1. 1.General
   These terms and conditions of delivery apply exclusively to entrepreneurs, legal entities under public law or special funds under public law in the Federal Republic of Germany within the meaning of Section 310(1) BGB (German Civil Code). All deliveries, services and offers of ELKA-Torantriebe GmbH u. Co. Betriebs KG, hereinafter also referred to as the Seller, apply exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of the contracts, which the Seller enters into with its contracting parties, hereinafter also referred to as Buyers, in respect of the deliveries and services that the Seller makes and renders. They also apply to all future deliveries, services or offers made for or to the Buyer, including if they are not separately agreed upon once again. Agreements and statements of the field service shall only have binding force for the Seller once they have been confirmed in writing. If no other written agreement has been entered into, the stated offers shall, at all times, be subject to change without notice and non-binding. Terms and conditions of business of the Buyer or third parties shall not apply, including if the Seller does not separately object to the validity of such terms and conditions of business in an individual case. Even if the Seller cites a letter setting out the principal‘s or a third party‘s terms and conditions of business, or refers to these, this shall not constitute any form of consent to the validity of such terms and conditions of business.
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2. Prices
All stated prices are to be understood as net prices ex works and exclusive of freight but plus the statutory value added tax, which shall be stated separately in the calculation.

3. Delivery, delivery time
If the Seller holds out the prospect of periods and dates for deliveries and services, these shall, at all times, be approximate only unless a fixed period, or a fixed date, has been expressly assured or agreed. If shipping has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or third party otherwise entrusted with the transport. The Seller shall not be liable for impossibility of delivery or for delays in delivery, insofar as these are due to force majeure or other events not foreseeable at the time the contract was entered into (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, shortage of labour, energy or raw materials, official measures or the lack of official approvals, incorrect or untimely delivery by suppliers), which are not the Seller‘s responsibility. Insofar as such events significantly hamper or render impossible the delivery or service for the Seller, and the hindrance is not only temporary in nature, the Seller shall be entitled to withdraw from the contract. In the case of hindrances that are temporary in nature, the delivery or service periods shall be extended or the delivery or service dates shall be postponed by the duration of the hindrance plus an appropriate lead time. Insofar as the Buyer cannot reasonably be expected to accept the delivery or service as a result of the delay, the Buyer may withdraw from the contract by way of a written statement directed to the Seller without delay.

4. Place of performance
In the absence of provisions to the contrary, the Seller‘s registered office is deemed the place of performance for all obligations of the Buyer and Seller resulting from the contract. The type of shipping and packaging shall apply subject to the Supplier’s best judgement. The shipping costs shall be borne by the Buyer. Transport insurance shall only apply at the Buyer‘s express instruction and such costs shall be borne by the Buyer. Freight details are non-binding. In the case of delivery free to the place of receipt, the Buyer or recipient shall present the potentially calculated freight. If the Buyer does not furnish any details about the delivery that vary from the original delivery agreements, the Buyer shall bear the resulting additional costs. Risk shall pass to the Buyer at the latest upon handover of the delivery item (whereby the start of the loading process is authoritative) to the forwarding agent, carrier or third party otherwise entrusted with the transport. If the shipping, or handover, is delayed as a result of a circumstance brought about by the Buyer, risk shall pass to the Buyer from the day on which the delivery item is ready for shipping and the Seller has notified the Buyer of this.

5. Samples
Samples and specimens shall be deemed to be approximate samples of quality, dimensions and colour. In the case of sample deliveries, the Buyer shall bear the shipping costs incurred. Any assembly costs shall be borne by the Buyer. Trial deliveries shall be made for 6-8 weeks, at most however for three months. In the event of return, an amount of 10 % of the delivery value shall be charged for inspection and repair. The cost of damaged or missing parts shall be borne by the Buyer. The Buyer undertakes to notify the Seller without delay of detrimental effects to its property, including if this is caused by third parties.

6. Material defects and liability
The warranty period is one year from delivery. The period does not apply to the Buyer‘s claims for damages resulting from the loss of life, physical injury or detrimental effects on health or from intentional or gross negligent breaches of duty on the part of the Seller or its vicarious agents, which in each case shall fall under the statute of limitations in accordance with the statutory requirements. The delivered items are to be carefully inspected without delay following delivery to the Buyer or to the third party specified by the Buyer. With regard to obvious defects or other defects that would have been identified in the case of a careful inspection performed without delay, they shall be deemed authorised by the Buyer if the Seller does not receive notification of defects in text form within 7 workdays following delivery. With regard to other defects, the delivery items shall be deemed authorised by the Buyer if the Seller does not receive notification of defects within 7 workdays following the time at which the defect became evident. If the defect was already obvious at an earlier date in the case of normal use, such an earlier date shall,
however, be authoritative for the start of the period for providing notification of defects. At the Seller‘s request, a delivery item about which a complaint has been made is to be returned freight-free to the Seller. In the case of justified notification of defects, the Seller shall reimburse the cost of the most favourable shipping route. This does not apply insofar as the costs increase because the delivery item is located at a place other than that of the intended use. In the case of material defects in the delivery item, the Seller undertakes, and is entitled, at its own discretion to be applied within a reasonable period, to initially provide subsequent improvement or replacement delivery. In the event of failure, i.e. impossibility, unacceptability, refusal or unreasonable delay of the subsequent improvement or replacement delivery, the Buyer may withdraw from the contract or appropriately reduce the purchase price. As a matter of principle, the above regulation does not affect recourse claims, which shall apply only insofar as the Buyer has entered into agreements with its customer that extend beyond the warranty claims specified by law.
In accordance with the preconditions set out in sub-section 7, the principal may claim for damages if a defect is based on culpability on the part of the Seller. The warranty shall be inapplicable if the Buyer modifies the delivery item or has made arrangements for third parties to modify the delivery item, without the Seller‘s consent, and rectification of defects is impossible, or is unacceptably hampered, as a result. In any case, the Buyer shall bear the additional cost of rectifying the defect arising from the modification. Delivery of used items agreed with the Buyer in an individual case shall apply by way of exclusion of any warranty for material defects.

7. Liability
The Seller‘s liability for damages, irrespective of the legal grounds, shall be limited, insofar as culpability applies, in accordance with the following provisions: The Seller shall not be liable in the event of minor negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. The obligation to deliver in good time and, where agreed, install the subject matter of contract, the subject matter of contract being free of defects in title and such defects that have more than an inconsiderable detrimental effect on the functionality or suitability for use of the subject matter of contract, as well as consulting, protection and care obligations that are aimed at enabling the principal to use the subject matter of contract as per agreement, or are geared towards protecting the life and limb of the Buyer‘s personnel, or protecting its property against considerable damage, are deemed material contractual obligations. Insofar as the Seller is liable for damages on merit, such liability shall be limited to damage that the Seller foresaw as a possible consequence of a breach of contract at the time of entering into the contract or should have foreseen in the case of applying customary care. In addition, direct damage and consequential damage that are the consequence of defects in delivery item shall only be subject to replacement insofar as the damage is typically to be expected in the case of use of the delivery item in accordance with the regulations. The aforementioned liability exclusions and restrictions shall apply to the same extent in favour of the Seller’s executive bodies, legal representatives, employees or other vicarious agents. The restrictions set out in this sub-section 7 do not apply to the Seller‘s liability for intentional acts, warranted characteristics, loss of life, physical injury or detrimental effects on health or regarding the German Product Liability Act.

8. Payments
Invoice amounts fall due for payment within thirty calendar days without deductions. A trade discount of 2% shall be granted for payment within eight days. Setting off against the Buyer’s counter-claims or asserting a right of retention shall only be permitted insofar as the counter-claims are undisputed or have become res judicata or arise from the same order that applies to the affected delivery. Cheques, bills of exchange and assignments shall only be accepted by
separate agreement and on account of payment until they have been honoured.

9. Inability to pay on the part of the Buyer
If, after the entering into the contract, it becomes apparent to the Seller that the Buyer is insolvent, an application has been filed for the institution of insolvency proceedings regarding the Buyer‘s assets, or such proceedings have been instituted, or have been instituted in vain, the Buyer issued false statements about its creditworthiness when entering into the contract, or if other circumstances apply that mean that the Buyer is not in a position to honour its payment obligations to the Seller, the Seller may request payment of the purchase price in full, or a deposit, prior to delivering the goods.

10. Reservation of title
a) The reservation of title agreed below serves to secure all the Seller‘s current and future and future claims against the Buyer arising from the delivery relationship between the contracting parties, including balance claims from a current account relationship from limited to this delivery relationship.
b) The delivered goods shall remain the Seller’s property until the purchase price has been paid in full and all secured claims have been settled. The goods as well as the goods which, according to the following provisions, are covered by the retention of title are hereinafter referred to as “Goods subject to reservation of title.”
c) The Buyer shall keep the goods subject to reservation of title in safe custody for the Seller free of charge.
d) The inclusion of individual claims in a current invoice or the striking of a balance and their recognition shall not cancel the reservation of title. If the Seller‘s liability under a bill of exchange is justified in conjunction with payment of the purchase price by the Buyer, the reservation of title shall not expire before the bill of exchange is cashed in by the Buyer as drawee.
e) The Buyer is entitled to process and sell the goods subject to reservation of title in the ordinary course of business until the event of realisation (see j) below). Pledging and transfers of ownership by way of security are not permitted.
f) If the goods subject to reservation of title are processed by the Buyer, it is agreed that the processing shall apply on behalf of and on the account of the Seller as the manufacturer and that the Seller shall directly acquire ownership if the processing is based on materials of several owners or if the value of the processed item is greater than the value of the goods subject to retention of title, and shall acquire co-ownership (fractional ownership) of the newly created object in the proportion of the value of the reserved goods to that of the newly created item. In the event that no such acquisition of ownership occurs on the part of the Seller, the Buyer hereby assigns to the Seller as security its future ownership or, in the aforementioned proportion, co-ownership of the newly created item. If the reserved goods are blended or directly mixed with other items to form a uniform item and another item is to be regarded as the main item, the Seller shall, insofar as it owns the main item, transfer to the Buyer pro rata co-ownership of the uniform item in the proportion specified in sentence 1.
g) In the event of resale of the goods subject to reservation of title, the Buyer hereby assigns to the Seller by way of security the resulting claim against the Buyer, in the event of co-ownership by the Seller of the goods subject to reservation of title on a pro rata basis in line with the co-ownership share. The same applies to other claims that take the place of the reserved goods or which otherwise arise in respect of the reserved goods, such as insurance claims or claims from unlawful acts in the case of loss or destruction. The Seller irrevocably authorises the Buyer to collect in its own name the claims assigned to the Seller. The seller may only with this authorisation in the event of realisation.
h) If third parties gain access to the goods subject to reservation of title, in particular by way of seizure, the Buyer shall, without delay, refer to the Seller‘s ownership and inform the Seller of this, to enable the Seller to enforce its ownership rights. Insofar as the third party is not in a position to reimburse the Seller for the judicial or extra-judicial costs incurred in this context, the Buyer shall be liable to the Seller in this respect.
i) The Seller shall release the goods subject to reservation of title and the items or claims replacing them, insofar as their value exceeds the amount of the secured claims by more than by more than 50 %. The Seller is to choose the items to be released thereafter.
j) If the Seller withdraws from the contract in the event of a breach of contract on the part of the Buyer, in particular default in payment, (case of realisation), the Seller shall be entitled to demand return of the goods subject to reservation of title.

11. Place of jurisdiction / applicable law
If the principal is a merchant, a legal person under public law or a special fund under public law, or if the principal has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer shall be deemed the Seller‘s place of business. This provision does not affect compulsory statutory provisions regarding exclusive places of jurisdiction. The relationship between the Seller and Buyer are exclusively subject to the laws of the Federal Republic of Germany.

12. Data protection
The Buyer agrees that the Seller may process its personal data in compliance with the Data Protection Act within the scope of normal business activities.

13. Safeguarding clause
Insofar as the contract or these General Terms and Conditions of Delivery contain omissions, the legally valid provisions shall apply that the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery had been aware of the loophole.
05/2020