I. Incorporation of these Terms and Conditions
1. All offers and deliveries will be based on the following Terms and Conditions of business. The placing of a purchase order or acceptance of a consignment will be construed as recognition thereof. ELP is not bound by any conflicting terms and conditions issued by the Buyer except where explicitly agreed in writing, even if they have not been expressly contradicted by ELP.
2. Deviations from the measurements, weights, illustrations and specifications provided in ELP's supporting documents, such as catalogue, brochure and pricelists, are permitted unless they are expressly declared to be binding.
3. ELP reserves all copyright and proprietary rights to quotations, drawings, illustrations, drawings and other documents. They may not be made accessible to any third parties without ELP's consent and must be returned to ELP without delay at our request.
II. Conclusion of the Contract / Transfer of the Buyer's rights and obligations; Resale of the goods prior to their receipt
1. Offers submitted by ELP are non-binding and without obligation. We reserve the right to make any technical changes within reason, likewise to adjust ELP products to subsequent standardisation.
2. By placing an order for goods – irrespective of the chosen mode of transmission – the Customer bindingly agrees to purchase the goods concerned (contractual offer). ELP is entitled to accept this contractual offer within the space of 2 weeks from the date of receipt. The order is deemed to have been accepted once it has been confirmed in writing or despatched. Any modifications, amendments or oral ancillary agreements require written confirmation by ELP.
3. ELP's written order confirmation is operative for the delivery of the consignment. ELP reserves the right to adjust the quantities to comply with standard packaging units or production techniques. In the absence of any instructions regarding the Customer's preferred mode of transport or shipping route and confirmation on the part of ELP, we are entitled to determine the means of transport and the delivery route at our own discretion, without commitment.
4. The transfer of the Customer's rights and obligations arising from the purchase order and the resale of the goods prior to their receipt are subject to ELP's written approval. In the event of any violation or attempted violation of this regulation, ELP can withdraw from the contract by means of a written statement without notice.
Any services that are required to execute the order but are not explicitly included in the quotation, or are provided at the Buyer's request, will be invoiced as a separate item.
IV. Terms of payment
1. Except where otherwise agreed, payment is due immediately and without deduction.
2. The Buyer is only allowed to offset ELP's receivables if the Buyer's counterclaim is undisputed or his title has been determined by a court of law; a right of retention can only be exercised if it is based on claims arising from the same contractual relationship.
3. Should the Customer be in arrears with payments, ELP is entitled to charge interest and collection fees according to the relevant legal regulations.
4. Should any circumstances come to light that give justified cause for doubt in the Customer's creditworthiness or continuing ability to pay, such as the initiation of insolvency proceedings for the impending suspension of payments etc., ELP is entitled to hold back consignments pending despatch and refrain from meeting its remaining contractual obligations. This does not release the Customer from his obligations regarding those parts of the contract that ELP has already fulfilled.
V. Delivery and default of delivery
1. Delivery dates or deadlines that can be agreed either bindingly or tentatively must be given in writing. Lead times commence on conclusion of the contract.
2. Compliance with the delivery dates is subject to the Customer fulfilling his contractual obligations including, and in particular, his payment obligation alongside the provision of the required documents, specifications, approvals and acceptances.
3. Any force majeure or operational hold-up at ELP's plant or the premises of the supplier that temporarily prevents ELP from despatching the contractual goods in a timely fashion or by the given deadline, through no fault of its own, extends the delivery dates and deadlines indicated in Clauses 1. to 4. by the duration of the lapse in performance caused by these circumstances. The Customer can withdraw from the contract if the disruptions in question persist and delay performance by more than 4 months. Other rights of rescission remain unaffected.
4. Any modifications to the design or construction, deviations in colour or changes in the scope of supply on the part of the manufacturer during the delivery term are reserved, provided the Customer can reasonably be expected to accept such changes or modifications while taking the interests of ELP into consideration. Provided ELP or the manufacturer employs markings or numbers to designate the order or the goods on order, no rights can be derived from this circumstance alone.
VI. Acceptance and transfer of risks
1. The Customer is obliged to take delivery of the goods within a period of 14 days following receipt of the notice of completion. If the Buyer defaults on taking delivery, ELP can exercise its legal rights.
2. In so far as ELP claims damages for non-acceptance, this will amount to 25% of the purchase price agreed. Compensation will be adjusted upwards or downwards if ELP can prove the loss is higher, or the Customer can prove it is lower, respectively.
3. The risk passes to the Customer as soon as the consignment has been handed over to the person responsible for arranging transport, or has left ELP's warehouse for despatch purposes. This also applies if delivery free destination has been agreed.
4. If despatch is overdue and the delay is not due to ELP's negligence or intent, the risk of notification of readiness for despatch passes to the Customer.
5. The choice of packaging and mode of delivery shall be left to ELP's discretion unless the Customer has given explicit instructions in this respect.
6. Any damage incurred during transportation must be reported to the forwarding agent or the carrier immediately on receipt of the consignment and an official, written declaration must also be issued to that effect.
7. Details of incorrect quantities shall be reported in writing within 8 days of receipt of the goods. The time limit for notification is only regarded as having been met if ELP is in receipt of the written complaint within the space of 8 days.
VII. Retention of title
1. The goods shall remain the property of ELP until all receivables arising from the contract have been paid. Where the purchase price is settled by another refinancing means, ELP's retention of title shall only expire on redemption of the final commercial paper. Where the Customer is a legal entity, a separate trust under public law or an entrepreneur who, in drawing up the purchase contract, is acting within the scope of its commercial or self-employed business operations, the retention of title will also remain in force for ELP's receivables arising from the current business relationship with the Customer until all dues relating to the purchase (conditional items) have been settled.
2. If the Customer processes or combines the goods with other objects that are not owned by ELP, ELP acquires co-ownership in the newly created products in proportion to the value of the goods to one another. The Customer shall, on purchasing the goods, assign to ELP any claims for remuneration accruing from the processing, conversion or resale thereof, in advance, in order to cover all accounts receivable and incidental costs, without the need for any specific form of acknowledgement. ELP will take cession of these proceeds on signing the agreement.
3. The Customer is not permitted to pledge or transfer ownership of the conditional items by way of surety. He shall notify ELP without delay of any attachment, seizure or other third-party access to the goods.
4. In the event that the Customer is in arrears with payment, ELP may withdraw from the contract and demand that the goods be returned, without prejudice to any other statutory rights on the grounds of nonfulfilment on the part of the Customer.
1. The statutory period for any claims for defects expires at the end of 2 years from the date of delivery of the goods to the Customer's premises. Devices originating from non-European countries are exempted from this provision, the warranty period being 12 months in this case. As a general rule, the warranty period for export deliveries is limited to 12 months only. In the event of fraudulent concealment of defects, or where a guarantee has been given in respect of the physical properties, any further claims remain unaffected. Where the goods supplied by ELP are partly defective, the Customer is not entitled to reject the entire consignment.
2. The following provisions shall apply with regard to the elimination of defects:
a. In the case of a justified claim, ELP may opt to remedy the defect or replace the faulty goods, at their own discretion.
b. Should the subsequent performance fail to achieve the desired effect within a reasonable period of grace, the Customer can choose whether to deduct an appropriate sum from his remittance (reduction) or cancel the contract. Where the breach of performance is slight, especially in the case of a negligible defect, the Customer has no right of rescission, however.
c. Where the Customer elects to withdraw from the contract following an abortive attempt to remedy a legal or physical defect, he is not entitled to claim for damages in respect of the said defect. If the subsequent performance fails and the Customer chooses to claim compensation, the goods will remain in the Customer's possession, provided this can reasonably be expected of him. Compensation will be restricted to the difference between the purchase price and the value of the defective item. This shall not apply in the event that ELP's breach of contract was the result of deliberate intent.
d. In the absence of any explicit alternative arrangements, ELP's product specification will be operative for the contractual properties of the goods. Public statements, representations or advertisements do not constitute a contractual description of the quality of the goods.
e. Provided ELP has complied with the Customer's relevant instructions, they cannot be held responsible for the aptness of the product for the intended purpose, the appropriate construction of the goods, compliance with safety regulations or the suitability of the materials employed.
1. In the event that ELP is required by law to compensate for a loss that was caused by slight negligence in the context of these Terms and Conditions, ELP's liability shall be limited: If we have infringed any cardinal contractual obligations, liability is confined to typical damage predictable on conclusion of the contract. This restriction will not apply in cases of injury to the life, body or health of a person. In so far as damages are covered by an insurance policy taken out by the Customer for the contingency concerned (with the exception of fixed-sum insurance), ELP shall only be liable for any consequential loss suffered by the Customer, such as a higher insurance premium or unfavourable interest rates, until the insurance company has settled the claim. ELP will not be liable for damage caused by a flaw in the goods due to slight negligence.
2. Irrespective of ELP's culpability, any liability on the part of ELP due to fraudulent concealment of the defect, the assumption of a guarantee or a procurement risk shall remain unaffected.
3. Liability on the grounds of delayed delivery is dealt with exhaustively in Section V.
4. The personal liability of the legal representatives, vicarious agents and members of ELP's staff for damage caused by them due to slight negligence is excluded.This shall not apply if the violation concerns an obligation that is of essential importance for achieving the purpose of the contract.
5. ELP will only be liable for indirect damages, or such that were not foreseeable at the time of drawing up the contract, in the case of gross negligence on the part of ELP, their managerial staff, vicarious agents or other persons acting on their behalf.
X. Place of performance
1. The place of performance for the delivery of the goods is Wuppertal.
2. The sole place of litigation for all current or future claims arising out of transactions with business merchants, including receivables in the form of bills of exchange or cheques, is Wuppertal.
3. The same court shall have exclusive jurisdiction where the Buyer has no place of general jurisdiction in this country, has moved his permanent residence or normal place of abode abroad and his address or domicile is unknown when legal proceedings are initiated.The venue for both parties is Wuppertal. However, ELP is also entitled to bring its claims before the customer's court of general jurisdiction.
XI. Severability clause
Should any aspects of these Terms and Conditions prove to be invalid, in whole or in part, the remaining provisions will retain their validity and the invalid terms will be implemented mutatis mutandis, to convey the intended meaning.
XII. Applicable law, interpretation of clauses, etc.
1. Contracts are governed by German law. The application of the uniform laws governing the international sale of movable goods and the conclusion of international purchase agreements for movable goods – both dated 17 July 1973 – as well as the UN Convention of Contracts dated 11.04.1980, are excluded.
2. Customary clauses shall be construed and interpreted according to the relevant version of the Incoterms.
3. It is, moreover, agreed that ELP will pay any duty and import tax in the country of destination, any increases in such dues that come into force between the date of the order confirmation and despatch of the goods being the responsibility of the Customer. All other fees, taxes and charges connected with the contract will likewise be settled by the Customer.