eps gmbh

A. Scope

Our offer is directed exclusively at companies (commercial users) or dealers (hereinafter referred to as customers). Conflicting or deviating terms of the customer will not be accepted unless we agree to them in writing in individual cases. Our General Terms and Conditions shall also apply if we provide a service to the customer without reservation and without contradiction in the knowledge that the customer’s terms and conditions contradict or deviate from these General Terms and Conditions.

Advice and recommendations as well as contractual ancillary services such as installation and maintenance services or work on the delivery item are provided to the best of our knowledge and according to the state of the art. For omissions in this regard, reference is made to numbers C4 and D3 (warranty).

B. Conclusion of Contract

Our presentation of offers is non-binding and does not constitute a binding application for the conclusion of a contract, unless otherwise stated. We can accept or reject orders from customers within a period of three weeks after we received the order. The customer waives the receipt of our declaration of acceptance. If the order has not been placed in writing, we can demand that the customer confirms the order in writing. The sending of an order is to be seen in place of an order confirmation.

The subject matter of this contract is the provision of logistics material in the form of fixed assets and leasing objects and, where commissioned, their assembly. The material will be delivered in functional condition.

C. Regulations for Leasing Agreements

1. Leased object

We reserve the right, instead of the leased object described in the leasing agreement, to provide another leased object that is comparable in terms of its function.

2. Leasing period

2.1 The leasing period is generally calculated on the basis of an order. If no other commencement of the leasing period is contractually agreed, the leasing period shall commence when the leased object is handed over to the customer. If the leasing agreement is concluded for an indefinite period, the customer may terminate the leasing agreement in writing with a notice period of one week to the end of the seventh day following the receipt of the termination, if the leasing period is calculated in days, in writing with a notice period of three days to the end of the third day following the receipt of the termination.

2.2 The customer is obliged to tolerate the leased object remaining at the place of use for a period of time until the end of the third working day following the end of the contract.

2.3 If the customer does not return the leased object in good time at the end of the leasing period, especially if they continue to use the leased object, the leasing agreement shall not be extended as a result. Section 545 of the German Civil Code (BGB) is excluded.

3. Lease

Unless otherwise contractually agreed, the agreed lease is understood to be net lease. Additional costs will be invoiced, unless otherwise contractually agreed.

4. Warranty

4.1 The customer shall only be entitled to claims based on a defect in the leased object if and insofar as we are responsible for the defect.

4.2 Immediately after handing over the leased object, the customer shall subject the leased object to a visual inspection and, where feasible, a functional inspection with regard to defects and completeness, and shall notify us immediately in writing of any defects and missing parts of the leased objects. If the customer fails to report a defect or the absence of parts of the leased object, the leased object shall be deemed approved unless the defect or the absence of parts of the leased object was not recognisable. If a defect or the absence of parts of the leased object is discovered later, the customer shall notify us about the defect or the absence of parts of the leased object immediately in writing; otherwise the leased object shall be deemed approved. The leased object shall not be deemed approved if we know that there is a defect or parts of the leased object are missing. If the leased object is deemed to be approved, the customer is not released from the obligation to pay the lease in full due to the defect or lack of part of the leased object, nor can the customer claim damages in accordance with Section 536 a BGB or terminate the leasing agreement without notice.

4.3 In the event of a defect, we shall be entitled, at our discretion, to replace or repair the leased object with one that is comparable with regard to the function of the leased object. If we do not remedy a defect within a reasonable period or refuse to remedy the defect, the customer may terminate the lease agreement in writing without notice.

5. Use of the Leased Object

5.1 Subject to the provisions of Section 536 a paragraph 2 of the German Civil Code, the customer shall not be entitled to modify the leased object without our prior written consent, in particular not to remove or conceal attached serial numbers, manufacturer’s plates or other identification or certification marks.

5.2 During the term of lease, the customer shall notify us immediately of the loss of the leased object, any deterioration beyond the usual wear and tear and any accident in connection with the leased object. If we refuse to consent to the transfer of use of the leased object or subleasing of the leased object to a third party, the customer shall not be entitled to terminate the contract due to such refusal.

5.3 The leased object may not be removed from the place of use. The customer must allow us, our representatives and insurers access to the place of use and the leased object during normal working hours.

6. Delivery and Collection of the Leased Object/Return of the Leased Object

6.1 The arrival/departure begins and ends at the company courtyard of eps gmbh – arrival/departure times as well as set-up times are considered as operating time and are calculated in the same way as these. Crane-related downtimes due to strong winds which continuously exceed 1 hour will be charged at 80 % of the agreed hourly or daily rates – shorter interruptions will be considered normal operating times.

The access routes and the workplace for our equipment must be free of all objects that could hinder or impede approaching and working. It must also be ensured that the roads to be used or the terrain to be travelled has the necessary level and soil stability. The preparation of the aforementioned places must be carried out in good time and free of charge for us. Possible damage to the access roads is at the expense of the customer.

6.2 If we have undertaken to deliver and collect the leased object and/or to assemble and dismantle it, the customer shall ensure that the place where the leased object is to be used (place of use) is accessible and drivable for trucks with a permissible total weight of up to 40 tonnes and that the place of use is suitable for the assembly and use of the leased object. The customer shall provide us with electricity, water and storage facilities at the place of use free of charge – insofar as this is necessary for delivery and collection as well as assembly and disassembly. If the customer does not fulfil the aforementioned obligations and if delivery or assembly of the leased object cannot take place for this reason, we are not obliged to wait longer than a maximum of two hours at the place of use for the above-mentioned conditions to be met. If delivery and/or assembly cannot take place in such a case, the customer shall be obliged to bear the costs of further delivery and assembly attempts and shall pay the contractually agreed leasing fee for each day by which delivery of the leased object or assembly thereof is delayed as compensation. The customer reserves the right to prove that we have not incurred any damage or that the damage incurred is significantly lower. We are not prevented from asserting further damages.

6.3 At the end of the lease term, the customer shall return the leased object in a cleaned condition or, if we have undertaken to collect it, in a cleaned condition and freely accessible for collection or dismantling. We are not obliged to wait longer than two hours for the readiness for dismantling or for collection. The customer shall bear the additional costs of a new dismantling or collection attempt as well as cleaning of the leased object carried out by us, insofar as such cleaning is necessary. For each day after the end of the lease term on which the customer does not return the leased object or make it available for dismantling or collection, they shall owe the contractually agreed lease fee for one day as compensation. The customer reserves the right to prove that we have not incurred any damage or that the damage incurred is significantly lower. We are not prevented from claiming further damages.

7. Customer Liability

The leased object must be protected against theft, loss and deterioration. The customer shall bear the risk of accidental loss and accidental deterioration of the leased object. The customer’s liability for the leased object begins with the provision of the goods for unloading and ends with the collection of the goods after they have been loaded in a manner safe for transport.

8. References

We are entitled to mention our services by stating the name of the customer and information on the type and scope of the service as well as by publishing photographs of our service as a reference for our company in advertising measures on our website www.eps.net.

D. Regulations for Purchase Agreements

1. Purchase Price

1.1 Unless otherwise contractually agreed, the purchase price shall be understood as a net price, excluding packaging, delivery and assembly of the object of purchase and statutory value added tax. The value added tax, if applicable, will be shown separately on the invoice at the statutory rate applicable on the date of invoicing.

1.2 The purchase price is due without deduction immediately after the invoice has been issued.

2. Reservation of Title

2.1 The delivered goods remain our property until the customer has paid the purchase price in full.

2.2 The customer is entitled to resell the purchased goods in the ordinary course of business; they hereby assigns to us all claims in the amount of the final invoice amount (including VAT) which accrue to them from the resale, irrespective of whether the purchased goods have been resold without or after processing.

2.3 The customer remains entitled to collect this claim even after the assignment. Our right to collect the claim ourselves remains unaffected. We undertake to not collect the claim as long as the customer fulfils his payment obligations, is not in default of payment and in particular no application for the opening of insolvency proceedings on his assets has been made or he has suspended payments. If one of the aforementioned circumstances occurs, we may revoke the direct debit authorisation and demand that the customer discloses the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

2.4 The processing or transformation of the purchased goods by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in proportion to the value of the object of sale to the other processed objects at the time of processing. The provisions of D 2.2 and 2.3 shall apply accordingly to the object resulting from the processing or transformation.

3. Warranty

3.1 Prerequisite for warranty claims of the customer due to a defect of the purchased item is that the customer has fulfilled his obligations to inspect and complain in accordance with Section 377 of the German Commercial Code.

3.2 If there is a defect for which we are responsible, we shall be entitled to supplementary performance (removal of defects or delivery of a defect-free item). If the supplementary performance fails, the customer has the right to choose between a reasonable reduction of the purchase price (price reduction) or to withdraw from the contract.

3.3 The warranty period is one year from the date of delivery of the purchased item.

E. Further General Provisions

1. Liability

1.1 Unless otherwise stated below, further claims of the customer – regardless of the legal grounds – are excluded. We shall not be liable for damages that have not occurred to the delivery item itself; in particular, we shall not be liable for loss of profit or other financial losses of the customer.

1.2 Unless otherwise contractually agreed, we are not obliged within the framework of the contractual relationship with the customer to advise the customer or make recommendations. If we nevertheless give advice or make recommendations, we shall not be obliged to compensate for any damage arising from following the advice or recommendation.

1.3 Claims for damages in the case of only slightly negligent breaches of duty are excluded. If we negligently violate an essential contractual obligation or the customer’s health, body or life, we shall be liable in accordance with the statutory provisions. The liability for damages is limited to the foreseeable, typically occurring damage.

1.4 No limitation of liability shall apply in the event of intentional or grossly negligent breaches of duty and for claims under the Product Liability Act.

1.5 Insofar as our liability for damages is excluded or limited, this shall also apply to our representatives, employees, workers, staff and vicarious agents.

2. Terms of Payment

2.1 Unless otherwise agreed, the invoice amount is payable net (without deduction) within twenty-one days from the date of invoice (proven by the invoice date). For each week of delay in payment, the customer shall pay lump-sum damages of 1 % of the invoice amount, including any value added tax that may be applicable, up to a maximum total of 10 % of this amount. The acceptance of a payment without objection and/or reservation does not mean a waiver of claims for damages.

2.2 Our employees and vicarious agents are not entitled to accept payments to us unless they have written powers of attorney. We are not obliged to accept cheques, bills of exchange or cash. Cheques and bills of exchange are always accepted on account of performance.

3. Cancellation Clause

The cancellation of a contract, the reduction of the service or the subject matter of the contract or other changes on the part of the customer is not possible without payment of compensation due to our preparatory work and keeping appointments free, even in case of termination due to force majeure.

Cancellations, reductions of the service or the object of the contract or other changes must be made in writing by e-mail within our office hours from Monday to Friday from 09:00 am to 04:00 pm. If a cancellation and/or reduction or other change is made outside of these hours, the cancellation shall not be deemed received until the next working day (except Saturday).

The following compensation payments apply:

On the day of delivery/collection 100 % of the contract amount

· 1 – 3 calendar days before the delivery/collection date 90 % of the contract amount
· 4 – 12 calendar days before the delivery/collection date 75 % of the contract amount
· 13 – 180 calendar days before the delivery/collection date 50 % of the contract amount
· 181 or more calendar days before the delivery/collection date 25 % of the contract amount

Fair dealing: If the contract is cancelled within 5 days of the date of issue, no compensation will be due, except for the agreed fee of 5 % for the preparation of the offer and concept.

Exception: If it is a short-term order within 1 month and the contract has already been signed and returned, a compensation payment of 90 % of the contract sum is still due, as we have already arranged everything.

4. Offsetting/Place of Jurisdiction/Applicable Law

4.1 The customer may only set off against our claims or assert a right of retention if the counterclaim is undisputed, disputed but ready for decision or has been established as final and absolute.

4.2 Munich is the place of jurisdiction for legal actions against us. We are also entitled to take legal action at the customer’s place of business.

4.3 German law shall apply to the exclusion of the uniform UN Convention on Contracts for the International Sale of Goods (CISG).

4.4 For transports which we carry out on behalf of third parties, the German Freight Forwarders’ Standard Terms and Conditions (ADSp) and the Convention on the Contract for the International Carriage of Goods by Road (CMR) are available as terms and conditions.

Status: March 2019