Terms and Conditions
Ernst Christiansen GmbH, as of March 4, 2020
Article I - General Provisions
1. The following terms and conditions apply exclusively to the legal relationship between the supplier and the customer in connection with the supplier's deliveries and/or services (hereinafter referred to as “deliveries”). The purchaser's general terms and conditions shall only apply insofar as the supplier has expressly agreed to them in writing. The scope of the deliveries shall be determined by the mutually agreed written declarations. Acceptance of the goods shall be deemed acceptance of these terms and conditions.
2. These terms and conditions shall also apply to subsequent transactions without the need for an express agreement.
3. This offer is directed exclusively at companies, freelancers, and public institutions for use in their independent, professional, or commercial activities. No private end consumers will be supplied.
4. An order is accepted by issuing an order confirmation or by shipping the goods.
5. The supplier reserves unrestricted ownership rights and copyrights to offers, cost estimates, drawings, and other documents (hereinafter referred to as “documents”). The documents may only be made accessible to third parties with the prior consent of the supplier and, if the order is not placed with the supplier, must be returned to the supplier immediately upon request. Sentences 1 and 2 shall apply mutatis mutandis to the customer's documents; however, these may be made accessible to third parties to whom the supplier has permissibly transferred deliveries.
6. The customer shall have the non-exclusive right to use standard software and firmware with the agreed performance characteristics in unmodified form on the agreed devices. The customer may make a backup copy of the standard software without express agreement.
7. Partial deliveries are permissible insofar as they are reasonable for the customer.
8. The term “claims for damages” in these terms and conditions also includes claims for reimbursement of futile expenses.
Article II - Prices, terms of payment, and offsetting
. Prices are quoted in euros ex warehouse, excluding packaging and freight costs, plus the applicable statutory value added tax, unless otherwise expressly agreed in writing. If there is a significant increase in manufacturer prices, wages, freight costs, taxes, or public charges before the order is executed, we reserve the right to agree on an appropriate price change with the customer.
2. If the supplier has undertaken installation or assembly and unless otherwise agreed, the customer shall bear all necessary ancillary costs such as travel and transport costs and allowances in addition to the agreed remuneration.
3. Payments shall be made free to the supplier's paying agent. Any cash discount deduction is only permissible if this is expressly noted on the invoice and if the relevant deadline is met.
4. Regardless of the value of the goods, we charge a flat shipping fee of €6.90 per order.
5. The customer may only offset claims that are undisputed or have been legally established.
Article III - Retention of title
1. The items delivered (reserved goods) remain the property of the supplier until all claims against the customer arising from the business relationship have been fulfilled. If the value of all security interests to which the supplier is entitled exceeds the amount of all secured claims by more than 20%, the supplier shall, at the request of the customer, release a corresponding part of the security interests; the supplier shall have the choice between different security interests when releasing them.
2. During the existence of the retention of title, the customer is prohibited from pledging or transferring ownership by way of security, and resale is only permitted to resellers in the ordinary course of business and only on condition that the reseller receives payment from its customer or makes the reservation that ownership is only transferred to the customer once the latter has fulfilled its payment obligations.
3. If the customer resells goods subject to retention of title, he hereby assigns to the supplier, by way of security and without the need for further special declarations, his future claims against his customers arising from the resale, including all ancillary rights, such as any balance claims. If the goods subject to retention of title are resold together with other items without an individual price having been agreed for the goods subject to retention of title, the customer shall assign to the supplier that part of the total price claim which corresponds to the price of the goods subject to retention of title invoiced by the supplier.
4. a) The purchaser is permitted to process the goods subject to retention of title or to mix or combine them with other items. Processing shall be carried out on behalf of the supplier. The purchaser shall store the new item created in this way for the supplier with the care of a prudent businessman. The new item shall be deemed to be goods subject to retention of title.
b) The supplier and the customer hereby agree that, in the event of combination or mixing with other items not belonging to the supplier, the supplier shall in any case be entitled to co-ownership of the new item in proportion to the ratio of the value of the combined or mixed goods subject to retention of title to the value of the remaining goods at the time of combination or mixing. The new item shall be deemed reserved goods in this respect.
c) The provision on the assignment of claims under No. 3 shall also apply to the new item. However, the assignment shall only apply up to the amount corresponding to the value of the processed, combined, or mixed goods subject to retention of title invoiced by the supplier.
d) If the customer combines the goods subject to retention of title with real estate or movable property, he shall, without the need for further special declarations, also assign to the supplier, by way of security, his claim to which he is entitled as remuneration for the combination, together with all ancillary rights, in the amount of the ratio of the value of the combined goods subject to retention of title to the other combined goods at the time of combination.
5. Until revoked, the customer is authorized to collect assigned claims from the resale. If there is an important reason, in particular in the event of default in payment, suspension of payments, the opening of insolvency proceedings, bill protest or justified indications of over-indebtedness or imminent insolvency on the part of the customer, the supplier shall be entitled to revoke the customer's collection authorization. In addition, after giving prior warning and observing a reasonable period of notice, the supplier may disclose the assignment for security purposes, realize the assigned claims, and demand that the customer disclose the assignment for security purposes to the customer.
6. In the event of seizures, confiscations, or other dispositions or interventions by third parties, the customer must notify the supplier immediately. If a legitimate interest is substantiated, the customer must immediately provide the supplier with the information necessary to assert its rights against the customer and hand over the necessary documents.
7. In the event of breaches of duty by the customer, in particular in the event of default in payment, the supplier shall be entitled, after the unsuccessful expiry of a reasonable period of grace set for the customer, to withdraw from the contract in addition to taking back the goods; the statutory provisions on the dispensability of setting a period of grace shall remain unaffected. The customer shall be obliged to surrender the goods. The return or assertion of the retention of title or the seizure of the goods subject to retention of title by the supplier does not constitute a withdrawal from the contract, unless the supplier has expressly declared this.
Article IV - Delivery periods; default
1. Compliance with delivery deadlines requires the timely receipt of all documents to be provided by the customer, necessary approvals and releases, in particular plans, as well as compliance with the agreed terms of payment and other obligations by the customer. If these conditions are not met in a timely manner, the deadlines shall be extended accordingly; This shall not apply if the supplier is responsible for the delay.
2. If failure to meet the deadlines is due to
a) force majeure, e.g., mobilization, war, acts of terrorism, riots, or similar events (e.g., strikes, lockouts, failure of production facilities, shortage of materials and transport)
b) virus and other attacks by third parties on the supplier's IT system, insofar as these occurred despite the usual care being taken with protective measures,
c) obstacles due to German, US, and other applicable national, EU, or international foreign trade regulations or due to other circumstances for which the supplier is not responsible, or
d) late or improper delivery to the supplier,
the deadlines shall be extended accordingly.
3. If the supplier is in default, the customer may—provided that he can prove that he has incurred damage as a result—demand compensation for each completed week of default of 0.5%, but not more than a total of 5% of the price for that part of the deliveries which could not be put into useful operation due to the delay.
4. Both claims for damages by the customer due to delay in delivery and claims for damages in lieu of performance that exceed the limits specified in No. 3 are excluded in all cases of delayed delivery, even after expiry of a delivery deadline set for the supplier. This shall not apply in cases of mandatory liability due to intent, gross negligence, or injury to life, limb, or health. The purchaser may only withdraw from the contract within the framework of the statutory provisions if the supplier is responsible for the delay in delivery. The above provisions do not imply a change in the burden of proof to the detriment of the purchaser.
5. At the supplier's request, the customer is obliged to declare within a reasonable period of time whether it will withdraw from the contract due to the delay in delivery or insist on delivery.
6. If shipment or delivery is delayed at the request of the customer by more than one month after notification of readiness for shipment, the customer may be charged storage fees of 0.5% of the price of the delivery items for each additional month or part thereof, up to a maximum of 5% in total. The contracting parties are free to provide evidence of higher or lower storage costs.
Article V - Transfer of risk
1. Even in the case of carriage paid delivery, the risk shall pass to the customer as follows:
a) in the case of delivery without installation or assembly, when it has been shipped or picked up. At the request and expense of the customer, the delivery shall be insured by the supplier against the usual transport risks;
b) in the case of delivery with installation or assembly, on the day of acceptance into its own operations or, if agreed, after successful trial operation.
2. If shipment, delivery, the start or completion of installation or assembly, acceptance into the customer's own operations, or trial operation is delayed for reasons for which the customer is responsible, or if the customer is in default of acceptance for other reasons, the risk shall pass to the customer.
Article VI - Acceptance
The customer may not refuse to accept deliveries due to minor defects.
Article VII - Material defects
The supplier shall be liable for material defects as follows:
1. All parts or services that exhibit a material defect shall be repaired, replaced, or re-performed free of charge at the supplier's discretion, provided that the cause of the defect already existed at the time of transfer of risk.
2. Claims for subsequent performance shall become time-barred twelve months after the start of the statutory limitation period; the same shall apply to withdrawal and reduction. This period shall not apply if the law prescribes longer periods in accordance with Sections 438 (1) No. 2 BGB, 479 (1) BGB (right of recourse) and 634a (1) No. 2 BGB in cases of intent, fraudulent concealment of the defect, or non-compliance with a quality guarantee. The statutory provisions on suspension of expiry, suspension and restart of the periods remain unaffected.
3. The customer must notify us of any defects in writing without delay.
4. In the event of complaints, payments by the customer may be withheld to an extent that is reasonable in relation to the material defects that have occurred. The customer may only withhold payments if a complaint is made whose justification is beyond doubt. The purchaser shall have no right of retention if its claims for defects are time-barred. If the complaint was unjustified, the supplier shall be entitled to demand reimbursement of the expenses incurred from the purchaser.
. The supplier shall be given the opportunity to remedy the defect within a reasonable period of time.
6. If the remedy fails, the customer may—without prejudice to any claims for damages pursuant to No. 10—withdraw from the contract or reduce the remuneration.
7. Claims for defects shall not exist in the case of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, or arise due to special external influences that are not assumed under the contract, as well as in the case of non-reproducible software errors. If the customer or third parties carry out improper modifications or repair work, there shall also be no claims for defects for these and the resulting consequences.
8. Claims by the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labor, and material costs, are excluded if the expenses increase because the object of delivery has subsequently been moved to a location other than the customer's branch office, unless the move corresponds to its intended use.
9. Recourse claims of the purchaser against the supplier pursuant to § 478 BGB (recourse of the entrepreneur) shall only exist insofar as the purchaser has not made any agreements with its customer that go beyond the statutory claims for defects. No. 8 shall also apply mutatis mutandis to the scope of the purchaser's recourse claims against the supplier pursuant to § 478 (2) BGB.
10. Claims for damages by the purchaser due to a material defect are excluded. This does not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health, and intentional or grossly negligent breach of duty by the supplier. The above provisions do not imply a change in the burden of proof to the detriment of the customer. Further claims by the customer for material defects or claims other than those regulated in this Art. VIII are excluded.
Article VIII - Industrial property rights and copyrights; defects of title
1. Unless otherwise agreed, the supplier is obliged to deliver the goods free of industrial property rights and copyrights of third parties (hereinafter referred to as “property rights”) only in the country of delivery. If a third party asserts justified claims against the purchaser due to the infringement of property rights by deliveries made by the supplier and used in accordance with the contract, the supplier shall be liable to the purchaser within the period specified in Art. VIII No. 2 as follows:
a) At its discretion and at its own expense, the supplier shall either obtain a right of use for the deliveries in question, modify them so that the property right is not infringed, or replace them. If this is not possible for the supplier under reasonable conditions, the customer shall be entitled to the statutory rights of withdrawal or reduction.
b) The supplier's obligation to pay damages shall be governed by Art. XI.
c) The aforementioned obligations of the supplier shall only apply if the customer immediately notifies the supplier in writing of the claims asserted by the third party, does not acknowledge any infringement, and reserves all defense measures and settlement negotiations for the supplier. If the customer ceases to use the delivery for reasons of damage mitigation or other important reasons, it shall be obliged to inform the third party that the cessation of use does not constitute an acknowledgment of an infringement of property rights.
2. Claims by the customer shall be excluded if it is responsible for the infringement of property rights.
3. Claims by the customer are also excluded if the infringement of property rights is caused by special specifications of the customer, by an application unforeseeable by the supplier, or by the fact that the delivery is modified by the customer or used together with products not supplied by the supplier.
4. In the event of infringements of property rights, the provisions of Art. VIII Nos. 4, 5, and 9 shall apply mutatis mutandis to the claims of the customer regulated in No. 1 a).
5. In the event of other legal defects, the provisions of Art. VIII shall apply mutatis mutandis.
6. Any further claims or claims other than those regulated in this Art. IX by the purchaser against the supplier and its vicarious agents due to a defect of title are excluded.
Article IX. Impossibility; contract adjustment
1. If delivery is impossible, the customer shall be entitled to claim damages unless the supplier is not responsible for the impossibility. However, the customer's claim for damages shall be limited to 10% of the value of that part of the delivery which cannot be used for its intended purpose due to the impossibility. This limitation shall not apply in cases of intent, gross negligence, or injury to life, limb, or health; this shall not imply a change in the burden of proof to the detriment of the customer. The customer's right to withdraw from the contract remains unaffected.
2. If events within the meaning of Art. IV No. 2 a) to d) significantly change the economic significance or content of the delivery or have a significant impact on the supplier's operations, the contract shall be adjusted appropriately in good faith. If this is not economically reasonable, the supplier shall be entitled to withdraw from the contract. The same shall apply if necessary export licenses are not granted or cannot be used. If the supplier wishes to exercise this right of withdrawal, it must notify the customer immediately after becoming aware of the significance of the event, even if an extension of the delivery period had initially been agreed with the customer.
X. Other claims for damages
1. Unless otherwise stipulated in these terms and conditions, claims for damages by the customer, regardless of their legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.
2. This does not apply in the following cases of liability:
a) under the Product Liability Act,
b) due to intent,
c) in the event of gross negligence on the part of owners, legal representatives, or executive employees,
d) in the event of malice,
e) in the event of non-compliance with an assumed guarantee,
f) due to culpable injury to life, limb, or health, or
g) due to culpable breach of essential contractual obligations.
However, claims for damages for breach of essential contractual obligations shall be limited to foreseeable damage typical for this type of contract, unless one of the other cases mentioned above applies.
3. The above provisions do not imply a change in the burden of proof to the detriment of the customer.
XI. Place of jurisdiction and applicable law
1. If the customer is a merchant, the sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of the supplier. However, the supplier shall also be entitled to bring legal action at the customer's place of business.
2. This contract, including its interpretation, is subject to German law, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
XII. Binding nature of the contract
Even if individual provisions of this contract are legally invalid, the remaining provisions shall remain binding. This shall not apply if adherence to the contract would constitute an unreasonable hardship for one of the parties.