Terms and Conditions
General sales conditions of the etree GmbH
Status: 01/25/2022
1. Scope
These general terms and conditions of sale apply to every contract relating to the sale by Etree to entrepreneurs in which they have been expressly or tacitly included by the contracting parties.
2. Definitions
2.1. “Etree” is the Etree limited liability company based in Cologne
2.2. “Customer” is the contractual partner of Etree,
2.3. “Goods” are the services which are provided by Etree in accordance with the contract. (also: the goods delivery ).
2.4. “Documents” are documents and files of any content (in particular text, calculations, images, drawings)
2.5. “Third party” is anyone who is neither Etree, nor a customer, nor an organ or employee of these two.
2.6. “Essential contractual obligations” are obligations the fulfillment of which enables the proper execution of the contract in the first place and on which the customer can regularly rely, in particular the obligations according to § 433 Paragraph 1 Sentence 1 BGB, obligations from the assumed guarantee (§ 443 BGB) and from the assurance of properties of the purchased item, as well as secondary obligations that are intended to ensure that the purpose of the contract is achieved
2.7. “Terms and Conditions” general terms and conditions
3. Scope, applicable law, terms and conditions of the customer
3.1 German law applies without the reference norms of international private law and to the exclusion of the UN sales law.
3.2. General terms and conditions of the customer only apply insofar as their regulations correspond in content to those of these General Terms and Conditions of Sale of Etree; Otherwise, the customer’s terms and conditions do not apply
4. How to understand explanations of Etree?
Explanations of Etree are to be understood in accordance with the statutory provisions. In particular, the following applies:
4.1 Insofar as an offer from Etree is not designated as a binding offer, this is not to be understood as an offer within the meaning of Section 145 BGB, but as an invitation to the customer to submit an offer.
4.2 Unless otherwise agreed, the delivery dates specified by Etree are non-binding.
4.3 If Etree’s request to submit an offer relates to special or residual items to be delivered by Etree, a corresponding delivery is only possible as long as stocks last.
4.4 Prices in offers from Etree or in requests to submit an offer made by Etree are – unless expressly stated otherwise – to be understood as net prices in euros for goods not packaged for transport from the Etree warehouse in Cologne. In addition to the net prices, the customer has to pay
• the statutory sales tax applicable at the time the contract is concluded,
• the cost of the transport packaging,
• the costs of an agreed shipment including the costs of transport and freight insurance.
4.5 A mere confirmation of receipt by Etree regarding an offer from the customer is not to be understood as an order confirmation / offer acceptance within the meaning of Section 147 BGB. Orders from the customer are only accepted if they have been confirmed by a manager or an authorized representative of Etree. The release of etree about the delivery of the goods, the delivery itself, with the resultant delivery and the related accounting all have to be understood as order confirmation.
5. Self supply reservation
Proper and timely self-deliveries are reserved; Etree’s responsibility for intent or negligence remains unaffected in accordance with the provisions of Section 16. Etree will inform the customer immediately about the late availability of the subject of performance and, if it does not want to adhere to the contract, inform the customer immediately; Etree will then reimburse the corresponding consideration, insofar as this has been provided.
6. Official permits, customs
6.1 It is the sole responsibility of the customer to obtain the necessary official permits at his own expense to accept goods purchased from Etree.
6.2 The customer completes all necessary customs formalities at own expense.
7. Place of performance
7.1 The place of performance is the location of the Etree branch in Cologne.
7.2 Unless otherwise agreed
• The customer has to collect the ordered goods at own expense from the warehouse of the Etree branch in Cologne (Holschuld)
• Etree is not responsible for loading the goods into a means of transport.
7.3 If the customer wishes the goods to be sent, he bears the shipping costs from handover to the transport person, provided these do not exceed the usual amount (e.g. when commissioning UPS or DB-Schenker).
8. Time of performance, delivery delays
8.1 If Etree has not provided the agreed service by a non-binding delivery date (Section 4.2.), The obligation to fulfill the service becomes due with a subsequent request from the customer to Etree. Etree is not in default yet.
8.2 Otherwise, the due date of the performance incumbent on Etree is based on the statutory provisions.
8.3. The customer is entitled to issue a reminder at the earliest three weeks after the due date of the service incumbent on Etree.
9. Partial deliveries
Partial deliveries are permitted as long as they are reasonable for the buyer, whereby the additional shipping costs incurred are borne by Etree.
10. Customer’s obligation to take delivery
10.1 The customer is obliged to accept the goods ordered. This is a primary obligation of the customer. Sections §§ 320 to 326 BGB are to be applied.
10.2 If the customer’s default in acceptance leads to a delay in the delivery of the goods, the customer must reimburse Etree for the storage costs customary at the DB-Schenker forwarding company for the duration of the delay. Instead, Etree is also entitled to store the goods with a shipping company; the customer has to reimburse Etree for the expenses incurred on request.
11. Retention of title
11.1.Etree remains the owner of the goods until all claims to which it is entitled against the customer from the business relationship have been met. The following provisions apply until they are met (Sections 11.2 to 11.13.
11.2. The customer is permitted to process or transform the goods (the delivery item) (“processing”). The processing is done for Etree; However, if the value of the delivery item belonging to Etree is lower than the value of the parts not belonging to Etree and / or the processing, Etree shall acquire co-ownership of the new goods in the ratio of the value (gross invoice value) of the processed delivery item to the value of the other processed items and /or the
processing at the time of processing. If Etree does not acquire ownership of the new goods in accordance with the above, Etree and the customer agree that the customer Etree co-owns the new goods in the ratio of the value (gross invoice value) of the delivery item belonging to Etree to the other processed goods at the time allows processing. The preceding sentence applies
accordingly in the case of the inseparable mixing or connection of the delivery item with goods that do not belong to the customer. Insofar as Etree acquires ownership or co-ownership in accordance with this Section 11.2, the customer shall store the items for Etree with the care of a prudent businessman.
11.3 In the event that the delivery item or the new goods are sold, the customer hereby assigns his claim from the resale against his buyer with all ancillary rights to Etree as a precaution, without the need for further special declarations. The assignment applies including to balance claims. However, the assignment only applies to the amount corresponding to the price of the delivery item invoiced by Etree. The portion of the claim assigned to Etree must be satisfied with priority.
11.4. Until revoked, the customer is entitled to collect the amounts in accordance with the above
Section 11.3. claims assigned to Etree. The customer will immediately forward payments made on the assigned claims up to the amount of the secured claim to Etree. Etree is entitled to revoke the customer’s authority to collect in the event of legitimate interests, in particular in the event of default in payment, suspension of payments, opening of insolvency proceedings, protest against a bill of exchange or justified indications of over-indebtedness or impending insolvency of the customer. In addition, Etree can, after giving prior warning, disclose the assignment by way of security within a reasonable period of time, utilize the assigned claims and demand that the customer disclose the assignment by way of security to the customer.
11.5 During the existence of the retention of title, the customer is prohibited from pledging or transferring ownership of the items subject to retention of title.
11.6 The resale of the delivery item or the new goods is only permitted to resellers in the ordinary course of business and only on the condition that the payment of the equivalent value of the delivery item is made to the customer. The customer must also agree with the customer that the customer only acquires property with this payment.
11.7.Etree is entitled to object to the resale of the object of performance as soon as the customer is in default with the fulfillment of the claims secured by the retention of title; the customer must then refrain from reselling and entering into an obligation to do so.
11.8. If a legitimate interest is substantiated, the customer must provide Etree with the information required to assert his rights against the customer and hand over the necessary documents.
11.9. If the realizable value of all security interests to which Etree is entitled exceeds the amount of all secured claims by more than 10%, Etree will release a corresponding part of the security interests at the customer’s request. It is assumed that the requirements of the preceding sentence are met if the estimated value of the collateral to which Etree is entitled reaches or exceeds 150% of the value of the secured claims. The customer has the choice between different security rights when approving.
11.10.Etree is entitled under the statutory provisions, in particular gem. § 449 Paragraph 2 BGB to freely dispose of the goods subject to retention of title if Etree has previously threatened the customer with this.
11.11 In the event of a breach of duty by the customer, in particular in the event of default in payment, Etree is entitled to demand the return of the goods subject to retention of title or the new goods without withdrawing from the contract; the customer is obliged to surrender. In the request for the return of the goods subject to retention of title / the new goods – unless otherwise stated – there is no declaration of withdrawal by Etree.
11.12 The retention of title does not end when the customer gives Etree a check or bill of exchange in order to settle the debt secured by the retention of title, but only when the debt has expired.
11.13. The customer is obliged to
• treat the goods subject to retention of title with care.
• to inform Etree immediately about measures of foreclosure or other dispositions or interventions by third parties in the object of performance or the new goods – in particular about seizures and confiscations of the same and
to provide the information required for action for intervention in accordance with § 771 ZPO. Insofar as the action for intervention is successful, the customer will reimburse Etree for the costs of the proceedings against the defendant, against the assignment of Etree’s claim for reimbursement, if these prove to be not recoverable from the defendant in the proceedings.
12. Payments by the customer: due date and default
12.1 The due date of the payment entitlement to which Etree is entitled is – unless otherwise agreed – according to the statutory provisions.
12.2. The customer does not fulfill his obligations 8 days after the introduction of the payment deadline without any additional statements from Etree, provided that he did not pay in advance and that he has no right to object to his obligation to pay and he did not put forward any reasonable objections to them.
12.3 In the case of defects, the customer is not entitled to a right of retention unless this is in reasonable proportion to the defects and the expected costs of subsequent performance (in particular, the removal of defects).
13. Obligation to examine and complain
13.1 The customer has received the goods from Etree
to be examined immediately after receipt for defects and recognizable ones
Defects immediately – obvious defects within 5 days at the latest – Defects immediately – obvious defects within 5 days at the latest –
to reprimand Etree. If defects become apparent later, the complaint must be made
immediately – in the case of obvious defects at the latest
within 5 days –
be made to Etree after discovery. The complaint and
examination obligations according to § 377 HGB remain unaffected.
13.2 The
customer extends the examination of the goods to the fact that they are not encumbered with more than the rights assumed
. For this purpose, Etree will provide the customer with the serial numbers of the goods upon request.
Etree will provide the customer with the serial numbers of the goods upon request.
Obligations of the customer that go beyond § 377 HGB
are not justified by this.
13.3 The customer must describe the symptoms of the defects to Etree in text form.
13.4
13.3 The customer must describe the symptoms of the defects to Etree in text form. and 13.2. does not comply in time,
the goods are deemed to have been approved.
14. Warranty
14.1. The customer is not entitled to assert claims and rights due to defects in the goods if the customer has not made due payments due to Etree and the amount due (including any payments made) is in reasonable proportion to the value of the – with defects – Services stands.
14.2. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality or in the case of only insignificant impairment of usability.
14.3. In any case, Etree has the right to choose between remedying the defect and making a new delivery. The customer’s request for supplementary performance must be in writing or in text form. Etree must be granted a period of at least 4 weeks for supplementary performance. The statutory cases of dispensability of setting a deadline remain unaffected.
14.4. If the defective goods need to be repaired, the repair will only fail after the unsuccessful second attempt. If the supplementary performance fails, the customer has the right to reduce the price or, at his option, to withdraw from the contract.
14.5. Insofar as there is a legal obligation to bear the expenses necessary for the purpose of supplementary performance, Etree is not obliged to pay, insofar as they increase due to the fact that the goods are brought to a location other than the customer’s branch; this does not apply if the shipment corresponds to its intended use.
14.6. Without prejudice to further claims of the customer, in the event of an unjustified notification of defects, the customer must reimburse Etree for the expenses for testing and – if requested – for remedying the defect.
14.7. The application of §§ 445a, 445b, 478 BGB (right of recourse of the seller) remains unaffected. This does not affect the customer’s right to claim damages in accordance with Section 16 of these terms and conditions.
14.8. Transport damage must be reported to etree rma@etree.de in term of 48 hours.
15. Resignation
15.1 The customer can only withdraw from the contract within the framework of the statutory provisions if Etree is responsible for the breach of duty. In the event of defects, however, the statutory provisions on withdrawal apply without restriction.
15.2 In the event of a breach of duty, the customer must declare within a reasonable period of time after Etree’s request whether he wishes to terminate the contract.
16. Limitation of Liability
16.1 Limitation of responsibility for delays in delivery In the event of a delay in the performance of Etree, the following provisions of sections 16.1.1 apply. until 16.1.5.
16.1.1.Etree is not responsible for delivery delays for which Etree is not responsible. This also applies to delivery delays due to industrial action. If the obstacle causing the delay in delivery lasts more than three weeks after the applicable binding or prospective non-binding delivery date, both parties are entitled to withdraw from the contract. Legally created earlier
Right of withdrawal remain unaffected.
16.1.2.Etree is liable in the event of a delay in performance in cases of intent or gross negligence on the part of Etree or a representative or vicarious agent as well as in the event of culpable injury to life, body or health in accordance with the statutory provisions. In cases of gross negligence, however, Etree’s liability is limited to the foreseeable damage typical for the contract, unless another of the exceptional cases listed in p. 1 is also present.
16.1.3. If a case of delayed performance is outside of the cases of section 16.1.2 above. before, Etree’s liability for default for damages in addition to the performance is reduced to a total of 10% and for damages instead of performance
(including the reimbursement of wasted expenses) to a total of 25% of the value of the goods not delivered on time – each measured according to the gross invoice amount agreed between Etree and the customer. Further claims of the customer are excluded – even after the expiry of a period set for performance. The limitation and exclusion do not apply in the event of a culpable breach of essential contractual obligations (Section
2.6). The claim for damages for the culpable breach of essential contractual obligations (section 2.6) is limited to the foreseeable damage typical for the contract, unless another case according to section 16.1.2 sentence 1 is given at the same time.
16.1.4. The customer’s right to withdraw from the contract in accordance with section 15 of these terms and conditions remains unaffected.
16.1.5 A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
16.2 Limitation of responsibility in the event of impossibility of delivery In the event of the impossibility of the performance incumbent on Etree, the following provisions of sections 16.2.1 apply. until 16.2.4.
16.2.1.Etree is liable for impossibility of performance in cases of intent or gross negligence on the part of Etree or a representative or vicarious agent as well as in the event of culpable injury to life, limb or health in accordance with the statutory provisions. In cases of gross negligence, however, Etree’s liability is limited to the foreseeable damage typical for the contract, unless another of the cases listed in sentence 1 is also present.
16.2.2. Outside the cases of 16.2.1. Clause 1, the liability of Etree due to the impossibility of damages and reimbursement of wasted expenses is reduced to a total of 30% of the value of the service – in each case measured according to the correct gross
invoice amount for the goods – limited. Further claims of the customer due to the impossibility of delivery are excluded – even after a period of time set for performance has expired. The limitation and exclusion do not apply to
culpable violation of essential contractual obligations (Section
2.6). The claim for damages for the culpable breach of essential contractual obligations is limited to the foreseeable damage typical for the contract, unless another case according to Section 16.2.1. Sentence 1 is given.
16.2.3. The customer’s right to withdraw from the contract in accordance with Section 15 of these terms and conditions remains unaffected.
16.2.4. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
16.3 Limitation of responsibility in other cases Unless the provisions of sections 16.1. and 16.2. are relevant, the following applies to the limitation of Etree’s liability:
16.3.1.Etree is liable in cases of willful intent or gross negligence on the part of Etree or a representative or vicarious agent as well as in the event of culpable injury to life, body or health in accordance with the statutory provisions. In cases of gross negligence, however, Etree’s liability is limited to the foreseeable damage typical of the contract, unless another of the cases listed in the preceding sentence 1 or the sentence 3. n addition, Etree is only liable in accordance with the Product Liability Act, due to the culpable breach of essential contractual obligations (Section 2.6) or if Etree has fraudulently concealed the defect or has assumed a guarantee for the quality of the delivery item.
16.3.2. A claim for damages against Etree for the breach of essential contractual obligations (Section 2.6.) Is limited to the contract-typical, foreseeable damage, if not at the same time another of those in sentence 1 or sentence 3 of the section
16.3.1. listed cases exists.
16.3.3. The provisions of the preceding sections 16.3.1. and
16.3.2. apply – with the exception of those in Sections 16.1. and
16.2 regulated cases (delay in performance / impossibility) – for all claims for damages against Etree (in particular for damages in addition to the performance and compensation instead of the performance), regardless of which
Legal reason, in particular due to defects, breach of obligations from the contractual relationship or from tort. They also apply to claims for reimbursement of futile expenses.
16.3.4. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
17. Saved data
17.1 It is the customer’s responsibility to save the data stored on them on other media before returning the delivered goods to Etree (protection against data loss). It is also the responsibility of the customer to ensure that the data of others whom he has enabled to back up data on the goods. The statutory data protection provisions remain unaffected.
17.2 Before returning the goods, the customer is obliged to free them from his data and from data of others that he has made it possible to save on the goods. If this is impossible, will inform Etree about this, stating the reasons.
17.3.Etree may rely on the observance of the previous sections 17.1. and 17.2. trust. Etree is not obliged to examine returned goods for stored data.
18. Limitation of claims against Etree
18.1 The limitation period for claims and rights against Etree due to defects in the deliveries – regardless of the legal reason – is
18.1.1. In the case of a sales contract for used items, always six months.,
18.1.2. Otherwise one year.
18.2 Each in the cases of Sections 18.1.1. and18.1.2.. The limitation period stated there also applies to all claims for damages against Etree that are related to the defect – regardless of the legal basis of the claim. In addition, the limitation period for claims for damages against Etree is one year.
18.3. Sections 18.1. until 18.2. apply with the following proviso:
18.3.1 The limitation periods of sections 18.1. and 18.2. generally do not apply in the case of fraudulent concealment of a defect or if Etree has assumed a guarantee for the quality of the delivery item.
18.3.2 The limitation periods do not apply to claims for damages
• in cases of culpably caused harm to life, body or health
• in the event of an intentional or grossly negligent breach of duty,
• for claims under the Product Liability Act.
• in the event of a culpable breach of essential contractual obligations (Section 2.6.), Unless the breach of duty consists in the delivery of a defective item.
18.3.3 The statutory statute of limitations for claims of the customer according to §§ 445a, 445b, 478 BGB (right of recourse of the seller) remain unaffected in the event that the final buyer is a consumer.
18.3.4 The limitation period for all claims begins with the delivery of the goods.
18.3.5 Unless expressly stipulated otherwise, the statutory provisions on the start of the statute of limitations, the suspension of expiry, the suspension and the restart of deadlines remain unaffected.
18.4 The limitation periods for claims for damages according to the above provisions also apply to the reimbursement of wasted expenses.
18.5 A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
19. Change in VAT rate – price adjustment
19.1 If the statutory sales tax rate applicable to the goods to be delivered changes after the conclusion of the contract, the remuneration to be paid by the customer is automatically adjusted accordingly if the goods are delivered later than four months after the conclusion of the contract.
19.2 The same applies if the goods are delivered earlier.
20. Ancillary and amending agreements
As far as the contract between Etree and the customer is in writing, electronic
Form or text form has come about, what is laid down in this way reflects the agreements in full. There are no further agreements. to
Additional agreements that have been concluded remain unaffected by this If Etree employees are not authorized to represent
Changes or additional agreements made by them after the conclusion of the contract are only effective if they are confirmed by a person who is entitled to represent Etree. Etree agents are generally not authorized to make such amendments or additional agreements.
21. Offsetting, assignment
21.1. The customer can only offset claims that are undisputed or have been legally established.
21.2. The customer may only assign claims from this contract with Etree’s consent.
22. Place of jurisdiction
22.1 In the case of all disputes arising from the contractual relationship, if the customer is a businessman, the action must be brought to the court that is responsible for the seat of Etree. Etree is also entitled to sue at the customer’s headquarters.