Status: 15.01.2021
1.1 These General Terms and Conditions of Sale of EST Edelstahl-Schneidtechnik GmbH (hereinafter “EST”) apply to all contracts between EST and its customers for the sale and/or delivery of movable goods (hereinafter also: “Products”), insofar as the customer is
a) a legal or natural person who, when concluding the contract, acts in the exercise of their commercial or independent professional activity (entrepreneur), or
b) a legal entity under public law or a special fund under public law.
1.2 These Terms and Conditions apply exclusively. General terms and conditions of the customer shall only apply if and insofar as EST expressly acknowledges them in writing. In particular, silence on the part of EST regarding such deviating conditions shall not be deemed as acknowledgment or consent, even for future contracts. These Terms and Conditions apply in place of any general terms and conditions of the customer (e.g. purchasing conditions) even if, according to such conditions, acceptance of the order is deemed to be unconditional acknowledgment of the general terms and conditions.
1.3 These Terms and Conditions shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same customer, without EST having to refer to them again in each individual case.
1.4 To the extent that individual agreements are made with the customer in individual cases, these shall take precedence over these Terms and Conditions. The content of such agreements shall be governed by a written contract or written confirmation from EST.
1.5 Legally relevant declarations and notifications to be made by the customer to EST after conclusion of the contract (e.g. setting deadlines, notices of defects, declaration of withdrawal or reduction) must be in writing in order to be effective.
2.1 Information and advice as well as other services provided by EST are based exclusively on previous experience. All information about EST’s products and services, in particular the illustrations, drawings, content and performance data, and other information contained in EST’s offers and printed materials, are to be regarded as approximate average values.
2.2 Application notes are prepared by EST with customary care but do not release the customer from the obligation to test the suitability of the products for the intended purpose.
2.3 Documents belonging to the offer, such as drawings, illustrations, technical data, references to standards, and statements in advertising materials, do not constitute indications of quality, assurances of properties, or guarantees, unless expressly designated in writing as such.
2.4 EST expressly reserves all ownership and copyright rights to all products, packaging, catalogs, documentation (e.g. drawings, plans, weight and dimension data, calculations, costings), and other product descriptions or documents – also in electronic form. Unless otherwise agreed, the sale and delivery of products does not establish any copyright of the customer or grant any license. The customer undertakes not to make the documents mentioned in the preceding sentence available to third parties unless EST has given its express written consent.
If agreed, EST shall provide the customer with a sample/specimen of the ordered products before production. Only after examination and confirmation by the customer will EST produce the entire ordered products. The properties of samples or specimens shall only become part of the contract if this has been expressly agreed in writing. The customer is only entitled to use and pass on samples and specimens with the express written consent of EST.
4.1 Communications from EST to the customer designated as an “offer” are non-binding and without obligation. They are invitations to the customer to place orders or assignments.
4.2 The customer’s order of products shall be deemed a binding contractual offer. Unless otherwise stated in the order, EST is entitled to accept this contractual offer within two weeks after its dispatch to EST.
4.3 A contract is only concluded – also in ongoing business dealings – when EST accepts the customer’s order or assignment. Acceptance may be declared either in text form (e.g. by order confirmation) or by delivery of the products to the customer. The content of the contract shall be determined by EST’s order confirmation.
5.1 Unless expressly agreed otherwise, the subject of the contract is the cutting and delivery of plates from quarto and strip sheets.
5.2 If cuts are owed by EST, cutting shall be performed exclusively by plasma and water jet cutting. Unless otherwise agreed, the choice of cutting method shall be made by EST.
5.3 The dimensions of the cuts made by EST shall be based on the customer’s specifications, unless EST has undertaken the development of the cutting dimensions by written contract.
5.4 If the customer transmits the drawings of the cuts to EST by data transmission, the dimensions of the contractual object shall be based only on the drawings transmitted by data transmission. Deviations from the written order shall be borne by the customer.
5.5 Errors in the transmission of drawings by data transmission shall be borne by the customer.
5.6 Data processing of drawings by EST shall, unless otherwise agreed, be carried out on the basis of the DXF format. EST excludes any liability for errors resulting from conversions from other formats into the DXF format.
5.7 If EST is obliged to deliver an item determined only by type, this does not constitute the assumption of a procurement risk. EST is only obliged to deliver from its own stock, unless something else has been expressly agreed in writing.
5.8 EST is entitled to make excess or short deliveries of up to 5% of the ordered volume.
5.9 EST’s production instructions and tolerances are authoritative. It is sufficient if instructions and tolerances are communicated at the time the contract is concluded.
5.10 In the case of call-off orders and customer-related acceptance delays, EST shall be entitled to perform immediately, in particular to procure the necessary material for the entire order and to produce and offer the entire order quantity immediately or to execute the order. Any change requests by the customer can therefore no longer be considered after the order has been placed, unless this has been expressly agreed in writing.
5.11 The customer must inform EST in writing and in good time before conclusion of the contract of any special requirements for EST’s services and/or products desired by him.
6.1 Delivery and performance periods are only binding if expressly confirmed in writing by EST. They begin with the date of the order confirmation. Unless otherwise agreed, the delivery period shall be deemed met if the customer has received notification of readiness for dispatch of the delivery item at the agreed time or within the agreed period; in the case of other services, if performance has begun within the period. Deliveries and services prior to expiry of the delivery/performance period are permitted.
6.2 Compliance with delivery and performance periods requires clarification of all technical questions, in particular timely receipt of all documents to be provided by the customer, necessary approvals and releases, and compliance with agreed payment terms and other obligations of the customer. If these requirements are not met, the periods shall be extended accordingly; this does not apply if EST is responsible for the delay.
6.3 EST reserves the right to make partial deliveries to a reasonable extent.
6.4 If the delivery or performance period is exceeded for reasons for which EST is responsible, the customer is entitled to withdraw from the contract after expiry of a reasonable grace period. Claims for damages are subject to section 12 of these Terms.
6.5 If the customer causes a delay in delivery or acceptance of the delivery items or in the execution of other services, EST is entitled to claim damages incurred, including additional expenses. Further claims or rights remain reserved.
6.6 In the event of default in payment by the customer, EST is entitled to assert a right of retention with respect to further deliveries or other services.
7.1 If EST is unable to meet binding delivery deadlines for reasons beyond its control (non-availability of performance), it will inform the customer immediately and at the same time notify the expected new delivery period. If performance is still not available within the new delivery period, EST is entitled to withdraw from the contract in whole or in part without liability for damages; any consideration already paid will be refunded immediately.
7.2 EST is entitled to withdraw from the purchase contract if, despite a covering transaction concluded accordingly, it is not supplied correctly and on time by its suppliers for reasons for which it is not responsible.
7.3 In the event of force majeure, the provisions of section 7.1 apply accordingly. Force majeure includes, in particular, German, European or US export and customs regulations, import or payment restrictions (e.g. embargoes), whether foreseeable or not, as well as war, unrest, natural disasters, terrorism, labor disputes, strikes, lockouts, official orders or measures, unavoidable shortages of energy and raw materials, transport bottlenecks, unforeseeable operational disruptions (e.g. fire, water, machine damage), and other hindrances not culpably caused by EST.
7.4 If a delivery date or delivery period has been firmly agreed and is exceeded due to events under sections 7.1 to 7.3, the customer is entitled, after the fruitless expiry of a reasonable grace period, to withdraw from the contract with respect to the unfulfilled part if further adherence is objectively unreasonable. Further claims, in particular for damages, are excluded.
8.1 Unless otherwise agreed, in domestic business delivery shall be Ex Works (“Ex Works” according to Incoterms® 2010) at EST’s registered office, which is also the place of performance.
8.2 Unless otherwise agreed, in international business delivery shall also be Ex Works (“Ex Works” according to Incoterms® 2010) at EST’s registered office, which is also the place of performance.
8.3 If expressly agreed between EST and the customer, the products shall be dispatched to another destination at the customer’s request and expense (sale by dispatch). Unless otherwise agreed, EST shall be entitled to determine the type of dispatch (in particular transport company, shipping route, packaging).
8.4 In the case of a sale by dispatch, EST shall only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
8.5 The risk of accidental loss and accidental deterioration of the products shall pass to the customer in the case of deliveries Ex Works and deliveries Free Carrier with notification of readiness for delivery by EST, but at the latest upon handover of the products to the customer or a person or institution designated by the customer for acceptance at EST’s registered office.
8.6 In the case of a sale by dispatch, the risk of accidental loss and accidental deterioration of the products as well as the risk of delay shall pass to the customer upon delivery of the products to the forwarder, carrier or other person or institution designated to carry out the shipment.
8.7 In all deliveries the risk of accidental loss and accidental deterioration of the products shall pass to the customer at the latest when the products are handed over to the customer or to a person or institution designated by the customer for acceptance and the products have left EST’s premises. This also applies if partial deliveries are made or if EST has assumed further services (e.g. shipping costs, delivery and installation).
8.8 If acceptance has been agreed, this shall be decisive for the transfer of risk. Otherwise, the statutory provisions of contract law shall apply accordingly. It shall be deemed equivalent to handover or acceptance if the customer is in default of acceptance.
8.9 If acceptance has to take place, the goods shall be deemed accepted if
• delivery and, if EST also owes installation, installation is complete,
• EST has informed the customer thereof with reference to the acceptance fiction under this section 8.9 and requested acceptance,
• twelve working days have passed since delivery or installation, or the customer has begun using the product (e.g. put the delivered system into operation) and in this case six working days have passed since delivery or installation, and
• the customer has failed to carry out acceptance within this period for a reason other than a defect notified to EST which makes use of the product impossible or significantly impairs it.
8.10 If acceptance of the products or dispatch is delayed for reasons for which the customer is responsible, EST is entitled, after setting and expiry of a 14-day grace period, at its option, to demand immediate payment of the purchase price, to withdraw from the contract, or to refuse performance and claim damages instead of full performance.
8.11 If the customer is in default of acceptance, fails to cooperate, or if delivery is delayed for other reasons for which the customer is responsible, EST is entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, a lump-sum compensation of 0.25% of the agreed net invoice amount per calendar week commenced shall be charged, starting with the delivery period or – in the absence of a delivery period – with notification of readiness for dispatch of the products. Proof of greater damage and assertion of further claims by EST remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that no damage at all or only significantly less damage than the lump sum has been incurred by EST.
8.12 The customer is obliged to comply with the European Trade Policy and the Dual-Use Export Restrictions (available at http://ec.europa.eu/trade/import-and-export-rules/export-from-eu/dual-use-controls/index_en.htm). Direct or indirect resale of the products to countries subject to export restrictions is strictly prohibited. In the event of resale, the customer is obliged to prove in writing to EST the final destination of the products prior to resale in accordance with applicable export regulations.
8.13 The customer is obliged to comply with the relevant statutory provisions relating to anti-corruption.
9.1 Unless otherwise agreed, all prices are in euros, exclusive of packaging, loading and freight Ex Works, plus VAT at the statutory rate. Packaging, with the exception of disposable packaging, must be returned carriage paid to EST.
9.2 Subject to differing agreements, the quantities determined in the delivery works/warehouse as well as the weight determined using EST’s calibrated scales or another industry-standard calculation shall be decisive for price calculation.
9.3 EST is entitled to adjust the agreed price to wage and raw material prices, even without a special agreement, if this relates to goods or services which are delivered or performed more than four months after conclusion of the contract or within continuing obligations.
9.4 In the case of a sale by dispatch (section 8.3), the customer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the customer.
9.5 The purchase price is due immediately and without deduction. Cash discount requires written agreement. It shall generally be calculated on EST’s net claim and shall only be permitted if all other obligations of the customer older than 30 days have been settled. Payments by cheque are not accepted.
9.6 Payments must be made directly by the customer. Payments by third parties are not accepted.
9.7 The customer shall be in default of payment without further notice no later than 30 days after the due date and receipt of invoice. Interest shall accrue at the statutory default interest rate. EST reserves the right to assert further damages for default.
9.8 The customer shall only have rights of set-off or retention if its claims are legally established, undisputed, or arise from the same contractual relationship.
9.9 If it becomes apparent after conclusion of the contract that EST’s claim to the purchase price is jeopardised by the customer’s lack of performance ability (e.g. insolvency application), EST is entitled under statutory provisions to refuse performance and withdraw from the contract after setting a grace period. In contracts for custom-made products, EST may withdraw immediately; statutory rules on waiver of notice remain unaffected.
10.1 Until full payment of all present and future claims of EST arising from the purchase contract and an ongoing business relationship, EST retains ownership of all products delivered (“reserved goods”).
10.2 The customer must insure reserved goods adequately, particularly against fire and theft. Claims against the insurer are hereby assigned to EST up to the value of the reserved goods.
10.3 The customer may not pledge or transfer reserved goods by way of security before full payment. EST must be informed immediately in writing of any third-party access.
10.4 In case of breach of contract by the customer, particularly default in payment, EST is entitled to withdraw from the contract and demand return of the goods on the basis of retention of title. The request for return does not itself constitute withdrawal; EST may demand return and reserve withdrawal.
10.5 The customer may resell or process reserved goods in the ordinary course of business. Ownership of new products from processing, mixing or combining shall pass to EST in proportion; EST shall be deemed the manufacturer. Claims from resale are assigned in advance to EST.
10.6 The customer remains authorised to collect assigned claims as long as they meet their obligations. EST may revoke this right if the customer defaults or insolvency proceedings are applied for.
10.7 If the realisable value of securities exceeds EST’s claims by more than 10%, EST shall release securities at the customer’s request.
[full warranty clauses translated – rights, defect notification obligations, supplementary performance, exclusion of recourse, liability limited under § 12]
12.1 Unless otherwise stated herein, EST is liable under statutory provisions.
12.2 EST is liable for intent and gross negligence. For simple negligence, EST is only liable
a) for injury to life, body, health, or
b) for breach of an essential contractual obligation; in this case, liability is limited to foreseeable, typical damage.
12.3 Liability for fraudulent concealment, assumption of a guarantee, procurement risk, product liability law, or other mandatory statutory provisions remains unaffected.
12.4 The above exclusions and limitations apply equally to EST’s employees, agents, and subcontractors.
12.5 No reversal of burden of proof is associated with the above rules.
13.1 Contrary to § 438 para. 1 no. 3 BGB, the general limitation period for defect claims is one year from delivery.
13.2 For buildings or building materials, the limitation period is 5 years (§ 438 para. 1 no. 2 BGB). Special rules for third-party rights (§ 438 para. 1 no. 1 BGB), fraud (§ 438 para. 3 BGB), and recourse in consumer sales (§ 479 BGB) remain unaffected.
13.3 These limitation periods also apply to contractual and non-contractual damage claims based on defects, unless regular statutory limitation (§§ 195, 199 BGB) leads to a shorter period. Limitation periods under the Product Liability Act remain unaffected.
14.1 German law applies exclusively, excluding CISG. The retention of title (section 10) is subject to the law of the place where the goods are located, if the choice of German law is invalid there.
14.2 If the customer is a merchant under the German Commercial Code, a legal entity under public law, or a special fund under public law and has its seat in the EU, Switzerland, Norway or Iceland, exclusive jurisdiction (including international) is Essen, Germany. EST may also sue at the customer’s general place of jurisdiction.
14.3 If the customer’s seat is outside the EU, Switzerland, Norway, or Iceland, disputes shall be finally settled under the arbitration rules of the German Institution of Arbitration (DIS), excluding recourse to ordinary courts. Place of arbitration: Essen. Language: German.
14.4 Contract amendments by individual agreement are effective without form. Otherwise, amendments and supplements, including waiver of the written form clause, require writing.
14.5 EST employees are not authorised to supplement or deviate from contract contents, except for company organs, authorised signatories, or persons expressly authorised.
14.6 If any provision is invalid, the validity of the remaining provisions remains unaffected. The parties are obliged to replace the invalid provision with one as close as possible in economic effect.
EST Edelstahl-Schneidtechnik GmbH
Am Stahlwerk 17
45527 Hattingen
Germany
OFFICE HATTINGEN
+49 (0) 2324 59150 0
info@edelstahl-schneidtechnik.de
OFFICE VÖCKLABRUCK
+43 (0) 7672 30909 0
info@edelstahl-schneidtechnik.at
OFFICE BREMEN
+49 (0) 421 579562 0
info@edelstahl-schneidtechnik.de
OFFICE CHASSIEU
+43 (0) 7672 30909 48
info@est-export.com
