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• General Terms and Conditions

General Terms and Conditions

• These General Terms and Conditions shall exclusively apply, saved as varied by express agreement accepted in writing by both parties. Any conditional or different terms proposed by the customer are objected to and will not be binding upon ELSBETT® unless assented in writing by ELSBETT®. These conditions shall govern any future individual contracts of sale and installation services between the parties.
• A consumer can be any natural person who concludes a legal transaction for a purpose that is allocable neither to his/her commercial nor his/her self-employed professional activity.

• ELSBETT® offers shall not be binding. The customer's orders shall become binding on ELSBETT® upon receipt by the customer of the ELSBETT®'s written order acknowledgment (or invoice or delivery note). Documentation, illustrations, drawings, details of weights, measurements and similar data connected to the offer shall be understood as being merely a guideline, save where they are expressly indicated as binding.
• The customer’s order shall be binding. ELSBETT® may accept this order within two weeks either by submitting an order acknowledgment or delivering the goods to the costumer. The customer shall be responsible for ELSBETT® for ensuring the accuracy of the terms of any order submitted by the customer, and for giving ELSBETT® any necessary information relating to the goods rsp.. installation services within a sufficient time to enable ELSBETT® to perform the contract in accordance with the terms of contract.
• ELSBETT® retains the rights of ownership, copyrights and other industrial property rights as well as its know-how in all of the offer documentation; such documentation may only be made available to third parties with ELSBETT®’ consent and the customer may only use it in compliance with the terms of contract.
• ELSBETT® shall have the right to carry out technical modifications to the goods delivered or installation services rendered, provided that the technical function is not impaired as a result.

• Distance contract means any contract concerning ELSBETT®´s goods or services concluded between ELSBETT® and consumers by using exclusively one or more means of distance communications.
• Means of distance communication means any means which, without the simultaneous physical presence of ELSBETT® and a consumer, may be used for the conclusion of a contract between the parties. (e.g. standard letter, telephone, facsimile).
• If ELSBETT® and a consumer enter in such distance contracts pursuant to III, 1 the consumer may revoke the contract or return the goods delivered only in the original packaging and within two weeks after the delivery of ELSBETT®´s goods. The mailing charges shall be borne by ELSBETT®. Address for return consignments: Elsbett Technologie GmbH, Weissenburger Str. 15, D-91177 Thalmaessing. See enclosed information on the consumer’s right of redemption.

• The prices of ELSBETT® are in the currency “Euro” and on the basis of delivery “ex works”. They are understood to be excluding packing, freight, postage, insurance or other expenses. Packaging will be billed in addition insofar as useable transport containers and similar are not provided by the customer.
• The statutory Value Added Tax (VAT) is not included in the prices. Any VAT applicable will be shown separately in the statutory amount ruling on the date of invoice and shall be borne by the customer.
• ELSBETT® reserves the right to increase its prices correspondingly, if in the period between execution of the contract and completion of the product any increases in costs or cost reductions, in particular as a result of tariff agreements or material price changes, are incurred. ELSBETT® will provide proof of such cost increases or cost reductions to the costumer on request. This provision is not applicable to contracts concluded between ELSBETT® and consumers.

• Unless otherwise stated in the order confirmation, payments shall be effected in advance without any deductions, free place of payment of ELSBETT®.
• Payment shall be effected by interbank or credit card transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.
• The Customer may offset ELSBETT®’s claims solely against undisputed or non-appealable claims. The Customer has a right of retention only if his counter-claim is based on the same contractual relationship and is undisputed or non-appealable, or if Elbett has committed a gross violation of his obligations from the same contractual relationship. However, this provision is without prejudice for the right of the Customer to retain a reasonable part of the purchase price due to defects of ELSBETT®’s performance.

• Delivery or installation service times given by ELSBETT® are non binding unless otherwise expressly agreed in writing.
• The precondition for compliance with the delivery or installation service period is that the customer performs his contractual obligations. The delivery or installation service period commences upon dispatch of the order confirmation but not before all of the details concerning the execution of the order have been clarified, not before provision of all documents, permissions and clearances to be supplied by the customer and not before receipt of any payment agreed upon as well as the performance of any other preconditions individually agreed by the parties by contract for the smooth handling of the order. Otherwise the delivery period shall be reasonably extended; this shall not apply insofar as ELSBETT® is accountable for the delay.
• The delivery period shall be deemed complied with when the goods for delivery have already left ELSBETT® plant or when the customer has been informed that the goods are ready for shipment prior to expiry of such delivery period. The installation service period shall be deemed complied with when the customer has been informed that the installation work has been completed. Correct and punctual supply to ELSBETT® through its upstream suppliers is reserved. If delivery or installation is delayed due to the occurrence of unforeseeable and/or unusual circumstances (force majeure) which it was unable to avert despite reasonable care, then the delivery rsp. installation services period shall be deemed extended accordingly. Whether the disruption occurs in the plant of the supplier or in its upstream supplier’s plant is immaterial. Disruptions are for example sanctions and intervention by governmental authorities, delays in the delivery of supplied parts, energy supply problems or another kind of interruption in the operating facilities. This provision shall apply mutatis mutandis in case of strike and/or lockout. If such disruption continues for longer than two months, the customer shall be entitled to cancel the contract with respect to that part of the contract not yet performed. Any claims for damages on account of the extension of the delivery or installation services period or due to a release and discharge from the obligation to deliver or perform the installation services shall be determined solely in accordance with Section VIII and IX. ELSBETT® may only invoke these circumstances if ELSBETT® has notified the customer thereof immediately.
• If delay occurs on account of circumstances for which ELSBETT® is responsible and if the customer suffers damage as a result, the customer may demand compensation for default for each complete week of delay in an amount of 0.5 %, in aggregate but not exceeding 5 % of the value of that part of the total delivery rsp. installation services which, due to the delay, could not be used on time or not in conformity with the contract. Any compensation apart from this shall be governed solely by Section VIII and IX. The right to rescind the contract after the abortive expiry of a reasonable deadline set shall remain unaffected.
• ELSBETT® shall be entitled to make partial deliveries unless this is unreasonable for the customer.

• Delivery shall be effected ex works unless otherwise expressly agreed. If ELSBETT® is obliged to ship the goods for delivery, it is entitled to determine the type of transportation and the transport route. Insofar it is the customer’s express wish stated in writing, ELSBETT® shall cover the delivery risk by providing transport insurance, the cost of which shall be borne by the customer.
• In the event that dispatch is delayed as a result of circumstances that are the responsibility of the customer, the risk in the goods shall pass to the customer with effect from the date of the notification that the goods are ready for dispatch.

• ELSBETT® warrants pursuant to Sec. VIII para. 2-5 that the goods - corresponding with the state of the art - are free of defects.
• The customer shall examine the goods resp. the installation service work immediately after delivery insofar this can be considered as reasonable in the ordinary course of business and, should a defect be apparent notify ELSBETT® of the defect in writing expressly stating the details of the complaint by using the form “Defect Registration” enclosed to these General Terms and Conditions within two weeks after receipt of the goods or the installation service work. Should the customer fail to notify ELSBETT® of the defect in due time the goods resp. the installation service work shall be deemed to be accepted, unless the defect is of a kind that was not recognizable by the examination. If any such defect first becomes apparent at a later date, notification of the defect with an explicit description of the apparent defect shall be made in writing by using the form “Defect Registration” within one week of the date the subject defect became apparent; otherwise the goods resp. the installation service work shall also in view of this defect be deemed to be accepted. This provision is not applicable to contracts concluded between ELSBETT® and consumers unless the respective defects are obvious. In this case the consumer is also obliged to notify the respective defects to ELSBETT® in writing within the above mentioned time limits; however, the consumer is not obliged to use the form “Defect Registration”.
• The customer’s right to liability claims for defects shall presuppose that he has met his examination and complaint of defect obligations. If the customer is a merchant ELSBETT® shall be obligated - at its discretion – whether to repair or to replace the Goods resp. the installation work if there is a defect of the Goods or the installation services. If the customer is a consumer, Elsbett shall be obligated - at the customer’s discretion - whether to repair or to replace the Goods resp. the installation work, if there is a defect of the goods or installation services. If ELSBETT® completely fails to repair or to replace the Goods resp. the installation work, the customer shall have the right – at its discretion – whether to reduce the price or to rescind from the contract. If the customer is a consumer the statutory provisions of the German civil code shall apply, provided - in case of obvious defects - that the consumer has complied with the time limit according to Sec. VIII.
• No warranty is given for damage arising for the following reasons: Inappropriate or unprofessional use, defective assembly and/or defective connection or putting into operation either by the customer or third parties, natural wear and tear, defective or negligent handling, inappropriate operating resources, replacement materials, chemical, electro-chemical or electrical influences, as long as they are not the responsibility of ELSBETT®. In particular no warranty is given for damage arising from using vegetable oil, which does not comply with the Weihenstephan “Quality standard for rapeseed oil as fuel (RK-Qualitätsstandard) 05/2000”.
• In cases that fall under Sec. 438 para. 1 subparagraph 3 BGB resp. Sec. 634a para. 1 subparagraph 1 BGB (German Civil Code) the customer’s claims based on warranty are subject to a limitation period of 12 month, beginning with the delivery of the Goods resp.. acceptance of the installation work. If the costumer is a consumer the costumer’s claims of warranty are subject to a limitation period of 24 months.
• Any guarantee agreement must be made in writing. A statement of guarantee shall only be effective if it describes the content of the guarantee and the duration and physical scope of guarantee protection in sufficient detail.

• No claims for compensation may be lodged by the customer - including those of a non-contractual nature - for any minor negligent breach of duty by ELSBETT®, its legal representatives or other agents, unless such breach concerns a duty that is crucial for the object of the contract.
• ELSBETT® shall only be liable for indirect damage or damage which could not be foreseen at the time of conclusion of the contract if such damage is due to a gross fault on the part of ELSBETT® or one of its legal representatives or other agents.
• The above limitations shall not apply to damage resulting from death, injury or damage to health. However, this shall not affect the liability for the assumption of a guarantee or pursuant to the product liability law.

• The Customer shall make the final inspection to and accept the installation work as soon as being given notice of the conclusion thereof. Should the installation work prove not to be in conformity with the contract ELSBETT® shall remedy the defect. This shall not apply, though, if the defect is of minor importance with regard to customer’s interests or its cause falls within the customer’s responsibility. Customer may not refuse acceptance because of minor defects.
• Should acceptance be delayed without ELSBETT® being at fault, acceptance shall be deemed to have taken place two weeks after the notice of conclusion of the installation work, if ELSBETT® informed the customer with the notice of conclusion of the installation work on these legal consequences.

• Title to the goods shall not pass to the customer until he has fulfilled all liabilities arising from his business connection with ELSBETT®, which shall include settling accessory claims and claims for damages and checks and bills. Title to the goods shall also remain with ELSBETT® if it claims have been included in a current account and the balance of this account has been struck and acknowledged. In case of contracts with consumers title to the goods shall not pass to the customer until the payment of the complete purchase price.
• If the customer defaults on his obligations to ELSBETT®, ELSBETT® shall have the right, without granting a respite and without cancelling the contract, to demand the return of the goods to which it retains title. Acceptance of the returned goods shall not constitute cancellation of the contract unless ELSBETT® has expressly declared this in writing. If ELSBETT® cancels the Contract, it shall have the right to demand appropriate compensation for having permitted the customer to use the item for a certain period.
• The customer shall be under obligation to provide, on behalf of ELSBETT®, adequate storage of the item to which the ELSBETT® retains title, to service and repair this item at his expense and to insure the same at his expense against loss and damage up to an extent which may reasonably be expected of a prudent businessman. By accepting these Conditions the customer assigns in advance to ELSBETT® any claims which may accrue to it under the insurance policies.
• If goods to which ELSBETT® retains title are processed into new products, the customer shall be deemed to be effecting such processing on behalf of ELSBETT® without thereby acquiring any claims on ELSBETT®. ELSBETT® title shall thus extend to the products resulting from the processing. If goods to which title is retained by ELSBETT® are processed together with, mixed with or attached to goods to which title is retained by third parties or the costumer, ELSBETT® shall acquire co-ownership of the resulting products in the ratio of the invoice value of the goods owned by it (incl. VAT) to the invoice value of the goods owned by those third parties. If the goods, as a result of such mixing or attaching, become part of a principal matter of the customer, the customer, by accepting these Conditions, assigns in advance his title to the new item to ELSBETT®.
• As long as the customer duly meets his liabilities to ELSBETT®, he shall have the right, in the normal course of business, to do as he wishes with the goods to which ELSBETT® retains title. This shall not apply, however, if he and his customers have concluded an agreement according to which the customer must not assign his claims on them to third parties. The customer shall not have the right to pledge, chattel mortgage or otherwise encumber the goods to which ELSBETT® retains title. When reselling the goods, the customer shall make the passing of the title subject to full payment of the goods by his customers.
• By accepting these Conditions, the customer assigns in advance to ELSBETT® any claims which may arise from a resale of the goods to which ELSBETT® retains title, together with any incidental rights and security interests including bills of exchange and checks, so as to provide ELSBETT® with security for all claims he has on the customer as result of the business connection. If goods to which ELSBETT® retains title are sold together with other goods at a single price, the assignment shall be limited to the portion of the invoice value which covers the goods to which ELSBETT® retains title. If the customer sells goods of which ELSBETT® has co-ownership pursuant to clause VII. 3., the assignment shall be limited to the portion of the invoice value which corresponds to ELSBETT®’ co-ownership. If the customer uses goods to which ELSBETT® retains title for processing a third party’s product on a contract basis, in accepting these Conditions he assigns in advance his contractual claim on the third party to ELSBETT® in order to provide it with security for his claim. As long as the customer duly meets his liabilities to ELSBETT®, he may collect claims from a resale or from contract processing himself. He shall not have the right to assign or pledge such claims as security.
• If ELSBETT® believes its claims to be at risk, the customer shall, at ELSBETT®’ request, inform his customers of the assignment of his claims to ELSBETT® and supply ELSBETT® with all necessary information and documents. Any acts of third parties aimed at seizing goods to which ELSBETT® retains title or at appropriating claims assigned to it shall be brought to ELSBETT®’ attention by the customer immediately.
• If the value of the security provided to ELSBETT® exceeds the value of the claims to be safeguarded by more than 20 percent, ELSBETT® shall, at the customer’s request, release security of his own choice accordingly.

• German law shall apply.
• Application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods - both dated July 17, 1973 – and of the UN agreement on the sale of goods of April 11, 1980 shall be excluded.
• Customary trade terms shall be interpreted in accordance with the Incoterms effective at the time.
• Even if it has been agreed that ELSBETT® pays the customs and import duties in the country of destination, any increases in such duties which become effective between the date of the order acknowledgment and delivery of the goods shall be borne by the customer. All other charges, taxes and costs connected with the purchase contract shall also be borne by the customer.

• Place of performance for delivery shall be ELSBETT®’ place of business. Place of performance for payment shall also be ELSBETT®´s place of business.
• Place of jurisdiction for both parties shall be ELSBETT®´s place of business. ELSBETT® shall furthermore have the right to sue the customer at the customer’s general place of jurisdiction.

Elsbett Technologie GmbH / Elsbett AG, Weißenburger Straße 15, D-91177 Thalmässing.

A consumer can be any natural person who concludes a legal transaction for a purpose that is allocable neither to his/her commercial nor his/her self employed professional activity.

The buyer is herewith informed that his/her order is no longer binding for him/her if the goods delivered are returned within the set period or, in case goods cannot be returned by parcel, if the seller is requested to take back the goods within the set period. No reason need be started for a return or a request to take back the goods, both of which have to be addressed to Elsbett Technology GmbH and sent off within two weeks. The set period is regarded as being observed when the goods or the request have been sent off in time.

The set period begins at the point in time at which the buyer received this information on the right of redemption in writing but not before compliance with the duty to supply information in accordance with § 312 section 2 BGB (German Civil Code) and not before receipt of the goods. The costs and risks of the return shipment are borne by Elsbett Technology GmbH/Elsbett AG.

If a buyer exercises his/her right of redemption, good received and any benefits derived there from have to be returned. Instead of redemption, a buyer has to provide compensation if

return is excluded by the nature of the object or benefits concerned,

• the object of purchase received was consumed, sold, charged, processed or modified by the buyer,
• the object of purchase received has deteriorated or perished. The buyer shall provide compensation for any deterioration resulting from the proper use of the object of purchase, this shall not apply if deterioration is exclusively attributable to an inspection of the object of purchase. The buyer can avoid the obligation to provide compensation in conjunction with the deterioration of an object of purchase caused by its proper use by merely inspecting it without putting it in its original package and leaving any price labels, check codes, etc. on the object of purchase.

No obligation to provide compensation shall be incurred if Elsbett Technology GmbH/Elsbett AG is responsible for the deterioration or perishing of the object of purchase or if the damage had likewise occurred had the object of purchase remained the property of Elsbett Technology GmbH. Any further-going claims do not exist.

The set period specified in § 286 section 3 BGB (German code Civil), after which Elsbett Technology GmbH/Elsbett AG is in default of reimbursement of the purchase price, begins with the buyer’s announcement of the return of the object of purchase.

Address for service: Elsbett Technology GmbH/Elsbett AG, Managing Director / CEO: Klaus Elsbett, Weissenburger Str. 15, D - 91177 Thalmaessing