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General Terms and Conditions

1. Generalities

1.1 Our general terms and conditions (GTC) apply to all quotations submitted by us and contracts entered into with us.  Our GTC also apply to any future business transactions. However, for those with consumers (§ 13 Civil Code) only if they are identical with the present business transaction.

1.2 These GTC apply exclusively.  Terms and conditions of the contract partner or other deviating agreements apply only as far as ESTA has agreed to them expressly and in writing.  Apart from that ESTA expressly objects to the inclusion of terms and conditions or other deviating agreements of the contract partner.

1.3 For the legal relationships of the parties German law applies solely excluding the principles of conflict of laws of private international law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). 

1.4 As far as these GTC utilise the terms consumer and entrepreneur the legal definitions of §§ 13, 14 Civil Code apply.

2. Quotations and Contract Conclusion

2.1 Our quotations are non-binding and subject to confirmation.   Specially developed quotations from ESTA are binding for 30 calendar days.  We can retract our quotations at any time prior to the acceptance by the contracting party.

2.2 A contract is concluded when a written request of the contracting party (purchase order) is accepted and confirmed in writing by ESTA (order confirmation) or by shipping the ordered goods or performing the services owed.  The purchase order of the contracting party is binding until it is accepted or rejected by us or for a period of three weeks beginning at the point in time when the purchase order is received at ESTA. 

2.3 Information in our catalogues, brochures, circulars, advertisements, illustrations and price lists concerning the performance, dimensions, weights, price etc. is nonbinding unless it has been expressly specified as part of a contract.

2.4 Documents that are part of a quotation such as illustrations, drawings, weights and dimensional information are deemed only as approximate unless they have been expressly declared as binding.  We reserve the right to modify the purchase order if this does not change the contractual item and its appearance considerably.  ESTA reserves the right to all its property and copyrights concerning cost estimates, drawings and other documentation, which must also not be made accessible to third parties.  ESTA is obligated to obtain the contracting party’s approval to show plans that are designated as confidential to third parties.

3. Content of the Contract

3.1 For the extent and method of delivering goods and services the information specified in our order confirmation applies and without order confirmation the information in our quotations is decisive.

3.2 ESTA reserves the right to make construction and design changes with regard to the fulfilment of purchase orders, to the extent where the supplied item and its appearance will not be modified significantly.

4. Prices, Terms of Payment and Default in Payment

4.1 Unless agreed otherwise the valid list prices in Euro on the day of completion of the contract are applicable ex works company, plus value added tax (VAT), not including packaging, transportation, insurance, duty and unloading, if delivery of the goods and/or services owed is to be made within four months after the conclusion of the contract.  Otherwise the valid list prices at the time of fulfilment of the contract are applicable.  In the event of actual later delivery and/or performance of services the prices that are valid on the date of shipment are applicable if delivery/performance of services has been made later than four months for reasons that are the customer’s responsibility.

4.2 If a fixed price has been agreed with an entrepreneur (§14 Civil Code), we reserve the right to add any increase in labour or material costs that has been incurred between the time the contract was made and the time the goods are delivered or services are performed.  If the price increase is more than four percent the contract partner can withdraw from the contract by written notice within two weeks from receipt of the notification concerning the price increase.

4.3 Our receivables are due in full on delivery of the goods respectively upon approval of the performed services.  Without further notice from ESTA the contract partner is in default 14 days after the due date of our receivables, at the latest.

4.4 Unless agreed otherwise payment must be made without any discounts and free of charges to an account of ESTA.  Payments are to be made as follows: A down payment of 1/3 after receipt of the order confirmation, 1/3 after the contract partner has been informed that the main items are ready for shipment or that the services can be performed, and the remaining balance as specified in Section 4.3.

4.5 Checks, bills of exchange and other payment instructions will only be accepted by special agreement and as conditional payment.

4.6 The assignment of claims against ESTA is only permissible with our agreement in writing.

4.7 The contract partner does not have the right of retention according to § 273 Civil Code as far as the claims are not undisputed or legally established.  If the contract partner is a consumer this applies only concerning a right of retention that is not based on the same legal relationship.

4.8 For contracts with entrepreneurs the objection of an unfulfilled contract ((§ 320 Civil Code) is excluded.

4.9 If after conclusion of the contract the economic situation of the contract partner changes in a way where our claims do not seem to be sufficiently secured we can demand another advance payment or other form of security.  If the contract partner refuses this we reserve the right to withdraw from the contract after a grace period of fourteen days has passed without result. 

5. Delivery Time, Default and Partial Shipments

5.1 Stated deadlines for the delivery of shipments or services to be performed are non-binding.  Deviating arrangements must be made expressly and in writing between the parties. In this case the deadline starts with the receipt of the order confirmation, but not until the contract partner has submitted all required documents, permits, releases and any agreed down payment.  The deadline is met if at the expiration of the time limit the delivery item has left the factory or if we have performed the agreed services or if the goods to be delivered are ready for shipment and we have informed the contract partner of this fact.  In the event of subsequent changes to the delivery item the delivery deadline will be extended accordingly.

5.2 If a definite deadline has been agreed with entrepreneurs for the delivery, exceeding this deadline represents a default in delivery only after a reminder and a grace period of at least two weeks given to ESTA has passed without any results.  The contract partner can only withdraw from the contract or claim damages in lieu of fulfilment after a default in delivery has occurred and after a reasonable grace period has expired without result.

5.3 In the event of unforeseen events that are beyond our control, such as breakdowns, strikes, lockouts, complete or partial closings of a supplier company, for whatever reasons, in the case of regulatory actions as well as in all other cases of Acts of God the delivery deadline will be postponed by the time period of the interruption and the correction of its effect on the company’s operations.  This also applies if these circumstances should occur at a supplier or subcontractor of company ESTA.

5.4 If in the case of a delivery to an entrepreneur as defined in § 14 Civil Code we can prove that despite careful selection of our suppliers and regardless of contractual agreements with appropriate conditions we cannot receive deliveries from our suppliers on time, the delivery deadline will be extended by the time of the delay caused by the late delivery from the suppliers.  If it is impossible for the supplier to deliver we reserve the right to withdraw from the contract.

5.5 Exceeding the delivery deadline does not entitle the customer to refuse the acceptance.

5.6 Partial shipments are permissible if they are reasonable for the contracting party.

6. Passing of Risk

6.1 The risk passes to the contract partner after the delivery item has left the factory.  This also applies if partial deliveries are made or if ESTA has assumed other services, e.g. freight charges or delivery and set up.  If an inspection is required this will be decisive for the passing of the risk.  It must be performed immediately on the acceptance date, alternatively after the notification regarding completion has been received.

6.2 If the delivery item is ready for shipment and shipping is delayed for reasons that are the responsibility of the contract partner the risk passes to the contract partner with the receipt of the notification that the item is ready for shipment.

6.3 Delivered items must be accepted by the contract partner, notwithstanding the rights of Section 10, even if they have insignificant defects.

7. Default in Acceptance

7.1 The contract partner is in default of acceptance of the delivery/service to be performed by us when we notify him in writing of the readiness to ship or to perform the service and the contract partner refuses delivery or performance of the service and/or despite an express request to accept delivery and performance of the service he does not confirm the acceptance within three days after receipt of the written request.  In addition the statutory regulations concerning default of the creditor also apply.

7.2 If the contract partner is in default of acceptance he must pay 0.25% of the net order amount for each beginning week up to a maximum of 5% for storage costs.  Proof of a higher damage is the responsibility of ESTA.  The right of the contract partner to submit proof of lower storage costs also remains unaffected.

7.3 If after the occurrence of the default the contract partner has delayed the acceptance of the delivery item for more than a week we reserve the right to dispose of the delivery item otherwise and to provide an equal item in fulfilment of the contract within four weeks from the date it has been disposed of otherwise.  The continuance of the due date of the purchase price and possible interest on arrears remains unaffected.  In this case the contract partner must pay the purchase price in advance after the due date under exclusion of the objection of an unfulfilled contract.

8. Claims for Damages against the Contract Partner

8.1 In all cases of claims for damages against the contract partner, instead of the performance of the delivery or service, we can dispose freely of the delivery item.

8.2 Within the scope of the dissolution of this claim for damages we reserve the right to claim 20% of the net order total as general compensation for our lost profit without any requirement of proof.  Exercising our right to claim further damages remains unaffected.

8.3 The right of the contract partner to provide proof of a lesser damage to us remains unaffected.

9. Retention of Title

9.1 We retain title of all goods that are delivered by ESTA – as the case may be within the scope of a contract for work or services – until all payments resulting from the contract have been received.  If the contract partner is an entrepreneur as defined by § 14 Civil Code we retain title of the goods until all payments resulting from the business relationship with the contract partner have been received.

9.2 Unless agreed otherwise the contract partner cannot resell the delivery item before the full purchase price has been paid.  If it is part of the normal business operations of the contract partner to resell the items delivered by us to third parties the contract partner has the right to resell the goods in the normal conduct of business.  In the case of the permissible or non-permissible sale of the delivery item the contract partner assigns to us now all receivables in the amount of the respective invoice amount (including value added tax) resulting from the sale to his customers or third parties independent of the fact whether or not the delivery item has been processed further prior to the sale.  The contract partner is entitled to collect these receivables after they have been assigned.  Our authorisation to collect the receivable ourselves remains unaffected hereof.  Nevertheless we promise not to collect the receivable ourselves as long as the contract partner resells the delivery item with authorisation and meets his payment obligations to us in a timely manner, especially without payment default.

9.3 If the contract partner breaches the contract, especially through default in payment we have the right to repossess the delivery items.  The contract partner is obligated to surrender the items.  The repossession of the delivery items through us does not constitute a withdrawal from the contract unless we have expressly stated this in writing.  In cases where the items have been resold to third parties the contract partner is obligated to inform us of his receivables and his debtors including all information that is required to collect the receivables, to hand over the associated documents and to inform the debtor of the contract partner of the cession.

9.4 In the case of distraints or other third party claims concerning the delivery item the contract partner must notify us immediately in writing and forward all necessary documents for an intervention to us.

9.5 Until the final transfer of ownership the contract partner is obligated to insure the delivery item sufficiently at his own expense against theft, breakage, fire and water damage.  A corresponding proof of insurance must be presented to ESTA on request.

9.6 With regard to the utilisation of the items subject to retention of title and receivables assigned to us the following applies:  We are authorised to utilize the released items subject to retention of title to the best of our judgement, especially also at our own discretion.  The proceeds of disposing of the items less the incurred expenses will be applied against the outstanding receivable of the purchase.  Any surplus will be paid out to the contract partner.  We can collect receivables assigned to us directly from the buyer of the contract partner.  The collected receivables less incurred expenses will be applied against the purchase price and any surplus will be paid out to the contract partner.

9.7 As far as the possible value of all security interests ESTA is entitled to exceed the value of all secured receivables by more than 10%, ESTA will at the request of the contract partner release a corresponding portion of the security interests.  We reserve the right to choose the security interests that are to be released.

10. Rights Concerning Defects

10.1 Defects that are so obvious that even a non-expert contract partner will notice them without paying special attention must be reported to ESTA in writing within a grace period of 14 days after delivery or acceptance; it is sufficient to send the written notification within the time limit.  The defects must be described in as much detail as possible.  If the contract partner is an entrepreneur as defined in § 14 Civil Code, §§ 377 (et seq.) German Commercial Code apply exclusively.

10.2 Additionally defects must be reported to us in writing without undue delay giving a detailed description of the problem. 

10.3 As provided by law, in the event of a defect ESTA has the choice of supplementary performance by delivering or manufacturing a new item or eliminating the defect.  If within the scope of the statutory rights arising from defects ESTA chooses supplementary performance all exchanged parts become the property of ESTA.

10.4 To perform subsequent improvements and replacement shipments as determined by ESTA the contract partner must communicate with ESTA and allow for the necessary time and opportunity; otherwise ESTA is relieved from the liability for the resulting consequences.  Only in urgent cases of danger to the operational safety or to prevent excessive damage, in which case ESTA must be notified immediately, the contract partner has the right to eliminate the defect through third parties and demand compensation for the incurred expenses from ESTA.

10.5 Especially in the following cases the contract partner is not entitled to rights arising from defects: Inappropriate or improper use, incorrect installation or operation by the contract partner or third parties, normal wear and tear, incorrect or neglectful handling, improper maintenance, inappropriate operating materials, faulty construction work, improper foundation, chemical, electrochemical or electrical effects – as far as they are not the responsibility of ESTA.

10.6 If the contract partner or a third party makes improper repairs ESTA is not liable for the resulting consequences.  The same is applicable for modifications that are made to the delivery item without obtaining the prior consent of ESTA.

10.7 If the use of the delivery item leads to a violation of domestic industrial property rights or copyrights ESTA will at its own expense obtain authorisation for the contract partner to continue its use or to modify the delivery item in a way that will eliminate the violation of the protected rights in a manner that is reasonable for the contract partner.  If this is not possible under economically acceptable conditions or within a reasonable period of time the contract partner has the right to withdraw from the contract.  Under the stated conditions ESTA also has the right to withdraw from the contract.  ESTA will also protect the contract partner from undisputed or legally established claims of the respective holders of the protected rights.

10.8 The obligations of ESTA as outlined in Section 10.7 are final in the case of a violation of protected rights or copyrights.  They exist only if

  • the contract partner notifies ESTA immediately of alleged violations of protecded rights or copyrights,
  • the contract partner supports ESTA adequately in its defence against the alleged claims or enables ESTA to perform the modification measures as described in Section 10.7,
  • ESTA retains the right to exercise all defensive measures including out of court arrangements,
  • the defect in title is not the result of an instruction by the contract partner
  • and the infringement was not caused by the fact that the contract partner has modified the delivery item arbitrarily or has not used it as provided in the contract.

10.9 If the delivery item or works performed cannot be utilised by the contract partner as agreed in the contract through the fault of ESTA as a result of omission or faulty execution of suggestions and consultations before or after the contract was made or through violation of other secondary contractual obligations – especially the availability of a manual for operation and maintenance of the delivery item – the regulations as described in Sections 10.1 through 10.8 apply accordingly.

11. Liability

11.1 ESTA is liable as provided by law in cases of intent or gross negligence of ESTA or a representative or vicarious agent.  In all other cases we are liable only in accordance with the product liability law, by reason of injury to life, body or health, by reason of culpable violation of fundamental contractual obligations or as far as ESTA has maliciously concealed a deficiency or assumed a guarantee for the condition of a delivery item or works performed.  The claim for damages from the violation of fundamental contractual obligations is however limited to the foreseeable damage that is typical for the contract unless also an additional case of compulsory liability as described in sentences 1 and 2 exists.

11.2 The regulations under 11.1 apply to all damage compensation claims, whatever the legal reason, especially in regard to defects, breach of duties under the obligation or to unauthorized actions. They also apply to reimbursement of wasted expenditures, damages due to loss of production, and the loss of materials necessary for production.

11.3 A modification of the burden of proof to the disadvantage of the contract partner is not associated with the above stated regulations.

12. Statute of Limitation for Consumers

For contracts with consumers the following applies:

12.1 For sales contracts the statute of limitations regarding claims for damages as a result of defects – for whatever legal reason – is one year.

12.2 The statute of limitations as stated in Section 12.1 also applies to other damage claims against ESTA, regardless of their legal basis.  It is also applicable if the claims are not associated with a defect.

12.3 However, in the case of contracts for services Section 12.1 applies for all claims and rights resulting from defects accordingly.  This limitation period also applies to other damage claims against ESTA independent of their legal basis.  It is also applicable if the claims are not associated with a defect.

12.4 All statute of limitations according to Section 12.1 through 12.3 apply subject to the following provisions:

a) The limitation periods generally do not apply in cases of intent.

b) They also do not apply if ESTA has maliciously concealed a deficiency or if ESTA has assumed a guarantee for the quality of a delivery item or work performed.

c) The above stated limitation periods according to Section 12.1 do not apply if the delivery item is a structure or an object that is commonly utilised for a structure and is causing the defect.  The limitation period of Section 12.3 also does not apply for structures or works where their success depends on the performance of its planning or monitoring.

d) Lastly the limitation periods do not apply for damage claims in cases due to reasons of injury to life, body, health or freedom, for claims according to the product liability law, for grossly negligent breach of duties or a culpable violation of fundamental contractual obligations.

12.5 The statute of limitations begins with the delivery or in the case of contracts for services with the inspection and approval.

12.6 Damage claims as described in this regulation also include claims for compensation of wasted expenditures.

12.7 Unless expressly agreed otherwise the requirements provided by law concerning the beginning of the statute of limitations, suspension of the expiration of the statute of limitations, suspension and recommencement of the limitation periods remain unaffected.

12.8 A modification of the burden of proof to the detriment of the contract partner is not intended with the above stated regulations.

13. Statute of Limitation for Companies

For contracts with companies the following applies:

13.1 The statute of limitations for claims and rights of the contract partner resulting from defects of deliveries and/or services performed – whatever the legal reason – is one year.  However, this does not apply in the cases of § 438 I No. 1 Civil Code (defects of title with immovable property),  § 438 I No. 2 Civil Code (structures, property for structures), § 479 I Civil Code (recourse rights) or § 634a I No. 2 Civil Code (structures or works where their success depends on the performance of its planning or monitoring).  In these cases the statute of limitation is three years.

13.2 The statutes of limitations according to Section 13.1 also apply – whatever the legal reason – for all damage claims against ESTA related to a defect.  As far as this correlation does not exist the statute of limitations is one year.

13.3 Otherwise Sections 12.4 a), b) and d), 12.5 through 12.8 apply accordingly.

14. Software Use

As far as the scope of delivery or services includes software the contract partner is given a non-exclusive right to use the software and its documentations.  The use is limited to the object for which it is intended.  Any use of the software on more than one system is prohibited.  The contract partner may copy, rework, translate or convert the software from the object code into the source code as permitted by law.  The contract partner is obligated not to remove manufacturer data – especially copyright notices – or to change them without the prior express written approval of ESTA.  ESTA or the software supplier retains all other rights concerning the software and documentations including the copies.  The issuing of sublicenses is not permitted.

15. Place of Jurisdiction and Place of Performance

15.1 Place of performance for our contractual obligations is Senden, Germany.

15.2 For all claims resulting from business connections with entrepreneurs as defined in § 14 Civil Code including promissory notes, cheque and bill of exchange law suits the place of performance is Ulm, Germany.

16. Applicability of the General Terms and Conditions and Severability Clause

16.1 If one of the clauses of these General Terms and Conditions or a contract made with ESTA should be invalid the validity of all other clauses remains unaffected.

16.2 Revisions and amendments of the contract are made in writing by the company management or a specially authorized representative of ESTA.  Verbal collateral agreements and subsequent changes to the contract by other persons are only legally binding if they have been confirmed in writing by the management of company ESTA. The exemption from the requirement of the written form itself must be performed in writing.

Status Date: 01/2014

 

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