Englert GmbH & Co. KG
Obere Grüben 11
D-97877 Wertheim Bettingen

§ 1 Scope of application

(1) Applicability of the General Terms and Conditions

These General Terms and Conditions (GTC) apply to all current and future business relationships between Englert GmbH & Co. KG and entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) - in particular for contracts concerning deliveries and services as well as any project-related cooperation. Entrepreneurs within the meaning of these conditions are hereinafter also referred to as "Buyers”.

(2) Deviating Terms and Conditions of the contracting party

Deviating or supplementary terms and conditions of the contractual partner that conflict with our GTC shall apply only if we have expressly agreed to their applicability in writing.

§ 2 Conclusion of contract

(1) Non - binding offers

Our offers are non-binding and subject to change. A contract is concluded only upon our written order confirmation or delivery of the goods. Declarations made in the context of contract formation must be submitted in writing or text form (e.g. by email).

(2) Technical modifications

We reserve the right to make technical changes and modifications, that are reasonable for the Buyer, particularly with respect to form, color, weight, and design.

(3) Cost estimates

Cost estimates are non-binding and, unless explicitly agreed otherwise, subject to charges.

(4) Dimensions and performance specifications

Dimensions, weights, packaging measurements, illustrations, drawings, technical data, and consumption values are only binding if we have explicitly confirmed them in writing as such.

(5) Property rights and confidentiality

We reserve all ownership rights, copyright, and other intellectual property rights to all documents, information, and data provided to the Buyer, particularly to samples, drawings, illustrations, technical descriptions, calculations, price lists, as well as production and process details. Such information must be treated as confidential and may not be copied, published, disclosed to third parties - even for viewing - or otherwise used without our prior written consent. The obligation of confidentiality shall remain in effect even after the end of the contractual relationship. Use of all documents shall be permitted only for the contractually agreed purpose.

§ 3 Prices

(1) Applicable prices at the time of delivery

Unless expressly agreed otherwise, our deliveries and services are invoiced based on the prices valid on the date of delivery.

(2) Price adjustment in the event of extended delivery periods

If a delivery period of more than three months has been agreed, we reserve the right to reasonably adjust prices to reflect cost increases that may have occurred in the interim - particularly with respect to material, labor, energy, or transportation costs. Upon request, the Buyer shall be provided with appropriate evidence of such cost increases.

(3) Net prices, additional charges, and VAT

All prices are net Ex Works (EXW according to Incoterms 2020), plus the applicable statutory value - added tax at the date of invoicing, and any packaging, shipping, insurance, installation, and commissioning costs, unless otherwise specified in our offer or order confirmation.

(4) Changes in exchange rates, duties, and taxes

If exchange rates, customs duties, import/export levies, or other public charges affecting our calculation change after the contract is concluded, we are entitled to adjust the prices accordingly. This does not apply if delivery is to be made within three months after conclusion of the contract and the price change could reasonably have been foreseen by us at that time.

§ 4 Delivery, delay in delivery

(1) Non - binding delivery dates

Delivery dates shall be considered non-binding unless expressly agreed otherwise. They begin upon the conclusion of the contract, but not before full clarification of all technical and commercial requirements and the fulfillment of all cooperation obligations by the Buyer, including but not limited to the provision of materials, the granting of required approvals, the payment of agreed advance payments, or the opening of an agreed letter of credit.

(2) Compliance with delivery dates

Delivery dates shall be deemed to have been met if the goods have left our factory or if readiness for shipment or acceptance has been communicated before the date expires.

(3) Partial deliveries

Partial deliveries are permitted and may be invoiced separately.

(4) Force Majeure and unforeseeable events

Events of force majeure or other unforeseeable circumstances beyond our control (e.g., strikes, government actions, war, pandemics, or delays in deliveries by our suppliers) shall extend agreed delivery deadlines, even if they have been agreed as binding, by the duration of the disruption plus a reasonable start - up period. This also applies if the aforementioned circumstances occur at our suppliers or their sub-suppliers. Furthermore, in such cases, we are also entitled to withdraw from the contract, either fully or partially. Claims for damages by the Buyer are excluded in such cases.

(5) Reservation of self - supply

Our delivery obligation is subject to the correct and timely delivery of goods to us by our suppliers, provided that we have entered into a corresponding purchase agreement and are not responsible for the non - delivery.

(6) Delay in delivery with binding deadlines

If we are in default of a binding delivery date due to our fault, the Buyer shall be entitled to withdraw from the contract after the unsuccessful expiry of a reasonable grace period set in writing. Any claims for damages are limited to those defined in § 9 of these Terms and Conditions.

(7) Default of acceptance / storage costs

If dispatch or acceptance of the goods is delayed due to circumstances attributable to the Buyer, we shall be entitled to charge storage costs amounting to 1% of the net invoice amount for each commenced month, starting from the 30^th day after notification of readiness for shipment. The Buyer retains the right to prove that lower storage costs have actually been incurred. If a reasonable grace period granted to the Buyer for acceptance or collection of the goods expires without success, we shall also be entitled to withdraw from the contract. In such case, the Buyer shall be obliged to reimburse us for any storage and administrative costs incurred up to that point, as well as for any further expenses arising from the failure to accept or collect the goods. All other rights remain unaffected.

(8) Quantity deviations for custom - machined parts

In the production of custom parts using machining processes - particularly turning and milling - we reserve the right to deliver additional quantities due to production - related factors. Unless explicitly agreed otherwise, the following industry-standard deviations shall apply:
 

The quantity actually delivered within these permissible deviations shall be decisive for invoicing purposes.

§ 5 Transfer of risk, shipping

(1) Transfer of risk upon dispatch

The risk shall pass to the Buyer upon handover of the goods to the freight forwarder or carrier. This also applies to shipments made to a recipient specified by the Buyer, as well as to deliveries made carriage paid. We shall only be liable for transport damage in cases of willful misconduct or gross negligence. In the event of a return shipment, the risk shall not transfer back to us until the goods have been received at our facility in undamaged condition.

(2) Delivery Ex Works / shipping costs

Delivery shall be effected ex works (EXW - Incoterms 2020). If shipment is requested by the Buyer, shipping and packaging costs shall be invoiced separately, unless expressly agreed otherwise in writing.

(3) Transport insurance

Transport insurance shall only be arranged upon the Buyer's express written instruction and at the Buyer’s sole expense.

(4) Notification of transport damage

Any transport damage must be recorded immediately upon delivery, on the shipping documents, and reported in writing to both the carrier and us within 24 hours of receipt of the goods. The Buyer is also obligated to inspect the goods promptly for any hidden damage and notify us in writing of such damage immediately upon discovery. The statutory inspection and notification obligations under § 377 HGB remain unaffected.

(5) Transfer of risk in the event of shipping delay

If dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the Buyer upon notification of readiness for dispatch.

§ 6 Warranty, limitation period

(1) No guarantees

Englert GmbH & Co. KG only provides guarantees in a legal sense if they are expressly stated and confirmed in writing as such. General product descriptions or technical specifications do not constitute any warranty commitments.

(2) Exclusion of warranty

No Warranty claims shall arise if defects are due to the Buyer´s failure to comply with instructions regarding shipping, packaging, installation, handling, use, or maintenance of the goods, or as a result of improper installation or commissioning by the Buyer or third parties. Warranty shall also be excluded if our product is modified by the Buyer or third parties, provided the defect is directly related to such modification. The warranty does not cover damages caused by normal wear and tear, improper handling, improper storage, use of inappropriate operating materials, or exceptional conditions such as climatic, chemical, or mechanical influences.

(3) Design defects and supplied parts

We shall not be liable for defects resulting from design errors or the selection of unsuitable materials if the Buyer provided the design or specified the material, and such defects were not identifiable by us through the exercise of customary care, or if we - where possible - raised concerns.
Likewise, we shall not be liable for defects in parts supplied by the Buyer or for any consequential damage caused by such parts.

(4) Defective assembly instructions

If the assembly instructions provided by us are defective, our sole obligation shall be to supply faultless instructions, provided that the defect has actually prevented proper assembly.

(5) Subsequent performance

In the event of a justified notice of defect, we shall be entitled to determine the type of subsequent performance at our sole discretion, i.e., either to rectify the defect (repair) or to deliver defect-free goods (replacement). Rectification is generally carried out at our facility. Subsequent performance at the place of installation shall only be undertaken on the basis of a separate written agreement. The Buyer shall grant us, or a third party appointed by us, the necessary time and opportunity to inspect the defect and perform the subsequent performance.
Except in the cases provided for by law under § 637 of the German Civil Code (BGB), the Buyer shall only be entitled to remedy the defect themselves with our prior written consent.

(6) Costs of subsequent performance

We shall bear the costs of subsequent performance only to the extent that they are necessary and proportionate in the specific case. Proportionality shall be determined in particular with reference to the value of the defect - free goods, the significance of the defect, and the possibility of an alternative form of subsequent performance.
Any expenses exceeding these proportionate costs, in particular for removal and installation, transport, or travel, shall be borne by the Buyer.
If subsequent performance ultimately fails or is unreasonable for the Buyer, the Buyer may withdraw from the contract or reduce the purchase price in accordance with statutory provisions.

(7) Exclusion of further claims

Any further claims by the Buyer- in particular claims for damages – shall only exist within the scope of § 9 of these terms and conditions. This shall also apply accordingly to defects of title that are not based on the infringement of third-party intellectual property rights.

(8) Unjustified notice of defect

If a notice of defect proves to be unfounded, we shall be entitled to charge the Buyer for any expenses incurred in connection with the inspection and handling of the claim - in particular testing, transport, and labor costs.

(9) Limitation period for defect claims

Claims by the Buyer for material or legal defects shall expire 12 months after delivery of the goods or notification of readiness for dispatch, whichever occurs first.
This shortened limitation period shall not apply in the following cases:
– intentional or grossly negligent breach of duty,
– fraudulent concealment of a defect,
– claims under the Product Liability Act, and
– goods that, in accordance with their intended use, were used in a building and caused its defectiveness (§ 438 para. 1 no. 2 German Civil Code – BGB).

The limitation period shall be suspended for the duration of any actual subsequent performance. The limitation period shall not restart as a result of such subsequent performance.

§ 7 Retention of title

(1) Retained title
Title to the delivered goods shall remain with us until full settlement of all current and future claims arising from the business relationship. This retention of title shall also apply to conditional claims and to balances under a running account.

(2) Processing and combination

If the goods subject to retention of title are processed, combined, or mixed with other items, we shall acquire co-ownership of the resulting product in proportion to the value of the retained goods relative to the other components. If the goods are combined with a principal item owned by the Buyer, the Buyer hereby transfers to us a proportionate share of ownership, which we hereby accept.

(3) Resale and assignment

The Buyer shall be entitled to resell the goods subject to retention of title in the ordinary course of business, provided the Buyer is not in default of payment. The Buyer hereby assigns to us, in advance, all claims arising from such resale - including those arising after processing - in the amount of the invoice value. We hereby accept such assignment. The Buyer shall remain authorized to collect the assigned claims unless and until a case of security enforcement arises.

(4) Restrictions on disposal / seizure

Pledging or transferring ownership of the goods by way of security shall not be permitted. In the event of third - party access to goods subject to retention of title or to assigned claims, the Buyer shall be obliged to notify us immediately in writing. The Buyer shall bear the costs of defending against such access unless such costs are reimbursed by the third party.

(5) Enforcement event / repossession

In the event of payment default, the filing of insolvency proceedings, or any other threat to our claims, we shall be entitled to demand the return of the goods subject to retention of title. The Buyer shall be obliged to surrender the goods. The enforcement of retention of title shall not be deemed a withdrawal from the contract unless expressly stated as such.

(6) Release clause

If the value of the securities provided exceeds our claims by more than 20%, we shall, upon the Buyer’s request, release securities of our choice to that extent.

§ 8 Payments

(1) Due date and payment terms

Unless expressly agreed otherwise or stated on the invoice, the purchase price shall be payable without deduction within 30 calendar days of delivery and invoicing. Cash discounts or other deductions shall only be granted if expressly agreed in writing and only if no other outstanding claims exist against the Buyer at the time of payment.

(2) Advance payment for initial orders

For initial orders from new Buyers, we reserve the right to deliver only against advance payment. The Buyer shall be informed of this no later than in the order confirmation. In such cases, delivery shall take place only after full receipt of payment.

(3) Fulfilment of payment

Payments shall be deemed made only on the date on which we have final and unrestricted access to the amount paid. Cheques shall be accepted on account of performance only and subject to clearance. The acceptance of bills of exchange requires our express prior agreement. Discount charges, bill fees, collection costs, and all associated expenses shall be borne by the Buyer.

(4) Allocation and set - off

We shall be entitled to apply payments first to the Buyer's oldest outstanding debt.
The Buyer may only set off counterclaims if such claims are undisputed or have been finally adjudicated. The Buyer may only assert a right of retention if it is based on the same contractual relationship.

(5) Payment default and risk to claims

If the Buyer defaults on payment or if their financial situation deteriorates significantly after conclusion of the contract, we may withhold delivery and demand advance payment or appropriate security.
If the Buyer fails to comply, we shall be entitled to withdraw from the contract and claim damages for non - performance. A significant threat to our payment claim shall be deemed to exist in particular in the event of cessation of payments, the filing for insolvency, or a material deterioration in creditworthiness

§ 9 Breach of duty

(1) Exclusion of liability for ordinary negligence

We shall only be liable for damages caused by intentional or grossly negligent breaches of duty. In the event of a merely negligent breach of essential contractual obligations (cardinal obligations), our liability shall be limited to the foreseeable damage typical for the contract and, in terms of amount, to the value of the order.

(2) Exclusion of certain types of damages

Any further claims for damages - in particular for loss of profit, production downtime, loss of use, loss of data, as well as indirect or consequential damages - shall be excluded to the extent legally permissible.

(3) Mandatory statutory liability

The above limitations of liability shall not apply in cases of injury to life, body, or health, or in cases of mandatory liability under the Product Liability Act or other non-waivable statutory provisions.

(4) Liability for vicarious agents

Our liability for the fault of vicarious agents (§ 278 BGB) shall - to the extent permitted by law - be limited to fault in selection.

(5) Force Majeure

We shall not be liable for damages caused by force majeure or other unforeseeable events beyond our control.

(6) No reversal of the burden of proof

The foregoing provisions shall not entail any reversal of the statutory burden of proof.

§ 10 Data protection

(1) Data protection

The processing of the Buyer’s personal data (e.g. contact details of contact persons) is carried out in accordance with the applicable data protection regulations, in particular the General Data Protection Regulation (GDPR). Further information on data processing can be found in our privacy policy at: www.englert-gmbh.net/en/meta/privacy-policy/.

§ 11 Applicable law, place of jurisdiction, severability clause

(1) Applicable law

The laws of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) Place of jurisdiction and performance

The place of performance and the exclusive place of jurisdiction for all disputes arising out of or in connection with the legal relationship between us and the Buyer shall be the registered office of Englert GmbH & Co. KG, provided the Buyer is a merchant (Kaufmann), a legal entity under public law, or a special fund under public law. In addition, we shall be entitled to bring legal action against the Buyer at their general place of jurisdiction.

(3) Severability clause

Should any provision of these General Terms and Conditions be or become invalid or unenforceable, in whole or in part, the validity of the remaining provisions shall remain unaffected. In place of the invalid or unenforceable provision, a valid and enforceable provision shall be deemed agreed that most closely reflects the economic intent of the invalid provision. The same shall apply in the event of any omissions.