General Terms and Conditions Essmann + Schaefer GmbH + Co. KG
The following terms and conditions of delivery and payment are valid from 01.07.2022 and replace all previous terms and conditions of Essmann + Schaefer GmbH + Co.KG (hereinafter referred to as "e+s").
Scope of Application
Our General Terms and Conditions of Delivery and Payment shall apply to all transactions. Existing special agreements with individual customers are not affected by this. All orders placed with us shall be executed only in accordance with our terms and conditions below, irrespective of any terms and conditions of business of our customers to the contrary, even if these have been used as a basis for the order. Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby expressly rejected. Agreements deviating from our terms and conditions are only effective if they are confirmed by us in writing. A verbal cancellation of this written clause is ineffective.
Our terms and conditions shall also apply to all future transactions.
Offers
Unless otherwise explicitly stated, our offers are subject to confirmation. The conclusion of the purchase contract or the acceptance of the order shall be affected by our written order confirmation or by our actual execution of the delivery. Changes and additional agreements must be made in written form. Cost estimates and offers are non-binding without explicit declaration.
If no price is agreed, cost underruns and overruns of up to 15%, in exceptional cases up to 30%, are permissible without prior notification. The information, illustrations and specifications of dimensions and weights enclosed in brochures, catalogs or on the Internet shall only be binding insofar as they are expressly marked as binding. The same applies to information on suitability for use. In the case of descriptions or markings, we cannot give any binding guarantees of quality in the legal sense.
The customer expressly undertakes not to reproduce the information, documents and objects made available to him or developed by e+s, nor to make them available to third parties for inspection or disposal, nor to make them accessible or otherwise use them for a purpose outside the scope of the order without our prior written consent.
In particular, he shall guarantee to us that the manufacture and delivery of the delivery items do not infringe the industrial property rights of third parties.
Prices and Delivery
Unless otherwise agreed upon, the prices in Euro valid on the day of delivery according to our corresponding price lists shall be deemed to be agreed, however, at least an order value of 150 Euros. Our price lists are valid subject to price changes made in the meantime.
A written order confirmation from the Supplier shall be decisive for the scope of delivery, in the case of an offer from the Supplier with a time commitment and acceptance of the offer in due time, if no order confirmation has been received in due time. Ancillary agreements and changes require the written confirmation of the supplier.
Over/under delivery: As tools/knives often cannot be manufactured to the ordered quantity due to technical production reasons, the supplier is allowed an over/under delivery of +/- 10 %. There is no right to subsequent delivery for under-delivered quantities.
Compliance with the delivery time or performance time by e+s presupposes that all commercial and technical questions have been clarified and all obligations of the Customer to cooperate have been fulfilled. Unless other agreements have been made which are still valid at the time of delivery, we deliver from our factory in Wuppertal, Germany. Our prices do not include the costs of loading, shipping, packaging, and transport insurance. Likewise, the statutory value-added tax valid on the day of delivery and invoicing must be added, insofar as deliveries within the Federal Republic of Germany are concerned. If collection has been agreed, the date of completion shall be deemed to be the date of delivery. We shall not be responsible for delays in delivery and performance due to force majeure and due to events, which make delivery unreasonable or impossible for us - this also includes strike, lockout, official orders, etc. which occurred subsequently, even if they occur at our suppliers or sub-suppliers. We are entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled if completion of the contract would be unreasonable for us. The risk shall pass to the customer at the latest when the delivery parts are loaded, even if partial deliveries are made or we have assumed other services, e.g., shipping costs. If insurance policies for the delivery parts exist in our favor with the carrier, they shall be assigned to the customer in the event of property damage. The same applies to any further liability of the carrier towards us as shipper.
Payment & Retention of Title
Unless otherwise stated in the order confirmation or the Special Terms and Conditions of Contract (SCC), the net purchase price (without deductions) shall be due for payment immediately upon receipt of the invoice by the customer. In the case of bank transfers, the customer shall bear the charges of his bank; third-party bank charges shall not be accepted by e+s.
A cash discount deduction is only permissible if expressly agreed. If a cash discount deduction has been agreed in an individual case, the right to a cash discount deduction does not exist if another overdue invoice with payment default of the customer already exists. Payments shall then first be credited against any interest claims and against the oldest arrears. Invoices for services or work and pure contract work are not eligible for cash discount.
Incoming payments shall first be credited against any interest claims and then against the oldest arrears.
Partial deliveries shall be paid separately in accordance with our terms of payment.
If the customer defaults on payments due or if we become aware of circumstances that give rise to justified doubts about the customer's solvency or creditworthiness, we shall be entitled, irrespective of previously agreed payment terms, to demand either reasonable advance payment or the provision of security, at our discretion.
If the net payment target is exceeded, we shall be entitled, without prejudice to our other statutory claims, to charge interest at a rate of 8% above the prime rate of the ECB(European Central Bank).
In the event of default in payment, we shall be entitled to charge interest at a rate of 8% above the respective base interest rate of the ECB, but at least 12%, from that point in time. The proof of a lower or higher damage caused by default is admissible.
Until full payment of all our claims from deliveries and services to which we are entitled against the customer now or in the future, delivery items shall remain our property.
The customer may neither pledge the delivered goods nor assign them by way of security before they have been paid for in full. In the event of access by third parties, in particular in the event of seizure and confiscation, the customer must inform us immediately. The third party must be informed immediately of our retention of title. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the goods after issuing a reminder and the customer shall be obliged to surrender the goods. The customer's right to process or resell goods subject to retention of title shall expire upon cessation of payments, filing for or opening of bankruptcy proceedings, judicial or extra-judicial composition proceedings, as well as upon return of checks or direct debits by the drawee bank.
Warranties
e+s warrants that the goods are free from defects in material and workmanship which would invalidate or materially impair the fitness of the goods for normal use. Our deliveries are to be checked for correctness upon receipt. Short or wrong deliveries, as well as any defects can only be objected to in writing within 7 days after receipt. Non-obvious defects are to be claimed within 14 days. The warranty does not apply if a change has been made to the delivered goods by another party or if the buyer does not immediately comply with our request to return the goods. To the exclusion of further claims, defective parts will be repaired, replaced, or credited at our discretion free of charge. Replaced parts thus become our property. Any further liability, in particular for damage which has not occurred to the delivered goods, is excluded.
Damages resulting from loss of production, downtime costs, loss of profit or contractual penalties promised to third parties, which have arisen or have been forfeited by the customer or his customers due to the delayed delivery, will only be compensated if a binding delivery date had been agreed upon and the customer had pointed out in writing at the time of agreement of the date the damages and costs specifically threatening in the event of failure to meet the deadline.
e+s does not assume any warranty for defects or damages which are based on the following causes:
- Failure to cooperate or defective cooperation
- Improper or negligent use and handling
- Non-observance of the application recommendation
- Improper storage
- Incorrect assembly or incorrect commissioning by the customer or third parties
- Lack of trial operation
- Natural wear and tear
- Lack of or incorrect maintenance
- Use of unsuitable operating materials
- Unsuitable environmental conditions
- Use of unsuitable materials, influences of the material to be processed, chemical, electronic, or electrical influences
- Properties of the materials processed by the customer with the delivery item (foils, cardboard, etc.) not known at the time of conclusion of the contract, provided that the causes are not attributable to our fault.
Force Majeure
If e+s is prevented from delivering due to a force majeure, the delivery date shall be extended without further ado by its duration plus a reasonable start-up time. Unforeseeable circumstances for which we are not responsible, and which make the delivery unreasonably difficult or temporarily impossible are equivalent to force majeure at the time the delivery date is agreed upon. Examples of this are industrial action, official measures, unavoidable shortage of raw materials or energy, significant operational disruptions due to the destruction of the company as a whole or of important departments or due to the failure of indispensable production facilities or significant parts of the workforce due to pandemics, furthermore serious transport disruptions etc., e.g., road blockades, industrial action in the transport industry, general driving bans. This shall also apply if these circumstances occur with pre- suppliers. The circumstances referred to shall also exonerate e+s if they occur during an already existing delay. We shall notify the customer of these circumstances as soon as possible. A notification can be omitted if the circumstances are already known to the customer. If these circumstances last for more than 3 months, we also have the right to withdraw from the contract.
If production or delivery or our services are temporarily prevented or delayed for reasons for which we are not responsible, the delivery period (or service period) shall be extended accordingly by the verifiable duration of the impediment. When calculating the extension of time, a reasonable start-up time for the resumption of performance activities shall be considered. Claims of the customer for performance or claims in lieu of performance during the period of impediment are excluded.
Privacy Policy
We would like to point out that data on business transactions are processed within our company and we reserve the right to transmit the data required to obtain credit protection to the insurance provider. Please also refer to our data protection declaration for the internet presence and electronic mail.
Severability Clause
Should individual provisions of these terms and conditions be wholly or partially invalid or become wholly or partially invalid, this shall not affect the validity of all other provisions. Rather, the invalid provision shall be replaced by a provision that comes as close as possible to the meaning of the invalid provision.
Place of Performance and Jurisdiction
Place of performance, also for the buyer's obligations, and place of jurisdiction is Wuppertal. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). For contracts with consumers § 269 BGB applies.
Version Note
The latest version of our General Terms and Conditions (GTC) can be found on our website with the corresponding revision notice and publication date.