General Terms and Conditions
Leasing and Delivery – Transactions with Entrepreneurs
1. Applicability and format
(1) These General Terms and Conditions (GTC) apply to all of our business relationships with our lessees (‘Clients’) if they are entrepreneurs (in the sense of section 14 of the German Civil Code (BGB)), corporate bodies under public law or special funds under public law.
(2) In particular, these GTC apply to contracts concerning the leasing and delivery of goods, primarily containers along with accessories and equipment (the ‘Rented Property’), as well as the assembly and/or installation thereof. Unless agreed otherwise, the version of these GTC that was valid when the Client placed the order and that was most recently sent to the Client in text format applies as a framework agreement, including to similar future contracts, without us having to refer to them again in every individual case.
(3) Our GTC apply on an exclusive basis. Any deviating, conflicting or supplementary general terms and conditions of the Client shall only be a contractual component if we expressly consent to their applicability. Consent shall always be required, for example, even if we carry out deliveries to the Client without reservation despite being aware of the GTC of the Client.
(4) Individual agreements concluded with the Client on a case-by-case basis (including collateral agreements, supplements and amendments) always have priority over these GTC. A written agreement or our written confirmation is definitive with regard to the content of such agreements, evidence to the contrary notwithstanding.
(5) Any legally relevant explanations and declarations by the Client with regard to the contract (e.g. setting a deadline, reporting a defect, withdrawal, demanding a price reduction or termination) must be made in writing – that is, in written or text format (e.g. by letter, email or fax). This does not affect any forms or any other evidence required by law, especially in cases
of doubt as to the identity of the party making the declaration. (6) References to the applicability of statutory provisions are only to be interpreted as clarifications. Therefore, the statutory provisions shall apply even without such a clarification, in so far as they are not directly modified or expressly excluded by these GTC.
2. Conclusion of contract
(1) Our offers are non-binding and without obligation. This shall apply even if we have sent the Client catalogues, technical documentation (e.g. drawings, plans, calculations or references to DIN standards), other product descriptions or documents – including in electronic formats – to
which we retain the property and intellectual property rights. (2) The Client placing an order for the Rented Property shall count as a binding contractual offer. Unless stated otherwise in the order, we are entitled to accept this contractual offer within 14 days of receiving it.
(3) We can declare acceptance either in writing (e.g. by issuing an order confirmation) or by delivering and/or assembling/installing the Rented Property for the Client.
3. Object of the Agreement, Rented Property
(1) The Client undertakes to only use the Rented Property for the contractually agreed purpose. Any other use of the Rented Property requires our consent in writing or text format. The Client is obliged to obtain any official permits required to build and/or operate the Rented Property. In particular, this applies to permits required to set up the Rented Property on public roads, paths and open spaces.
(2) The Client is obliged to treat the Rented Property with care and perform maintenance of which it is made aware. We are entitled to visit and perform a technical inspection of the Rented Property at any time or have this carried out by a third party.
(3) The Client is obliged to duly insure the Rented Property against destruction, damage, loss and theft. If any of these events should occur, the Client must notify us without undue delay.
(4) The Rented Property must be set up at a location agreed between us and the Client. The Client is responsible for the characteristics of the substrate and the accessibility of the site. The Rented Property may not be moved to another place of use, especially abroad.
(5) If the Rented Property is combined with land or another building or facility, it shall only be for a temporary purpose in accordance with section 95 of the BGB. The Rented Property shall not become part of a plot of land, building or facility and must be separated again upon the termination of the rental agreement.
(6) If a third party should seize the Rented Property, exercise any other rights or take possession of the Rented Property, the Client is obliged to notify us immediately in writing, at the very least, notify the third party in writing of our status as the owner in advance and send us the notification within three days. The Client shall bear all costs of recovery and all costs of exercising our rights in this regard. The Client undertakes to make reasonable advance payments towards these costs.
(7) The Client shall provide any necessary supply and disposal connections.
(8) The Client shall bear the costs of transporting and loading the Rented Property and for maintaining and operating the Rented Property during the term of rental.
4. Collection/delivery, transfer of risk, official permits
(1) At the request and expense of the Client, we shall deliver or send the Rented Property to a location specified by the Client. For delivery, we are entitled to choose the method of shipment (especially the carrier and dispatch route) at our own discretion. If the delivery or sending of the Goods has not been agreed, we shall assume that the Client will collect the Goods. In the case of collection, we shall notify the Client of the date and time of collection, provided that no collection date has been agreed. We shall make the Rented Property available for collection at this date and time.
(2) The risk of accidental destruction or degradation of the Rented Property shall transfer to the Client when the Client receives the Rented Property at the latest. For delivery, however, the risk of accidental destruction or degradation of the Rented Property, as well as the risk of default, shall transfer to the carrier, freight forwarder or other party/establishment engaged to carry out delivery once the Rented Property is shipped. If the Client defaults in acceptance, this shall also count as a transfer of the Rented Property to the Client.
(3) If the Client should default in declaring acceptance or fail to cooperate, or if our delivery should be delayed for reasons for which the Client is responsible, we shall be entitled to demand compensation for the resulting damage and additional expenditure (e.g. storage costs). In this regard, we shall charge a fixed rate of compensation of €10 per container per calendar day, beginning with the delivery deadline or – if there is no delivery deadline – upon issuance of the notice that the Goods are ready to be shipped. We are entitled to provide evidence of more extensive damage, and our statutory rights (especially to the reimbursement of additional expenditure, reasonable compensation and termination) remain unaffected; however, the fixed compensation is to be counted towards further pecuniary claims. The Client may provide evidence that we have suffered significantly less damage than the above lump sum or no damage at all.
(4) At its own expense, the Client shall obtain all official permits required to operate and/or procure the containers.
5. Rent and conditions of payment
(1) Unless agreed otherwise on a case-by-case basis, our current rents apply – ex stock and plus VAT – as at the conclusion of the contract.
(2) Each instalment of rent is payable in advance by the third day of the month. In cases of delayed payment, we are entitled to charge default interest equal to the applicable statutory default interest rate from the maturity of the payment until our receipt of the payment unless the Client is able to provide evidence that we have not suffered that amount of damage. We reserve the right to file claims for more extensive damage due to default. If the Client is in default for more than eight days, we shall be entitled to take possession of the Rented Property and other contractual items immediately. The same applies if insolvency proceedings are initiated in connection with the assets of the Client.
(3) For incomplete months, billing shall be based on the qualifying date, taking the day on which the rental ended into full account. The Client shall bear the costs of delivery as well as any customs, fees, taxes and other public duties.
(4) The Client shall only be entitled to offset or refuse performance in so far as its claim is undisputed or has been recognised by final judgement.
6. Retention of title If the Rented Property is purchased by the Client during or after the rental, the Rented Property shall remain our property until the outstanding purchase price is paid in full, including all accounts receivable in close connection with the purchase price. If the Client is an entrepreneur, the Rented Property shall also remain our property until all of our other claims to rent and other claims resulting from the business relationship with the Client have been satisfied in full. At the request of the Client, we shall release the collateral in so far as the value of the collateral is always more than 10 per cent higher than that of the accounts receivable. Otherwise, sale transactions are subject to our General Terms and Conditions of Sales to Entrepreneurs.
7. Claims of the Client due to defects and duty to report defects
(1) Upon delivery, the Client is obliged to inspect the Rented Property to ensure that it is operational and free from defects and to report any defects immediately. By receiving the Rented Property without raising an objection, the Client recognises that the Rented Property is operational and free from defects.
(2) Any and all defects arising during the term of rental must be reported to us immediately. Defects for which the Client is responsible shall be repaired at the expense of the Client. The Client is not entitled to demand a reduction in rent with regard to the latter.
(3) Beyond claims to reductions in rent due to defects recognised by us, and unless provided for otherwise below, the Client is not entitled to claim compensation. In particular, we cannot be held liable for lost earnings or other financial losses suffered by the Client due to defects in the Rented Property.
8. Other liability
(1) Unless provided for otherwise in these GTC, including the following provisions, in the event of a breach of contractual and non-contractual duties, we shall be liable under the statutory provisions.
(2) With regard to fault-based liability, we shall only be liable to pay damages in cases of intent or gross negligence, regardless of the legal grounds. Subject to the statutory limitations of liability (e.g. standard of care in one’s own affairs; immaterial breach of duty), we can only be held liable in cases of ordinary negligence a) for damage resulting from injury to life, limb or health, b) for damage resulting from the breach of a material contractual duty (a duty which must be fulfilled in order to permit the due performance of the Agreement and on adherence to which the contractual partner normally can and does rely); in this case, however, our liability shall be limited to paying compensation for the typical foreseeable damage.
(3) The limitations of liability set out in paragraph 2 also apply to breaches of duty by and/or for the benefit of persons for whose culpability we must take responsibility in accordance with the statutory regulations. They do not apply if we maliciously conceal a defect or guarantee the characteristics of the Goods, or to claims of the Client under the German Product Liability Act (ProdHaftG).
9. Term of the rental relationship and termination (1) The rental shall start on the agreed date; otherwise, if the Rented Property is delivered at a later date than the agreed start of the rental due to circumstances for which we were responsible, the rental shall start when the Rented Property is actually delivered.
(2) Unless agreed otherwise in writing on a case-by-case basis, the minimum rental period is 30 days.
(3) The rental shall end on the agreed date. If no such agreement exists, the notice period for termination is three days. If the Client is leasing multiple containers which have been joined together to form a facility, the notice period for termination is two weeks. The rental relationship may not be duly terminated before it starts.
(4) The notice of termination must be sent to us at least in text format or by email: info@ela-container.se.
(5) If the Client continues to use the Rented Property after the end of the rental or if we are unable to collect the Rented Property due to culpability on the part of the Client, we shall be entitled to compensation equal to the rent and other incurred costs for the period of use or the duration of the circumstances preventing collection by us.
(6) Both parties are entitled to terminate the rental agreement with immediate effect for cause if the other party commits such a serious breach of its contractual obligations that it becomes unreasonable for the other party to continue the rental relationship. In particular, we can terminate the rental agreement for cause if - the Client defaults on payment of an amount equivalent to at least two fee payments enforcement measures are implemented against the Client - the Client becomes insolvent or over-indebted or is facing imminent insolvency in the sense of section 17 ff. of the German Insolvency Statute (InsO) - the Client uses the Rented Property in a technically damaging or other significantly noncontractual manner despite having received a warning from us - the Client transfers the Rented Property to third parties without authorisation or moves it to a location that had not been agreed contractually.
10. Return of the Rented Property
(1) The Client is obliged to return the Rented Property, including any and all accessories, in a good, clean and well-swept condition.
(2) If contamination or damage for which the Client is responsible is identified when the Rented Property is returned or if the Rented Property is deemed to be in need of maintenance, the Client is obliged to bear the resulting costs. The term of the rental shall be extended by the time required for the cleaning or repair work.
(3) If we are to collect the Rented Property from the Client, we shall do so in coordination with the Client.
11. Data protection The Client has been made aware that, as part of the business relationship, the data concerning the contractual relationship shall be stored on data media and processed under the provisions of the German Federal Data Protection Act (BDSG). The specifics are described in the privacy policy on our website www.ela-container.se.
12. Applicable law and place of jurisdiction (1) These GTC and the contractual relationship between us and the Client are subject to the law of the Federal Republic of Germany, excluding international uniform law.
(2) If the Client is an entrepreneur in the sense of the German Commercial Code (HGB), a corporate body under public law or a special fund under public law, the place of exclusive jurisdiction – even internationally – for all disputes arising directly or indirectly from the contractual relationship is our registered office in 49733 Haren, Germany. The same applies if the Client is an entrepreneur in the sense of section 14 of the BGB. However, in any case, we are also entitled to file a lawsuit at the place of fulfilment of the delivery obligation in line with these GTC or an individual agreement which takes precedence or at the place of general jurisdiction of the Client. This does not affect any overriding statutory regulations, especially those concerning exclusive responsibilities.
Last amended: 18.09.2019
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General Terms and Conditions
Sale and/or Delivery – Transactions with Entrepreneurs
1. Applicability and format
(1) These General Terms and Conditions (GTC) apply to all of our business relationships with our customers (‘Clients’) if they are entrepreneurs (in the sense of section 14 of the German Civil Code (BGB)), corporate bodies under public law or special funds under public law.
(2) In particular, these GTC apply to contracts concerning the sale and/or delivery of goods (the ‘Goods’), as well as the assembly and/or installation thereof. Unless agreed otherwise, the version of these GTC that was valid when the Client placed the order and that was most recently sent to the Client in text format applies as a framework agreement, including to similar future contracts, without us having to refer to them again in every individual case.
(3) Our GTC apply on an exclusive basis. Any deviating, conflicting or supplementary general terms and conditions of the Client shall only be a contractual component if we expressly consent to their applicability. Consent shall always be required, for example even if we carry out deliveries to the Client without reservation despite being aware of the GTC of the Client.
(4) Individual agreements concluded with the Client on a case-by-case basis (including collateral agreements, supplements and amendments) always have priority over these GTC. A written agreement or our written confirmation is definitive with regard to the content of such agreements, evidence to the contrary notwithstanding.
(5) Any legally relevant explanations and declarations by the Client with regard to the contract (e.g. setting a deadline, reporting a defect, withdrawal or demanding a price reduction) must be made in writing – that is, in writing or text format (e.g. by letter, email or fax). This does not affect any forms or any other evidence required by law, especially in cases of doubt as to the identity of the party making the declaration.
(6) References to the applicability of statutory provisions are only to be interpreted as clarifications. Therefore, the statutory provisions shall apply even without such a clarification, in so far as they are not directly modified or expressly excluded by these GTC.
2. Conclusion of contract
(1) Our offers are non-binding and without obligation. This shall apply even if we have sent the Client catalogues, technical documentation (e.g. drawings, plans, calculations or references to DIN standards), other product descriptions or documents – including in electronic formats – to which we retain the property and intellectual property rights.
(2) The Client placing an order for the Goods shall count as a binding contractual offer. Unless stated otherwise in the order, we are entitled to accept this contractual offer within 14 days of receiving it.
(3) We can declare acceptance either in writing (e.g. by issuing an order confirmation) or by delivering and/or assembling/installing the Goods for the Client.
3. Delivery deadline and default
(1) The delivery deadline shall be agreed individually or specified by us when we accept the order.
(2) If we are unable to meet a binding delivery deadline for reasons for which we are not responsible (non-availability of the service), we shall notify the Client without undue delay and communicate the new expected delivery deadline. If the service is unavailable even within the new delivery deadline, we shall be entitled to withdraw from the Agreement either fully or in part; we shall refund any consideration provided by the Client immediately. In this sense, the service can be considered unavailable if, in particular, we are not punctually supplied by our supplier, we have concluded a congruent covering transaction, neither we nor our supplier is culpable or we are not obliged to procure the Goods in the specific case in question.
(3) Whether or not we are in default on delivery shall be determined by the statutory provisions. In any case, however, a reminder is required from the Client.
(4) This does not affect the rights of the Client under section 7 of these GTC or our statutory rights, especially if our obligation to perform is excluded (e.g. due to the impossibility or unreasonable nature of performance and/or supplementary performance).
4. Collection/delivery, transfer of risk, acceptance, default of acceptance, official permits
(1) Delivery shall be made ex stock; this is also the place of fulfilment for the service and any supplementary performance. At the request and expense of the Client, we shall deliver or send the Goods to another location specified by the Client (sale by delivery). In the event of delivery, we are entitled to choose the method of shipment (especially the carrier and dispatch route) at our own discretion. If the delivery or sending of the Goods has not been agreed, we shall assume that the Client will collect the Goods. In the case of collection, we shall notify the Client of the date and time of collection, provided that no collection date has been agreed. We shall make the Goods available for collection at this date and time.
(2) The risk of accidental destruction or degradation of the Goods shall transfer to the Client when the Client receives the Goods at the latest. For a sale by delivery, however, the risk of accidental destruction or degradation of the Goods, as well as the risk of default, shall transfer to the carrier, freight forwarder or other party/establishment engaged to carry out delivery once the Goods are shipped. Where acceptance has been agreed, it shall be authoritative with regard to the transfer of risk. Otherwise, the statutory regulations concerning service contracts also apply to any agreed acceptance. If the Client defaults in acceptance, this shall also count as a transfer of the Goods to the Client and acceptance by the Client. Where acceptance is to take place, the Goods shall be deemed accepted when - the delivery and installation – if we are also obliged to carry out installation – are complete - we have notified the Client thereof and made reference to this deemed acceptance clause - 12 working days have passed since the delivery or installation or the Client has started to use the Goods (e.g. has put the delivered system into operation) and, in this case, six working days have passed since the delivery or installation - the Client refrains from accepting the Goods within this period of time for a reason other than a defect reported to us which rendered the use of the Goods impossible or impeded it significantly.
(3) If the Client should default in declaring acceptance or fail to cooperate, or if our delivery should be delayed for reasons for which the Client is responsible, we shall be entitled to demand compensation for the resulting damage and additional expenditure (e.g. storage costs). In this regard, we shall charge a fixed rate of compensation of €10 per container per calendar day, beginning with the delivery deadline or – if there is no delivery deadline – upon issuance of the notice that the Goods are ready to be shipped. We are entitled to provide evidence of more extensive damage and our statutory rights (especially to the reimbursement of additional expenditure, reasonable compensation and termination) remain unaffected; however, the fixed compensation is to be counted towards further pecuniary claims. The Client may provide evidence that we have suffered significantly less damage than the above lump sum or no damage at all.
(4) At its own expense, the Client shall obtain all official permits required to operate and/or procure the containers.
5. Prices and conditions of payment
(1) Unless agreed otherwise on a case-by-case basis, our current prices apply – ex stock and plus VAT – as at the conclusion of the contract.
(2) The Client shall bear the costs of delivery. In the case of a sale by delivery, the Client shall bear the costs of transportation ex stock and the costs of any Goods in transit insurance desired by the Client. Unless we issue an invoice for the actual transport costs accrued, a fixed rate of €5 per kilometre shall be deemed agreed for transport costs (exclusive of goods in transit insurance). The Client shall bear any customs, fees, taxes and other public duties.
(3) The purchase price is payable immediately within seven days of the invoice date and of the delivery and acceptance of the Goods. However, even as part of an ongoing business relationship, we are entitled to only carry out a delivery, either fully or in part, in exchange for payment in advance at any time. If we have such a reservation, we shall declare it upon confirming the order at the latest.
(4) The Client shall be in default if this payment deadline expires. While the Client is in default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to file claims for more extensive damage due to default. With regard to traders, this does not affect our entitlement to default interest at the commercial rate (section 353 of the HGB).
(5) The Client shall only be entitled to offset or refuse performance in so far as its claim is undisputed or has been recognised by final judgement. In cases of defective delivery, this does not affect the opposing rights of the Client, especially under sentence 2 of section 7(6) of these GTC.
(6) If, after the conclusion of the contract, it becomes evident that our claim to the purchase price is jeopardised by insufficient solvency on the part of the Client (e.g. due to the filing of a petition for opening of insolvency proceedings), we shall be entitled, under the statutory regulations, to refuse performance and, potentially after setting a deadline, withdraw from the contract (section 321 of the BGB). In the case of contracts for the manufacture of specific items (custom-made products), we can withdraw immediately; this does not affect the statutory regulations concerning the unnecessity of setting a deadline.
6. Retention of title
(1) We reserve ownership of the sold Goods until the full payment of all current and future accounts receivable arising from the purchase agreement and an ongoing business relationship (secured claims).
(2) Until all secured receivables have been paid in full, the Goods subject to retention of title may not be pledged or provided as collateral to third parties. The Client must notify us in writing immediately if a petition is filed for the opening of insolvency proceedings or in the case of a third-party attachment to the Goods belonging to us (e.g. seizure).
(3) If the Client commits a breach of contract, especially by failing to pay the outstanding purchase price, we shall be entitled to withdraw from the contract and/or demand the return of the Goods subject to retention of title in accordance with the statutory regulations. Demanding the return of the Goods does not also represent withdrawal; we are entitled to merely demand the return of the Goods and remain party to the contract. If the Client fails to pay the outstanding purchase price, we may only exercise these rights if we have fruitlessly set the Client a reasonable payment deadline already or if the setting of such a deadline is not necessary under the statutory regulations.
(4) Until its authority is revoked in accordance with item (c) below, the Client is entitled to resell and/or process the Goods subject to retention of title as part of the normal course of business. In this case, the following provisions apply:
(a) The retention of title encompasses the results created through the processing, mixing or combination of our Goods at their full value, in which regard we shall count as the manufacturer. If processing, mixing or combining with third-party goods results in the continued existence of their ownership rights, we shall obtain proportionate joint ownership based on the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the created result as to the Goods delivered subject to retention of title.
(b) The Client hereby assigns us all receivables from third parties resulting from the reselling of the Goods or resulting, or in the amount of any percentage of joint ownership we have in line with the paragraph above, as collateral. We hereby accept the assignment. The duties of the Client described in paragraph 2 also apply with regard to the assigned receivables.
(c) The Client is still entitled to collect the receivables, as are we. We undertake not to collect the receivables as long as the Client fulfils its payment obligations towards us, its liquidity is not impaired in any way, and we do not claim the retention of title by exercising a right as described in paragraph 3. If this is the case, however, we can demand that the Client disclose the assigned claims and debtors to us, provide all necessary information for collecting the accounts receivable, provide the relevant documents and inform the debtors (third parties) of the assignment. Additionally, in this case, we are entitled to revoke the authority of the Client to continue selling or processing the Goods subject to retention of title.
(d) If the realisable value of the collateral exceeds our claims by more than 10 per cent, we shall release collateral at our discretion at the request of the Client.
7. Claims of the Client due to defects
(1) Unless provided for otherwise below, the statutory regulations apply to the rights of the Client with regard to material defects and defects of title (including wrong delivery, deviations in delivery quantity, improper assembly or defective assembly instructions). In all cases, the special statutory provisions concerning the delivery of unprocessed Goods to a consumer are not affected, even if the consumer has processed them (recourse of the entrepreneur pursuant to section 478 of the BGB). Claims based on recourse of the entrepreneur are excluded if the defective Goods have been processed by the Client or another entrepreneur (e.g. by installing them in another product.)
(2) Our liability for defects is primarily based on the agreement made concerning the characteristics of the Goods. All product descriptions and manufacturer information which are the object of the individual contract or have been published by us (especially in brochures or on our website) as at the conclusion of the contract shall count as an agreement made concerning the characteristics of the Goods.
(3) Where no specific characteristics have been agreed, the statutory provisions must be used to judge whether or not there is a defect (sentences 2 and 3 of section 434(1) of the BGB). However, we accept no liability for public utterances by the manufacturer or other third parties (e.g. promotional statements) to which the Client has made no reference to us as being decisive factors in its purchase.
(4) The claims of the Client relating to defects require the Client to have fulfilled its statutory duties to inspect the Goods and report defects (sections 377 and 381 of the HGB). In all cases, construction materials and other Goods intended for installation or other processing must be inspected directly prior to processing. If a defect is discovered upon delivery or inspection or at any other later date, we must be notified in writing immediately. If the Client fails to duly inspect the Goods and/or report a defect, we cannot be held liable for the defect that was not reported, not reported punctually or not duly reported in accordance with the statutory provisions.
(5) If the delivered item is defective, we can initially choose to provide supplementary performance by remedying the defect (subsequent improvement) or to deliver a non-defective item (delivery of a replacement). This does not affect our right to refuse supplementary performance under the statutory provisions.
(6) We are entitled to make the supplementary performance contingent on the payment of the outstanding purchase price by the Client. However, the Client is entitled to withhold a reasonable portion of the purchase price relative to the defect.
(7) The Client must give us the necessary time and opportunity for the supplementary performance; in particular, the Client must provide us with the allegedly defective Goods for the purposes of an inspection. If we are to deliver a replacement, the Client must return the defective item to us in accordance with the statutory regulations. Unless we were originally obliged to carry out the installation, supplementary performance shall not entail the disassembly of the defective item or re-installation.
(8) If a defect actually exists, we shall bear or reimburse the necessary costs of the inspection and supplementary performance, especially the costs of transport, infrastructure, labour and materials, as well as any disassembly and installation costs, in accordance with the statutory regulations. Otherwise, we can demand the reimbursement of the costs incurred by the unfounded request for remediation of a defect (especially the costs of transport and inspection) by the Client unless the non-existence of the defect could not have been discerned by the Client.
(9) In urgent cases (e.g. if operational safety is at risk or in order to avoid disproportionate damage), the Client is entitled to remedy the defect itself and demand that we reimburse the costs that were objectively necessary. The Client must notify us immediately – in advance, if possible – of any such independent action. The Client is not entitled to take independent action if we would be entitled to refuse supplementary performance under the statutory regulations.
(10) If supplementary performance fails or if a reasonable deadline for supplementary performance that has to be set by the Client expires fruitlessly or is unnecessary under the statutory regulations, the Client can withdraw from the purchase contract or demand a reduction in the purchase price. However, the Client has no right of withdrawal if the defect is negligible.
(11) Even in the case of a defect, the Client is only entitled to compensation and the reimbursement of wasted expenses in accordance with section 8; its claims are otherwise excluded.
(12) Any delivery of used items which has been agreed with the Client on a case-by-case basis shall be made to the exclusion of any and all guarantees for material defects.
8. Other liability
(1) Unless provided for otherwise in these GTC, including the following provisions, in the event of a breach of contractual and non-contractual duties, we shall be liable under the statutory provisions.
(2) With regard to fault-based liability, we shall only be liable to pay damages in cases of intent or gross negligence, regardless of the legal grounds. Subject to the statutory limitations of liability (e.g. standard of care in one’s own affairs; immaterial breach of duty), we can only be held liable in cases of ordinary negligence
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from the breach of a material contractual duty (a duty which must be fulfilled in order to permit the due performance of the Agreement and on adherence to which the contractual partner normally can and does rely); in this case, however, our liability shall be limited to paying compensation for the typical foreseeable damage.
(3) The limitations of liability set out in paragraph 2 also apply to breaches of duty by and/or for the benefit of persons for whose culpability we must take responsibility in accordance with the statutory regulations. They do not apply if we maliciously conceal a defect or guarantee the characteristics of the Goods, or to claims of the Client under the German Product Liability Act (ProdHaftG).
(4) The Client can only withdraw from or terminate this Agreement due to a breach of duty – unless it is a defect – if we are responsible for the breach. The Client does not have a free right of termination (especially under sections 648 and 650 of the BGB). Otherwise, the statutory requirements and legal consequences shall apply.
9. Limitation period
(1) In derogation from section 438(1), no. 3, of the BGB, the general limitation period for claims due to material defects and defects of title is one year as at delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) However, if the Good is a building or a thing (e.g. construction material) that has been used for a building in accordance with the normal way it is used and has resulted in the defectiveness of the building, the statutory limitation period shall be five years as at delivery (section 438(1), no. 2, of the BGB). This does not affect any other special statutory provisions concerning limitation (especially section 438(1), no. 1, section 438(3) or sections 444 or 445b of the BGB).
(3) These limitation periods of purchasing law also apply to contractual and non-contractual claims of the Client to compensation which are based on a defect in the Goods unless the application of the standard statutory limitation period (sections 195 and 199 of the BGB) would result in a shorter limitation period on a case-by-case basis. However, claims of the Client to compensation under sentences 1 and 2(a) of section 8(2) of these GTC and under the German Product Liability Act (ProdHaftG) shall only become time-barred after the statutory limitation periods.
10. Data protection
The Client has been made aware that, as part of the business relationship, the data concerning the contractual relationship shall be stored on data media and processed under the provisions of the German Federal Data Protection Act (BDSG). The specifics are described in the privacy policy on our website www.ela-container.se.
11. Applicable law and place of jurisdiction
(1) These GTC and the contractual relationship between us and the Client are subject to the law of the Federal Republic of Germany, excluding international uniform law, especially the UN Convention on Contracts for the International Sale of Goods.
(2) If the Client is an entrepreneur in the sense of the German Commercial Code (HGB), a corporate body under public law or a special fund under public law, the place of exclusive jurisdiction – even internationally – for all disputes arising directly or indirectly from the contractual relationship is our registered office in 49733 Haren, Germany. The same applies if the Client is an entrepreneur in the sense of section 14 of the BGB. However, in any case, we are also entitled to file a lawsuit at the place of fulfilment of the delivery obligation in line with these GTC or an individual agreement which takes precedence or at the place of general jurisdiction of the Client. This does not affect any overriding statutory regulations, especially those concerning exclusive responsibilities.
Last amended: 18.09.2019
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General Terms and Conditions
Sale and Delivery – Transactions with Consumers
1. Applicability and contractual bases
(1) The following Terms and Conditions apply to the purchase agreement concluded between you as the buyer (the ‘Client’) and us as the seller with regard to the delivery of Goods. (2) All agreements made between you and us in connection with the purchase contract are based, in particular, on these Terms and Conditions, our written order confirmation and our declaration of acceptance. (3) Images or drawings contained in our brochures, advertisements and other offer documents are only approximately definitive unless we have expressly designated the information contained therein as binding.
2. Prices and payment
(1) Our prices only include delivery and shipping costs if a separate agreement about this has been concluded with you. If you withdraw your declaration of intent to enter into the purchase contract, you must bear the standard costs of returning the Goods as set out in more detail in the cancellation policy which is enclosed below.
(2) Unless agreed otherwise, you must pay the outstanding purchase price in full within 30 days of receiving our invoice.
(3) If you should default on payment, we shall be entitled to charge interest at a rate of 5% above the base interest rate of the European Central Bank from that point onwards. In this context, we reserve the right to provide evidence that we have suffered more extensive damage.
3. Offsetting and right of retention
You shall only be entitled to offset against our claims if your claims have been recognised by final judgement, if we have recognised them or if they are undisputed. You shall also be entitled to offset against our claims if you report defects or file counterclaims under the same purchase contract. As the Client, you may only exercise a right of retention if your counterclaim is based on the same purchase contract.
4. Delivery and performance time (1) Our delivery deadlines or times are exclusively non-binding information unless they have been expressly agreed as binding between us and you.
(2) Four weeks after the expiry of a non-binding delivery deadline or a nonbinding delivery date, you can call on us in writing to deliver within a reasonable period of time. If we culpably fail to meet a delivery deadline or date that has been expressly agreed as binding or if we otherwise default, you must set us a reasonable subsequent deadline for us to perform our service. If we fail to meet the subsequent deadline, you shall be entitled to withdraw from the purchase contract.
(3) The limitations of section 5 below notwithstanding, we shall be liable towards you under the statutory provisions if the contract is a sale to be performed at a fixed point in time or if you are entitled, due to default on delivery for which we are responsible, to cite your discontinued interest in the execution of the contract.
(4) We are entitled to carry out partial deliveries and perform partial services at all times, provided that it is reasonable for you.
5. Rights in cases of default and defects; liability
(1) We shall be obliged to provide supplementary performance if the delivered item does not have the characteristics agreed between us and you, if it is not suitable for the use required under our contract or use in general or if it does not have the characteristics you were able to expect from our public statements. This does not apply if we are entitled to refuse supplementary performance under the statutory regulations.
(2) At your discretion, supplementary performance can be the remediation of the defect (subsequent improvement) or the delivery of new Goods. In this regard, you must set us a reasonable deadline for supplementary performance. During supplementary performance, you are not entitled to lower the purchase price or withdraw from the contract. If we attempt to carry out subsequent improvement twice to no avail, it shall be deemed a failure. If supplementary performance fails, you shall be entitled, at your discretion, to demand a reduction in the purchase price or withdraw from the contract.
(3) You can only file claims for compensation due to a defect if the supplementary performance fails. This does not affect your right to file further claims for compensation in accordance with the following sections.
(4) In accordance with the statutory provisions, we can be held liable for injuries to life, limb or health resulting from a culpable breach of duty by us, our legal representatives or our vicarious agents. Furthermore, we can be held liable under the statutory provisions for other damage based on an intentional or grossly negligent breach of contract or deceitfulness by us, our legal representatives or our vicarious agents. To the extent that the German Product Liability Act (ProdHaftG) is applicable, we can be held liable without limitations in accordance with its provisions. We can also be held liable on the basis of a guarantee of quality and/or durability, provided that we have made such a guarantee with regard to the delivered item. If damage occurs because the quality or durability guaranteed by us is lacking, yet the damage does not occur directly to the items delivered by us, we can only be held liable if the risk of such damage is clearly encompassed by our guarantee or quality and durability.
(5) If damage caused by default or a defect is based on an ordinarily negligent breach of a material contractual duty (i.e. the ordinarily negligent breach of a duty which must be fulfilled in order to permit the due execution of the contract and on the fulfilment of which you normally can rely), our liability shall be limited to the typical foreseeable damage as at the conclusion of the contract. The same applies if you have claims to compensation instead of performance.
(6) All further liability claims against us are excluded, regardless of the legal nature of the claims you file against us. This does not affect our liability under section 3 above.
6. Retention of title
The delivered Goods shall remain our property until the payment of all receivables under this Agreement.
7. Dispute resolution for consumers
The European Commission provides an online dispute resolution platform which you can find at http://ec.europa.eu/consumers/odr/. We are not obliged and generally not prepared to participate in a dispute resolution procedure before an arbitration committee.
8. Data protection The Client has been made aware that, as part of the business relationship, the data concerning the contractual relationship shall be stored on data media and processed under the provisions of the German Federal Data Protection Act (BDSG). The specifics are described in the privacy policy on our website www.ela-container.se.
9. Final provisions and applicable law
Our contract is subject to the law of the Federal Republic of Germany. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.