Our General Terms and Conditions of Sale and Delivery
I. Conclusion of contract / area of application
1. All present and future deliveries, services and quotations of the company Eschmann Textures International GmbH (hereinafter referred to as “Eschmann Textures International”) will be exclusively subject to the application of these General Terms and Conditions of Sale and Delivery (hereinafter also referred to as “General Terms and Conditions”). These are an integral part of all contracts, concluded by Eschmann Textures International with its Customers and contract partners (hereinafter also referred to as “Customer”) concerning the deliveries or services offered by it. In the absence of any agreement to the contrary, these General Terms and Conditions – in the version applicable at the time of the Customer's order - shall also apply as outline agreement for similar future contracts, deliveries, services or quotations to the Customer, without the need for Eschmann Textures International to again make reference to these in each individual case.
2. Deviating or conflicting terms and conditions of purchase and business of the Customer (including subsidiary agreements, extensions and amendments to these General Terms and Conditions) shall only be binding on Eschmann Textures International if it has issued its express written confirmation of these. Other than in the above mentioned case, these shall not apply. Terms and conditions of business of the Customer or third parties will not apply, even if Eschmann Textures International does not reject their application separately in individual cases. Even if Eschmann Textures International refers to a letter containing terms and conditions of business of the Customer or a third party, or referring to such, this will not constitute consent to the application of these terms and conditions of business.
3. Quotations by Eschmann Textures International are without engagement and non-binding, unless they are explicitly marked as binding or include a specific deadline for acceptance. Orders and other agreements shall not be binding until such time as confirmed in writing by Eschmann Textures International. Individual agreements, made with the Customer on a case-by-case basis, shall have priority over these General Terms and Conditions in all cases, always provided such agreements have being made in writing.
4. All declarations and notifications to be issued to Eschmann Textures International by the Customer subsequent to conclusion of the contract (for example but not conclusively, the setting of deadlines, notifications of defects, declaration on withdrawal or reduction in the selling price), will only be valid if made in writing. This shall also apply to extensions and amendments of the agreements made, including these General Terms and Conditions. Sending by facsimile will suffice for compliance with the written form, provided the copy of the signed declaration is forwarded.
5. The order by the Customer will apply as binding offer of contract. In the absence of anything to the contrary resulting from the order, Eschmann Textures International is entitled to accept this offer of contract within a period of two (2) weeks from receipt thereof.
II. Prices / payment terms / securities / group offsetting
1. In the absence of any written agreement to the contrary, the prices quoted by Eschmann Textures International are in Euros and are to be understood as net, excluding value added tax and excluding any import or export customs duties. Where applicable, these will be invoiced separately in the respective statutory amount.
2. In the event of increases in wage, material and other costs, of relevance for fulfilment of the contract, between conclusion of the contract and the agreed delivery date, Eschmann Textures International reserves the right to make an appropriate price increase.
3. If no effective price arrangements have been made in the agreement between the Customer and Eschmann Textures International, invoicing by Eschmann Textures International shall be according to the expense incurred. Settlement by expense incurred is considered agreed in this respect. This shall also apply in particular to possible extensions of services or additional orders by the Customer, in all cases within the scope of a corresponding written agreement between the contract parties.
4. All prices are to be understood as ex-works or ex-warehouse location and ex-cluding packing costs. Taking account of clause IV.1 below, the respective price agreement is based on customary freight circumstances as well as normal and unhindered transport circumstances.
5. In the absence of any written agreement to the contrary, the invoice amount is payable on the 30th calendar day following delivery and without deduction of any discount. With effect from the 31st calendar day or from the first calendar day following the correspondingly agreed period after the delivery, the Customer will be in default on payment as defined in Sections 286 et seq. BGB (German Civil Code) without the need for a further payment reminder. With effect from this time, the Customer shall owe default interest of 9 percentage points above the respective base rate of interest. A claim shall also apply to payment of the lump-sum amount as per Section 288 Subsection 5 BGB (German Civil Code). Both parties have the right to demonstrate higher or lesser default damage. Eschmann Textures International reserves the right to assert farther-reaching default damage. The claim to the commercial interest after the due date (Section 353 HGB (German Commercial Code)) will remain unaffected with respect to businessmen.
6. Payment must be effected such that Eschmann Textures International can dispose of the amount fully on the due date. The Customer is only entitled to offset against claims that are undisputed or have been established by declaratory judgement; the Customer is only entitled to rights of retention in so far as they concern the same contractual relationship.
7. If, subsequent to conclusion of the contract, a significant deterioration becomes recognisable in the Customer’s financial situation which could threaten the payment claim of Eschmann Textures International or could endanger the claim to the price through insufficient ability of the Customer to pay (e.g. through an application for the opening of insolvency proceedings), Eschmann Textures International shall be entitled, in accordance with the statutory regulations, to refuse performance and – if applicable following the setting of an appropriate deadline – to withdraw from the contract (Section 321 BGB) as well as to make payment due immediately.
8. Eschmann Textures International is entitled to usual securities based on the nature and scope of its claims, even if these are conditional or limited in time.
9. Eschmann Textures International is entitled to offset all claims, to which it is entitled against the Customer, against all claims to which the Customer is entitled against Eschmann Textures International or one of its affiliated companies (as defined in Sections 15 et seq. AktG (German Stock Corporation Act)), irrespective of the legal grounds.
III. Deadline for deliveries and services / default
1. Delivery dates and delivery periods shall only be valid if agreed in writing. The Customer hereby accepts that the delivery dates or periods, confirmed or assured by Eschmann Textures International, are non-binding, in so far as the period required for fulfilment of an order can vary on a case-by-case basis. Consequently, delivery dates or periods confirmed or assured by Eschmann Textures International are merely forecasts.
2. The delivery periods shall begin at the earliest on the date of the written order confirmation from Eschmann Textures International, not however before clarification of all details of the order and the provision of any necessary certifications from German or foreign authorities, and of any approvals, in particular not before provision of moulds, rollers, plates, documents etc. to be obtained or provided by the Customer. The delivery periods and dates refer to the time of dispatch ex-works or ex-warehouse of Eschmann Textures International. They shall apply as adhered to through notification of availability for dispatch, if on-time dispatch of the goods is not possible without fault on the part of Eschmann Textures International. The delivery periods shall be extended – notwithstanding the rights resulting from default by the Customer – by the period by which the Customer is in default on its obligations - including obligations to cooperate or accessory obligations. This will apply accordingly in cases of delivery dates agreed as fixed. The Customer shall not be entitled to any claims whatsoever on the basis of not insignificant exceeding of the delivery dates and periods.
3. The above provisions also apply if delivery periods or dates have been expressly stipulated as fixed in the written contractual agreement.
4. In the event of failure to adhere to delivery periods or dates to an extent that is not insignificant, the Customer will not be entitled to the rights under Sections 281, 323 BGB until Eschmann Textures International has set an appropriate deadline for delivery, which – as such in deviation from Sections 281, 323 BGB – is combined with a statement that it will refuse acceptance of the performance following expiry of the deadline; the claim to fulfilment will be excluded following unsuccessful expiry of the deadline.
5. In the event of default, Eschmann Textures International will only be liable for the evidenced default damage if, after becoming aware of the duration of the delivery delay, the Customer informs Eschmann Textures International immediately and in writing of the level of the foreseeable default damage. If the foreseeable default damage exceeds 5% of the price of the goods affected by the delivery delay, the Customer shall be obliged to make immediate efforts to make a corresponding covering purchase, if applicable to make use of possibilities of covering purchases identified by Eschmann Textures International, subject to withdrawal from the contract for the goods affected by the delivery delay. The evidenced additional costs of the covering purchase and the default damage demonstrated for the interim period, shall be reimbursed by Eschmann Textures International up to the price of the goods affected by the delivery delay. Otherwise, liability for the evidenced default damage is limited to 50% of the price of the goods affected by the delivery delay.
6. If the collection, loading or transport (as per the written agreement between the parties) of the goods is delayed for reasons for which Eschmann Textures International is not responsible or which are within the area of responsibility of the Customer, Eschmann Textures International shall be entitled, after due consideration of the circumstances, to place the goods into storage at the expense and risk of the Customer, to take all measures considered suitable for preserving the goods, and to invoice the goods as having been delivered. The same will apply if goods, notified as ready for dispatch, are not called off within five (5) working days. The statutory regulations on default of acceptance will remain unaffected.
7. In cases of force majeure that hinder or delay the contractual provision of performance or render it impossible, Eschmann Textures International shall have the right to postpone the delivery, or remaining or partial delivery, by the duration of the hindrance for which it is not responsible, or to withdraw from the contract, either in part or in full, without this resulting in claims for damages or other claims of the Customer against Eschmann Textures International.
For the purpose of the above ruling, circumstances for which Eschmann Textures International shall not be responsible include, among others, any form of force majeure such as fire, flooding, earthquake, storm or other natural disaster, the threat or preparation of warlike measures, armed conflict, imposition of sanctions, embargoes, breaking-off of diplomatic relations or similar acts, official intervention, terrorist attack, civil war, civil unrest or uprising, nuclear, chemical or biological contamination or supersonic bangs, explosions or accident damage, operational disturbances, collapsing of building structures, failure of plant machinery, machines, computers or vehicles, industrial disputes, including strikes, employer/employee conflicts or lockouts. This will also apply if the above mentioned situations cause disruptions to transport or with upstream suppliers. The creation of claims for damages or other claims based on late delivery or provision of performance in the above cases is excluded. The creation of claims for damages or other claims based on late delivery or provision of performance in the above cases is excluded.
Eschmann Textures will inform the Customer of the occurrence of force majeure promptly, depending on the respective circumstances. The Customer will be entitled to withdraw from the contract at the earliest six (6) weeks following receipt of the notification.
IV. Dispatch / passing of risk
1. Delivery shall be ex-works as a fundamental rule. The goods will be dispatched to another destination at the request and expense of the Customer. Eschmann Textures International shall determine the form of dispatch (in particular, but not conclusively, the transport company, transport route, packing).
2. The risk of accidental loss and of accidental deterioration of the goods shall pass to the Customer upon handover of the contractual items, in cases of dispatch upon handover to the freight forwarder, the carrier or any other person or establishment appointed to carry out dispatch, at the latest however upon leaving the works or the warehouse.
3. If the Customer is in default on acceptance, this shall be equivalent to handover in the above sense.
4. Transport insurance shall be for the account of the Customer and shall be taken out by Eschmann Textures International only at the express, written request of the Customer. Eschmann Textures International shall only be obliged to take out this insurance if the corresponding request from the Customer has been confirmed in writing prior to delivery of the goods.
5. If transport damage is determined, the Customer must arrange an immediate ascertainment of facts by the responsible bodies. The Customer just examine the goods for transport damage upon delivery, and must report any such damage to the transport company immediately.
V. Acceptance / incoming goods inspection
If and in so far as nothing to the contrary has been agreed by the parties in writing, the respectively applicable statutory regulations shall apply as regards acceptance and goods-inward checks / incoming inspection
1. The goods will be contractually conform if, at the time of the passing of risk, they do not deviate or deviate only immaterially from the specification, agreed in writing. Contractual conformity and freedom from defects of the goods will be based exclusively on the express written agreements concerning the specification, quality and quantity of the goods ordered. A warranty for a specific use or specific suitability will only be assumed in so far as this has been expressly agreed in writing; in other respects, the risk of suitability and use lies exclusively with the Customer. As a fundamental rule, only the product description of Eschmann Textures International in its information shall apply as agreed as condition of the goods.
2. Given the presence of a material defect, Eschmann Textures International will, at its choice and taking account of the interests of the Customer, provide subsequent fulfilment through either replacement delivery or repair. If the subsequent fulfilment by Eschmann Textures International is not carried out successfully within an appropriate period, the Customer can set an appropriate deadline for subsequent fulfilment. Following unsuccessful expiry of this deadline, it can either reduce the selling price or withdraw from the contract; no farther-reaching claims exist. In the event of complaints, the Customer must grant Eschmann Textures International an immediate opportunity to check the goods subject to complaint; on request, the goods subject to complaint or a sample thereof must be provided to Eschmann Textures International. The expense necessary for checking and subsequent fulfilment, in particular transport, travel, labour and material costs (not installation and dismantling costs), will be for the account of Eschmann Textures International if a defect is actually present. If, however, a request by the Customer for removal of a defect proves to be unjustified, Eschmann Textures International can demand reimbursement by the Customer of the costs incurred.
Complaints based on defects can only be asserted in cases of substantial material and production defects that were already present before the passing of risk, and which exclude or significantly reduce suitability for use in accordance with the contract. If Eschmann Textures International has provided the Customer with specifications concerning quality and material of the moulds to be processed in the contractual agreement, compliance with these specifications and the material quality presupposed for the processing shall be the responsibility of the Customer.
If necessary or requested by Eschmann Textures International, the Customer must confirm the presence of these qualities, or document these through certificates of the manufacturer or supplier if applicable. If defects occur on the work as a result of the absence of such quality characteristics, the warranty as well as any other liability of Eschmann Texture International for these shall be excluded.
If Eschmann Texture International ascertains the absence of or deviations from quality characteristics, Eschmann Texture International shall inform the Customer of this. In such cases, the contract parties shall agree the next steps as well as possible adjustment of the agreed dates and deadlines. Costs and delays to the order processing resulting from this shall be for the account of the Customer. Eschmann Textures International shall only be obliged to check the quality characteristics if and in so far as this has been agreed expressly and in writing with the Customer. Eschmann Textures International shall assume no warranty for defects arising that have been or are caused by unsuitable or incorrect use, incorrect assembly or commissioning and use by the Customer or a third party.
This shall also apply as regards consequences of normal wear and tear, incorrect or negligent treatment, in particular excessive strain, unsuitable operating materials, insufficient or incorrect cleaning and care as well as other chemical, atmospheric or other influences outside the risk area of Eschmann Textures International.
4. The Customer is obliged to deliver moulded parts to be etched in completely dismantled condition. In the event of the Customer delivering incompletely dismantled work pieces for etching, all liability of Eschmann Textures International for damages, incurred during dismantling prior to etching or during reassembly following etching, shall lapse. The etching of moulds can lead to changes in the dimensions and weight of the moulded products compared to when in a non-etched condition. Liability for this change is excluded.
5. The warranty period is one year from acceptance or delivery of the goods, whichever occurs first.
6. Contents of the agreed specification and any expressly agreed use will not constitute a guarantee; the assumption of a guarantee requires a written agreement. The Customer shall not receive other guarantees in the legal sense from Eschmann Textures International.
VII. Retention of title
1. Eschmann Textures International will retain title to the goods until such time as complete payment is received for all current and future claims under the contract and any ongoing business relationship (secured claims). If the goods/contractual item is/are a processing performance, Eschmann Textures International shall acquire joint ownership of the order product in the amount of the invoice value. The following rulings on retention of title will apply in full to the joint ownership.
2. This ownership right will be reserved until such time as all outstanding claims under the current business relationship with the Customer have been settled. The goods subject to retention of title must not be pledged to third parties or ownership thereof transferred to third parties by way of security prior to complete payment of the secured claims. The customer is obliged to notify Eschmann Textures International in writing of any third party access to the goods, including, without limitation, in case of a pledge or foreclosure as well as any damage or loss of the goods. The Customer must notify Eschmann Textures International immediately and in writing of both a change of ownership as well as a change of its registered office.
3. In the event of contract-violating conduct by the Customer, in particular non-payment of the due selling price/work remuneration, Eschmann Textures International will, in accordance with the statutory regulations, be entitled to withdraw from the contract and to demand handover of the goods, based on the retention of title and the withdrawal. If the Customer does not pay the due selling price/work remuneration, Eschmann Textures International can only assert these rights if it has previously unsuccessfully set the Customer an appropriate deadline for payment, or if any such setting of a deadline is unnecessary under the statutory regulations.
4. The Customer is authorised to make onward sale of and/or to process the goods subject to retention of title in the orderly course of business. In this case, the following provisions will apply in extension.
a. All goods delivered will remain the property of Eschmann Textures International (conditional commodities) until fulfilment of all claims, in particular also the respective balance claims, to which Eschmann Textures International is entitled within the scope of the business relationship. This also applies to future and conditional claims, e.g. from acceptor’s bills of exchange.
b. Processing and treatment of the conditional commodities will be performed for the Customer, as manufacturer as defined in Section 950 BGB, without obliging Eschmann Textures International. The processed and treated goods will apply as conditional commodity as defined in Number 4.a.
c. In the event of processing, joining and mixing of the conditional commodity by the Customer with other goods, Eschmann Textures International will be entitled to joint ownership of the new item in the ratio of the invoice value of the conditional commodity to the invoice value of the other goods used. If Eschmann Textures International’s ownership lapses through joining, mixing or processing, the Customer hereby transfers henceforth to Eschmann Textures International the ownership or expectant rights, to which it is entitled to the new inventory or to the item, in the scope of the invoice value of the conditional commodity – in the event of processing, in the ratio of the invoice value of the conditional commodity to the invoice value of the other goods used – and will keep this for Eschmann Textures International free of charge. The joint ownership rights of Eschmann Textures International will apply as conditional commodity as defined in Number 4.a.
d. The Customer is entitled to make onward sale of the conditional commodity only in the ordinary course of business, subject to its normal terms and conditions of business and as long as it is not in default, provided it reserves title and the claims from the onward sale pass to the seller. It is not entitled to dispose of the conditional commodity in any other manner. Use of the conditional commodity for the fulfilment of contracts for work and services/contracts for work and materials also applies as onward sale.
5. To cover the event of damage to the work item/conditional commodity or other impairments, the Customer hereby henceforth makes advance assignment to Eschmann Textures International of its claims to damages against the damaging party or any insurance company. The latter hereby accepts the assignment.
6. The Customer shall not acquire any right to these items through the remuneration of cost shares for tools, films, drafts etc. These shall remain the property of Eschmann Textures International.
1. In the absence of any ruling to the contrary in the present Terms and Conditions of Business, Eschmann Textures International will only be liable in cases of intent or gross negligence on the part of its legal representatives or vicarious agents as well as in cases of culpable violation of essential contractual obligations, but then only for contractually typical, foreseeable damage.
2. As a fundamental rule, Eschmann Textures International shall be under no obligation to examine and check the items delivered by the Customer for processing; this shall also apply even if and in so far as Eschmann Textures International has already demanded specific information or specifications within the scope of the conclusion of contract. As such, Eschmann Textures International shall only be liable if it intentionally or grossly negligently fails to recognise obvious unsuitability or defects, and does not provide the Customer with further information.
3. The above limitations of liability do not apply in cases of injury to life, limb and health; claims based on personal damage or damage to privately used items under the product liability law are unaffected.
4. No entitlement applies to compensation for damages, not incurred to the goods, in cases of slight negligence, unless achievement of the contractual purpose is endangered. This exclusion of liability applies to contractual and extra-contractual liability. This exclusion of liability does not cover contractually typical consequential damage.
5. The Customer can only withdraw from or terminate the contract due to a violation of obligations that does not constitute a defect, if Eschmann Textures Inter-national is responsible for the violation of obligations. A free right of termination for the Customer (in particular as per Sections 651, 649 BGB) is excluded. In other respects, the statutory preconditions and legal consequences shall apply.
IX. Protected privileges
If the contractual items are produced on the basis of information (templates, samples, drafts etc.) from the Customer, the Customer shall indemnify Eschmann Textures International in full against all claims, asserted by third parties on the basis of any protected privileges or other rights.
Eschmann Textures International is entitled to offer corresponding contractual items to third-party Customers. Eschmann Textures International shall not be liable for the freedom of other contractual items from protected privileges or other rights of third parties.
X. Intellectual property
Drawings, drafts, sculptures, samples and similar documents, prepared by Eschmann Textures International, are its intellectual property. These must not be made accessible to third parties. Drawings, samples, drafts and other documents enclosed with the quotations must be returned to Eschmann Textures International automatically.
XI. Place of performance and place of jurisdiction
1. Place of performance for the reciprocal obligations is Gummersbach.
2. In so far as permissible by law, the place of jurisdiction for both contract parties is Gummersbach. This also applies to legal action concerning the law on cheques and bills of exchange. The legal relationship between the parties shall be governed exclusively by German law, subject to the exclusion of the conflict of law’s provisions and subject to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (Vienna CISG Convention) dated 11 April 1980..
XII. Evidence of export
If a Customer, based outside the Federal Republic of Germany (ex-territorial Customer), or its authorised representative, collects goods or sends them to the ex-territorial area, the Customer must provide Eschmann Textures International with the evidence of export required for tax purposes. If this evidence is not provided, the Customer will then be required to pay the value added tax, at the rate applicable to deliveries within the Federal Republic of Germany, on the invoice amount.
XIII. Export Control
The Customer is aware and shall fully comply with all national and international export and re-export control laws and regulations, sanctions and embargoes, as amended from time to time, including without limitation, any restrictions on domestic transactions, brokering services and anti-circumvention prohibitions, that apply directly or indirectly to its activities (including re-sale of our products), as well as voestalpine Group’s internal resolutions – to the extent made available to the Customer – in regard to the supply of products or services to specified countries, specified end users or for specified end uses.
XIV. Concluding provisions
1. Should Eschmann Textures International temporarily waive implementation of individual provisions, in full or in part, this will not constitute renunciation of subsequent assertion as well as the application of these General Terms and Conditions as a whole.
2. Should one or more provisions of these General Terms and Conditions be or become ineffective, unlawful or infeasible, either in part or in full, the validity of the General Terms and Conditions as a whole shall remain unaffected. The ineffective, unlawful or infeasible provision shall automatically apply as replaced by a provision that corresponds as closely as possible in terms of content and purpose to the ineffective, unlawful or infeasible provision.