the Orderer then ETN is entitled to refuse the service pursuant to the regulation of Section 321 BGB and - if applicable after setting a deadline - to rescind the contract.
(8) After the due date ETN can charge a cost flat rate in the amount of EUR 10.00 for each reminder. The Orderer reserves the right to prove towards ETN that less damages or no damages were suffered.
§ 5 Delivery provisions; delay in acceptance; call-off orders(1) Deadlines and dates for deliveries and services given as a prospect by ETN shall always only be deemed as approximate times, unless a fixed deadline or a fixed date has explicitly been promised or agreed. Insofar as shipment was agreed, delivery deadlines and delivery dates shall refer to the time of the hand-over to the carrier, freight forwarder or other third party commissioned with the transport. Incidentally, delivery dates within the meaning of these General Business Terms and Conditions are the dates, at which the goods are ready for collection.
(2) Deliveries shall principally only be carried out in their entirety. Partial deliveries shall only be carried out upon request. Reasonable deviations from the order up to plus/minus 10% are permitted; the price will be adjusted accordingly.
(3) Call-off orders shall principally have a term of one year, beginning on the day on which the order is accepted. If the Orderer does not fulfil its acceptance obligation until this time an extended deadline of four-weeks shall be set. ETN can sell the object of delivery on the free market after expiry of the deadline and after prior notification of the Orderer.
(4) Events of force majeure shall entitle ETN to postpone the delivery by the duration of the impediment and a reasonable lead-time or, with an impediment of not merely a temporary duration owing to the not yet fulfilled part, to rescind the contract in full or in part. Deemed equivalent to force majeure are strike, lock-out or unforeseeable, unavoidable circumstances, e.g. interferences to operation, which render the timely delivery impossible for ETN despite reasonable efforts; ETN shall provide proof hereof without delay. Also in particular deemed equivalent to force majeure are production delays / losses owing to insolvency administration (also in the event of the provisional insolvency administration) at the manufacturer of products for ETN. This shall also apply if the aforementioned impediments occur during a default or at a subsupplier. The Orderer can request ETN to declare whether it intends to rescind or intends to deliver within a reasonable extended deadline. If it does not make a declaration the Orderer can rescind the non-fulfilled part of the contract.
(5) If no samples of the product selected by the Orderer are available at the time of the order via the web-shop of ETN, by email or by fax ETN shall inform the Orderer hereof without delay. If the product is permanently not deliverable ETN shall notify the Orderer hereof as soon as ETN gains knowledge hereof. A contract shall not be concluded in this case. In case of an order by telephone, the notification shall be given directly on the telephone.
(6) If the ordered product is only temporarily not available, ETN shall also notify the Orderer hereof without delay in the order confirmation. In case of a delay in delivery of more than two weeks the Orderer has the right to rescind the contract. Incidentally, in this case ETN is also entitled to release itself from the contract. In this case, ETN shall refund possibly already made payments of the Orderer without delay.
(7) If the Orderer is in default of acceptance, if it fails to provide an act of assistance, if the delivery of ETN is delayed for other reasons, for which the Orderer is responsible, or if – insofar as such a right is agreed between the parties – faultless goods are returned – without ETN being responsible for the return – then ETN is entitled to request compensation for the damages suffered hereby including additional expenses (e.g. storage costs). ETN can charge a flat rate compensation for this in the amount of 10% of the product value per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline– with the notification that the goods are ready for shipment or once in the amount of 10% of the product value, at least however EUR 20.00, in the event that the goods are taken back at good will – insofar as such a right was agreed between the parties. The right to prove higher damages pursuant to the statutory claims of ETN (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; the flat rate is, however, to be offset against further monetary claims. The Orderer shall remain permitted to prove that ETN has not suffered any damage at all or only significantly less damage than the aforementioned flat rate.
(8) A delay in delivery shall be determined according to the statutory regulations.
§ 6 Shipment, passing of risk(1) Insofar as delivery is owed by ETN, ETN shall select the type of shipment and the dispatch route. The delivery shall principally be carried out ex warehouse.
(2) The risk shall also pass to the Orderer with carriage-paid delivery with the hand-over to the transport company. In case of delays to the dispatch for which the Orderer is responsible, the risk shall pass already with the notification that the goods are ready for shipment.
(3) At the written request of the Orderer, the goods shall be insured at its costs against risks that are to be designated by it.
§ 7 Reservation of title(1) The deliveries shall remain the property of ETN until the satisfaction of all claims of ETN against the Orderer, even if the purchase price has been paid for especially designated claims. In case of current account the reserved title to the deliveries (reserved goods) shall be deemed as collateral for the balance invoice of ETN.
(2) The reservation of title shall cover the products produced by processing, mixing or connection of the goods of ETN at their full value, whereby ETN shall be deemed as the manufacturer. If their property right remains with a processing, mixing or connection with goods of third parties ETN shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or connected goods. Incidentally, the same shall apply for the produced product as for the goods delivered under reservation of title.
(3) The resale of the reserved goods is only permitted for the Orderer in customary business transactions and under the condition that it also agrees a reservation of title pursuant to Paragraphs 1 and 2 with its customers. The Orderer is not entitled to other disposals over the reserved goods, in particular pledges and assignment as collateral. The Orderer has to notify ETN in writing without delay if third parties access the goods belonging to ETN
(4) In the event of a resale, the Orderer hereby now already assigns, until the satisfaction of all claims of ETN, its claims established from the resale and other legitimate claims against its customers with all secondary rights to ETN. At the request of ETN the Orderer is obligated to provide ETN all information and to hand over all documents without delay, which are necessary for the assertion of the rights of ETN against the customers of the Orderer.
(5) The assignments are hereby accepted. An assignment of the claims against ETN shall require the consent of ETN in a text form.
(6) If the reserved goods are resold by the Orderer after processing pursuant to Paragraph 2 together with other goods that do not belong to ETN the assignment of the purchase price claim pursuant to Paragraph 4 shall only apply in the amount of the invoice value of the reserved goods of ETN.
(7) Attachments or seizures of the reserved goods by a third party are to be reported to ETN without delay. Thus incurred intervention costs shall in any case be for the expense of the Orderer, insofar as they have not been borne by third parties.
(8) If ETN, according to the aforementioned provisions, exercises its reservation of title by taking reserved goods back, ETN is entitled to sell the goods on the free market or to have these sold at auction. The assertion of the reservation of title and in particular the request for hand over shall constitute a rescission of the contract. If the Orderer does not pay the due purchase price ETN may only assert these rights if it has previously set the Orderer a reasonable deadline for payment or the setting of such a deadline is dispensable according to the statutory regulations. The reserved goods shall be taken back at the generated proceeds, a maximum however at the agreed delivery prices. The right is reserved to assert further claims for damages, in particular missed profit.
(9) If the realisable value of the collateral exceeds the claim of ETN by more than 10%, ETN shall, at the request of the Orderer, release collateral items at its choice.
§ 8 Warranty; acceptance; inspection and complaint report responsibilities(1) The statutory regulations shall apply for the rights of the buyer in case of material defects and defects of title (including false and shortfalls in delivery as well as improper assembly or deficient assembly instructions), insofar as not otherwise determined in these General Business Terms and Conditions.
(2) The reference to technical standards serves the description of the service and is not to be interpreted as a guarantee of condition.
(3) Claims of the Orderer due to defects shall presume that it has satisfies its statutory inspection and complaint report responsibilities (Sections 377, 381 German Commercial Code [Handelsgesetzbuch - HGB]). Reports of defects are to be asserted without delay in a text form. In case of hidden defects, the complaint is to be lodged in a text form without delay after these have been determined. The report shall be deemed as without delay if it is made within two weeks, whereby the timely sending of the report is sufficient in order to adhere to the deadline. If the Orderer fails to carry out the proper inspection and/or report of defects, the liability of ETN is excluded for the non-reported, respectively late report or not properly reported defect according to the statutory regulations.
(4) Irrespective of a proper report of defects and also after a proper report of defects all claims due to defects shall become statute-barred, insofar as not otherwise agreed, one year after the passing of the risk. Insofar as longer deadlines are stipulated as mandatory by law, these shall apply.
(5) In urgent cases, e.g. in order to avoid disproportionately higher damages, in case of a danger to the operational safety or with a delay in the remedy of the defects by ETN the Orderer is entitled, after prior agreement with ETN, to subsequently improve the goods and to request reimbursement of the reasonable costs for this purpose. The right to self-execution shall not exist if ETN would be entitled to refuse a corresponding subsequent performance according to the statutory regulations.
(6) Wear and tear by the use as per contract shall not result in any warranty claims.
(7) Statutory claims for recourse shall only exist, if the assertion of a claim by the consumer was justified and only to the statutory extent, not on the other hand for good will regulations that were not coordinated with ETN and shall presume the compliance with own obligations of the party entitled to recourse, in particular the compliance with the responsibilities to report a complaint.
(8) Claims of the Orderer for damages or reimbursement of fruitless expenses shall also only exist in case of defects according to § 9 of these General Business Terms and Conditions and are otherwise excluded.
§ 9 Liability(1) A liability shall exist if ETN, its legal representatives or vicarious agents have culpably (wilfully or negligently) caused an injury to life and limbs or the health.
(2) Liability exists if ETN, its legal representatives or vicarious agents have caused other damages by a wilful or grossly negligent breach of obligations.
(3) Liability shall also exist insofar as ETN, its legal representatives or vicarious agents have culpably (wilfully or negligently) breached one of the essential contractual obligations of this contract. An essential contractual obligation exists if the satisfaction of which enables the proper execution of the contract at all and the customer as a rule relies and may rely on its compliance. In this case, the liability is limited with respect to the amount to foreseeable and direct damages.
(4) The liability according to the German Product Liability Act shall remain unaffected hereby.
(5) Further liability of ETN is excluded.
§ 10 Choice of law, place of jurisdiction(1) The place of performance is the registered seat of ETN.
(2) The exclusive place of jurisdiction for all disputes owing to this contract or its execution is the registered seat of ETN. Insofar as the Orderer has its general place of jurisdiction in Germany, ETN can also sue it, at its choice, at this place.
(3) The law of the Federal Republic of Germany shall apply to the contract under the exclusion of the laws of conflict of international private law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
§ 11 Final provisions(1) All declarations, which are submitted for the amendment of this contract or owing to this contract, shall require, insofar as not otherwise determined by these General Business Terms and Conditions, a text form.
(2) Should individual provisions be or become invalid this shall have no effect on the other provisions of the General Business Terms and Conditions. The provision that is invalid in an individual case should be replaced by a regulation, which shall as far as possible correspond with the commercial regulation requested by both parties.