1.1 These General Terms and Conditions of Business (AGB) apply to all ESTA offers and contracts agreed with ESTA. These General Terms and Conditions of Business also apply for all future businesses, but only for consumers if they are of the same type as in the previous business.
1.2 Only these General Terms and Conditions of Business shall apply. The customer’s Terms and Conditions of Business or other deviating agreements shall only apply to the extent ESTA has expressly agreed to them in writing. Otherwise, an application of the customer’s Terms and Conditions of Business or other deviating agreements is expressly forbidden.
1.3 For the business relations and the whole complete legal relations between the parties exclusively the law of the Federal Republic of Germany applies excluding the UN-purchase law (CISG).
1.4 Where these General Terms and Conditions of Business use customer/consumer terms, the legal definitions as per §§ 13/14 Commercial Code BGB.
2. Offer and contract conclusion
2.1 The offers from ESTA are subject-to-change and non-binding. ESTA remains bound by specially drafted offers for 30 calendar days. Our offers can be revoked by ESTA until the acceptance of the customer at any time.
2.2 A contract comes into existence upon a written order by the Customer (order) once the confirmation of the order was confirmed in writing by ESTA (order confirmation) or by delivery of the ordered gods, or performance of the service to be rendered. The customer remains bound to his order until it has been accepted or rejected by ESTA, for 3 weeks at the latest. This period begins upon the receipt of the order at ESTA.
2.3 Information, drawings, pictures, technical data, weights and measures as well as descriptions of performance included in the catalogues, brochures, circulars, advertisements and price lists are non-binding unless an express contractual content.
2.4 Any documents pertaining to an offer, such as pictures, drawings, weights, measures, are only approximate where they have not expressly been marked as binding. ESTA reserves the right to make changes to the order provided that the subject of delivery and its appearance are not changed significantly. ESTA reserves the right to ownership and copyright exploitation rights in cost estimates, drawings and any other documents; they may not be made available to third parties ESTA is required to only make accessible plans marked by third parties are confidential to third parties with its permission.
3. Contact terms
3.1 For the extent and method of delivering goods and services the information ESTA has specified in our order confirmation applies.
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, 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 ESTA’s receivables are due in full on delivery of the goods respectively upon approval of the performed services.. Without further notice from ESTA the customer 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 customer 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 customer 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 ESTA can demand another advance payment or other form of security. If the customer refuses this ESTA reserves 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 ESTA has performed the agreed services or if the goods to be delivered are ready for shipment and ESTA have informed the customer 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 ESTA’s 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 ESTA can prove that despite careful selection of our suppliers and regardless of contractual agreements with appropriate conditions we cannot receive deliveries from ESTA’s 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 ESTA reserves 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.
5.7. The customer shall bear the shipping costs from the place of the ESTA’s branch offices, unless such costs exceed a reasonable proportion compared to the value of the delivery item. Unless otherwise agreed, ESTA will select the packaging and the transport to the best of his knowledge. Insurance against damage in transit of any kind shall only be effected at the request of the customer, charging the amounts disbursed to the customer.
6. Transfer of risk
6.1 Risk shall pass to the customer when the goods to be shipped leave our site, even if we make partial deliveries or ESTA supplies other services, e.g. ESTA is to bear the shipping, delivery or installation costs. If there is to be an acceptance test, this shall be authoritative for the transfer of risk. It must be carried out without undue delay as of the acceptance date, alternatively after the notification by the supplier about the readiness for acceptance.
6.2 If the delivery item is ready for shipment and shipping is delayed for reasons that are the responsibility of the customer, the risk passes to the customer with the receipt of the notification of shipping.
6.3 Delivered items must be received by the Customer even if they have slight defects irrespective of the rights resulting from 11.
7. Default of acceptance
7.1 The customer is in default of acceptance of the delivery/service to be performed by ESTA when ESTA notifies him in writing of the readiness to ship or supply the service, and the customer rejects the delivery and/or performance and/or - despite the express request to accept the delivery and/or performance - does not confirm the acceptance within 3 days after receipt of the written request. For all other cases, the legal provisions of creditor default shall apply.
7.2 If the customer is in default of acceptance, the customer is required to pay 0.25% for each week of being in default of acceptance begun, to a maximum of 5%, for warehouse costs. ESTA is required to provide evidence for claiming a higher damage. The right of the customer to provide ESTA with evidence of lower storage costs remain unaffected.
7.3 If the customer is more than one week in default in accepting the delivery item, ESTA is entitled to make other dispositions concerning the delivery item and to provide an equal item in fulfilment of the contract within 4 weeks from the date it has been disposed of otherwise. This is not affect the obligation to pay the purchase price and any interest payments in their entirety. In this case, the customer is deemed liable to make a prior payment from the time at which the purchase price becomes due, with the consequence of pleading non-performance of the contract.
8. Damage claims against the customer
8.1 In all cases of claims for damages against the contract partner, instead of the performance of the delivery or service, ESTA can dispose freely of the delivery item.
8.2 During the liquidation of this damage replacement, ESTA is entitled to demand 20% of the net order amount as a one-off compensation payment for the profit loss by ESTA without having to substantiate this amount. The assertion of further damage remains unaffected. This shall not affect the right of the customer to provide evidence of a lower damage to ESTA.
9. Retention of title
9.1 ESTA reserves the proprietary rights to all objects delivered by ESTA until the purchase price has been paid in full for claims which were present at the conclusion of the contract, or afterwards in connection with the delivery item. If the customer is a registered business enterprise, ESTA shall retain the property of these objects until all payments have been received from the business relationship with the customer.
9.2 Unless otherwise agreed in the following, the customer is not allowed to resell the delivery item until the purchase price has been paid in full. If it is part of the customer's ordinary course of business to resell the ESTA goods to third persons, the customer is entitled to resell them in the ordinary course of business. In the case of the permissible or non-permissible sale of the delivery item the customer assigns to us now all receivables in the amount of the respective invoice amount (including VAT) arising from the sale to his customers or third parties independent of the fact that the delivery item has been processed further prior to the sale. The customer shall be authorised to collect these receivables after they have been assigned. The authority of ESTA to collect this receivable himself shall remain unaffected; however, ESTA is obliged to refrain from collecting this receivable as long as the customer resells the delivery in a permissible way and meets his payment obligations to ESTA in an orderly manner, and in particular, does not come into arrears in payment.
9.3 In the event of a conduct of the customer that is not in conformity with the contract, ESTA is entitled to take back the delivery item. The customer is obliged to surrender the property. If the customer is a consumer, ESTA shall first name a deadline and shall declare his termination from the contract in event that the deadline is not met. If the customer is a registered business enterprise, ESTA’s recovery of the delivery item does not represent a withdrawal from the contract, unless ESTA declared this expressly in writing. In case the merchandise has been sold to a third party, the customer is required to notify ESTA of the transferred receivables and his debtors, to make all of the entries required for the information, to hand out the associated documents to ESTA and to notify the debtor of the customer of the transfer.
9.4 In the event of any distraints or other interventions by third parties in the delivery item, the customer must promptly inform ESTA in writing and ESTA shall forward all of the documents needed for an intervention.
9.5 The customer is required to insure the delivery item against theft, breakage, fire and water damage at his own cost until the final transfer of ownership. The customer must provide evidence to ESTA of having taken out such an insurance policy upon request.
9.6 With regard to the utilisation of the items subject to retention of title and receivables assigned to us the following shall apply: ESTA is 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 obtained from the realization shall be credited to the outstanding purchase price claim less the costs and interest incurred by ESTA. Any remaining moneys shall be paid to the customer. Receivables transferred to ESTA can be collected by ESTA from the customer’s buyer. The collected receivables are offset against the purchase price after the deduction of any costs and any excess amounts are paid out to the customer.
9.7 If the realisable value of all collateral rights accruing to ESTA exceeds the amount of all collateralised receivables by more than 10%, ESTA will release an appropriate proportion of the collateral rights at the request of the customer. ESTA may choose to release between different collateral rights.
10.1 Within the framework of statutory provisions, the customer may only withdraw from the contract if ESTA is responsible for the breach of duty. In the case of a breach of duty, the customer must declare, within a reasonable period of time at the request of ESTA, whether he will withdraw from the contract due to the breach of duty or insist on delivery.
10.2 In the case of a defect however, the statutory provisions shall apply with respect to a withdrawal.
11. Defect rights
11.1. If the customer is an a registered business enterprise, claims for defect do not apply in the case of only negligible deviation or minor impairment of usability of the goods.
11.2 Defects that are so obvious that even a non-expert customer could notice them without paying special attention must be reported to ESTA in writing within 7 days after delivery/acceptance; it is sufficient to send the written notification within the time limit. The defects must be described with as much detail as possible. If the customer is a registered business enterprise, only Section 377 ff. German Commercial Code HGB shall apply.
11.3 Otherwise, defects must be reported in writing to ESTA without delay and described with as much detail as possible.
11.4 To the extent permitted by law, in the case of a defect, ESTA can opt for a supplementary performance by making a redelivery/remanufacture, or for remedy of the defect. If ESTA performs a supplementary performance within the framework of statutory defect rights, the replaced parts shall transfer to the ownership of ESTA.
11.5 The customer must grant ESTA the necessary time and opportunity for ESTA to perform all the supplementary performances and replacement deliveries seen as necessary to him; otherwise, ESTA is exempt from liability for any consequences that may arise. Only in urgent cases that endanger the operational safety and to avoid unreasonably greater damages, of which ESTA must be notified immediately, does the customer have the right to repair the defects itself or have a third party do so, and to claim the necessary costs from ESTA.
11.6 Especially in the following cases the contract partner is not entitled to rights arising from defects: Unsuitable use/non use as intended, incorrect assembly/commissioning by the customer or third party, natural wear and tear, misuse/negligent use, improper maintenance, inappropriate equipment, defective construction work, unsuitable foundations, chemical, electrochemical or electrical influences provided that ESTA is not responsible for them.
11.7 If the customer or a third party repairs the goods, ESTA will not be liable for any consequences arising from this work. The same also applies for modifications to the delivery item made without ESTA’s prior consent.
11.8. If the use of the delivered item leads to the violation of industrial property rights or copyrights within Germany, ESTA will fundamentally seek to procure rights of further use for the customer concerned at his own expense or modify the delivery item in such a way reasonable to the customer that infringement of such property rights no longer exists. If this is not possible under suitable economic terms and conditions or within a suitable time frame, the customer is entitled to withdraw from the contract. Under the prerequisites given, ESTA also has the right to withdraw from the contract. Furthermore, ESTA shall release the customer from claims which are undisputed or which have been determined by a court of law by the respective owner of the property right.
The obligations of ESTA under 11.8 are final for the case if a violation of property rights or copyrights. They only apply if
- the customer advises ESTA of any violation of property rights or copyrights immediately,
- the customer supports ESTA to a reasonable scope in defending itself against the claims made against it, or allows ESTA to carry out the modifications as set out in 11.8,
- ESTA is reserved all defensive measures including out-of-court settlements,
- the legal defect is not based on an instruction issued by the customer and
- the legal infringement was not due to the fact that the customer made unauthorised changes to the delivery item or used it in violation of the contract.
11.10 If, due to the ESTA’s fault, the delivery item cannot be used by the customer in accordance with the contract as a result of the omitted or deficient implementation of proposals and advice given before or after the conclusion of the contract/through the violation of other ancillary contractual obligations, especially the instructions for use and maintenance of the delivery item, the provisions 11.1 to 11.7 shall apply accordingly.
12.1 ESTA is liable according to statutory provisions in the case of intentional and the gross negligence by ESTA or representative or vicarious agent. Otherwise, ESTA will be liable only in accordance with the regulations under the Product liability Act to be applied to injuries to life, body or health, or owing to culpable violation of essential contractual obligations, or to the extent that ESTA has deliberately remained silent about a defect or has provided a guarantee for the quality of the delivery item or factory. Claims for damages for the violation of essential contractual obligations are, however, limited to contract-typical, predictable damages provided there is not an additional case of compulsory liability as per 1 or 2.
12.2 The provisions under 12.1 apply to all damage claims, irrespective of the legal reason, especially owing to defects, infringement of obligations from the contractual relationship or unlawful acts. They also apply to a claim to reimbursement of futile costs, damages due to production stoppages and the loss of materials needed for production. The liability for delay is determined based on 12.3 and for impossibility based on 12.4 of these terms and conditions.
12.3 ESTA is liable according to statutory provisions in the event of a delay of performance and in the cases of intentional and the gross negligence by ESTA or representative or vicarious agent. Except for the cases under clause 1, ESTA’s liability owing to delay for damage compensation is limited to a total of 15% of the net order total as well as the performance and/or instead of performance, including the reimbursement of futile costs. This limitation does not apply for culpable violation of essential contractual obligations. Claims for damages for the violation of essential contractual obligations are, however, limited to contract-typical, predictable damages provided that an additional case as per 1. clause 12.3. does not exist. Further claims of the customer are excluded - even after the lapse of any time limit for performance set for ESTA.
12.4 Clause 12.3. shall apply accordingly in the event of impossibility of performance, with the change that the claim of the customer to damages and/instead of the performance including the reimbursement of futile costs is limited to 10% of the value of the delivery.
12.5 The right of the customer to withdraw from the contract remains unaffected for the provisions in clauses 12.1.,12.3 and 12.4.
12.6 The above regulations do not involve a change in the burden of proof for the disadvantage of the customer.
13. Limitation of actions for consumers
The following applies for contracts made with consumers:
13.1 The limitation period for damage claims due to defects, regardless of the legal reason, is 1 year for purchase contracts.
13.2 The time limit under 13.1 also applies for miscellaneous damage claims made against ESTA, regardless of the legal reason. They also apply to the extent that the claims are not associated with a defect.
13.3 For contracts for work and services, 13.1 applies for all claims and rights from defects accordingly. This time limit also applies for miscellaneous damage claims made against ESTA, regardless of the legal basis. They also apply to the extent that the claims are not associated with a defect.
13.4 All limitation periods according to 13.1 to 13.3 apply with the following provisos:
a) The time limits do not generally apply in the event of intent.
b) They also do not apply if ESTA has deliberately remained silent about a defect or if ESTA has provided a guarantee for the quality of the delivery item.
c) The above time limits according to 13.1 do not apply when the delivery item is a building structure or an object which, according to its normal use, is used for a building which caused the defect. The time limit in 13.3 also does not apply to building structures or a plant, the success of which consists in the rendition of planning and supervisory services for it.
d) Finally, the time limits do not apply for damage claims in the event of an injury to life, limb or health or freedom, to claims made under the Product Liability Act, for a breach of duty committed intentionally or through gross negligence or after a culpable violation of essential contractual obligations.
13.5 The limitation time limit begins with the delivery/contracts for work and services upon acceptance.
13.6 As far as in this ordinance is spoken of claims of damages, there are also entitled to reimbursement of futile costs.
13.7 Unless otherwise expressed in writing, the statutory provisions on the period of limitations, suspension of the period, stay and recommencement of the period remain unaffected.
13.8 A change to the burden of proof to the customer's disadvantage is not associated with the above provisions.
14. Limitation of actions for registered business enterprises
The following applies for contracts made with registered business enterprises:
14.1 The limitation period for claims and rights of the contract party due to defects of delivery and/or performance, regardless of the legal reason, is 1 year. However, this does apply in the cases of Section 438 I clause 1 German Civil Code BGB (legal defects for non-movable goods), § 438 I clause. 2 BGB (building structures, things used for a building), § 479 I BGB (recourse claims) or § 634a I clause 2 BGB (building structures or plants, the success of which consists in the rendition of planning and supervisory services for it.). In these cases, the limitation period is 3 years.
14.2 The limitation periods as per 14.1 also apply, irrespective of the legal basis, for all claims of damages against ESTA that are associated with a defect. If this association does not apply, a period of 1 year shall apply.
14.3 Otherwise, 13.4 a), b) and d), 13.5 to 13.8 shall apply accordingly.
15. Use of software
In so far as software is contained within the scope of delivery/performance, the customer shall be granted a non-exclusive right to use this software based on its documentation. It shall be transferred for use on the object intended for this purpose. The software must not be used in more than one system. The customer may only copy, modify or translate software or convert software from object code into source code to the extent allowed by law. The customer is not allowed to remove information about the manufacturer - in particular copyright marks - nor to change this information without prior express approval of ESTA. All other rights to the software and documentation including copies remain with ESTA/software supplier. The issuance of sub-licences is not permitted.
16. Jurisdiction and place of performance
16.1 Place of performance for ESTA’s obligations from this contractual relationship is Senden.
16.2 Place of jurisdiction vis-à-vis registered business enterprises for any legal disputes that may arise from the contractual relationship including actions on bills, cheques and exchanges is the place of jurisdiction and performance Ulm.
17. Applicability of these General Terms and Conditions (GTCs)
17.1 In the event that any provision of these GTCs should prove to be invalid, the legal effectiveness of the remaining provisions shall remain unaffected.
17.2 Changes and alterations to the contract can only be made by Management or specially authorised representatives of ESTA in writing. Any additional oral agreements or later amendments made by other persons need to be approved by the ESTA Board of Management in writing in order to become legally valid. Any deviation from this written form requirement must also be made in writing.
Last update: 01/2014