General Terms and Conditions
General Terms and Conditions of ElringKlinger AG
Max-Eyth-Str.2, 72581 Dettingen/Erms
General Terms and Conditions of Sale and Delivery
I. General information
- These Terms and Conditions shall be part of all contracts entered into between us and the Buyer. They shall also apply if we do not explicitly refer to them in subsequent contracts. The Buyer's General Terms and Conditions shall not apply; we hereby expressly object to said Terms and Conditions.
- Addenda and amendments to contracts and these General Terms and Conditions shall require the written form in order to be valid. This shall also apply to any amendment to the written form requirement.
II. Delivery and packaging
- Unless otherwise agreed, delivery shall be made EXW INCOTERMS (actual version).
- Unless otherwise agreed, we shall be responsible for the packaging of the delivery items. Packaging costs shall be invoiced to the Buyer.
- The delivery period shall begin on conclusion of the Contract, but not prior to the provision of any documents, permits and approvals to be furnished if necessary by the Buyer or prior to the supply of other objects or receipt of any agreed down payment.
- The delivery period shall be extended in the event of force majeure, i.e. unforeseeable events beyond our control, such as industrial disputes, including, but not limited to, strikes and lock-outs, as well as business disruptions and delays in the delivery of essential materials, insofar as such impediments affect shipment of the delivery item. This shall also apply if these circumstances occur in relation to sub-suppliers. The extension of the delivery period shall be commensurate with the duration of such measures and impediments. The aforementioned circumstances shall also be deemed to be beyond our control if they occur during an already existing delay. The Buyer shall be immediately informed of such impediments.
- If we culpably fail to comply with the delivery periods, we shall be deemed to be in default only if the Buyer requests us to deliver again, setting a reasonable time limit. Claims for compensation for damages caused by delay shall be excluded in the event of simple negligence. If the Buyer intends to rescind the Contract and to assert a claim for damages in lieu of performance, the restrictions of Clause VII.1b shall apply.
III. Scope of delivery
- The scope of delivery shall be determined by the respective contract.
- We reserve the right to make changes to the delivery item due to technological improvements or to legal requirements, providing such changes do not alter the delivery item substantially and the Buyer can reasonably be expected to accept them.
IV. Terms of payment and set-off
- Unless otherwise agreed, invoices shall be payable without deductions within 14 days of date of issue.
- The Buyer shall have a right to set-off only if its counterclaims have become res judicata or are undisputed. The Buyer shall be authorized to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.
Where there are more than 8 weeks between contract conclusion and agreed delivery date, we shall be entitled to make corresponding price adjustments in the event of increases in material prices, wage costs or energy prices.
VI. Property rights and tools
- Cost estimates, conceptual designs, drawings and other documents shall remain our property. These documents may be made accessible to third parties only with our prior written consent.
- Where items are produced according to the Buyer's drawings, models, samples or other documents, the Buyer shall warrant that third-party property rights are not infringed.
- We shall be liable as follows for defects to delivery items:
a) For a period of 12 months from transfer of risk, the Buyer shall initially be entitled to subsequent performance (repair or replacement at our option). Should the subsequent performance be unsuccessful on at least two occasions or be disproportionate, the Buyer may rescind the Contract or reduce the purchase price.
b) Our liability as well as that of a legal representative or a performing agent shall be limited to cases of wilful intent or gross negligence. In the event of a breach of material contractual obligations, we shall be liable in accordance with the statutory provisions. Any claim for damages shall, however, be limited to damages that are typical for the Contract and foreseeable at the time the Contract is entered into. These provisions shall also extend to claims for damages in addition to performance and damages in lieu of performance, on whatever legal grounds, in particular on account of defects, the infringement of duties arising from an obligation or from a tortious act. They shall also apply in the event of claims for reimbursement of nugatory expenditure.
c) Defects caused by natural wear and tear and incorrect assembly as well as minor divergences from the agreed quality shall, in particular, but not limited, be excluded from the warranty.
- If we make deliveries based on sampling, we shall warrant only the qualitative and dimensional characteristics of the sample approved by the Buyer.
- Claims for damages arising from tort shall be excluded, unless the damages have been caused by wilful intent or gross negligence. This shall also apply to acts by our vicarious and performing agents. In the event of injury to life, limb or health as well as in the event of product liability, we shall be liable in accordance with the statutory provisions.
The Buyer's rights of recourse shall be deemed to apply only insofar as it has not entered into any agreements, with its customer, which go beyond the statutorily prescribed claims for defects.
IX. Retention of title
- We shall retain title to the delivery items until payment therefore has been made.
- In case the Buyer breaches the Contract, particularly in the case of delay in payment, we shall be entitled to demand that it surrender the delivery items and/or to rescind the Contract.
- The Buyer shall be entitled to resell the delivery items in the ordinary course of business; it shall hereby assign to us all receivables in the amount of the purchase price agreed between us and the Buyer(including value added tax) which accrue to the Buyer from the resale, irrespective of whether the delivery items are resold without or after processing. We accept the assignment. The Buyer shall be authorized to collect these receivables after their assignment. This shall not affect our authorization to collect the receivables ourselves. However, if this is the case, we are entitled to demand that the Buyer make known the assigned receivables and their debtors, provide all information necessary for the collection, submit the associated documents and inform the debtors (third parties) of the assignment.
- If the delivery items are processed or inseparably mixed with other objects that do not belong to us, we shall acquire co-ownership of the new object in proportion of the value of the delivery items to the other processed objects at the time of processing or to the other mixed objects. The Buyer shall hold the co-owned object in safe custody for us.
- The Buyer may neither pledge the delivery items nor assign them as collateral. In the event of seizures and impoundments or other dispositions by third parties as well as in the event of the institution of insolvency or composition proceedings against the Buyer´s property, it shall immediately inform us thereof and make all information and documents required for protecting our rights available to us. Enforcement officers or third parties shall be notified of our title.
- We , at the Buyer's request, undertake to release the collateral to which we are entitled to the extent that its value exceeds the receivables to be secured - providing they have not yet been settled - by more than 20%.
X. Venue and applicable law
- The venue for all disputes shall be Stuttgart/Germany. We shall also be entitled to sue the Buyer at the court of its registered office.
- The law of the Federal Republic of Germany shall apply exclusively without giving effect to the law of conflicts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Any assignments of the Buyer's rights and obligations arising from the Contract entered into with us shall require our prior written consent in order to be valid.
Entry rules for ElringKlinger AG social media competitions
Participation in the competition is free and voluntary.
The competitions are organized by ElringKlinger AG
This competition has no connection with Facebook, Twitter or WeChat and is not sponsored, supported or organized in any way by Facebook, Twitter or WeChat. The sole recipient of data and information supplied by the entrant is ElringKlinger AG and not Facebook, Twitter or WeChat.
All questions, comments and complaints regarding the competition must be addressed to ElringKlinger AG (firstname.lastname@example.org).
Participation in the competition is only possible under the conditions outlined here. By entering the competition, participants expressly consent to the entry conditions.
ElringKlinger AG reserves the right to interrupt or terminate the competition at any time.
Disclaimer of warranty
ElringKlinger AG points out that entrants shall not be entitled to make claims against ElringKlinger AG where the competition is terminated or discontinued due to external circumstances or constraints. Such external factors can include technical problems, rule changes and decisions taken by Facebook, Twitter or WeChat.
The following disclaimers and limitations apply to ElringKlinger AG’s liability for damages, irrespective of other statutory conditions of entitlement:
ElringKlinger AG shall be liable without limitation where the cause of damage is intentional action or gross negligence.
ElringKlinger AG shall also be liable for negligent breaches of material obligations which jeopardize the purpose of the contract, and for breaches of those obligations which must be fulfilled to ensure the proper running of the competition in the first place and which the contracting partners routinely reply upon. In this case, however, ElringKlinger AG is only liable for foreseeable damage typical of the type of contract. ElringKlinger AG does not accept liability for the negligent breach of duties other than those stated above.
The aforementioned limitations of liability do not apply in the event of loss of life, personal injury or damage to health, defects after the assumption of guarantees on the quality of a product and fraudulent concealment of deficiencies. Liability under product liability law remains unaffected.
Where the liability of ElringKlinger AG is excluded or limited, this also applies to the personal liability of employees, representatives and vicarious agents of ElringKlinger AG.
Entry requires active participation in the competition as described in the competition rules.
Participation does not depend on the procurement of goods or services from ElringKlinger AG; the procurement of goods or services does not increase the chances of winning.
Participation in the competition implies the consent of winners to reveal profile names on ElringKlinger’s Facebook, Twitter and WeChat pages.
Competition entry posts must not contain abuse, false statements, violations of competition rules, brand infringements or breaches of copyright.
The competition will start at 9.00am on Tuesday 11th September 2018 and end at midnight on Saturday 15th September 2018. All posts will be evaluated in line with the competition rules.
The following prize will be won:
On-site Meet&Greet with an Elring gasket specialist at our new Training Truck.
In the event that ElringKlinger AG is unable to make the prize available for reasons beyond the company’s control, ElringKlinger AG reserves the right to offer a replacement prize of similar value.
Eligibility to participate
Persons who are ‘fans’ of the ‘Elring – Das Original’ aftermarket pages on Facebook, Twitter or WeChat are eligible to participate. It is possible to become a fan by ‘liking’ the ElringKlinger social media pages.
Rights of usage, exemption and responsibility
ElringKlinger AG is not obliged to review content added by entrants (e.g. text, pictures) for potential violations of third-party rights. However, ElringKlinger AG shall be entitled to reject content where it is unlawful or transgresses standards of public decency in the company’s objective view.
Entrants contributing content, and in particular images and text, declare that such content is not subject to third-party rights, i.e. either the entrant has created the content or has obtained permission from the originator and the persons depicted in such images and videos.
Entrants exempt ElringKlinger AG from all claims by third parties based on content supplied by participants. Moreover, they agree to support ElringKlinger AG in defending itself against such claims by every reasonable means possible.
Entrants thereby agree that their submissions in connection with the competition, the draw and the processing and presentation of entrant submissions by ElringKlinger AG in online and offline media (e.g. in printed form) will be used, disseminated and otherwise made accessible to third parties. For these purposes, ElringKlinger AG is further entitled to edit submissions and, where necessary, confer usage rights on third parties. Such rights are granted free of charge and without limitations on place, content or time.
Material prizes are not paid out in cash and may not be exchanged. Prizes cannot be transferred to third parties or otherwise passed on or resold.
Entrants who meet the conditions of the competition will be entered in the draw. Entrants may only take part in the draw once in any competition.
All entrants eligible to participate will take part in the draw for prizes. Entitlement to participate will be determined and the draw itself held on the working day after the closing date for entries.
The winners will be announced on Facebook, Twitter and WeChat; competition entrants signal their explicit agreement to this. Where a winner does not claim their prize within three days of the announcement, the prize shall be forfeited and a new winner nominated.
ElringKlinger AG collects and utilizes data on entrants only insofar as this is legally permitted and participants consent to this. ElringKlinger AG makes use of data supplied in accordance with the provisions of the Federal Data Protection Act and the Telemedia Act.
ElringKlinger AG only gathers data from participants in order to arrange, carry out and complete the competition. Such data includes in particular general information on users shared on Facebook, Twitter and WeChat as well as the names of entrants. Where other data is collected for such purposes, this will be clearly communicated to entrants before they take part.
On request (either in writing or electronically), entrants may at any time demand notification from ElringKlinger AG on which personal data is stored by ElringKlinger AG; they may also demand that such data is corrected or deleted, or withdraw their consent to such data being utilized.
The handling of personal data is defined in ElringKlinger AG’s data protection policy (http://www.elringklinger.de/de/datenschutzerklaerung).
Entrants exempt Facebook, Twitter and WeChat from any liability.
Recourse to the courts is not permitted. The law of the Federal Republic of Germany shall apply exclusively. Where one of the conditions of entry is or becomes invalid, this shall not affect the validity of the remaining entry conditions. ElringKlinger AG is entitled to amend the conditions of entry at any time without specific notification.