General Terms and Conditions of Business
The following Terms and Conditions of Business represent a translation of the German text for the purpose of understanding and have no legal validity. Only the original Terms and Conditions of Business (Allgemeine Geschäftsbedingungen) written in German are legally binding.
- All offers, deliveries and agreements are based exclusively on our sales and delivery terms.
- The offsetting of any counter-claims by the buyer is precluded unless the counter-claims are undisputed and declared to have legal force. If the buyer is a trader, he/she shall have no right of retention against our claim due to counter-claims.
- We save personal data due to pre-contractual relationships.
In so far as no other agreement has been concluded, our prices are stated ex works and include costs for packaging but are exclusive of VAT to the amount defined by law.
In so far as no other agreement has been concluded, shipment shall be for the account and at the risk of the buyer. Should damage arise during transport or if the goods listed in the consignment note/delivery note are not delivered completely, the consignee of the goods shall have the delivery service (in the case of a freight-forwarding company = the lorry driver; in the case of railway shipment = the receiving freight station) make a detailed description of the damage on the consignment note immediately and shall confirm this with a signature. The consignment note with the description of the damages must be handed over to us for pressing claims for damages for the buyer; although we are not obliged to enforce the claims, we will however take all reasonable measures to enable the customer to enforce the claims. Even if delivery is agreed upon as free to the receiving station of the buyer, the buyer bears the risk of the shipment. In such cases, we shall however compensate for transport losses in so far as and to the extent that we ourselves receive compensation for transport damage. Compensation shall be made at our discretion either by providing a free-of-charge replacement delivery or by crediting the refund amount.
4. Payment conditions
Our invoices are payable within 30 days from receipt of invoice without deduction or within 14 days at 2% discount. Bills of exchange and cheques are accepted only on account or performance. Discount charges and expenses shall be for the buyer's account.
In the case of default of payment, the buyer must pay default interest at the level of the bank interest which we have to pay ourselves. Without proof of the bank interest to be paid by us, default interest of at least 4% above the discount rate of the Bundesbank (German Central Bank) shall be paid, unless the buyer provides proof that no or considerably less damage has arisen for us; in the latter case, the buyer shall compensate us for the actual loss.
If, after the signing the contract, we become of aware of circumstances which cast doubt on the creditworthiness of the buyer, we can demand prepayments or securities at our discretion, notwithstanding the payment conditions agreed upon.
5. Complaints, Liability
- We warrant that our products correspond to the state of the art at the time of shipment. The prerequisite for this guarantee is correct handling under observation of the pertinent regulations.
- We shall be notified in writing of obvious defects in the supplied goods within 14 days at the latest from receipt of the consignment, notwithstanding statutory notice periods. Delayed notification of defects shall not constitute any grounds for claims against us.
- Clause V.2 correspondingly applies to non-obvious defects, in so far as the buyer is a trader.
- In the case of defects in the goods supplied by us and timely notification of the defects (clauses V.2 and 3), we will replace the defective goods free of charge. Upon failure of the replacement delivery, the buyer has legal rights of change or reduction.
- In the event of a complaint, the buyer shall allow us, upon request, to carry out checks by submitting material samples. Upon violation of this obligation, the buyer shall have no warranty claims against us, unless the violation of the obligation neither hinders us in checking the damages nor makes it difficult for us to do so. The costs for submitting the material samples will be borne by us if the supplied material was defective.
- Claims for compensation made by the buyer against us due to the supply of defective goods or other contractual violations are excluded. This does not apply in cases of intentional or grossly negligent breach of contract on the part of our legal representatives or vicarious agents, and likewise not for claims for compensation due to the absence of guaranteed properties.
6. Delivery & Acceptance
Disruption of business operations caused by delayed delivery of operating resources to us which were ordered in a timely manner, furthermore caused by fire damage, traffic congestion, energy and raw material shortage, state interventions at our company as well as the consequences of force majeure, particularly strikes, lockouts, unrest and such like, shall free us from our delivery obligation for the duration of the disruption and a for a reasonable subsequent period to allow for commencement of operations, and shall entitle both parties to withdraw from the contract if the agreed delivery date is exceeded by more than 1 month.
7. Title Retention
The supplied goods shall remain our property until payment of the complete purchase price and any previous debts to us have been settled in full.
The buyer is entitled to resell the goods to a third party or to process goods subject to retention of title within the framework of his/her normal business operation; pledging or using the goods as security is not permitted however.
The buyer already now assigns to us claims from any resale to a third party or from processing goods subject to retention of title; we hereby accept this assignment.
The buyer is entitled to collect this claim as long as he/she fulfils his/her commitments to us. In the case of an excess of security collateral of more than 25%, appropriate partial release shall be initiated by us.
The buyer’s entitlement to collect the claim is also forfeited if there are grounds to suspect that the buyer is facing imminent insolvency or is in insolvency.
At our request, the buyer shall provide the information about the assigned claims necessary for the collection and inform the debtors of the assignment.
Should the buyer default on payment, or if there are grounds to suspect that the buyer is facing imminent insolvency or is in insolvency, we can retrieve the goods under retention of title without the need for a withdrawal from the contract with the buyer, notwithstanding differing mandatory statutory regulations. The buyer irrevocably agrees to the collection of the goods by our commissioned agent, as well as to permitting this agent to enter his/her premises for the purposes of collection.
8. Application Provisions
When using ELKA grinding wheels, the regulations of the European Federation of the Producers of Abrasives (FEPA) as well as the pertinent accident prevention regulations (UVV) of the employers' liability insurance associations must be observed. The maximum circumferential speeds specified by us must be adhered to.
9. Information and Consulting
Advice and information are provided to the best of our knowledge, but we shall accept no liability for this. In cases where the provision of information is recognized as being of considerable significance and as having a particularly far-reaching economic impact for the customer, or in cases where information or consultation is provided on specific case-related applications, the consultation is carried out as a pre-contractual/contractual subsidiary obligation.
10. Place of Fulfilment, Applicable Law, Jurisdiction
- Place of fulfilment for delivery and payment is Wiedergeltingen.
- The law of the Federal Republic of Germany applies exclusively.
- The agreed place of jurisdiction, to the extent permissible and particularly for judicial dunning procedures, is Memmingen.