Terms and Conditions
1. AREA OF APPLICATION
1.1 These General Terms and Conditions are applicable for the duration of the business relationship between enders Ingenieure GmbH and the contracting party for all services to be rendered by enders Ingenieure GmbH. They shall also apply to all future business transactions with the contracting party.
1.2 These General Terms and Conditions shall apply exclusively; any contradicting or deviating terms and conditions of the contracting party are not recognised unless their applicability has been expressly approved in writing by enders Ingenieure GmbH. Our General Terms and Conditions also apply if we implement the delivery without reservation while being aware of any conditions of the customer contradicting or deviating from our General Terms and Conditions.
2. OFFERS AND DOCUMENTS
2.1 The offers of enders Ingenieure GmbH are without obligation until the final confirmation of order.
2.2 The order of the contracting party is a binding offer which we can accept within one week by sending a confirmation of order.
2.3 enders Ingenieure GmbH reserves the rights of ownership and exploitation of copyright in any cost estimates, drawings, application proposals and other documents without limitation. These documents may only be disclosed to third parties with the prior written approval of enders Ingenieure.
3. PRICES/TERMS OF PAYMENT
3.1 Prices can be agreed upon as fixed price, as target price and according to an hourly rate; they are generally indicated excluding statutory VAT.
3.2 If the scope of the respective work performance is modified during the order processing upon mutual agreement, in particular if it is extended, enders Ingenieure GmbH can demand a corresponding adjustment of the agreed prices and remunerations, in particular an increase of such sums. Unilateral modification of the scope of the order by the contracting party is excluded.
3.3 Unless otherwise agreed, enders Ingenieure GmbH is entitled to demand an appropriate advance payment at their own reasonable discretion and to send partial invoices for contractual services already rendered and/or depending on the progress of the service.
3.4 All invoices issued by enders Ingenieure GmbH are payable within 14 days net.
3.5 The contracting party shall only be entitled to offset any sums if their counterclaims have been determined in a legally effective manner, are undisputed and acknowledged by enders Ingenieure GmbH. The contracting party shall only be entitled to make use of a right of retention if their counterclaim is based on the same contractual relationship.
4. SHIPMENT AND TRANSFER OF RISKS
Unless otherwise agreed, delivery “ex works” is deemed agreed upon. The shipment is implemented by enders Ingenieure GmbH on the account and at the risk of the contracting party as desired. enders Ingenieure GmbH shall not assume any responsibility for transportation problems of any kind.
5. DEADLINES/OBLIGATION TO COOPERATE
5.1 If no deadlines have been agreed upon, enders Ingenieure GmbH shall determine them at their own reasonable discretion.
5.2 If the contracting party fails to comply with their obligations to cooperate within due time, in particular with their obligation to provide the required documents, information and data, they shall bear the costs for any resulting delays.
5.3 The contracting party shall assume liability towards enders Ingenieure GmbH for the fact that the services provided by them and the documents, information, data and objects provided in the framework of the cooperation are free from any third-party property rights which would exclude or limit any use by enders Ingenieure GmbH according to the contract.
5.4 In the event of strikes and force majeure, the period for rendering the services shall be prolonged by the duration of such obstruction as well as a reasonable start-up time. If, due to the circumstances indicated, a rendering/implementation of the services becomes impossible or unreasonable, enders Ingenieure GmbH shall be exempted from their contractual obligations.
6.1 The contracting party and enders Ingenieure GmbH are mutually obliged to treat all information with respect to business and operative matters of the respective other party with strict confidentiality and to only use such information in the framework of the intended purpose of the respective order received. In the framework of this intended purpose, enders Ingenieure GmbH is entitled to disclose the information to third parties.
6.2 The confidentiality obligation shall continue to apply after the order has been settled. It shall cease to apply if and insofar as the knowledge provided in the figures, drawings, calculations and other documents provided has become generally known.
7. LIABILITY (FOR DEFECTS) / DAMAGES (LIABILITY FOR DAMAGE)
7.1 enders Ingenieure GmbH shall pay damages, irrespective of the respective legal basis, according to the following principles exclusively:
7.2 enders Ingenieure GmbH shall assume unrestricted liability in the event of intent and gross negligence for any damage resulting from an infringement of their due diligence.
7.3 In cases of ordinary negligence, enders Ingenieure GmbH shall assume liability for the infringement of their main contractual obligations for the typical damage foreseeable upon conclusion of the contract. Additionally, the liability is restricted to EUR 800,000 for each infringement in the event of material damage and loss. In the event of negligent damage based on the same infringements, the liability is restricted to a total of EUR 800,000 even if the infringements take place over several years.
7.4 Apart from that, the liability for damages is excluded regardless of the legal nature of the claim raised. In particular, enders Ingenieure GmbH shall thus not assume any liability for unforeseeable damage, consequential damage of defects, other indirect damage and damage due to a loss in profits.
7.5 Any damage claims of the contracting party shall come under the statute of limitations within 12 months.
7.6 The restrictions and limitations according to paragraphs 7.3, 7.4 and 7.5 shall not apply in the event of death, bodily injury and damage to health, liability based on written guarantees as well as other binding statutory provisions.
8. RIGHTS OF USE
For all work and work results developed by enders Ingenieure GmbH on behalf of the contracting party, enders Ingenieure GmbH shall grant the contracting party the exclusive and perpetual right to use them in the scope described in the respective order once full payment has been made.
9. RETENTION OF TITLE
9.1. We retain the title in the goods until the full payment of the purchasing price as well as of any other claims resulting from the business relationship with the ordering party payable at the point in time of the conclusion of the contract. A processing or transformation shall always take place for us but without any obligation for us. Should our ownership be dissolved by combination, it is herewith agreed upon that the ordering party's co-ownership of the resulting item is transferred to us in the proportion of the value The ordering party shall keep our ownership established in this respect free-of charge.
9.2 We authorise the ordering party to dispose of the goods in the framework of a proper business operation, which also includes processing or sale. However, they shall herewith assign all claims to us which they become entitled to in the event of a further sale, processing, transformation or combination towards their purchasers or other third parties, independently of whether the goods have been sold without or after processing, transformation interalia. The ordering party shall remain authorised to collect these claims even after they have been assigned. Our entitlement to collect the claims ourselves shall remain unaffected by this. However, we herewith undertake not to collect any claims as long as the ordering party meets their payment obligations from the proceeds received, unless the ordering party's financial situation deteriorates significantly,the ordering party is in default of payment and, in particular, unless an application for the opening of insolvency proceedings has been submitted or inability to pay is evident. However, if any of these scenarios applies or if another good cause is given, we are entitled to demand the ordering party to indicate the assigned claims and their debtors to us and to provide all information required for collection and all related documents and to indicate the assignation to the debtors. This advance assignment includes the claim as well as ordered securities and any possible claim surrogates (e.g. insurance claims). Any other forms of disposal of the goods are inadmissible and obligate the ordering party to pay damages.
9.3 If the ordering party is in default of payment, we are entitled to take back the reserved goods after having unsuccessfully set a grace period. Such measure does not represent a withdrawal from the contract, and so our claims remain applicable in the previous scope. We remain free to withdraw from the contract, which requires an express declaration. However, the declaration of withdrawal from the contract does not necessitate the setting of another period. If we withdraw from the contract, we are entitled to demand an appropriate remuneration for the duration of the provision for use of the goods.
9.4 In the event of any third-party access to the goods, in particular attachments, the ordering party is obliged to point out our rights and to inform us without undue delay. If third parties are unable to repay any judicial or extrajudicial costs incurred to us in the course of an objection, the ordering party shall be liable for such costs towards us.
9.5 The ordering party is obliged to keep the goods safe for us, to maintain and repair them at their own costs as well as, as in the practices of a prudent businessman, insure them at their own costs against loss and damage. They shall herewith assign all claims resulting from such insurance contracts to us in advance. If maintenance and inspection work is required, the ordering party shall implement such work at their own cost unless otherwise agreed.
10. PLACE OF FULFILLMENT/JURISDICTION/APPLICABLE LAW
10.1 Place of fulfilment for the contractual performance of enders Ingenieure GmbH is the location of the enders Ingenieure GmbH headquarters. The place of fulfilment for payment obligations of the contracting party is the location of the enders Ingenieure GmbH headquarters.
10.2 This contract shall be subject to the laws of the Federal Republic of Germany; the applicability of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
10.3 The exclusive court of jurisdiction for contracts with businesses, corporate bodies organised under public law or a special government-owned fund under public law shall be the competent court for our company headquarters.
enders Ingenieure GmbH