General terms of business and conditions of supply (T&C) of EWM GmbH
I. Scope of application
These General Terms and Conditions apply to the sale of the equipment of EWM GmbH as well as the services offered by EWM GmbH. The GTCs of the customer are expressly rejected unless they have been expressly recognised. This also applies if EWM GmbH expressly fails to reject them again when submitted.
II. Quotations and order
Quotations of EWM GmbH are subject to change without notice. A contract is only formed as a result of written order confirmation. Written and oral agreements only become effective as a result of written confirmation by EWM GmbH. Amendments and additions to the written contract documentation of EWM GmbH must also be made in writing.
III. Delivery and performance
All deliveries, sales transactions and services rendered in the context of business relationships shall take place under the GTCs of EWM GmbH. The quotations of EWM GmbH are non-binding and subject to changewithout notice and require written order confirmation. Deliveries are made, insofar as legally prescribed and contractually agreed, subject to the proviso of approximate delivery times. Delivery times are met if EWM GmbH is unable to dispatch on time without fault on its part. EWM GmbH reserves absolute rights of exploitation in respect of legal title and copyright law to cost estimates, drawings and other documents. Documents may only be made available to third parties with the prior consent of EWM GmbH. If the order is not placed, drawings and other documents which are part of quotations must be returned on demand. This applies in a corresponding manner to the documents of the purchaser. These may only be made available to third parties, however, if EWM GmbH has permissibly assigned the delivery/performance.
IV. Prices
The prices quoted by EWM GmbH are valid for delivery, not including set-up or assembly, ex works, plus value added tax as amended from time to time and freight charges. The prices specified in the quotation are subject to change without notice, whereas the prices set out in the version of the price list of EWM GmbH applicable at the time and valid on the day of the delivery are definitive. Turnover tax, freight, insurance and other ancillary costs are charged separately. EWM GmbH is entitled to make price adjustments. The goods shall be dispatched in appropriate packaging. The commercial customer must take out separate transport insurance, EWM GmbH complies with the regulations of the VDE (Association for Electrical, Electronic and Information Technologies) which, where admissible, become an integral part of the contract.
V. Payments
The invoices of EWM GmbH are due and payable immediately, except where otherwise agreed. In the event of delay in payment, EWM GmbH is entitled to charge interest on arrears. Claims for damages above and beyond this by EWM GmbH on account of default remain unaffected. Delay in payment by the customer entitles EWM GmbH to refuse a further delivery.
VI. Retention of title
The goods of EWM GmbH remain the property of EWM GmbH until full and final payment.
In the absence of written consent the customer is not entitled to sell goods supplied to him before full and final payment has been made.
In the event of processing, the acquisition of ownership by the customer is not allowed until full and final payment. If goods in the ownership of EWM GmbH become an essential component part of another article as the main article, ownership shall remain with EWM GmbH in the amount of the proportion of co-ownership in the newly manufactured article. In the event of processing with other goods likewise supplied by EWM GmbH and subject to retention of title, EWM GmbH is entitled to co-ownership in the new article in the ratio of the value of the conditional goods to the total value. The claim of the customer arising from any resale of the goods of EWM GmbH shall be assigned to EWM GmbH and serves to secure the claim. These rights include all ancillary rights and collateral. At the request of EWM GmbH, the customer is obliged to assignassignments to purchasers and to pass on all necessary information to EWM GmbH for the assertion of its rights against the purchaser and to surrender the documents. Pledging or transfer by way of security of goods supplied conditionally is prohibited. EWM GmbH must be informed immediately about levies of execution, including details of the garnisher. The goods supplied conditionally shall be stored free of charge. The customer must insure them against the usual risks such as fire, theft and water damage. The purchaser assigns his claims for compensation in respect of insurance companies to which he is entitled arising from damage to the goods supplied conditionally to EWM GmbH in the amount of its claim.
VII. Passage of risk of delivery and performance
Delivery ex works is deemed to be agreed, except where otherwise agreed. EWM GmbH is entitled to make partial deliveries, insofar as they are reasonable for the purchaser. The risk of accidental perishing shall pass to the commercial customer as soon as the goods have left our factory. Compliance with agreed deadlines presupposes the timely receipt of all documents, required permits, plans and other obligations to be supplied by the customer. The deadline is deemed to be met in the event of delivery, not including set-up or assembly, of the ordered consignment within the agreed delivery deadlines. If the delivery is delayed for reasons for which the customer is responsible, the deadline is deemed to be met when the fact that readiness for dispatch has occurred has been notified. If EWM GmbH is not culpably prevented from meeting the delivery date, the date of performance shall be postponed by a reasonable period, particularly in the case of force majeure and other circumstances for which EWM GmbH is not at fault. If shipment is delayed at the wish of the customer, EWM GmbH may demand reasonable storage charges. Claims for compensation due to delay in the delivery are excluded, insofar as they are not mandatorily prescribed by law. EWM GmbH may require the customer to be obliged to declare, within a reasonable period of time, whether the latter will withdraw or insist upon delivery.
VIII. Set-up and assembly
When setting up and assembling the goods of EWM GmbH, the customer must assume the costs of the required support personnel. In addition, he must undertake all extra work such as construction, caulking, scaffolding, plastering and painting work. The customer must provide the equipment and hardware required for assembly and operation such as, for example, chocks, cement, mats, plaster, lubricants and fuels, trestles and chain hoists. He must see to it that all required connections for electricity and water exist and that protective clothing and safety devices are available. Before the start of assembly work, the customer must provide the necessary information regarding concealed electricity, gas and water mains/pipes. EWM GmbH is not liable for work which is not connected with the work ordered. If EWM GmbH has undertaken set-up or
assembly at extra charge, the fee rates of EWM GmbH shall apply.
IX. Warranty/defect liability
In the event of defects, EWM GmbH is liable in accordance with the statutory provisions with the following distinctive features: all those parts and services are subject to the obligation to remedy defects which have become defective within the statutory time limits calculated from the date of the passage of risk as a result ofa circumstance occurring before the passage of risk, or the usefulness of which has been impaired. The identification of such defects must be asserted to EWM GmbH by the commercial customer immediately in writing. EWM GmbH is liable only in the event of intent and gross negligence and rules out further liability where admissible. In the event of ordinary negligence further losses, in particular for lost profits and other losses, are excluded. The above limitation of liability and the above exclusions of liability do not apply to claims which have caused personal injury and damage to property due to defective products.
Rights of the customer are excluded if the purchaser has not, or has not fully, observed the directions for use and operating instructions or if there is any other form of improper operation. If the commercial customer has notified a defect in writing within the warranty period, his claims to warranty shall lapse one year following the dispatch of the notification.
EWM GmbH shall not be required to render compensation for loss or damage sustained by the customer or other persons arising from delayed deliveries or from the total impossibility of a delivery as a result of statutory or regulatory export restrictions unless EWM GmbH has acted intentionally or with gross negligence. The same shall apply for loss or damage incurred by the customer or third parties due to impossibility of delivering replacement parts or accessories, or impossibility of delivering them punctually, as a result of exportrestrictions. EWM GmbH shall have the right to withdraw from the contract if disruptions or obstacles to exports occur due to statutory or regulatory export restrictions after conclusion of the contract.
X. Applicable law and place of jurisdiction
For traders, the following is added:
The contractual relationship is subject to the law of the Federal Republic of Germany, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and international private law. The exclusive place of jurisdiction for all contractual claims and claims in connection with this contract is Koblenz.
XI. Severability clause
If individual provisions of these terms and conditions or the other elements of the contract are or become ineffective, the remaining provisions shall remain in effect. This shall not apply if adherence to the contract would constitute an undue hardship for one of the parties to the contract.
Version June 2023
