General Terms of Business and Delivery
Through its website www.esska.de, ESSKA.de sells engineering products for industrial and craft use to consumers and businesses.
In these terms and conditions, purchasers are understood to include both consumers and businesses.
In these terms and conditions, a consumer is any individual with whom a business relationship is entered into and who is acting for a purpose not connected with any commercial activity or self-employment.
In these terms and conditions, a business is any individual, legal entity or partnership with legal capacity under private or public law or a special fund under public law with which a business relationship is entered into and which acts in the pursuit of a commercial or independent professional activity.
The following terms and conditions apply to all business relationships with purchasers and, in relation to businesses, also serve as the basis for all future transactions, to the exclusion of other conditions and agreements not expressly approved by ESSKA.de, even if the wording below is not specifically stated at the time of each individual later transaction. The applicable version is that in force at the time the contract is concluded.
Should any clause of these general terms and conditions be invalid or unenforceable, the remaining clauses shall be unaffected and shall continue to apply. The invalid clause shall be replaced by one that lawfully corresponds as closely as possible to the spirit and purpose of the invalid clause. The same applies where the terms and conditions are found to contain omissions.
2. Offer, conclusion of contract
The order placed by the purchaser is a binding offer.
ESSKA.de can accept this offer within two weeks by sending an order confirmation or send the goods within this period.
The transfer of the purchaser’s rights and obligations under the purchase agreement and resale of the goods before receipt require the written consent of ESSKA.de. In case of violation or attempted violation of this rule, ESSKA.de may withdraw from the contract by written notice with immediate effect.
Unless otherwise agreed in writing, the quoted prices apply ex works plus any postage, delivery, shipping and packaging costs, plus VAT at the applicable rate.
Incidental items such as postage, delivery, shipping and packaging costs will be charged in addition.
Delivery, shipping and packaging costs are charged depending on the method of transport chosen by the purchaser and based on the size of the consignment. All prices quoted by ESSKA.de on websites and in catalogues, brochures and the order confirmation are however to be understood as without obligation, non-binding and subject to possible typing, printing or calculation errors.
List prices – notwithstanding any small-quantity surcharges mentioned therein – assume delivery of full original packages. We reserve the right to round up or down to the nearest packaging unit.
Businesses will be charged for list-price articles at the list prices valid at the time of delivery. The purchase price for businesses will in all cases be adjusted in proportion to the amount by which the list prices for ESSKA.de plus VAT change up to the date of delivery.
In the case of businesses, we reserve the right to make reasonable price adjustments due to changes in labour, material and distribution costs for goods delivered 3 months or later after the contract is concluded, if no fixed price has been agreed.
The purchase price must be paid to the account of ESSKA.de. mentioned in the invoice.
A discount may be deducted only by special written agreement.
Unless otherwise agreed, the purchase price is payable within 14 days of the invoice date.
Interest on arrears is charged at the rate of 5% above the relevant base interest rate p.a. in the case of consumers and at the rate of 8% above the relevant base interest rate p.a. in the case of businesses.
We reserve the right to claim higher compensation for late payment. Where ESSKA.de charges higher compensation for late payment, the purchaser shall have the opportunity to demonstrate to ESSKA.de that all or part of the loss being claimed was not incurred.
5. Set-off and right of retention
The purchaser is only entitled to offset amounts if its claims are legally enforceable or undisputed. The purchaser is also entitled to offset amounts against claims of ESSKA.de when asserting defects or counterclaims under the same purchase contract. The purchaser is only entitled to exercise a right of retention in so far as its counterclaim is based on the same contractual relationship.
6. Delivery and delays in delivery
If no binding delivery date has been expressly agreed, the delivery date and/or delivery period are only non-binding indications.
The beginning of the delivery period stated by ESSKA.de assumes timely and proper fulfilment of the purchaser’s obligations. We reserve the right to object to an unfulfilled contract.
Six weeks after a non-binding delivery date / delivery period has been exceeded, the purchaser may ask ESSKA.de in writing to deliver the goods within a reasonable period. Upon receipt of the request, ESSKA.de shall be held in default. If the purchaser is entitled to compensation of damages caused by delay, in the event of minor negligence on the part of ESSKA.de this shall be limited to a maximum of 5% of the agreed purchase price.
If the purchaser also wishes to withdraw from the contract and/or claim damages instead of performance, after the 6-week period mentioned in the third paragraph of this section has expired, it must allow ESSKA.de a reasonable period in which to deliver the goods. If the purchaser is entitled to claim damages instead of performance, in case of minor negligence the claim shall be limited to a maximum of 25% of the agreed purchase price. Businesses cannot claim damages in the event of minor negligence.
Should ESSKA.de culpably fail to adhere to an expressly agreed delivery date / delivery period, ESSKA.de shall be held in default upon its being exceeded. The purchaser’s rights are as defined in the third and fourth paragraphs of this section.
If the purchaser fails to accept the goods or culpably violates other duties to cooperate, ESSKA.de may claim the ensuing damages, including any additional expenses. We reserve the right to make further claims.
The risk of accidental loss or accidental deterioration of the goods passes to the purchaser as soon as the purchaser defaults on its acceptance or payment obligations.
ESSKA.de is liable to businesses In the event of a delay in delivery not caused intentionally or through gross negligence for each whole week of delay, being obliged to pay lump-sum compensation for delay amounting to 3% of the value of the delivery, subject to a maximum of 15% of the value of the delivery.
Force majeure or operating disruptions occurring at ESSKA.de or its suppliers that temporarily prevent ESSKA.de, through no fault of its own, from delivering the purchased goods on the agreed date or within the agreed period, postpone the said dates and periods by the duration of the disturbances caused by these circumstances.
If such disruptions cause delivery to be delayed by more than 4 months, the purchaser may withdraw from the contract. Other grounds for withdrawal remain unaffected.
The foregoing is without prejudice to other legal claims and rights of the purchaser owing to delays in delivery.
7. Call-off orders
Unless otherwise agreed, call-off orders must be accepted within 6 months of concluding the contract, without ESSKA.de having to demand acceptance or serve notice of default. Once this period has expired, ESSKA.de shall be entitled at any time, as it sees fit, either to invoice the goods or to withdraw from the contract and/or demand compensation for damages.
8. Transfer of risk
If the goods are shipped to a business at its request, the risk of accidental loss or accidental deterioration of the goods passes to the purchaser upon dispatch, at latest upon leaving the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance and regardless of which party bears the freight charges.
FOB and CIT transactions require special agreement. In the absence of special instructions, the choice of transport route and means of transport shall be at our reasonable discretion and we are under no obligation to use the cheapest or quickest transport.
If goods notified as ready for shipping are not called for immediately or if ESSKA.de is permanently or temporarily unable to ship the goods, the purchase price is nevertheless payable. In this case ESSKA.de is entitled at its discretion to store the goods at the expense and risk of the purchaser.
ESSKA.de is not liable for adverse weather conditions affecting the ordered goods during transportation or storage.
We reserve the right to deliver 10% more or less of the total order quantity, particularly in the case of custom orders.
If acceptance of the ordered products is stipulated or necessary, acceptance must take place in ESSKA.de’s warehouse immediately after the goods are notified as ready for shipment. If the purchaser fails to meet its obligation to accept that goods, the goods shall be deemed to be accepted on leaving the warehouse. The costs of acceptance are borne by the purchaser.
10. Reservation of title
ESSKA.de retains title to the delivered goods until all claims under the contract of supply have been paid in full. This also applies to all future deliveries, even if not always expressly stipulated by ESSKA.de. ESSKA.de is entitled to recover the purchased goods if the purchaser behaves contrary to the terms of the contract.
The purchaser is obliged to treat the goods with care until title has passed to the purchaser. Particularly where it purchases goods of high value, it is obliged to insure them adequately for their new value at its own expense against theft, fire and water damage. If maintenance and inspection must be carried out, the purchaser must perform these operations in good time at its own expense. Until title has passed to the purchaser, the purchaser shall notify ESSKA.de immediately in writing if the delivered goods are seized or are subject to other third-party intervention. Where the third party is not able to reimburse ESSKA.de for the judicial and extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the purchaser shall be liable for the loss incurred by ESSKA.de.
A business is entitled to resell goods subject to reservation of title in the ordinary course of business. The purchaser here and now assigns to ESSKA.de the receivables from the resale of goods subject to reservation of title in the amount of the final invoice total agreed with us (including VAT). Such assignment applies regardless of whether the goods are resold without or after further processing. The purchaser remains authorised to collect the receivables even after assignment. This is without prejudice to ESSKA.de’s right to collect the receivables itself. However, ESSKA.de will not collect the receivables as long as the purchaser meets its payment obligations out of the received proceeds, is not in default of payment and, in particular, is not subject to bankruptcy proceedings or suspension of payments.
The purchased goods are always handled, processed or converted by the purchaser in the name and on behalf of ESSKA.de. In this case, the purchaser’s right to future enjoyment of the purchased goods is carried over to the converted goods. If the purchased goods are processed with other goods not belonging to ESSKA.de, we acquire joint title to the new item in the ratio of the objective value of our goods to the other processed items at the time of processing. The same applies in the case of mixing. If mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the purchaser proportionately assigns co-ownership to ESSKA.de and holds the thus created sole property or joint property in safe custody for ESSKA.de. To secure our claims against the purchaser, the purchaser also assigns to ESSKA.de any receivables from third parties that arise for the purchaser as a result of the incorporation of goods subject to reservation of title in real property; ESSKA.de here and now accepts such assignment.
ESSKA.de is obliged to release the securities to which it is entitled at the purchaser’s request if their value exceeds the receivables to be secured by more than 20%.
11. Complaints and warranty
Where information contained in brochures, advertisements and other documentation is not explicitly referred to by ESSKA.de as binding, the images or drawings contained therein are to be regarded merely as an approximation and non-binding.
11.1 In relation to consumers
If the delivered item does not have the characteristics agreed between the consumer and ESSKA.de or is not suitable for the use stated in the contract or use in general or it does not have the properties that the consumer could expect based on the public statements of ESSKA.de, ESSKA.de shall be obliged to take remedial action. This does not apply if ESSKA.de is entitled by law to refuse remedial action.
The consumer can in principle choose whether remedial action should take the form of repair or replacement. ESSKA.de may however refuse the form of remedial action chosen by the purchaser if it will involve unreasonable expense and the other form of remedial action has no substantial disadvantages for the consumer. During the remedial action, the purchase price may not be reduced nor may the consumer withdraw from the contract. Upon a second unsuccessful attempt, remedial action shall be considered to have failed, unless there are reasons for deciding otherwise, particularly in view of the nature of the item or defect or in light of other circumstances. If the remedial action has failed or if ESSKA.de has refused to take remedial action altogether, the consumer may at his discretion demand a reduction of the purchase price or withdraw from the contract.
The consumer can only claim compensation for the defect under the following conditions if the remedial action has failed or ESSKA.de has refused to take remedial action. The foregoing is without prejudice to the consumer’s right to claim further damages under the following conditions.
The limitation period is two years from the date of transfer of risk; for construction materials – if these are installed – the warranty period is 5 years. This period also applies to claims for consequential damages caused by defects, excepting claims in tort.
11.2 In relation to businesses
Warranty rights of the business assume that the business has correctly fulfilled its obligations to examine the goods and notify defects pursuant to Section 377 of the German Commercial Code (HGB).
If the delivered item does not have the characteristics agreed between the business and ESSKA.de or is not suitable for the use stated in the contract or use in general or it does not have the properties that the business could expect based on the public statements of ESSKA.de, ESSKA.de shall be obliged to take remedial action. This does not apply if ESSKA.de is entitled by law to refuse remedial action.
If the remedial action fails, the business may – without prejudice to any demand for compensation – withdraw from the contract or reduce the payment.
Claims for defects may not be lodged in the case of minor deviations from the agreed characteristics, minor impairment of utility, natural wear and tear as in the case of damage caused after risk has passed to the purchaser due to incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work or unsuitable building ground, or due to particular external influences not provided for under the contract. If the business or third parties improperly carry out repairs or modifications, no claims will be entertained in respect of these or the resulting consequences.
Claims on the part of the business for expenditure necessary for the purposes of remedial action, particularly transport, travel, labour and material costs, are excluded if such expenditure increases because the goods delivered by ESSKA.de were subsequently transported to a location other than the purchaser’s place of business, unless such transport is consistent with the goods’ intended use.
The business can only assert rights of recourse again ESSKA.de in so far as no agreements have been made between the business and its customer that go beyond the mandatory statutory rights relating to defects. Regarding the scope of the business’s right of recourse against the supplier, the previous paragraph applies mutatis mutandis.
Claims based on defects become time-barred 12 months after delivery of the goods supplied by ESSKA.de to the purchaser. The foregoing provisions do not apply where longer periods are stipulated by law pursuant to Section 438 (1) No. 2 of the German Civil Code [BGB] (buildings and items for buildings), Section 479 (1) BGB (claims to reimbursement of expenses) and Section 634a (1) BGB (building defects). Our consent must be obtained prior to any return of goods.
Responsibility for proper construction and design and the practical suitability of special parts rests with the purchaser, even if developed by ESSKA.de.
For quality and execution, the samples presented by us for testing are decisive; tolerances closer than those stipulated in DIN 7710 require explicit agreement. For hose reels, production lengths can be within a tolerance of +/-5%.
12.2 Property rights
Where we supply parts according to drawings or specimens, the purchaser holds us harmless from claims of third parties relating to the infringement of property rights If a third party forbids us to manufacture or supply an item, citing property rights belonging to it, we are entitled – without examining the legal situation – to stop the work and demand compensation of the costs incurred.
ESSKA.de shall be liable to consumers only in cases of intent or gross negligence on the part of ESSKA.de or its representatives or vicarious agents, in accordance with legal requirements. However, in the event of a breach of essential contractual obligations, ESSKA.de shall also be liable in cases of other negligence.
ESSKA.de shall be liable to businesses only in cases of intent or gross negligence on the part of ESSKA.de or its representatives, in accordance with legal requirements. For vicarious agents, ESSKA.de is liable only in cases of intent. However, in the event of a breach of essential contractual obligations, ESSKA.de shall also be liable in cases of other negligence. The same applies to liability for vicarious agents.
Except in the case of intent or gross negligence on the part of ESSKA.de or its representatives or vicarious agents, liability is limited to the damages typically foreseeable at the time of concluding the contract.
Liability for indirect damages, particularly loss of profits, exists only in the case of intent or gross negligence on the part of ESSKA.de or its representatives or vicarious agents.
Disclaimers and restrictions in relation to businesses or consumers do not apply where explicit guarantees have been given by ESSKA.de, nor do they apply to losses due to injury of life, body or health or where contradicted by mandatory legal requirements.
ESSKA.de gives no guarantee of the permanent availability of the sales platform at www.esska.de. Availability may be temporarily restricted in particular due to technical malfunctions or force majeure, but also due to maintenance and development work. ESSKA.de expressly reserves the right to disable the platform or limit its performance from time to time in order to carry out maintenance and development work.
14. Place of performance, court of jurisdiction and applicable law
The place of performance for deliveries and payments is the registered office of ESSKA.de in Hamburg.
For all present and future claims arising from the business relationship with merchants, including claims relating to bills of exchange or cheques, the courts of Hamburg have exclusive jurisdiction.
This contract and all legal relationships between the parties are subject to the laws of the Federal Republic of Germany, to the exclusion of UN sales law (CISG).