Terms & Conditions

General – Scope

  1. These sales, delivery, and payment terms and conditions apply to all business relationships with our customers, provided that the customer is an entrepreneur (§14 BGB), a legal entity under public law, or a special public fund.
  2. Unless otherwise agreed, the sales, delivery, and payment terms and conditions in effect at the time of the customer’s order also apply to similar future contracts.
  3. About our customers, only our sales, delivery, and payment terms and conditions apply. Deviating, conflicting, or supplementary terms and conditions of the customer will only become part of the contract if we have expressly agreed to their validity. This requirement for consent applies in all cases, even if we execute a contract in the knowledge of the customer’s terms and conditions without making a reservation.
  4. Individually made agreements with the customer (including collateral agreements, supplements, and amendments) take precedence over these sales, delivery, and payment terms and conditions. The content of such agreements is determined by a written contract or confirmation, subject to evidence to the contrary.
  5. Statements and notifications that the customer is required to make to us after the conclusion of the contract (e.g., setting deadlines, reporting defects, declarations of withdrawal or reduction) require the text or written form to be effective.
  6. References to the applicability of legal provisions are for clarification purposes only. Therefore, even without such clarification, the legal provisions apply unless they are modified or expressly excluded from these terms and conditions.

Offers and Conclusion of Contract, Scope of Services

  1. Our offers are non-binding. The order is considered a binding offer. Acceptance is made within four weeks by sending an order confirmation or by providing the ordered deliveries without reservation.
  2. The technical data and descriptions in the respective product information or promotional materials do not constitute quality or durability guarantees for the goods we are to deliver. However, they must be observed during processing.
  3. In the case of sales based on samples or trials, these merely describe proper trial suitability but do not constitute a guarantee for the goods to be delivered by us.
  4. All ancillary agreements to the purchase contract, especially verbal agreements, information, recommendations, advice, and other agreements with our employees, only bind us with written or form confirmation; they do not constitute a consulting contract unless expressly agreed upon in writing.

Prices, Payment Terms, Default in Payment

  1. The prices agreed upon after the respective contract, particularly those indicated in the order confirmation, or as per our current price list, shall apply. In addition to these prices, the value-added tax applicable on the day of delivery at the respective statutory rate, as well as the costs for proper shipping, transportation costs from our factory or warehouse, handling charges, and, if agreed upon, the costs of transportation insurance, are added. For international deliveries, country-specific charges may apply.
  2. We reserve the right to adjust the agreed prices proportionally to the development of costs for raw materials, transportation, and energy.
  3. Our invoices are payable within 30 days net. Upon expiration of the due date indicated on the invoice, the purchaser shall be in default without further reminder.
  4. The purchaser shall only be entitled to set-off or retention rights if their counterclaims have been legally established or acknowledged in writing. The right of retention shall furthermore only exist if the asserted counterclaim is based on the same contractual relationship as our claim.
  5. If the purchaser fails to pay overdue invoices, exceeds a payment deadline, or if the purchaser’s financial circumstances deteriorate, we are entitled to declare the entire remaining debt of the purchaser due and payable and, with modification of the agreements made, to demand advance payment or security deposit or, after delivery, immediate payment of all our claims based on the same legal relationship.

Delivery and Performance Time, Default in Performance

  1. Agreed delivery deadlines are approximate unless expressly agreed upon in writing as fixed dates. If delivery deadlines are exceeded due to circumstances for which we are responsible, the purchaser may withdraw from the contract in writing after fruitlessly setting a reasonable grace period.
  2. We are only considered to be in default after the expiry of a reasonable grace period set by the purchaser. In cases of force majeure and other unforeseeable circumstances beyond our control, such as operational disruptions, failure of production facilities, delays or delivery failures by our suppliers, as well as interruptions in operations due to shortages of raw materials, energy, or labor, strikes, lockouts, difficulties in procuring transportation, traffic disruptions, and government interventions, we are entitled to postpone delivery or performance for the duration of the hindrance plus a reasonable lead time. If this delay exceeds one month, both we and the purchaser are entitled, excluding any claims for damages, to withdraw from the contract in writing regarding the quantity affected by the delivery disruption, under the conditions outlined in Section VIII of these terms of sale.
  3. In each case of default, our liability for damages is limited by the provisions in Section VIII.
  4. We are entitled to reasonable partial deliveries and partial performances within the agreed delivery times.
  5. We reserve the right to plead non-performance of the contract.

 Transfer of Risk, Transportation, and Packaging Costs

  1. Unless expressly agreed otherwise in writing, delivery is made from our factory or warehouse, and the purchaser is responsible for collecting the goods at their own risk and expense. In this case, the risk of accidental loss and deterioration passes to the purchaser upon notification of availability for collection.Otherwise, the risk of accidental loss and deterioration of the delivered goods passes to the purchaser upon transfer to the carrier.
  2. Rental containers and packaging must be returned by the purchaser, completely emptied and free of freight charges, within 60 days. Loss and damage of rental containers and packaging are the responsibility of the purchaser. Rental packaging and containers must not be used for other purposes or for containing other products. They are exclusively intended for the transport of our delivered goods. Labels must not be removed. Disposable packaging will not be accepted for return by us. Instead, we will provide the purchaser with information about a third party who will accept the packaging in accordance with packaging regulations.

Obligations of the Purchaser/Retention of Title Security

  1. The delivered goods remain our property until full payment of the purchase price and all outstanding invoices. Including the purchase price claim against the purchaser in an ongoing account and acknowledging a balance do not affect the retention of title.
  2. The purchaser is obliged to handle the purchased item with care; in particular, to insure it at their own expense against loss, damage, and destruction up to the new value. The purchaser hereby assigns their claims from insurance contracts to us. We accept this assignment.
  3. The purchaser may not pledge or transfer ownership of goods belonging to us as security. However, they are entitled to resell and process the delivered goods in the ordinary course of business. This entitlement does not apply if the purchaser has assigned or pledged the claims arising from the resale/processing of the goods in advance to a third party or agreed to a prohibition of assignment with them.
  4. To secure the fulfillment of all our claims arising from the legal relationships with them, the purchaser hereby assigns all – also future and conditional – claims arising from the resale/processing of the goods delivered by us, including all ancillary rights, to the extent of 110% gross of the value of the delivered goods, with priority over the remaining part of their claims. We accept this assignment and are entitled at any time to disclose it.
  5. As long as and to the extent that the purchaser complies with their payment obligations towards us, they are entitled to collect the assigned claims against their customers. In these cases, the purchaser is obliged to immediately forward the amounts collected from assignments to us, or if this is not possible, to keep them in trust for us separately. The authority to collect expires if the purchaser is in default with more than 25% of all their payment obligations towards us for more than 14 days.
  6. Upon our request, the purchaser must inform their debtors of the assignment made and request them to pay us up to the amount of our claims against the purchaser. We are entitled to notify the purchaser’s debtors of the assignment ourselves at any time and to collect the claims. We will not exercise this right as long as the purchaser complies with their payment obligations without delay. In case of default in payment by the purchaser, they must, upon request, inform us of the assigned claims and their debtors, provide all necessary information for the collection of claims, and hand over the documents necessary for the collection of claims.
  7. In the event of seizures or other interventions by third parties, the purchaser must notify us immediately in writing.
  8. The processing or transformation of the goods delivered by us under retention of title is always carried out for us, without this resulting in any obligations for us. If the goods delivered by us under retention of title are processed, mixed, or combined with other items not belonging to us, we acquire co-ownership of the new item in proportion to the value of the goods delivered by us to the other items. The purchaser holds the resulting sole ownership or co-ownership for us. The purchaser hereby assigns their claims from the sale of these new products, on which we have proprietary rights, to us as security to the extent of our share of ownership in the sold goods. If the purchaser combines or mixes the delivered goods with a main item, they hereby assign their claims against the third party to us up to the value of our goods. We accept these assignments.
  9. We undertake to release the securities to which we are entitled at our discretion upon the purchaser’s request to the extent that the realizable value of our securities exceeds our secured claims against the purchaser by more than 20%.
  10. In the event of the purchaser’s breach of contract, especially in the case of default in payment of more than 10% of the invoice amount for more than 14 days, or in the event of an application for insolvency, we are entitled to rescind the contract and demand the return of the goods delivered by us. In this case, the request for return simultaneously constitutes the declaration of rescission.

Purchaser’s Rights in Case of Defects

  1. Visible defects, incorrect deliveries, and quantity deviations must be reported to us by the purchaser immediately, but no later than seven days after receipt of the goods by the purchaser, in writing; otherwise, the goods are deemed approved. Hidden defects must be reported to us immediately, but no later than seven days after their discovery, in writing. The buyer has the obligation, if necessary through sample processing, to verify whether the goods delivered under the Sales, Delivery, and Payment Conditions are free from defects and suitable for the intended use. This also applies if components are added that were not obtained from us. If any defects are only discovered during processing, work must be stopped immediately, and the unused original containers must be secured. They must be made available to us for inspection upon request. After three months from the transfer of risk to the purchaser according to Clause V.1, objections to hidden defects are excluded and are considered belated if they should have been recognizable to a reasonable extent. In the case of a belated complaint about defects, the purchaser loses their rights to defects under the conditions of Clause VIII, unless the defect has been fraudulently concealed by us.
  2. In the event of defects in goods delivered by us, we are only obliged, at our discretion, to rectification or delivery of defect-free goods (subsequent performance), unless we are guilty of intent or gross negligence. If we are unwilling or unable to rectify the defect, in particular, if this is delayed beyond reasonable deadlines for reasons attributable to us, or if the rectification otherwise fails, the purchaser is entitled, at their discretion, to withdraw from the contract or demand a reduction in the purchase price. Rectification is considered to have failed after the third attempt.

Rights and Obligations of Our Company

  1. Our company’s liability for damages or wasted expenses, regardless of the legal basis, only arises if the damage or wasted expenses: a) have been caused by us or one of our agents through culpable breach of a material contractual obligation, or b) can be attributed to grossly negligent or intentional breach of duty by us or one of our agents. In accordance with Clause VIII. 1 a) and b), we are liable for damages or wasted expenses caused by advice or information not separately remunerated, only in cases of intentional or grossly negligent breach of duty, provided that this breach of duty does not constitute a defect according to § 434 of the German Civil Code (BGB) of the goods delivered by us. We are liable according to Clause VIII. 1 a) for the breach of a material contractual obligation, if there is no gross negligence or intent involved. In this case, our liability for damages is limited to the foreseeable, typically occurring damage.
  2. In this case, we are not liable, in particular, for the purchaser’s lost profits and unforeseeable consequential damages. The above liability limitations according to sentences 1 and 2 apply equally to damages caused by gross negligence or intent of our employees or agents. We are not liable for indirect damages of the purchaser, arising from the assertion of penalty claims by third parties.
  3. If we are liable according to Clause VIII. 1 b) for the breach of a material contractual obligation, our liability is limited in amount to the amount covered by an appropriate insurance, unless gross negligence or intent is involved.
  4. The above liability limitations mentioned in Clauses VIII. 1 to 3 do not apply in cases where our liability is mandatory under the provisions of the Product Liability Act or when claims are made against us for injury to life, body, or health. If the goods delivered by us lack a guaranteed property, we are only liable for damages whose absence was the subject of the guarantee.
  5. Any further liability for damages beyond that provided for in Clauses VIII. 1 to 4 is excluded. This applies in particular to claims for damages arising from fault in concluding a contract according to § 311 para. 3 BGB, positive breach of contract according to § 280 BGB, or claims according to § 823 BGB.
  6. To the extent that this liability for damages is excluded or limited in accordance with Clauses VIII. 1 to 5, this also applies with regard to the personal liability for damages of our employees, workers, staff, representatives, and agents as well as auxiliary persons.

Limitation Period for Claims

  1. Claims by the purchaser due to defects or improperly rendered services – including claims for damages and claims for reimbursement of wasted expenses – shall become time-barred within one year from the statutory commencement of the limitation period, unless otherwise provided in the following Clauses IX. 2 to 5.
  2. If the purchaser is a business entity and has fulfilled claims of a consumer based on defects in newly manufactured goods supplied by us, which have also been supplied as newly manufactured goods to a consumer by the purchaser or another buyer in the supply chain who is also a business entity, the limitation period for the purchaser’s claims against us commences two months after the point in time at which the purchaser or the other buyer in the supply chain who is also a business entity has fulfilled the consumer’s claims, unless the purchaser could have successfully invoked the defense of limitation against its customer/contractual partner. The limitation of the purchaser’s claims against us due to defective goods supplied by us occurs in any case if the claims of the purchaser’s customer/contractual partner due to defects in the goods supplied by us to the purchaser have become time-barred, but in the case of building materials, no later than five years after the point in time at which we delivered the respective goods to our purchaser, and for other materials, one year after this point in time.
  3. In the case of newly manufactured goods supplied by us that have been used for a building in accordance with their usual purpose and have caused its defectiveness, the purchaser’s claims become time-barred within five years from the statutory commencement of the limitation period. Deviating from sentence 1, a limitation period of four years applies to buildings and two years to other works whose success consists in the production, maintenance, or modification of a thing, provided that the purchaser has included the goods supplied by us for the fulfillment of contracts in which Part B of the Construction Contract Procedures has been entirely incorporated. The limitation period according to the preceding sentence 2 begins at the earliest two months after the point in time at which the purchaser has fulfilled the claims arising from the defectiveness of the building caused by the goods supplied by us to its contractual partner unless the purchaser could have successfully invoked the defense of limitation against its customer/contractual partner. The limitation of the purchaser’s claims against us due to defective goods supplied by us occurs in any case as soon as the claims of the purchaser’s customer/contractual partner against the purchaser due to defects in the goods supplied by us to the purchaser have become time-barred, but no later than one year after the point in time at which we delivered the respective goods to our purchaser.
  4. If we have improperly provided advice and/or information not separately remunerated, without having delivered goods in connection with the advice or information or without the improper advice or information constituting a defect within the meaning of § 434 of the German Civil Code (BGB) of the goods supplied by us, claims based thereon against us become time-barred within one year from the statutory commencement of the limitation period. Claims of the purchaser/customer against us arising from the breach of contractual, pre-contractual, or legal obligations that do not constitute a defect within the meaning of § 434 BGB of the goods to be delivered or delivered by us also become time-barred within one year from the statutory commencement of the limitation period. To the extent that the aforementioned breaches of duty constitute a defect within the meaning of § 434 BGB of the goods supplied by us in connection with the advice or information, the regulations made in Clauses 1 to 3 and 5 shall apply to the limitation of the claims based thereon.
  5. The provisions made in Clauses 1 to 4 do not apply to the limitation of claims due to injury to life, body, or health, nor to the limitation of claims under the Product Liability Act and for legal defects of the goods supplied by us, nor to the limitation of claims of our purchaser/customer based on the fact that we fraudulently concealed defects in goods supplied by us or that we intentionally or grossly negligently violated a duty. In the cases mentioned in this Clause IX. 5, the statutory limitation periods apply to the limitation of these claims.

Returns

The return of defect-free goods delivered by us is excluded.

Assignment Prohibition

Rights or claims against us, especially those concerning defects in goods supplied by us or breaches of duty committed by us, may not be assigned or pledged to third parties, either wholly or in part, without our express written consent; Section 354a of the German Commercial Code (HGB) remains unaffected.

Place of Performance, Jurisdiction, Applicable Law, Trade Terms

  1. The place of performance and exclusive place of jurisdiction for all claims between us and merchants or legal entities under public law or special funds under public law is the registered office of the company, unless mandatory legal provisions oppose this.
  2. The legal relationship between us and the buyer shall be governed exclusively by the law of the Federal Republic of Germany. The application of the provisions on international sale of goods and German private international law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG), is expressly excluded.
  3. Insofar as trade terms according to the International Commercial Terms (INCOTERMS) are agreed upon, the INCOTERMS 2020 in their latest version shall apply.

Final Provisions

  1. Should individual provisions of the foregoing provisions be or become invalid, partially invalid, or excluded by a special agreement, the validity of the remaining provisions shall not be affected thereby.
  2. We process personal data in accordance with the EU General Data Protection Regulation and the German Federal Data Protection Act. All information can be found in the privacy policy at https://www.epodex-industries.com/.
  3. Our delivery address is: EPODEX GmbH, Duisburger Straße 36, 47829 Krefeld (Germany), HRB 18671, Local Court of Krefeld, VAT ID: DE327131753, Managing Director: Marko Baric.
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