General Terms & Conditions
§ 1 General Provisions
The following General Terms and Conditions (“GTC”) apply to all business relationships between us and our customers (“Customer”), in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). These GTC apply only if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law.
Unless otherwise agreed, the GTC in the version valid at the time of the Customer’s order or, in any case, in the last version provided to the Customer in text form shall also apply to future contracts of the same nature, without requiring us to refer to them again in each individual case.
Only our GTC shall apply in our relationship with the Customer. Deviating, conflicting, or supplementary general terms and conditions of the Customer shall only become part of the contract if we expressly agree to their applicability. This requirement of consent applies in every case, including situations in which we execute a contract with knowledge of the Customer’s general terms and conditions without expressly objecting to them.
Individually negotiated agreements with the Customer (including ancillary agreements, supplements, and amendments) shall take precedence over these GTC. Subject to contrary evidence, the content of such agreements shall be determined by a written contract or written confirmation.
Declarations and notifications that the Customer is required to submit to us after conclusion of the contract (e.g., setting deadlines, notifications of defects, declarations of withdrawal or reduction) must be made in text or written form to be valid. Statutory form requirements and further evidence, particularly in cases of doubt regarding the authority of the declaring person, remain unaffected.
References to statutory provisions have a clarifying function only. Statutory provisions shall therefore apply even without such clarification, unless they are modified or expressly excluded by these GTC.
§ 2 Conclusion of Contract
Our offers are non-binding and subject to change. This also applies if we have provided the Customer with catalogues, technical documentation (e.g., drawings, plans, calculations, calculations referring to DIN standards), other product descriptions, or documents – including in electronic form.
The Customer’s order of the Goods shall be deemed a binding offer to contract. Unless otherwise stated in the order, we may accept this contractual offer within two weeks of receipt. Acceptance may be declared either in writing (e.g., order confirmation), in text form, or by delivering the Goods to the Customer.
We retain ownership and copyright to all offers and cost estimates issued by us, as well as to formulations, specifications, drawings, images, calculations, brochures, catalogues, models, tools, and other documents and materials provided to the Customer. The Customer may not disclose or make these items accessible to third parties, use them for its own purposes or for third parties, or reproduce them, without our express consent. Upon our request, the Customer must return these items in full and destroy any copies if they are no longer required in the ordinary course of business or if negotiations do not result in the conclusion of a contract.
§ 3 Delivery Period and Delay in Delivery
Our stated delivery times are non-binding unless a fixed delivery period has been individually agreed. Compliance with delivery times requires that all commercial and technical questions regarding the delivery item have been clarified and that the Customer has fulfilled its obligations, such as cooperation duties or payments due at that time; otherwise, the delivery time will be extended appropriately.
If we are unable to comply with binding delivery periods for reasons beyond our control (non-availability of performance), we will inform the Customer without undue delay and provide a new expected delivery period. If performance is still not possible within this new period, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Customer will be refunded without delay. Non-availability includes in particular late delivery by our supplier, provided we have concluded a congruent covering transaction, no fault lies with us or our supplier, or we are not obliged to procure the Goods in the individual case.
Our delay in delivery shall be determined in accordance with statutory provisions. In any case, however, a reminder from the Customer is required.
The Customer’s rights pursuant to § 8 and our statutory rights, especially in cases of exclusion of the obligation to perform (e.g., impossibility or unreasonableness of performance or subsequent performance), remain unaffected.
§ 4 Delivery, Transfer of Risk, Default of Acceptance
Unless otherwise agreed, delivery is made from the warehouse of EGO Europe GmbH in Germany, ex works (“EXW” according to the INCOTERMS valid at the time of contract conclusion), which is also the place of performance for delivery and any subsequent performance. Upon request and at the Customer’s cost, the Goods will be shipped to a different destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of shipment (in particular, the transport company, shipping route, packaging).
The risk of accidental loss or accidental deterioration of the Goods transfers to the Customer at the latest upon handover. In the case of a sale by dispatch, the risk transfers upon delivery of the Goods to the carrier, freight forwarder, or any other person or institution designated to perform the shipment.
If the Customer is in default of acceptance, fails to perform a required act of cooperation, or if our delivery is delayed for reasons attributable to the Customer, we may demand compensation for the resulting damage, including additional expenses (e.g., storage costs). We shall charge a flat-rate compensation of […] per calendar day, beginning with the delivery period or – absent a delivery period – with notification of readiness for shipment. We reserve the right to prove greater damage and to assert statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination); the flat rate shall be offset against further monetary claims. The Customer is entitled to prove that we incurred no damage or significantly less damage than the flat rate.
§ 5 Prices and Payment Terms
Unless otherwise agreed, our current list prices at the time of contract conclusion apply; these are ex works prices including VAT but excluding packaging. If changes occur with respect to our prices or their basis prior to the delivery date, we reserve the right to adjust our prices accordingly; however, this applies only to delivery periods exceeding four months and to price adjustments of up to 10%. Price adjustments exceeding this threshold require a new agreement; if such agreement is not reached within 14 days after receipt of our corresponding offer, we reserve the right to withdraw from the contract by written notice.
If the Customer requests shipment of the Goods (see § 4 para. 1), the Customer bears transport costs ex works and any costs for transport insurance requested by the Customer. Customs duties, fees, taxes, and other public charges are borne by the Customer.
Unless otherwise agreed, the purchase price is due and payable within 30 days after receipt of the invoice and delivery, without deduction.
Within ongoing business relationships, we may at any time demand advance payment for all or part of a delivery. We shall declare such reservation at the latest with the order confirmation.
Bills of exchange and cheques will only be accepted upon express agreement and only for payment purposes, subject to our acceptance in the individual case. Any costs or fees are to be borne by the Customer and are payable immediately.
Upon expiry of the payment period pursuant to § 5 para. 3, the Customer enters default. During default, interest shall accrue at the statutory default interest rate. We reserve the right to claim further default damages. For merchants, our claim to commercial due date interest (§ 353 HGB) remains unaffected.
The Customer may exercise set-off or retention rights only if its claims are final, undisputed, or acknowledged. In the event of defects, the Customer’s rights, particularly under § 7 para. 4 sentence 2, remain unaffected.
If, after contract conclusion, it becomes apparent (e.g., through application for insolvency proceedings) that payment of the purchase price is jeopardized due to the Customer’s lack of financial capacity, we are entitled to refuse performance and – if applicable after setting a deadline – withdraw from the contract (§ 321 BGB).
§ 6 Retention of Title
We retain title to the Goods sold until full payment of all present and future claims arising from the purchase contract and the ongoing business relationship (“Secured Claims”).
Goods subject to retention of title may not be pledged or transferred as security to third parties prior to full payment of the Secured Claims. The Customer must notify us in writing without delay if an application for insolvency proceedings is filed or if third parties (e.g., bailiffs) access the Goods belonging to us.
In the event of contractual violations by the Customer, particularly non-payment of the due purchase price, we are entitled to withdraw from the contract and reclaim the Goods based on the retention of title and withdrawal, in accordance with statutory provisions. If the Customer fails to pay the due purchase price, we may assert these rights only after unsuccessfully setting a reasonable deadline for payment unless such a deadline is unnecessary under statutory provisions.
The Customer is, until revoked pursuant to para. (c) below, authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. The following provisions apply additionally:
The retention of title extends to products resulting from processing, mixing, or combining our Goods, at their full value, whereby we are deemed the manufacturer. If third-party ownership remains after processing, mixing, or combining, we acquire co-ownership in proportion to the invoice values of the processed goods. Otherwise, the same rules apply to the resulting product as to the Goods delivered under retention of title.
The Customer hereby assigns to us all claims arising from the resale of the Goods or resulting products, in whole or in the amount of our co-ownership share under the above paragraph. We accept the assignment. The Customer’s obligations under para. 2 also apply to the assigned claims.
The Customer remains authorized to collect the assigned claims alongside us. We undertake not to collect the claims as long as the Customer meets its payment obligations, no lack of financial capacity exists, and we do not assert our retention of title by exercising rights under para. 3. If this is the case, we may require the Customer to disclose the assigned claims and their debtors, provide the necessary collection information and documents, and notify the debtors of the assignment. We are further entitled to revoke the Customer’s right to resell and process the Goods subject to retention of title.
If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice upon the Customer’s request.
§ 7 Claims for Defects
Customer rights in cases of material and legal defects (including incorrect or short delivery as well as improper installation or defective instructions) are governed by statutory provisions unless otherwise provided below.
For Goods with digital elements or digital content, we owe the provision and, if applicable, updating of the digital content only if expressly agreed as part of the agreed quality. We assume no liability for public statements of the manufacturer or third parties regarding such digital elements or digital content.
Claims for defects require the Customer to comply with its statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent during inspection or later, we must be notified immediately in writing. Notification is deemed immediate if made within two weeks after delivery; timely dispatch of the notification is sufficient. Regardless of this obligation, the Customer must notify us in writing of obvious defects (including incorrect or short delivery) within two weeks after delivery. Failure to properly inspect and/or notify defects excludes our liability for the defect not, not timely, or improperly reported.
If the delivered item is defective, we may choose whether to provide subsequent performance by remedying the defect or by delivering a defect-free item. If the type of subsequent performance chosen by us is unreasonable for the Customer, the Customer may reject it. Our right to refuse subsequent performance under statutory provisions remains unaffected.
We may make subsequent performance dependent on payment of the due purchase price. The Customer, however, is entitled to withhold an amount of the purchase price that is proportionate to the defect.
The Customer must provide us the time and opportunity necessary for subsequent performance, including handing over the defective Goods for inspection. In the event of replacement delivery, the Customer must return the defective item to us upon request in accordance with statutory provisions; however, the Customer has no independent claim to return.
Claims for reimbursement of expenses pursuant to § 445a para. 1 BGB are excluded unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB). Claims for damages or reimbursement of futile expenses are available only under §§ 9, 10 and are otherwise excluded.
§ 8 Liability
Unless otherwise stipulated in these GTC, including the following provisions, we shall be liable for contractual and non-contractual obligations in accordance with statutory provisions.
We shall be liable for damages – regardless of legal basis – in cases of intent and gross negligence. In cases of simple negligence, we shall be liable, subject to a less strict liability standard under statutory provisions (e.g., for diligence in our own affairs), only:
- for damages resulting from injury to life, body, or health,
- for damages resulting from the not insignificant breach of a material contractual obligation (an obligation whose fulfilment is essential for proper performance of the contract and on whose observance the contracting party may regularly rely); in such cases, however, liability is limited to compensation for foreseeable, typically occurring damages.
The limitations of liability under para. 2 also apply to breaches by or in favour of persons for whose fault we are statutorily responsible. They do not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the Goods, nor for claims under the German Product Liability Act.
The Customer may withdraw from or terminate the contract due to a breach of duty not constituting a defect only if we are responsible for such breach. A free termination right of the Customer (in particular under §§ 650, 648 BGB) is excluded. Statutory requirements and legal consequences otherwise apply.
§ 9 Limitation Periods
Contrary to § 438 para. 1 no. 3 BGB and § 634a para. 1 no. 3 BGB, the general limitation period for claims relating to material and legal defects is one year from delivery.
This limitation period also applies to contractual and non-contractual claims for damages by the Customer based on a defect, unless application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period. Claims for damages by the Customer under § 8 para. 2 sentence 1 and sentence 2 lit. a) as well as claims under the Product Liability Act are subject exclusively to statutory limitation periods.
§ 10 Software Use
If software is included in the scope of delivery, the Customer is granted a non-exclusive right to use the delivered software, including its documentation. The software is provided for use on the specific delivery item. Use of the software on more than one system is prohibited. The Customer may reproduce, modify, translate, or convert the software from object code to source code only to the extent permitted by law (§§ 69a et seq. UrhG). The Customer undertakes not to remove or alter manufacturer’s notices – particularly copyright notices – without our express prior consent. All other rights to the software and documentation, including copies, remain with EGO Europe GmbH or the software supplier. Sub-licensing is not permitted.
§ 11 Governing Law and Place of Jurisdiction
These GTC and the contractual relationship between the parties are governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular CISG (UN Sales Law).
If the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising out of or in connection with the contractual relationship shall be our registered office in Steinheim, Germany. The same applies if the Customer is an entrepreneur within the meaning of § 14 BGB. However, we are in all cases entitled to bring an action at the place of performance of the delivery obligation under these GTC or an overriding individual agreement or at the Customer’s general place of jurisdiction. Statutory provisions on exclusive jurisdictions remain unaffected.
