Deliveries and performance by Erbslöh Geisenheim GmbH (hereinafter: “Erbslöh”) shall be executed solely in accordance with the following General Terms and Conditions. These General Terms and Conditions shall apply exclusively to transactions conducted with businessmen and entrepreneurs in compliance with § 14 BGB (German Civil Code). These General Terms and Conditions shall apply to all future transactions between the parties to the agreement, without particular further notice. They shall also apply to future agreements even if Erbslöh does not explicitly reference the terms, in particular if Erbslöh delivers goods or performs services without reservation despite knowledge of alternative terms of purchase or of terms deviating from these General Terms and Conditions in the customer’s terms and conditions of purchase.
II Tenders and Conclusion of Agreement – Performance
1. Erbslöh’s offers to the prospective customer are subject to change and non-binding and subject to confirmation by Erbslöh. Orders by the customer shall be binding. Erbslöh will accept an order within four (4) weeks of its dispatch by either sending a confirmation of order or, at its sole discretion, by an unconditional delivery of the ordered goods or performance of ordered services.
2. The technical data and descriptions in the respective product information or advertising material from Erbslöh shall not constitute a guarantee of the quality or durability of goods or services delivered or performed by Erbslöh. Warranties will not be furnished unless explicitly agreed upon in separate contracts.
3. Concerning Paragraph 2 above, we draw your attention in particular to the fact that Erbslöh provides all information related to the origin, properties, nature, condition, quality and the manufacturing process of the pre-products and merchandise used by Erbslöh to the best of its knowledge. In that regard, Erbslöh is mostly depending and relying on the information, promises, assurances, confirmations and certificates provided by its suppliers. Erbslöh at its stage of production is not able to conduct extensive product testing with all products. Since for these reasons it is often impossible to trace back, Erbslöh disclaims all liability in that respect.
4. In the case of sales in accordance with samples or specimens, these shall merely describe the professional conformity with the sample or specimen, but shall not be a guarantee for the properties or durability of the goods to be delivered by Erbslöh or the services to be performed.
III Prices – Terms of payment – Default of payment
1. The EURO prices determined at the time of the conclusion of the respective agreement, in particular the prices defined in the order form or, respectively, the confirmation of order, shall apply. If a price is not explicitly defined, the prices which are valid at the time when the agreement is concluded in accordance with the then current Erbslöh price list shall apply. The statutory value-added tax valid on the day of delivery shall be added to the defined prices.
2. The products shall be delivered ex works. The prices shall include the costs for packaging required for standard shipping of the goods. The prices do not include the shipping costs and/or the costs for a transport insurance policy, unless previously agreed upon in an individual written agreement or if these costs are shown in Erbslöh’s current price list. The terms of packaging and transport must be agreed upon separately for goods to be delivered abroad.
3. Erbslöh reserves the right to modify prices in a reasonable manner if alterations in costs due to wage settlements, price increases of suppliers or fluctuations in the monetary exchange rates should arise after the conclusion of the agreement.
4. Invoices received from Erbslöh must be paid within 30 days net, if no other terms have been concluded. The customer shall be in default of payment pursuant to § 286 Section 2 No. 2 BGB after the expiry of the due date stated in the invoice. Default interest pursuant to § 288 BGB will be calculated from the day of expiry of the due date with reservation to assertion of further claims. Invoices shall generally be sent in electronic form as PDF files. Only upon explicit written request shall invoices be provided by mail. However, Erbslöh is entitled at any time, also within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. Towards merchants, the claim to the commercial due date interest (§ 353 HGB) remains unaffected.
5. The customer shall only be entitled to set-off or hold back rights if his counter-claims have been finally determined by a court of law, are undisputed or approved, unless they are counter-claims arising out of the same contract.
6. If the customer does not pay invoices when due or when the term of credit has expired, or if the financial circumstances of the customer deteriorate following the conclusion of the agreement, or if Erbslöh receives unfavorable information pertaining to the customer which put the creditworthiness of the customer into question, then Erbslöh shall be entitled to accelerate the due date of the entire amount outstanding from the customer and to amend the terms of the agreement in order to demand advance payment or collateral security or, after shipment of goods, immediate settlement of all its claims arising from the legal relationship. This shall apply in particular if the customer stops making payments, a check from the customer is dishonored, a promissory note furnished by the customer is not redeemed, a bankruptcy process relating to the assets of the customer has been petitioned or initiated or if insolvency proceedings have not been initiated due to insufficient assets.
IV Time of delivery and performance – Default
1. Agreed upon delivery schedules shall possess only an approximate validity if a fixed delivery date (“Fixgeschäft”) has not been agreed upon in writing. However, if Erbslöh fails to deliver by such an agreed upon fixed delivery date due to circumstances within Erbslöh’s control, the customer shall have the option to withdraw from the agreement if Erbslöh fails to deliver during a reasonable grace period defined by the customer. The withdrawal from the agreement must be furnished in writing.
2. Erbslöh shall only be in default following the expiry of a reasonable additional respite of time. In cases of Force Majeure (Act of God) and other unforeseeable, extraordinary circumstances, which cannot be controlled by Erbslöh such as e.g. disturbance in operation as a result of fire, water and similar circumstances, breakdown of production systems and machinery, delayed delivery or failure to deliver on the part of suppliers, interruptions in operation due to a shortage of raw materials, energy or working force, strikes, war, terrorism, civil unrest, shut-out, problems with procuring transport, traffic disturbance, or official administrative measures, Erbslöh – as far as Erbslöh is hindered to fulfill its obligations not due to its own fault – shall be entitled to postpone delivery or performance until the extraordinary circumstances have been alleviated and shall be granted a reasonable respite. If delivery or performance should be delayed by more than one month hereby, both Erbslöh and the customer shall be entitled to furnish written notice of withdrawal from the agreement with respect to the portion affected by the disrupted delivery but shall be precluded from any claims for damages.
3. In every case of default the liability of Erbslöh to pay damages is limited by the provisions of Section VIII No. 1 to 6 hereof.
4. Erbslöh is entitled to furnish partial deliveries or performance within the scope of the agreed times of delivery and performance if this is reasonably acceptable to the customer.
V Passing of risk – Handling of packaging
1. If no deviating terms have been agreed between the parties in writing or are shown in Erbslöh’s then current price list, the goods shall be picked up by the customer at Erbslöh’s premises on his own costs. The risk of accidental perishing, loss or destruction and of incidental deterioration of the contracted goods passes to the customer in the moment Erbslöh puts the goods at the customer’s disposal for pickup and so notifies the customer (even in case of deliveries which have been insured against transport damage by Erbslöh).
2. The above provision concerning the passing of risks shall also apply if Erbslöh organizes the transport for the customer and pays or advances transport costs and insurance. In this case the passing of risk to the customer shall be at the moment of handing over the goods to the forwarding agent.
3. The return of product packaging is governed by the rules of the Verpackungsverordung (German Regulation on Packaging) according to the following provisions. We accept the return of used and completely emptied sales packaging (Verkaufsverpackungen) delivered by us to an end-user, as well as the return of additional packaging (Umverpackungen) in case the end-user has requested the additional packaging to be handed over, both at the cost of the end-user. The aforesaid packaging will be accepted for return at our factory or warehouse, or, if closer to the end-user, at a site of a third party denominated by us, who will accept the return of the packaging against adequate compensation. We accept the return of used and completely emptied sales packaging delivered by us to a distributor, as well as the return of additional packaging in case an end-user has requested the additional packaging to be handed over, both at the cost of the distributor, unless the distributor itself partakes in the Dual System. Otherwise, the distributor must dispose of the aforesaid packaging. In case of an accepted return of packaging to us by a distributor, the regulations under Sentence 3 above (point of return) apply accordingly.
4. If the purchaser is in default of acceptance, if he fails to cooperate or if the delivery is delayed for other reasons for which the purchaser is responsible, Erbslöh is entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, a lump-sum compensation amounting to 0.5% of the purchase price of the non-accepted goods per calendar week shall be calculated, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification of readiness for shipment of the goods, but not exceeding 5% of the purchase price of the non-accepted goods in the case of final non-acceptance. The proof of a higher damage and the legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The customer shall be entitled to prove that Erbslöh has incurred no damage at all or only significantly less damage than the aforementioned lump sum.
VI Customer obligations – Reservation of title
1. Erbslöh shall retain title to the delivered products until the entire payment of the purchase price and all pending additional, current or future claims resulting from business relations with the customer have been settled. The inclusion of a claim for a purchase price in an outstanding invoice and the acceptance of the balance shall not affect the reservation of title.
2. The customer shall be obliged to treat the purchased goods carefully, in particular, he shall be obliged to insure the goods at purchase price against loss, damage and destruction, e. g. against damage caused by fire, water and theft, at his own costs. The customer hereby cedes his claims resulting from the insurance policies to Erbslöh in advance. Erbslöh hereby accepts the assignment of the claims.
3. The customer may neither pledge nor give as a security any goods that are subject to Erbslöh’s reservation of title. However, he shall be entitled to sell the delivered goods within the ordinary course of his business in accordance with the following terms. The aforementioned right to sell shall not apply if the customer has assigned or pledged the claim arising from the resale of the goods against his contractual partner – in each case effective in advance – to a third party or has agreed to a prohibition of assignment.
4. As further security for the claims described in Section VI No. 1, the customer hereby assigns to Erbslöh all – including future and contingent – accounts receivable acquired from a resale of goods delivered by Erbslöh to the customer, together with all ancillary rights at a sum of 110% gross of the value of the delivered goods which will take precedence over the residual sum of his accounts receivable. Erbslöh hereby accepts the assignment.
5. As long and as far as the customer settles his payment obligations to Erbslöh, he shall be entitled to the collection of claims assigned to Erbslöh within the ordinary course of his business. However, he shall not be entitled to conclude an accounts correct agreement or prohibition of assignment with his customers in relation to these claims or to transfer or pledge these to third parties. If contrary to the foregoing sentence 2 an accounts current agreement should exist between the customer and the purchaser of Erbslöh’s goods that are subject to reservation of title, the previously assigned claim shall also relate to the accepted balance and to the existing balance in the case of insolvency of the purchaser.
6. On demand by Erbslöh, the customer shall be required to provide proof of each individual account receivable that he has assigned to Erbslöh, to notify his debtors of the assignment and to instruct them to pay all outstanding invoices to Erbslöh, up to the value of Erbslöh’s claims against the customer. Erbslöh shall be entitled to notify the debtors of this arrangement at any time and to collect the claims, if necessary. However, Erbslöh will only make use of this right if the customer fails to meet his financial obligations or is in default, if an insolvency process has been initiated against the customer, or if the customer ceases to pay the invoices. If any of these events, Erbslöh may demand that the customer notify Erbslöh of the assigned claims and the debtors thereof in detail, furnish all relevant information pertaining to the collection of the accounts receivable and hand over the respective documents.
7. In case of foreclosures or any other interference of third parties, the customer shall immediately (without undue delay) inform Erbslöh in writing in order to enable Erbslöh to react in an appropriate manner and, if necessary, to bring an action according to § 771 Code of Civil Procedure.
8. Erbslöh shall be obliged to release all securities furnished by the customer upon customer’s demand in the event that the realizable value of the securities should exceed Erbslöh’s account receivables from the customer by more than twenty percent (20%).
9. In the case of customer behavior which is contrary to the terms of the agreement, in particular in case of default of payment exceeding ten percent (10%) of the balance due for a not insignificant period of time, Erbslöh – irrespective of further outstanding or pending (damages) claims – shall be entitled to withdraw from the agreement and demand return of the goods delivered. Erbslöh shall be authorized to reprocess the returned goods in the required manner. The profits resulting from the reprocessing of the goods must be credited to the outstanding accounts payable to Erbslöh by the customer – minus the appropriate reprocessing expenses.
VII Duties on receiving of incoming goods – Rights of customer in case of non-conformity
1. The customer is obliged to inspect the delivered goods upon receipt. He must apply the care of a regular businessman in the course of such inspections.
2. Erbslöh is principally not liable for defects, which the purchaser knows or grossly negligently does not know at the time of conclusion of the contract (§ 442 BGB). Obvious material defects, wrong deliveries and quantity deviations are to be reported by the purchaser to Erbslöh in writing immediately, however, no later than seven (7) days after receipt of the goods by the purchaser. Hidden defects are to be reported to Erbslöh in writing within a period of three (3) days after their discovery.
After three (3) months from the transfer of risk to the purchaser according to Section V No. 1, notices of hidden defects are excluded and are considered to be late, as far as they were reasonably recognizable. In case of a late or improperly asserted notice of defects according to Section VII No. 1 Sentences 1 to 7, the purchaser loses his rights for defects unless the defect has been fraudulently concealed by Erbslöh.
3. The basis for the liability for defects is primarily the agreement made about the quality and the presupposed use of the goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by Erbslöh (in particular in catalogs or on the Internet homepage) at the time of the conclusion of the contract are considered as an agreement on quality in this sense. As far as the condition was not agreed upon, it is to be judged according to the legal regulation whether a defect exists or not. Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, shall take precedence over statements made by other third parties. In case of defects in goods delivered by Erbslöh, Erbslöh is obligated, at its own choice, only to rectify the defect or to deliver defect-free goods (supplementary performance). Erbslöh is entitled to make the owed subsequent performance dependent on the customer paying the due purchase price. However, the customer is entitled to withhold a part of the purchase price, which is reasonable in relation to the defect. If Erbslöh is not willing or not able to remedy the defect, especially because the remedy is delayed beyond reasonable time limits for reasons Erbslöh is responsible for, or if the remedy fails in any other way, the purchaser is entitled, at his option, to withdraw from the contract or to demand a reduction of the purchase price. A subsequent improvement shall be deemed to have failed after the third attempt, unless the nature of the item or other circumstances indicate otherwise. As far as the purchaser has suffered damage or has incurred futile expenses due to defects of goods delivered by Erbslöh, the liability of Erbslöh for this is governed by section VII No. 1, section VIII No. 1 to 6 and section IX. However, claims for reimbursement of expenses according to § 445a paragraph 1 BGB (German Civil Code) and supplementary performance are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c p. 2, 327 paragraph 5, 327u BGB).
4. Erbslöh may claim compensation for the costs incurred from an unjustified request to remedy a defect, if the customer knew or could have known that there was actually no defect.
VIII Rights and obligations of Erbslöh
1. A liability on the part of Erbslöh for damages or futile expenditures – irrespective of the legal basis – shall only arise if the damages or the futile expenditures
a) were caused by Erbslöh or by one of its authorized personnel or subcontractors by means of culpable violation of a material contractual obligation or
b) are due to a grossly negligent or intentional violation of obligations on the part of Erbslöh or one of its subcontractors.
2. In accordance with Section VIII No. 1 Letter a) and b), if Erbslöh provides consulting services or information without separate charge, Erbslöh shall only be liable for damages or futile expenditures caused by such consulting or information services if Erbslöh intentionally or grossly negligent breached its obligations, provided and in as far as the breach of duties does not constitute a material defect of the goods delivered by Erbslöh pursuant to § 434 BGB.
3. If Erbslöh is liable for breach of a material contractual duty pursuant to Section VIII No. 1 letter a), but did not act grossly negligent or intentionally, its liability for damages shall be limited to foreseeable and typically arising damages. In this case Erbslöh shall neither be liable for loss of profit to the customer nor for unforeseeable consequential or indirect damages. The limitations set forth in the foregoing sentences 1 and 2 shall equally apply to damages resulting from gross negligence or intent on the part of Erbslöh personnel or authorized persons.
4. Erbslöh shall not be liable for indirect damages of the customer that are the result of contractual penalties asserted against the customer by a third party.
5. If Erbslöh is liable for the breach of a material contractual obligation pursuant to Section VIII No. 1 letter a), without evidence of gross negligence or intent, Erbslöh’s liability is limited to the sum of 1 million Euros per incident. Erbslöh shall be obliged to conclude and maintain an insurance policy to cover claims of at least 2.5 million Euros – maximized in duplicate in the policy year.
6. The liability limitations set forth in Section VIII No. 1 to 3 shall not apply if Erbslöh’s liability is obligatory pursuant to the German statutory Product Liability Law, or if claims are based on loss of life, injury to body or health, or if Erbslöh has furnished a warranty; Erbslöh shall only be liable for such damage which is covered by the warranty.
7. Erbslöh’s liability is limited to damages as described in Section VIII No. 1 to 4 and any further claims, irrespective of the nature of such claims, are excluded. This especially applies to damage claims resulting from negligence in the course of conclusion of the agreement in compliance with § 311 Section 3 BGB, positive violation of contractual duty in compliance with § 280 BGB or due to claims in tort in compliance with § 823 BGB.
8. In as far as the liability for damages is excluded or limited pursuant to Section VIII No. 1 to 5, this shall also apply in relation to the personal liability for damages of employees, personnel, contractors, agents, representatives and subcontractors as well as vicarious agents employed or engaged by Erbslöh.
IX Limitation of claims
1. Customer claims pertaining to defects in goods delivered by Erbslöh shall be limited to a period of one (1) year from the transfer of risk. This limitation period shall also apply to contractual and non-contractual claims for damages of the Purchaser based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the individual case.
2. The aforementioned one-year limitation is not applicable in case of (1) intention or fraudulent concealment of a defect (2) in case a guarantee by Erbslöh in accordance with § 443 BGB provides otherwise and (3) in the event that the good was used according to its ordinary purpose for a construction and caused the defectiveness of the construction.
3. The one-year limitation set forth in No. 1) is also not applicable to claims for damages due to defects in case the damage is caused by gross negligence of a legal representative or manager of Erbslöh. Also, it is not applicable in cases of personal injuries or if Erbslöh is liable for tort.
4. The one-year limitation for claims based on defects is further not applicable to defects that consist of a right in rem or a right of a third party registered in the title register; in such cases the limitation is 3 years.
5. The statutory regulations for the limitation of possible contribution claims acc. to § 479 BGB as well as for limitation and preclusion periods according to the product liability law remain unaffected.
X Assignment and Transfer of Claims
Contractual rights and claims against Erbslöh, in particular resulting from defects in products delivered by Erbslöh or from the breach of contractual duties on the part of the Erbslöh may not be completely or partially assigned or pledged to third parties without the express written agreement of Erbslöh; § 354 a of the Handelsgesetzbuch (Code of Commercial Law) shall be untouched by these measures.
XI Place of performance – Place of jurisdiction – Applicable law – Trade stipulations
1. Place of performance and exclusive place of jurisdiction for all claims between Erbslöh and the customer is Wiesbaden, if the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law. However, Erbslöh shall also have the right to initiate legal proceedings against the customer in the District Court at the place of jurisdiction of the customer.
2. Exclusively the laws of the Federal Republic of Germany shall apply to the legal relations between Erbslöh and the customer. The application of regulations pertaining to the Unified International Purchase Laws (CISG – UN Purchase Law) and the German Private Law is explicitly excluded.
3. In as far as trade stipulations in compliance with International Commercial Terms (INCOTERMS) have been agreed upon, the latest edition of the INCOTERMS shall apply (currently INCOTERMS® 2020).
XII Final provisions
Should one of the foregoing provisions be invalid, partially invalid or excluded by a special agreement, such invalidity shall not affect the validity of the remaining provisions. The parties are obliged to exchange invalid provisions against valid provisions which legally reflect best the economic spirit and purpose of the invalid provision. Same applies to contract gaps.
(1) These General Terms and Conditions of Purchase of Erbslöh Geisenheim GmbH shall apply exclusively; Erbslöh Geisenheim GmbH shall not recognize any conflicting or deviating terms and conditions of suppliers unless Erbslöh Geisenheim GmbH has expressly agreed to their validity in writing, i.e. in written or text form (e.g. letter, e-mail, fax). These General Terms and Conditions of Purchase of Erbslöh Geisenheim GmbH shall also apply if Erbslöh Geisenheim GmbH although being aware of supplier’s terms and conditions conflicting with or deviating from our Terms and Conditions of Purchase, accepts the supplier’s delivery without explicit reservation.
(2) All agreements to be concluded between Erbslöh Geisenheim GmbH and the supplier must be recorded in writing.
(3) The General Terms and Conditions of Purchase of Erbslöh Geisenheim GmbH shall only apply to entrepreneurs in accordance with § 14 (1) BGB (German Civil Code).
(4) The General Terms and Conditions of Purchase of Erbslöh Geisenheim GmbH shall also apply to all future transactions with the supplier.
§ 2 Offer, Order
(1) Offers of the supplier shall be submitted in writing and shall be free of charge for Erbslöh Geisenheim GmbH. Offers of the supplier must expressly point out any deviations from the request for proposal of Erbslöh Geisenheim GmbH on which the offer is based.
(2) The supplier is obliged to confirm the order of Erbslöh Geisenheim GmbH in writing within a period of 2 weeks, stating the delivery date, the price, the order data of Erbslöh Geisenheim GmbH and the article number. Late acceptance shall be deemed a new offer and requires acceptance by Erbslöh Geisenheim GmbH.
(3) Erbslöh Geisenheim GmbH reserves property rights and copyrights to any calculations, plans, illustrations, drawings, calculations and other documents transmitted to the supplier for the production of works for Erbslöh Geisenheim GmbH; they shall not be made accessible to third parties without the express written consent of Erbslöh Geisenheim GmbH. They shall be used exclusively for production on the basis of the order placed by Erbslöh Geisenheim GmbH; they shall be returned to Erbslöh Geisenheim GmbH unsolicited after processing of the order. They are to be kept secret from third parties, in this respect the provision of § 9 (5) applies additionally.
§ 3 Prices, invoice, terms of payment
(1) The price stated in the order is binding.
(2) In the absence of a written agreement to the contrary, the price shall include “free delivery”, including packaging, return of packaging, transport and transport insurance costs by the supplier. If, exceptionally, Erbslöh Geisenheim GmbH bears the freight, it is a mandatory freight forwarders’ insurance waiver customer (SLVS-Verzichtskunde).
(3) The statutory value added tax shall be shown separately in the invoice. The same applies to packaging and freight costs insofar as these are borne by Erbslöh Geisenheim GmbH as an exception.
(4) Invoices shall be sent to the accounting department of Erbslöh Geisenheim GmbH electronically or by post after and independent of performance. Erbslöh Geisenheim GmbH can only process invoices if they contain at least the following information: The order number stated in the order of Erbslöh Geisenheim GmbH, the date of delivery, the article description, the delivery quantity and the sales tax identification number. The supplier is liable for all consequences resulting from non-compliance with this obligation, unless he can prove that he is not responsible for them.
(5) Unless otherwise agreed in writing, Erbslöh Geisenheim GmbH shall pay the purchase price within 21 days of the contractual performance of the service and receipt of the invoice with 3% discount or within 60 days of the contractual performance of the service and receipt of the invoice without deduction.
(6) Erbslöh Geisenheim GmbH shall owe default interest in accordance with § 288 BGB in the event of default in payment. Erbslöh Geisenheim GmbH does not owe any maturity interest.
(7) Payment shall be made subject to invoice verification and shall not constitute acknowledgement of conditions and prices.
(8) Erbslöh Geisenheim GmbH may set off all its claims against claims of the supplier. Erbslöh Geisenheim GmbH is entitled to unrestricted rights of retention to the extent permitted by law. The supplier may not assign claims against Erbslöh Geisenheim GmbH to third parties unless these are monetary claims. The supplier has a right of set-off or retention only because of counterclaims that are legally established, ready for decision or undisputed. In particular, Erbslöh Geisenheim GmbH is entitled to withhold due payments as long as it still has claims against the supplier from incomplete or defective performances.
§ 4 Delivery time
(1) The delivery time stated in the order is binding. Premature deliveries and partial deliveries are not permitted unless Erbslöh Geisenheim GmbH has given its written consent.
(2) The supplier shall be obliged to inform Erbslöh Geisenheim GmbH immediately in writing if circumstances arise or become apparent to the supplier which indicate that the delivery period cannot be met. The supplier shall at the same time specify a delivery date which shall in any case be observed.
(3) If the day on which the delivery is to take place at the latest can be determined on the basis of the contract, the supplier shall be in default at the end of this day without requiring a reminder on our part.
(4) In the event of a delay in delivery, Erbslöh Geisenheim GmbH shall be entitled to the statutory claims. In particular, Erbslöh Geisenheim GmbH is entitled to demand damages instead of performance and withdrawal after the fruitless expiry of a reasonable period of time.
(5) Erbslöh Geisenheim GmbH is entitled to demand a contractual penalty in the amount of 0.5 %, maximum 5 %, of the respective order value for each commenced week of delay in delivery after prior written warning to the supplier in the event of delays in delivery. The contractual penalty shall be set off against the damage caused by default to be compensated by the Supplier.
(6) Unconditional acceptance of the delayed performance shall not constitute a waiver of compensation for the damage caused by the delay.
§ 5 Delivery, transfer of risk
(1) Even if dispatch has been agreed, the risk shall not pass to Erbslöh Geisenheim GmbH until the goods have been handed over to Erbslöh Geisenheim GmbH at the agreed destination. If the place of destination is not specified and nothing else has been agreed upon, the delivery shall be made to the place of business of Erbslöh Geisenheim GmbH in Geisenheim, Germany. The respective place of destination is also the place of performance for the delivery and any subsequent performance (obligation to deliver). The supplier bears the procurement risk for his services, unless otherwise agreed in individual cases (e.g. limitation to stock).
(2) The supplier shall be obliged to enclose with all deliveries the necessary delivery documents (delivery note with the order number of Erbslöh Geisenheim GmbH, the article number of the ordered goods, the indication of origin, etc.) and the agreed product documents (e.g. analysis certificate, cleaning certificate, etc.); if he fails to do so, Erbslöh Geisenheim GmbH shall not be responsible for the resulting delays in processing.
(3) On the day of dispatch to Erbslöh Geisenheim GmbH, the supplier must notify the latter of the dispatch in text form with the details of the delivery note.
(4) The statutory provisions shall apply to the occurrence of our default in acceptance. However, the supplier must expressly offer us his performance even if a specific or determinable calendar time has been agreed upon for an action or cooperation (e.g. provision of material). If Erbslöh Geisenheim GmbH is in default of acceptance, the supplier can demand compensation for his additional expenses according to the legal regulations (§ 304 BGB). If the contract concerns a non-representable item to be manufactured by the supplier (individual production), the supplier is only entitled to further rights if Erbslöh Geisenheim GmbH is obliged to cooperate and is responsible for the failure to cooperate.
§ 6 Investigation of defects, liability for defects
(1) Erbslöh Geisenheim GmbH is not obligated to examine the goods or to make special inquiries about possible defects at the conclusion of the contract. Partially deviating from § 442 paragraph 1 sentence 2 BGB (German Civil Code), Erbslöh Geisenheim GmbH is therefore entitled to claims for defects without restrictions even if the defect remained unknown at the time of conclusion of the contract due to gross negligence. The legal regulations (§§ 377, 381 HGB) apply to the commercial duty to examine and to give notice of defects with the following proviso: The duty of Erbslöh Geisenheim GmbH to examine is limited to defects which become obvious during the incoming goods inspection under external examination including the delivery documents (e.g. transport damages, wrong and short delivery) or which are recognizable during our quality control in the random sampling procedure. If acceptance has been agreed, there shall be no obligation to inspect. In all other respects, it shall depend on the extent to which an inspection is feasible in the ordinary course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later shall remain unaffected. Notwithstanding the duty to examine, a complaint (notice of defect) shall be deemed to have been made without undue delay and in good time if it is sent within 8 working days of discovery or, in the case of obvious defects, of delivery.
(2) Insofar as Erbslöh Geisenheim GmbH must legitimately assume the defectiveness of the delivery, it may have further necessary inspections of the delivery carried out at the supplier’s expense after prior notification to the supplier. The supplier shall be entitled within a period of 2 days to deliver new goods to Erbslöh Geisenheim GmbH in order to avoid the inspection if he takes back the delivered goods. The Supplier shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, even if it turns out that there was actually no defect.
(3) Erbslöh Geisenheim GmbH shall be entitled to the statutory claims for defects in full; in any case Erbslöh Geisenheim GmbH shall be entitled to demand from the supplier either rectification of the defect or delivery of a new item at its discretion. In the event of great urgency Erbslöh Geisenheim GmbH shall be entitled to rectify the defect itself at the supplier’s expense. In the case of a new delivery, a new independent warranty period begins with the delivery as with the first delivery of an item. We expressly reserve the right to claim damages, in particular damages in lieu of performance.
(4) Deviations from the specification, the requirements, and the delivery quantities shall be deemed defects. If a delivery of similar goods in a partial quantity shows an accumulation of defects, Erbslöh Geisenheim GmbH shall be entitled to warranty claims with respect to the entire delivery.
According to the statutory provisions, the supplier is particularly liable for ensuring that the goods have the agreed quality at the time of the transfer of risk. In any case, those product descriptions that are the subject of the respective contract or were included in the contract in the same way as these AEB – in particular by designation or reference in our order – are deemed to be an agreement on the quality. It makes no difference whether the product description comes from the supplier or the manufacturer. In the case of goods with digital elements or other digital content, the supplier is responsible for providing and updating the digital content to the extent that this is based on a quality agreement or other product descriptions from the manufacturer or on his behalf, especially on the Internet, in advertising or on the product label.
(5) Erbslöh Geisenheim GmbH shall be entitled to remedy the defect itself at the supplier’s expense if the supplier is in default with subsequent performance.
(6) The limitation period is 36 months, calculated from the passing of risk, unless the mandatory provisions of §§ 478, 479 BGB (German Civil Code) apply.
(7) In the case of a purchase of consumer goods, the provisions of §§ 478, 479 BGB shall remain unaffected.
(8) Acceptance or approval of samples or specimens submitted or the payment of the invoice shall not constitute a waiver of warranty claims by Erbslöh Geisenheim GmbH.
(9) Erbslöh Geisenheim GmbH shall only accept rejected goods for the account and risk of the supplier and store them in his name.
(10) The legally determined claims for expenses and recourse within a supply chain (supplier’s recourse according to §§ 478, 445a, 445b or §§ 445c, 327 paragraph 5, 327u BGB) are available to Erbslöh Geisenheim GmbH without limitation in addition to the claims for defects. In particular, Erbslöh Geisenheim GmbH is entitled to demand from the supplier exactly the kind of supplementary performance (repair or replacement), which it owes to its customer in the individual case; in case of goods with digital elements or other digital contents, this also applies with regard to the provision of necessary updates. The legal right of choice (§ 439 para. 1 BGB) is not limited by this. Before Erbslöh Geisenheim GmbH acknowledges or fulfills a claim for defects asserted by its customer (including reimbursement of expenses according to §§ 445a para. 1, 439 paragraph 2, 3, 6 p. 2, 475 paragraph 4 BGB), it will notify the supplier and ask for a written statement with a brief description of the facts. If a substantiated statement is not made within a reasonable period of time and if no amicable solution is reached, the claim for defects actually granted by the Supplier shall be deemed to be owed to the Customer. In this case, the Supplier shall be obliged to prove the contrary. The claims from supplier recourse also apply if the defective goods have been combined with another product or processed in any other way by Erbslöh Geisenheim GmbH, its customer or a third party, e.g. by mounting, attachment or installation.
(1) Insofar as the supplier is responsible for product damage, he shall be obliged to indemnify and hold Erbslöh Geisenheim GmbH harmless from claims for damages by third parties upon first request to the extent that the cause lies within his sphere of control and organisation and he himself is liable externally.
(2) Within the scope of his own liability for cases of damage within the meaning of paragraph (1), the supplier is also obliged to reimburse Erbslöh Geisenheim GmbH for any expenses in accordance with §§ 683, 670 BGB or §§ 830, 840, 426 BGB which result from or had been incurred in connection with a recall action lawfully carried out by Erbslöh Geisenheim GmbH. Erbslöh Geisenheim GmbH shall inform the supplier – as far as possible and reasonable – of the content and scope of such a recall measure in good time in advance and give him the opportunity to comment.
(3) Erbslöh Geisenheim GmbH shall undertake the necessary notification of the competent authority in accordance with the provisions of the ProdSiG in coordination with the supplier.
(4) The supplier undertakes to maintain product liability insurance with a lump sum coverage of € 5 million per personal injury/property damage; if Erbslöh Geisenheim GmbH is entitled to further claims for damages, these shall remain unaffected.
§ 8 Intellectual Property rights
(1) The supplier guarantees that no rights of third parties at home or abroad are infringed in connection with his delivery.
(2) If a third party lodges claims against Erbslöh Geisenheim GmbH for this reason, the supplier shall be obliged to indemnify Erbslöh Geisenheim GmbH against these claims upon first written request. In the case of claims for damages by the third party, the supplier reserves the right to prove that he was not responsible for the infringement of the rights of the third party. In the case of settlements, the obligation to indemnify shall only apply if the supplier has agreed to the settlement or has refused to do so without legitimate interest.
(3) The supplier’s obligation to indemnify relates to all expenses necessarily incurred by Erbslöh Geisenheim GmbH as a result of or in connection with claims asserted by a third party.
(4) The limitation period shall be 36 months, calculated from the passing of risk.
(5) Our further legal claims due to defects in title of the products delivered to us shall remain unaffected.
§ 9 Retention of title, provision of goods, secrecy
(1) If Erbslöh Geisenheim GmbH makes parts available to the supplier, it reserves ownership of them. Processing or transformation by the supplier shall be carried out for Erbslöh Geisenheim GmbH. If the reserved goods of Erbslöh Geisenheim GmbH are processed with other objects not belonging to Erbslöh Geisenheim GmbH, Erbslöh Geisenheim GmbH shall acquire co-ownership of the new object in the ratio of the value of the object of Erbslöh Geisenheim GmbH (purchase price plus VAT) to the other processed objects at the time of processing.
(2) If the item provided by Erbslöh Geisenheim GmbH is inseparably mixed with other items not belonging to Erbslöh Geisenheim GmbH, Erbslöh Geisenheim GmbH shall acquire co-ownership of the new item in the ratio of the value of the reserved item (purchase price plus VAT) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the supplier’s item is to be regarded as the main item, it shall be deemed agreed that the supplier shall transfer proportional co-ownership to Erbslöh Geisenheim GmbH; the supplier shall keep the sole ownership or co-ownership in safe custody for Erbslöh Geisenheim GmbH.
(3) Insofar as the security rights to which Erbslöh Geisenheim GmbH is entitled pursuant to paragraph (1) and/or paragraph (2) exceed the purchase price of all reserved goods not yet paid for by more than 10 percent, Erbslöh Geisenheim GmbH shall be obliged to release the security rights at Erbslöh Geisenheim GmbH’s discretion at the supplier’s request.
(4) An extended or expanded retention of title by the supplier is excluded.
(5) Tools, moulds, print templates or the like (hereinafter referred to as “tools”) manufactured on our behalf shall become the property of Erbslöh Geisenheim GmbH at the time of completion. Erbslöh Geisenheim GmbH reserves title to tools which Erbslöh Geisenheim GmbH has made available to the supplier. Tools according to sentence 1 and sentence 2 are to be marked by the supplier as the property of Erbslöh Geisenheim GmbH, stored, maintained and repaired separately and free of charge. The supplier is further obliged to use the tools exclusively for the manufacture of the goods ordered by Erbslöh Geisenheim GmbH. The supplier is obliged to insure the tools owned by Erbslöh Geisenheim GmbH at replacement value against fire, water and theft at his own expense. At the same time, the supplier hereby assigns to Erbslöh Geisenheim GmbH all compensation claims under this insurance; Erbslöh Geisenheim GmbH hereby accepts the assignment. The supplier shall immediately notify Erbslöh Geisenheim GmbH of any malfunctions; if he culpably fails to do so, claims for damages shall remain unaffected. Ownership of Erbslöh Geisenheim GmbH in accordance with sentence 1 shall be surrendered at any time upon first request. If the manufacturing costs have not yet been settled (amortisation), the surrender shall be effected concurrently with the settlement of the outstanding residual claim.
§ 10 Confidentiality
(1) The supplier is obliged to keep secret the conditions of the order as well as all templates, information and documents made available to him for this purpose and to use them only for the execution of the order. The obligation to maintain secrecy shall also apply after the contract has been completed. However, it shall expire if and to the extent the knowledge contained in the templates, information and documents made available for the purpose has become generally known or was demonstrably already known to the supplier at the time of notification within the meaning of sentence 1.
(2) Without our prior written consent, the supplier shall not refer to the business relationship in advertising material, brochures, etc. and shall not exhibit delivery items manufactured for Erbslöh Geisenheim GmbH.
(3) The supplier shall obligate his subcontractors in accordance with this § 10.
§ 11 Obligation to document and provide information
(1) At the request of Erbslöh Geisenheim GmbH, the supplier shall be obliged to name the country of origin of the goods, to hand over the certificates of origin required for export and to provide information on the obligation to obtain an export permit in accordance with German law, the list item number and the statistical goods number. The supplier shall be liable for the correctness of his information.
(2) The products of Erbslöh Geisenheim GmbH are primarily intended for the production, research and laboratory sectors of the food industry and, in part, for applications in the agricultural production process. The supplier is therefore obliged to provide Erbslöh Geisenheim GmbH with all available information for the products supplied by him which Erbslöh requires in order to fulfil its statutory duty to document, declare and provide information to authorities, customers and consumers (such as toxicological and health assessments, pesticide residues etc.).
§ 12 Quality assurance
(1) The supplier is obliged to develop, manufacture and test the products in such a way that they are delivered in accordance with the properties/specifications which correspond to the agreed sample. The delivered products must comply with the relevant statutory regulations (e.g. DIN requirements, accident prevention regulations, etc.), which must be proven by test certificates.
(2) The supplier shall maintain a quality assurance system in accordance with the regulations of the DIN/ISO 9000-9004 standard group.
(3) The supplier is obliged to carry out an outgoing goods inspection which must at least fulfil the requirements, such as the incoming goods inspection actually required by the purchaser according to § 377 HGB (German Commercial Code). The outgoing inspection shall be documented.
(4) Erbslöh Geisenheim GmbH may at any time request the supplier to inspect the internal documents for quality assurance of the contractual products at the supplier’s premises. In addition, Erbslöh Geisenheim GmbH is entitled to carry out an audit within the scope of its certification activities at its suppliers after giving prior notice in good time.
§ 13 Place of jurisdiction, place of performance, choice of law
(1) If the supplier is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction is the registered office of Erbslöh Geisenheim GmbH; however, Erbslöh Geisenheim GmbH is entitled to sue the supplier also at the court of his domicile.
(2) Unless otherwise stated in the order, the place of performance shall be the registered office of Erbslöh Geisenheim GmbH.
(3) Other individual agreements notwithstanding, German law shall apply to the entire contractual relationship between Erbslöh Geisenheim GmbH and the supplier, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. Insofar as trade clauses have been agreed in accordance with the International Commercial Terms (INCOTERMS), the latest version of the INCOTERMS shall apply (currently INCOTERMS 2020).