General terms & conditions
General Terms and Conditions of ELSÄSSER Filtertechnik GmbH
Subject and scope of these Terms and Conditions
1. The subject of these Terms and Conditions is the deliveries and services performed by Elsässer Filtertechnik GmbH (ELSÄSSER), in particular the delivery of industrial filters and accessories as well as the provision of services in this field for commercial customers.
2. The following provisions apply to all offers and agreements by/with ELSÄSSER, and in the case of an ongoing business relationship also to all future business transactions with merchants if the contract forms part of their commercial business, and with legal entities under public law and/or special funds under public law. Any other terms and conditions of the customer shall only apply if they have been confirmed in writing by a person named in the Commercial Register and authorized to represent ELSÄSSER. This shall also apply even if ELSÄSSER has not expressly objected to the customer’s deviating terms and conditions or if the customer has made reference to deviating terms and conditions in its order.
Conclusion of contract
All quotations and offers made by ELSÄSSER are subject to change. Contracts shall only be concluded upon provision of the order confirmation or the execution of the order by ELSÄSSER. Ancillary agreements or amendments to these Terms and Conditions must be made in writing. This also applies to any amendment of this written-form requirement.
Scope of services
1. The exact scope of the services is based on the order confirmation issued by ELSÄSSER.
2. All orders, agreements, specifications, warranties, etc., including those arranged by our representatives, must be confirmed in writing by ELSÄSSER in order to be legally effective.
3. Any objections to our order confirmations must be communicated to us in writing without delay.
Frustration of contract
1. If circumstances change materially after the conclusion of the contract or if unforeseeable events – such as force majeure, in particular mobilization, war, riots, boycotts or operational disturbances, strikes and lockouts, official interventions, energy supply difficulties and/or difficulties in the procurement of materials – hinder the manufacture or procurement of the contractual goods, ELSÄSSER may demand an amendment to the contract or, at its discretion, withdraw from the contract.
2. If, after conclusion of the contract, a risk to ELSÄSSER’s claim for remuneration becomes apparent, ELSÄSSER may demand advance payment or the provision of a security. Should the customer fail to comply with the above despite being granted a reasonable grace period in which to do so, ELSÄSSER shall be entitled to withdraw from the contract or to claim damages in lieu of performance. In this case, all claims of ELSÄSSER shall be fulfilled immediately and in full by the customer, irrespective of the agreed payment terms.
3. In the event of substantial wage and material cost increases after conclusion of the contract, ELSÄSSER shall be entitled to adjust the delivery price accordingly or, if the customer objects to the increased delivery price, to withdraw from the contract.
Prices, terms of payment, offsetting
1. The prices stated in the order confirmation only include the services specified in the same.
2. Packaging, transport costs, and other services shall be charged separately. In particular, the customer shall bear the costs of transport insurance. Crates and boxes shall be charged to the customer at their cost price and subsequently credited to the customer on the condition that the customer returns the crates and boxes to ELSÄSSER in an undamaged condition and at its own expense within one month after delivery. Travel expenses and expenses for installation, familiarization, training, and organizational meetings shall also be invoiced separately in accordance with ELSÄSSER’s specified terms and conditions or hourly rates.
3. The prices shall be based on the applicable wage, material, and overhead costs when the order confirmation was issued. In case of deliveries more than six months after conclusion of the contract, ELSÄSSER shall be entitled to adjust the price within reason at its own discretion. If the customer objects to the increased delivery price, ELSÄSSER shall be entitled to withdraw from the contract. In the event of taxes or public charges that are introduced or levied after conclusion of the contract and that affect the services provided by ELSÄSSER, ELSÄSSER shall be entitled to pass these costs on to the customer.
4. The prices do not include the statutory value-added tax applicable at the time of delivery.
5. ELSÄSSER’s claims shall be due upon completion of the shipment. For custom-made products, one third of the delivery price shall be due at the time of ordering. CASH Discounts shall not be granted.
6. ELSÄSSER shall be entitled to demand interest at a rate of nine percentage points above the base interest rate from the 15th calendar day after the payment deadline. The right to claim a higher amount of damages for the delay shall remain unaffected.
7. ELSÄSSER is entitled to demand advance payments or collateral if the customer does not comply with the terms of payment. After expiration of a reasonable grace period granted to the customer, ELSÄSSER shall be entitled to withdraw from the contract or claim damages in lieu of performance.
8. The customer may only offset claims that are undisputed or have been established as final and absolute or assert a right of retention on account of such claims.
Delivery times, default
1. The delivery times stated by ELSÄSSER Filtertechnik in quotations or order confirmations are only approximate times. Binding delivery deadlines must be expressly agreed in writing. Such deadlines shall depend on (i) the prior resolution of all technical queries and the receipt of all documents and information from the customer as are necessary for the manufacture of the delivery item, (ii) the timely and complete fulfillment of the customer’s cooperation obligations, and (iii) the customer’s compliance with the terms of payment. If these requirements are not met, the deadlines shall be extended accordingly, and at the least by the duration of the delay. ELSÄSSER is not responsible for force majeure; in particular, mobilizations, wars, riots, boycotts, strikes, and lockouts.
2. If the customer sets ELSÄSSER a reasonable grace period after the default combined with a threat of refusal of the goods, the customer shall be permitted to withdraw from the contract after the deadline has expired or, if the default is due to intent or gross negligence on the part of ELSÄSSER, to demand damages in lieu of performance. Section 286 (2) of the German Civil Code (BGB) shall not apply.
Deliveries
1. The deliveries shall be insured for transport ex works, warehouse or location; the goods shall be shipped at the customer’s expense and risk, even if carriage-paid delivery is agreed or the delivery is made using ELSÄSSER’s own vehicles. ELSÄSSER is entitled to choose the shipping method.
2. If the customer does not accept the delivery item within 12 working days after notification that it is ready for delivery, or if the customer fails to inform ELSÄSSER of the shipping address within this period, or if, in the case of call-off orders, the call-off is not received, ELSÄSSER shall be entitled to demand immediate payment of its trade receivables and storage charges in an appropriate amount. ELSÄSSER shall also be entitled to withdraw from the contract and to claim damages in lieu of performance.
3. In the case of call-off orders without a specified delivery time, the delivery item shall, on a regular basis, be accepted by the customer three months after confirmation of the order.
Retention of title
1. ELSÄSSER shall retain title to the goods delivered to the customer pending full settlement of all claims arising from the business relationship between ELSÄSSER and the customer at the time of delivery or arising later; in the case of payment by check or bill of exchange, this shall apply until their redemption. The adjustment of individual claims in a current invoice as well as the calculation of a balance and its acknowledgement shall not affect the retention of title.
2. The customer is entitled to resell the reserved goods in the normal course of business. However, it is not permitted to pledge the goods or to transfer or assign them by way of security. The customer shall secure the rights of ELSÄSSER as the conditional seller when reselling reserved goods on credit. The customer hereby assigns in advance to ELSÄSSER the customer’s claims arising from the resale of reserved goods; ELSÄSSER accepts the assignment. Notwithstanding the above assignment and ELSÄSSER’s collection rights, the customer shall be entitled to collect such claims as long as it meets its obligations vis-a-vis ELSÄSSER and ELSÄSSER’s claim for remuneration is not endangered. At ELSÄSSER’s request, the customer shall provide the details of the assigned claims as necessary for their collection and shall notify its debtors of the assignment.
3. Any processing or treatment of the reserved goods shall be carried out by the customer on behalf of ELSÄSSER without ELSÄSSER being bound thereby. In the event of processing, combining, mixing or blending of the reserved goods with other goods not belonging to ELSÄSSER, ELSÄSSER shall be entitled to a resulting co-ownership share in the new item in the ratio of the delivery value of the reserved goods to the other processed goods at the time of the processing, combining, mixing or blending. If the customer acquires sole ownership of the new item, it is hereby agreed with ELSÄSSER that the customer shall grant ELSÄSSER co-ownership of the new item in proportion to the delivery value of the processed or combined, mixed or blended reserved goods and shall store them for ELSÄSSER free of charge. If the reserved goods are resold together with other goods – regardless of whether they have been processed, combined, mixed or blended – the advance assignment shall be limited to the invoice value of the reserved goods.
4. If the value of the securities exceeds ELSÄSSER’s claims by more than 20%, ELSÄSSER shall, at the customer’s request, release appropriate securities at its discretion.
5. The customer shall inform ELSÄSSER without delay of any enforcement measures by third parties in respect of the reserved goods or the claims assigned in advance and shall provide ELSÄSSER with the necessary documents to mount an intervention.
6. Furthermore, the customer shall insure those goods which are the sole or joint property of ELSÄSSER adequately against all material risks. Proof of said insurance cover shall be provided to ELSÄSSER upon request.
7. In case of a default by the customer or a substantial breach of its duties of care and/or its custodial duties, the reservation of title by ELSÄSSER shall not be deemed a withdrawal from the contract, unless ELSÄSSER expressly declares its withdrawal.
Inspection and reporting obligation
1. The customer shall inspect the delivered goods, including any documentation, within 30 days of delivery, in particular with regard to their completeness and functionality. ELSÄSSER shall be notified immediately of any defects in a comprehensible manner via a letter sent by registered post.
2. If defects which could not initially be detected in the course of a proper inspection are subsequently detected, the customer must inform ELSÄSSER within 30 days of their detection in compliance with the reporting requirements for defects (see paragraph 1).
3. In the event of a breach of the customer’s inspection and/or reporting obligations, any warranty claims based on the defect in question shall be void. § Section 377 of the German Commercial Code (HGB) shall apply in addition.
Defects
1. If the customer is not willing to accept industry-standard product variations then this shall require the express written agreement of ELSÄSSER. The same applies for any warranties. Minor, non-substantial differences between the delivered goods and samples, catalogs, brochures, and price lists, etc. or previously delivered goods shall not be considered defects.
2. The customer is responsible for checking whether the ordered goods are suitable for the intended purpose. Unsuitable goods shall only be deemed defective if ELSÄSSER has previously confirmed their suitability to the customer in writing.
3. Wear and tear of wearing parts resulting from normal use shall not constitute a defect.
4. If installation, assembly, sales or maintenance instructions are not followed, if modifications are made to the delivered goods, if parts are replaced and/or if materials or cleaning or care agents are used which do not comply with the manufacturer’s specifications, claims for defects shall only exist if the customer proves that the defect was not caused by the above but already existed at the time of the transfer of risk.
Limitation of liability, compensation
1. In the case of a delayed delivery by ELSÄSSER for reasons for which ELSÄSSER is responsible, ELSÄSSER shall be liable for the damages incurred by the customer. ELSÄSSER’s liability shall be limited to the typical level of damages for comparable transactions and, in the case of negligence, to 0.5% for each full week of the delay up to a maximum total amount of 5% of the invoice value.
2. If ELSÄSSER has negligently breached a material contractual obligation, ELSÄSSER’s liability shall be limited to the typical damages for comparable transactions of this kind, which were foreseeable when the contract was concluded or, at the latest when the breach of duty was committed, and shall be limited in individual cases to an amount of EUR 1,000,000.
3. § 444 of the German Civil Code (BGB), claims for damages due to injury to life, limb or health, as well as claims under the German Product Liability Act shall remain unaffected by this limitation of liability.
4. Other compensation claims asserted against us of any kind are excluded unless ELSÄSSER or its vicarious agents are guilty of intent or gross negligence.
5. In particular, ELSÄSSER shall not be liable for damage caused to the delivery item itself, nor for consequential costs caused by defects of any kind, nor shall ELSÄSSER be liable for lost profit or other financial losses incurred by the customer.
6. Any warranty claims and claims for damages asserted by the customer other than those specified in these Terms and Conditions shall be excluded, irrespective of their nature and legal basis.
7. The liability of ELSÄSSER’s vicarious agents is limited in the same way.
Limitation periods
The limitation period for claims directed against ELSÄSSER is one year. For claims for damages due to injury to life, limb or health, as well as all compensation claims for damages caused by ELSÄSSER or its vicarious agents due to gross negligence or intent, the statutory limitation periods shall apply.
Place of performance / Jurisdiction
1. The place of performance is the place of business of ELSÄSSER.
2. With regard to merchants and legal entities under public law or special funds under public law, the exclusive place of jurisdiction for all disputes arising from legal relationships between ELSÄSSER and the customer shall be the place of business of ELSÄSSER or, at ELSÄSSER’s discretion, the customer’s place of business.
Final provisions
ELSÄSSER is entitled to fulfill any of its contractual obligations via third parties.
German law shall apply exclusively with the exception of the conflict of laws. The UN Sales Convention shall not apply.
Should any of these provisions be or become invalid or unenforceable in whole or in part, the provisions in question shall be replaced by a provision that most closely reflects their intended economic purpose. Consequently, the validity of the remaining provisions shall remain unaffected.
