General Terms and Conditions, Eberhardt GmbH
As of October 4th, 2021
1. Scope, basis, and conclusion of the contract
1.1 The following General Terms and Conditions (hereinafter referred
to as "GTC") shall apply to the purchase contract concluded
between you as the buyer and us as the seller for the delivery
of goods. All agreements made between you and us regarding
this purchase contract shall be based primarily on these
GTC, as well as on the written order confirmation and declaration
1.2 For entrepreneurs according to Sec. 14 BGB, our GTC apply exclusively.
Thus, deviating, conflicting or supplementary GTC of
the buyer shall only become part of the contract if and to the extent
that we have expressly consented to their application. This
requirement of consent shall always apply and shall also apply,
among other things, if we have delivered to the buyer without
reservation in the knowledge of pre-formulated contractual
terms and conditions.
1.3 Individual agreements made between the contracting parties in
individual cases - including collateral agreements, supplements,
and amendments - shall always take precedence over these
GTC. Our written confirmation shall be authoritative for the content
of such agreements, subject to proof to the contrary. This
shall also apply in particular, but not conclusively, to agreements
made verbally by our field staff.
1.4 All offers are subject to change and do not oblige us to accept
orders. Illustrations contained in our advertisements, brochures
and other offer documents are only approximately authoritative.
This shall apply if the information contained therein has not
been expressly designated by us as binding.
1.5 References to the applicability of statutory provisions shall in
any case be for clarification purposes only. Even without such
clarification, the statutory provisions shall therefore apply unless
otherwise provided for in these GTC.
1.6 Entrepreneurs shall submit legally relevant declarations with regard
to the contract (e.g. notice of defects, setting of deadlines,
withdrawal, or cancellation) in writing, i.e. in written or text form
(e.g. letter, e-mail, fax). Further proofs, especially in case of
doubt about the legitimacy of the declarant and legal formal requirements
1.7 The order of the goods by the buyer shall be deemed to be a
binding offer to conclude a purchase contract. Unless otherwise
stated in the order, we shall have the right to accept this contractual
offer within a period of 4 weeks after receipt. The acceptance
can be declared either in writing (e.g. by order confirmation
in text form by e-mail, fax, or mail) or by delivery of
goods to the buyer.
2. Prices, terms of payment, set-off and right of retention
2.1 The prices stated by us in EURO shall apply "ex works" (i.e. factory
or distribution warehouse). The costs for area
freight or the payment of so-called "cartage" at the place of receipt
shall be borne or paid by the buyer. The packaging required
for the shipment will be charged to the buyer at cost. If
the net value of the goods is less than EURO 100.00, the Buyer
shall pay a surcharge (for shortage in quantity) of EURO 10.00.
2.2 Unless we have agreed otherwise with you in writing, the purchase
price for entrepreneurs is due "NET" within 30 days after
our invoice has been received by you. Discounts can, however,
no longer be granted if the buyer is in arrears with the payment
of earlier deliveries. However, even in the context of an ongoing
business relationship with you, if you are an entrepreneur, we
are entitled at any time to make a delivery in whole or in part
only against advance payment. We shall declare a corresponding
reservation at the latest with the order confirmation.
2.3 Offsetting against our claims is only possible if your claims have
been legally established, if your claims are undisputed or if we
have acknowledged them. You shall also be entitled to offset
against our claims if you assert notices of defects or counterclaims
from the same purchase contract. As the purchaser, you
may only exercise a right of retention if your counterclaim is
based on the same purchase contract.
2.4 If you are in default as a businessman, the default interest shall
be 9 % above the respective base interest rate of the European
Central Bank. With respect to merchants, our claim to the commercial
due date interest rate (Sec. 353 HGB) shall remain unaffected.
We shall be at liberty to prove higher damages.
2.5 If, in the relationship with entrepreneurs, it becomes apparent
after conclusion of the contract (e.g. by filing for insolvency proceedings)
that our claim to the purchase price is jeopardized by
the buyer's inability to pay, we shall be entitled to refuse performance
in accordance with the statutory provisions and - under
certain circumstances after setting a deadline - to withdraw from
the contract (Sec. 321 BGB). In the case of contracts for the
manufacture of unjustifiable items (custom-made products), we
may declare withdrawal directly, i.e. immediately; the statutory
provisions concerning the dispensability of setting a deadline
shall remain unaffected. Furthermore, in such a case we shall
be entitled to carry out outstanding deliveries only against advance
payment or security.
2.6 In the event that the delivery agreed between us entrepreneurs
is to take place later than 4 months after the conclusion of the
contract, we have the right to adjust our prices upwards in the
same ratio as the prices of the goods and / or raw materials we
have purchased increase. We will disclose our calculation to
you. We will be happy to provide you with evidence of such
price changes for raw materials and purchased goods. You are
also entitled to a special right of termination in such a case constellation.
The special right of termination must be asserted up
to 14 days after becoming aware of the price adjustment. If the
purchase costs are lower, you are also entitled to a right to a
3. Retention of title
3.1 If you are an entrepreneur, we retain title to the goods sold until
full payment of all our present and future claims arising from the
purchase contract and an ongoing business relationship (secured
claims). All goods delivered shall remain our property until
all our claims have been satisfied, even if payments are made
for specifically designated claims.
3.2 Before full payment of the secured claims, the goods subject to
retention of title may neither be assigned as security nor
pledged to third parties. The Buyer shall immediately notify us in
writing if an application for the opening of insolvency proceedings
is filed or if third parties (e.g. seizures) have access to the
goods which are our property.
3.3 In particular in the event of non-payment of the purchase price
due, i.e. generally in the event of conduct by the buyer in breach
of contract, we shall be entitled to withdraw from the contract in
accordance with the statutory provisions and/or to demand surrender
of the goods on the basis of the retention of title. However,
the demand for return does not constitute a declaration of
withdrawal at the same time, because we are entitled to demand
only the return of the goods and to reserve the right of withdrawal.
We may only exercise these rights in the event that the
buyer fails to pay the purchase price due if we have previously
set the buyer a reasonable deadline for payment without success
or if setting such a deadline is dispensable under the statutory
3.4 Entrepreneurs shall be entitled until revoked in accordance with
(3.7) below to process and/or sell the goods subject to retention
of title in the ordinary course of business. In this case, the following
provisions from 3.5 to 3.7 shall apply in addition.
3.5 The retention of title shall extend to the products resulting from
the processing, mixing, or combining of our goods at their full
value, and we shall still be deemed to be the manufacturer. We
shall acquire co-ownership - should the ownership rights of third
parties remain in the event of processing, mixing, or combining
with goods of third parties - in proportion to the invoice values of
the processed, combined, or mixed goods. Otherwise, the same
shall apply to the resulting product as to the goods owned by us
(delivered under retention of title).
3.6 The buyer hereby assigns to us any claims against third parties
arising from the resale of the goods or the product in total or in
the amount of our possible co-ownership share according to the
preceding paragraph. We accept this assignment. The obligations
of the buyer set forth herein shall also apply with respect to
the assigned claims.
3.7 The buyer shall remain authorized to collect the claim in addition
to us. We will not collect the claim insofar and as long as the
buyer meets his payment obligations, we do not assert the reservation
of title by exercising a right and there is no deficiency in
his ability to pay. However, if such a case exists, we may demand
that the buyer informs us of the assigned claims and their
debtors, hands over the relevant documents or provides all information
required for collection and notifies the debtors (third
parties) of the assignment. In addition, we shall then be entitled
to revoke the buyer's authorization to further sell and process
the goods subject to retention of title.
3.8 If the realizable value of the securities exceeds our claims by
more than 20%, we shall release securities of our choice at the
4. Performance and delivery time
4.1 Our delivery dates or delivery periods are exclusively non-binding
information. Anything to the contrary shall only apply if they
have been expressly agreed between you and us as binding.
4.2 You may request us in writing to deliver within a reasonable period
of time 4 weeks after a non-binding delivery deadline/delivery
date has been exceeded. If we culpably fail to comply with a
delivery date/delivery period expressly agreed as binding or if
we are in default for any other reason, you shall grant us a reasonable
period of grace to effect our performance. If we do not
perform within this period of grace, you shall have the right to
withdraw from the purchase contract. If we are unable to meet
binding delivery deadlines for reasons for which we are not responsible
(non-availability of the service), entrepreneurs as
purchasers must be informed of this immediately and at the
same time informed of the new (expected) delivery deadline. If
the service is again not available within this new delivery period,
we shall be entitled to withdraw from the contract in whole or in
part; we shall immediately refund any consideration already paid
by the buyer. A case of non-availability of the performance in
this sense shall be deemed to be, in particular, delayed self-delivery
by our supplier if we had to conclude a congruent covering
transaction, neither our supplier nor we are at fault or we are not
obliged to procure in the individual case.
4.3 Apart from the restrictions under Sec. 6 GTC, we shall be liable
to you in accordance with the statutory provisions if the contract
is a transaction for delivery by a fixed date or if, as a result of a
delay in delivery for which we are responsible, you are entitled
to invoke the lapse of your interest in the performance of the
contract. If this is reasonable for you, we shall always be entitled
to make partial deliveries and render partial services.
4.4 If we are in default of delivery, the buyer, as an entrepreneur,
may claim lump-sum compensation for the damage caused by
the delay. The lump-sum compensation shall amount to 0.5% of
the net price (delivery value) for each full calendar week of the
delay. However, the lump-sum compensation may not exceed a
total of 5% of the delivery value of the goods delivered late.
However, we shall have the possibility to prove that the Buyer
has only suffered a significantly lower damage than the above
lump sum or no damage at all.
4.5 In the event of force majeure, we shall have the right to withdraw
from the contract for the part not yet fulfilled or to postpone
delivery for the duration of the hindrance and an appropriate
start-up period. In this context, force majeure shall be understood
to mean, in particular, lockouts, strikes, pandemics and
other circumstances which make delivery completely impossible
for us or, in any case, make it considerably more difficult for us.
In this context, it is completely irrelevant whether these circumstances
occur with us or with a subcontractor. The buyer can
demand a statement from us as to whether we will deliver or
withdraw within a reasonable period of time. If we do not make a
statement, the buyer may withdraw.
5. Transfer of Risk, Acceptance, Inspection and Delivery
5.1 If the buyer is in default of acceptance, fails to cooperate or if
our delivery is delayed for other reasons for which the buyer is
responsible, we shall be entitled to claim compensation for the
resulting damage and all related additional expenses (e.g. storage
costs). We shall charge a lump-sum compensation in the
amount of EUR 500.00 per calendar day, starting with the delivery
deadline or - in the absence of a delivery deadline - with the
notification that the goods are ready for shipment.
5.2 The proof of a higher damage and our legal claims shall remain
unaffected. However, the lump sum shall be credited against
any further monetary claims. The buyer may further furnish
proof that we have suffered only substantially less damage than
the aforementioned lump sum or no damage at all.
5.3 The risk of accidental loss and accidental deterioration of the
goods shall pass to the buyer upon handover at the latest. In the
case of a sale by delivery to a place other than the place of performance,
the risk of accidental loss and accidental deterioration
of the goods as well as the risk of delay shall, however, pass to
the buyer as soon as the goods are delivered to the carrier, the
forwarding agent or any other institution or person designated to
carry out the shipment. Insofar as we have agreed on acceptance,
this shall be decisive for the transfer of risk. In all
other cases, too, the statutory provisions of the law on contracts
for work and services shall apply mutatis mutandis to an agreed
acceptance. Acceptance or handover shall be deemed equivalent
if the buyer is in default of acceptance.
5.4 For entrepreneurs, delivery shall be made ex warehouse, which
shall also be the place of performance for the delivery itself and
any subsequent performance that may be required. Unless otherwise
agreed, we shall have the right to choose the type and
method of shipment (in particular the transport company, packaging,
and shipping route) ourselves.
5.5 In the case of a sale by delivery to a place other than the place
of performance, the goods shall be shipped to another destination
at the request and expense of the buyer. In the event of no
other agreement between us, we shall be entitled to determine
the type of shipment (in particular transport company, packaging
and shipping route) ourselves. By way of clarification, we would
like to point out that we are under no obligation to take out
transport insurance. We shall only be obliged to take out such
insurance at the express request of the buyer, whereby the
buyer shall bear the costs thereof.
6. Delay and (liability for material defects), defect rights,
6.1 If we cannot provide the quality agreed between you and us
through the delivered item or if the goods are not suitable for the
use assumed under our contract or if they are not suitable for
general use or if the goods do not have the properties that you
could expect according to our public statements, we shall provide
subsequent performance. Anything else shall only apply if
we are entitled to refuse subsequent performance on the basis
of statutory provisions. ´
6.2 Subsequent performance shall be affected at your discretion either
by delivery of new goods or by remedying the defect as
subsequent improvement. If you are an entrepreneur, we may
determine the type of subsequent performance (rectification or
subsequent delivery). For this purpose, you must grant us a reasonable
period of time for subsequent performance. During the
period of subsequent performance, you shall not be entitled to
withdraw from the contract or even to reduce the purchase
price. If we have attempted to remedy the defect twice in vain,
the remedy has finally failed. Entrepreneurs shall not be entitled
to withdraw from the contract despite failed subsequent performance.
6.3 Claims for damages due to a defect can only be asserted if the
subsequent performance has also failed. This shall not affect
your right to assert further claims for damages in accordance
with the following paragraphs.
6.4 In accordance with the statutory provisions, we shall be liable for
damages to body, health and life which are based on a culpable
breach of duty by us, our vicarious agents, or our legal representatives.
Furthermore, we shall be liable in accordance with
the statutory provisions for other damages which are due to
grossly negligent or intentional breaches of contract as well as
fraudulent intent by us, our vicarious agents, or our legal representatives.
6.5 If the scope of application of the Product Liability Act should be
opened, we shall also be liable without limitation in accordance
with the provisions of this codification of the law. Furthermore,
we shall also be liable within the scope of a durability and/or
quality guarantee, provided that we have also given such a
guarantee with regard to the delivered item. If damage actually
occurs which is based on the fact that the durability or quality
guaranteed by us is lacking and if, however, this damage does
not occur directly to the goods delivered by us, we shall only be
liable for this if the risk of such damage is also obviously covered
by our durability and quality guarantee.
6.6 Our liability shall be limited to the damage typical for the contract
and foreseeable at the time of conclusion of the contract if
damage due to delay or due to a defect is based on the simple
negligent breach of a material contractual obligation, i.e. an obligation
the fulfillment of which is a prerequisite for the proper performance
of the contract and on the fulfillment of which you as
the buyer may regularly rely on has been breached by simple
negligence. Nothing else applies to your claims for damages instead
6.7 Further liability claims against us are excluded. This shall apply
irrespective of the legal nature of the claims you ultimately raise
7. Other liability
7.1 Unless otherwise stated in these GTC, we shall be liable for any
breach of contractual and non-contractual obligations in accordance
with the relevant statutory provisions.
7.2 Within the scope of liability for fault, we shall be liable for damages
- completely irrespective of the specific legal grounds - exclusively
in the event of gross negligence and intent. In the
event of simple negligence, we shall be liable, subject to statutory
limitations of liability (for example: insignificant breach of
duty or care in own affairs), only for
a) Damages resulting from injury to body, life, or health,
b) damages resulting from the breach of an essential contractual
obligation (obligation, the fulfillment of which enables the proper
execution of the contract in the first place and on the compliance
with which the contractual partner regularly relies and may rely);
in this case, however, our liability shall be limited to the amount
of the typically occurring and thus also regularly foreseeable
7.3 The limitations of liability resulting from this provision shall also
apply in relation to and thus vis-à-vis third parties as well as in
the event of breaches of duty by such persons (including in their
favor) whose fault we must represent according to statutory provisions.
However, they shall not apply if a guarantee for the
quality of the goods has been assumed or a defect has been
fraudulently concealed and for claims of the buyer under the
Product Liability Act.
7.4 The buyer may only withdraw from or terminate the contract due
to a breach of duty which does not consist of a defect if we are
also responsible for this breach of duty. We expressly exclude
any free right of termination on the part of the buyer (in particular
pursuant to Secs. 650, 648 BGB).
8. Limitation period
8.1 For entrepreneurs, in deviation from Sec. 438 para. 1 no. 3
BGB, the general limitation period for claims arising from material
defects and defects of title shall be one year from delivery. If
acceptance has been agreed, the start of the limitation period
shall be the acceptance itself.
8.2 If the goods are a building or an object which has been used for
a building in accordance with its customary use and has caused
its defectiveness (building material), the limitation period shall
be 5 years from delivery in accordance with the statutory provision
(Sec. 438 para. 1 no. 2 BGB). Again, further special statutory
provisions on the statute of limitations (in particular Sec.
438 para. 1 no. 1, para. 3, Secs. 444, 445b BGB) shall remain
8.3 The above limitation periods of the law on sales shall apply not
only to contractual but also to non-contractual claims for damages
of the buyer based on a defect of the goods. This shall not
apply if the application of the regular statutory limitation period
(Secs. 195, 199 BGB) would lead to a shorter limitation period in
the individual case. Claims for damages by the buyer pursuant
to Sec. 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant
to the Product Liability Act shall become statute-barred
only or exclusively in accordance with the statutory limitation periods.
9. Final provisions
9.1 Our contracts shall be governed by the laws of Germany; we expressly
exclude the UN Convention on Contracts for the International
Sale of Goods.
9.2 The buyer as a merchant (“Kaufmann”) within the meaning of
the German Commercial Code, special funds under public law
or legal persons under public law shall have our place of business
in Lichtenau as the exclusive - also international - place of
jurisdiction for all disputes arising directly or indirectly from the
contractual relationship. The same shall apply to entrepreneurs
within the meaning of Sec. 14 of the German Civil Code (BGB).
9.3 However, we shall be entitled in all cases to bring an action at
the place of performance of the delivery obligation according to
these GTC or at the general place of jurisdiction of the buyer or
at the place of jurisdiction of an overriding individual agreement.
Overriding statutory provisions, in particular regarding exclusive
jurisdiction, shall remain unaffected.