General Terms and Conditions of Elitex GmbH
§ 1 General
- Elitex shall deliver exclusively under the following terms and conditions of sale and delivery, which shall also apply to future deliveries without repeated notification. Agreements on deviations shall always require the written form and the consent of Elitex. Any terms and conditions of purchase of the customer are hereby expressly rejected. The customer shall not bind Elitex even if Elitex does not object again upon conclusion of the contract and carries out the delivery to the customer without reservation.
- All agreements made between Elitex and the Client for the purpose of fulfilling this Agreement are set forth in writing in these GTC or in a supplementary agreement.
- All samples or sample test results only provide non-binding information for the average condition of the goods, unless certain properties are guaranteed in writing in a specification (see technical data sheets) In the case of standardized products, the tolerances permitted within the standard apply.
- Offers from Elitex are subject to change. Elitex reserves the right to make technical changes as well as changes in shape, color and/or weight. Elitex shall be entitled to accept the contractual offer contained in the order within two weeks after receipt of the order. The date of receipt of the order shall be the first working day after the order has been sent to the Customer. Acceptance may only be declared in writing and by Elitex's order confirmation. Should a confirmation of receipt of the order be sent, this shall not constitute a binding acceptance.
- Elitex reserves the right to send the invoice for the agreed service to the Client electronically, by e-mail.
§ 2 Prices
The calculation of the price shall always be made at the prices valid on the day of delivery, according to the current Elitex price list or, in the case of private label products, at the prices agreed in the contract, plus value added tax at the statutory rate. Elitex's prices are ex works. Elitex reserves the right to agree on individual freight costs. Freight costs arising from express or urgent shipment shall be borne by the customer.
If delivery is only possible by public transport, carriage paid delivery will only be made free recipient's station if the value of the goods is € 300.00 or more. Cartage charges at the place of receipt shall be borne by the recipient.
If, in the case of agreed prices, the burdens on production, turnover and transport, such as customs duties, taxes, freight, are changed or newly established by the day of delivery, Elitex shall be entitled to change the purchase price to be paid accordingly.
§ 3 Delivery periods and delivery dates
- Unforeseeable circumstances beyond the control of Elitex, which prevent Elitex from fulfilling its obligations, shall entitle Elitex to postpone delivery for the duration of the hindrance or for a reasonable start-up period or to withdraw from the contract on the basis of a part not yet fulfilled. The right of withdrawal shall not exist if the events merely constitute a short-term disruption of Elitex's ability to deliver. The aforementioned circumstances shall be deemed to be equivalent to strikes and lock-outs that lead to a significant impediment of delivery for Elitex, irrespective of whether the aforementioned events occur at Elitex or at one of the suppliers. This shall not apply if Elitex itself is responsible for the impediment to performance.
- Delivery dates or deadlines are non-binding unless they have been confirmed in writing by Elitex as binding. If Elitex fails to meet agreed delivery deadlines, the Client must set a reasonable deadline for Elitex to perform. After expiry of this deadline, the client may withdraw from the contract. If the customer unjustifiably withdraws from a placed order, Elitex shall be entitled, without prejudice, to claim a higher actual damage and to claim 10% of the sales price for the costs incurred by the processing of the order and for the lost profit. The Client reserves the right to prove a lesser damage.
- Elitex shall be liable in accordance with the statutory provisions, insofar as delay in delivery is due to a breach of contract for which Elitex is responsible, either intentionally or through gross negligence. Any fault of Elitex's representatives or vicarious agents shall be attributed to Elitex if they have acted intentionally or with gross negligence. In the event of a delay in delivery, Elitex shall be liable for each completed week up to a maximum amount of 2% of the delivery value. The liability shall be limited to a maximum of 4% of the delivery value, irrespective of the duration of the delay.
§ 4 Delivery quantity and partial deliveries, delivery and transfer of risk
- The delivery quantities are based on the packaging units or multiples thereof specified in the Elitex price lists.
- Partial deliveries shall be permissible insofar as they are customary in the trade or their cause is due to the quantity of the delivery item. Otherwise, Elitex shall be entitled to make reasonable partial deliveries at any time.
- Elitex determines the shipping method, carrier and / or freight forwarder.
- Deliveries shall be made at the risk of the Customer. In the absence of any agreement to the contrary, the risk shall pass to the Customer at the latest as soon as Elitex has handed over the goods to the forwarding agent, the carrier or any other person designated to carry out the shipment. The transfer of risk shall also take place when Elitex carries out the transport, assumes other duties to be carried out at the place of delivery or when Elitex assumes the transport costs. Upon request and at the expense of the Customer, Elitex shall be obliged to take out insurance policies requested by the Customer. In case of self-collection or collection by a transport company commissioned by the Customer, the risk shall pass to the Customer upon commencement of loading.
In such cases, the Client shall be solely responsible for loading and unloading in a manner that is safe for operation and transport. If Elitex assists in this, this shall be done on behalf of and at the risk of the Client. The Client shall indemnify Elitex against any claims asserted against Elitex due to damage events, including loading that is not safe for operation and transport. In addition, the Client shall indemnify Elitex against any disadvantages and/or burdens that may arise for Elitex due to the fact that the carrier used by Elitex or on its instructions has violated the provisions of the Freight Transport Act. If the shipment is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer upon receipt of the notification of dispatch readiness.
§ 5 Retention of title
- Elitex shall retain title to the delivered goods until receipt of all payments arising from the business relationship with the Customer. In case of breach of contract by the Customer, in particular in case of default of payment, Elitex shall be entitled to take back the goods and the Customer shall be obliged to surrender them. After taking back the goods, Elitex shall be entitled to sell them. The proceeds of the realization, less the reasonable realization costs actually incurred, shall be credited against the liabilities of the Customer.
- The customer shall be entitled to resell the goods in the ordinary course of business. However, he already assigns to Elitex all claims in the amount of the purchase price agreed between him and Elitex (including VAT), which accrue to the Customer from the resale, irrespective of whether the goods are resold without or after processing (extended reservation of title). Elitex already now accepts the assignment. The customer shall remain authorized to collect this claim even after its assignment. Elitex's authority to collect the claims itself shall remain unaffected. Elitex undertakes not to collect the claims as long as the customer duly meets his payment obligations and is not in default of payment. In case of default of payment, Elitex may demand that the customer provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment and the assigned claims.
- The Client may neither pledge Elitex goods nor assign them to others as security. In the event of seizure, confiscation or other dispositions by third parties, the customer shall inform Elitex immediately and provide all information and documents required to safeguard the rights. Enforcement officers or third parties shall be informed of Elitex's property. Elitex undertakes to release the securities to which Elitex is entitled at the request of the customer to the extent that the value of the claims to be secured, insofar as these have not yet been settled, is exceeded by more than 10%. The selection of the securities to be released shall be incumbent upon Elitex.
- The Customer shall be obliged to treat the goods delivered by Elitex with care for the duration of the retention of title. In the case of deliveries to countries with other legal systems in which the above retention of title provision does not have the same security effect as in the Federal Republic of Germany, the Customer shall do everything in its power to provide Elitex with corresponding security rights without delay. The Customer shall cooperate in all measures, such as registration or publications, etc., which are necessary and required for the effectiveness and enforceability of such security rights.
§ 6 Liability
- For defects vis-à-vis the Customer, Elitex shall provide rectification or replacement at its own discretion. The §439 para. 3 BGB remains unaffected. If the subsequent performance is unsuccessful, the Customer may in principle demand a reduction of the remuneration (abatement) or rescission of the contract (withdrawal) at its discretion. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
- The goods are to be inspected immediately upon delivery. Any notifications of defects must be submitted in writing without delay. If the purchaser fails to make such notification, the goods shall be deemed to have been accepted free of defects, unless the defect is a hidden defect which could not be detected during the incoming inspection. In this case, too, immediate written notification is required, otherwise the goods shall be deemed to have been accepted free of defects.
- The customer has the full burden of proof for all claims, in particular for the defect itself, for the time of the determination of the defect and for the immediate notification of the defect. All complaints must be accompanied by original packed and sealed samples of the goods complained about, if possible with pictures of the complaint. Without these, the complaint cannot be processed. Transport damages are to be recorded directly upon delivery and acknowledged by the deliverer.
- If the customer chooses to withdraw from the contract due to a legal or material defect, after failed rectification, he is not entitled to claim damages due to the defect.
If the customer chooses, after failed rectification, compensation for damages, the goods remain with the customer. The compensation shall be limited to the difference between the purchase price and the value of the defective item. This shall not apply if Elitex has caused the breach of contract by gross negligence.
- Claims for defects shall become statute-barred after one year calculated from the date of transfer of risk.
- As a matter of principle, only the technical description of Elitex shall be deemed agreed as the quality agreement of the goods.
Public statements, other texts or advertising do not constitute a contractual description of the quality of the goods.
§ 7 Limitations of liability
- With regard to claims not conceded in these Terms and Conditions, in particular claims for damages and reimbursement of expenses by the Customer for any form of poor performance of the contract as well as cases of tort, Elitex shall not be liable in the event of a slightly negligent breach of immaterial contractual obligations by the legal representatives of Elitex or vicarious agents.
- In case of other slightly negligent breaches of duty by Elitex, legal representatives of Elitex or vicarious agents, the liability of Elitex shall be limited to the direct average damage foreseeable according to the type of goods and typical for the contract.
- The above limitations of liability shall not affect the Customer's claims arising from product liability. Furthermore, they shall not apply in the event of bodily injury or damage to health attributable to Elitex or in the event of loss of life of the Customer.
§ 8 Information, advice and duties
- Information and advice are provided on the basis of Elitex's previous experience and correspond to the best of Elitex's knowledge. Unless otherwise agreed in writing, they are non-binding and cannot be used to justify any claims against Elitex.
- The customer assumes responsibility for the intended use of the products abroad.
- Elitex products are designed and intended for use by professional consumers.
§ 9 Terms of payment
- Invoices from Elitex are payable immediately after the invoice date without deduction.
- Elitex shall be entitled, in spite of any provisions of the customer to the contrary, to first transfer payments to the customer's older debts and to inform the Purchaser about the nature of the offsets made. If costs and interest have been incurred, Elitex shall be entitled to offset the payment first against the costs, then against the interest and finally against the principal claim.
- Failure to meet the payment deadline shall entitle Elitex to charge interest on arrears from the due date at the currently applicable statutory rate above the respective base interest rate, without the need for a special reminder. The customer shall not be entitled to offset these with counterclaims or to assert a right of retention, unless the counterclaim is undisputed or has been legally established. Prior to full payment of invoice amounts due, including interest on arrears, Elitex shall not be obliged to make any further deliveries under any current contract.
- In the event that a petition for insolvency has been filed against the Client's assets, Elitex shall be entitled to demand immediate payment of the entire remaining debt, even if Elitex has accepted checks as a means of payment. In this case, Elitex shall furthermore be entitled to demand advance payments or securities. The customer may only exercise a right of retention if his counterclaim is based on the same contractual relationship. In this context, Elitex again refers to §5 para.2 the extended retention of title.
§ 10 Place of performance and jurisdiction
- The place of performance for the services of the customer and the Elitex services is the Elitex place of business in Schwabhausen near Dachau.
- Insofar as the Customer is a merchant within the meaning of the German Commercial Code (HGB) or an entrepreneur from a contracting state of the EuGVÜ or EuGVO, the place of jurisdiction shall be Dachau. Elitex shall, however, also be entitled to sue the Customer at the court of the Customer's place of residence.
- The law of the Federal Republic of Germany shall apply to these Terms and Conditions and the entire legal relationship between Elitex and the Customer; the applicability of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions shall be excluded.
§ 11 Miscellaneous
- Transfers of rights and obligations of the Client arising from the contract concluded with Elitex to third parties require the written form and consent of Elitex.
- Information in accordance with the Federal Data Protection Act: In the course of business, personal data may also be stored at subsidiaries/branches of Elitex and delivering agencies.
- Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions.