General Terms and Conditions of EPG for Services and Deliveries
1. General, Scope of Application and Hierarchy
1.1 These General Terms and Conditions for Services and Deliveries (hereinafter referred to as “T”) govern the legal relationships between EPG (Engineered nanoProducts Germany) AG or its subsidiaries, in particular the branch office EPG AG Succursale France or AGT GmbH, EPG-F S.A.R.L. and IMC Technologies S.A.S. or future established or acquired companies (each company hereinafter referred to as “EPG”, with EPG referring only to the respective company concluding the contract) and the respective contractual partner.
1.2 The T apply in principle to all services of EPG and the contractual partner, regardless of the type of service and regardless of the legal nature of the underlying contract. These T apply exclusively. EPG does not recognize conflicting or supplementary terms and conditions of the contractual partner, even if EPG does not expressly object to them. The unconditional delivery of goods, the provision of services or the acceptance of payments does not constitute recognition of the contractual partner’s terms and conditions. The contractual partner’s terms and conditions only apply if they are expressly recognized by EPG.
1.3 If other contractual provisions, in particular individual contractual provisions, e.g. in the offer, in the order confirmation or in delivery contracts, contradict these T, the other contractual provisions shall take precedence. Otherwise, the various provisions shall apply side by side.
2. Offer, Conclusion of Contract and Consultation
2.1 EPG’s offers are generally non-binding. Orders and requests of the contractual partner or other agreements with the contractual partner only become binding through written order confirmation or delivery by EPG.
2.2 EPG’s consultation, especially technical application advice, is generally free of charge and non-binding, including with regard to any third-party property rights. The contractual partner is generally required to verify EPG’s information independently.
2.3 At the request of the contractual partner, EPG can also provide paid consultation based on a separate written agreement.
3. Prices, Payment and Default
3.1 Unless otherwise agreed, the prices stated or agreed by EPG are ex works or ex warehouse plus packaging and freight as well as the VAT applicable on the day of delivery.
3.2 If, after conclusion of the contract, the prices and costs underlying EPG’s calculation, in particular for personnel, material, raw materials or energy, have changed such that EPG’s profit (revenue minus expenses) also changes by more than 5%, EPG will adjust the agreed price upwards or downwards from the time of the change in profit to compensate for the change in profit accordingly. In this case, EPG must provide a comprehensible explanation of the change in profit to the contractual partner and will notify the contractual partner of a corresponding change in price. The price change is valid upon receipt of the notification. If the change in profit is based on a circumstance for which EPG is responsible and which contradicts the diligence of a prudent businessman, a price increase may not occur. If the price increase exceeds 10%, the contractual partner has the right to terminate the contract for two weeks from receipt of the notification from EPG. The termination must be in writing. EPG is not obligated to take measures or seek measures that result in a reduction of the agreed prices.
3.3 Invoices are to be transferred to EPG’s account specified in the invoice without deduction no later than 30 days after the invoice date.
3.4 The agreed payment terms are binding for the contractual partner. If the payment deadline is exceeded, default occurs without prior reminder. The contractual partner also defaults if they do not pay after a reminder that occurs after the due date of the purchase price. If the contractual partner is in default with regard to a payment, they owe EPG default interest at the statutory rate, but at least 10% annually. In case of default, the contractual partner will be charged a processing fee. The fee is €40. The contractual partner reserves the right to prove that no or lower processing costs were incurred. Further costs remain unaffected and are governed by law
3.5 The withholding of payments or the offsetting against counterclaims is only permissible insofar as any counter rights or counterclaims are undisputed, acknowledged or legally established. The exercise of a right of retention or offsetting is also possible if the claim of the contractual partner and the claim of EPG are legally based on a reciprocal relationship.
4. Transfer of Risk and Performance Time
4.1 EPG’s deliveries are generally made EX WORKS (Incoterms 2010), unless otherwise agreed.
4.2 Unless otherwise agreed, the risk passes to the contracting party as soon as EPG makes the goods available for collection as agreed and has notified the contracting party that they are ready for dispatch.
4.3 At the request of the contracting party, EPG will insure the goods at the contracting party’s expense against theft, breakage, transport, fire and water damage, as well as other insurable risks.
4.4 Agreed delivery periods begin at the earliest with the dispatch of the order confirmation, but not before clarification of all technical and commercial details of the order execution and receipt of any agreed down payment.
4.5 Partial deliveries by EPG are permissible to a reasonable extent. Partial delivery is unreasonable, for example, if the contracting party has no interest in a partial performance or if only a small performance has not (yet) been rendered before the partial delivery or remains due to the partial performance.
4.6 In case of culpable delay in delivery, EPG’s liability is limited to a lump sum compensation of 0.5% per completed week, max. 5% of the order value delivered late. The contracting party is entitled to further claims arising from delay in delivery if EPG is liable according to Section 9 (limited liability for damages). The contracting party shall inform EPG of any contractual penalties applicable to its customer no later than at the time of conclusion of the contract.
4.7 If dispatch is delayed due to circumstances for which EPG is not responsible, EPG shall store the goods at the expense of the contracting party; in case of storage, EPG shall charge the actual costs incurred weekly, at least 0.5% of the invoice amount of the stored goods; the contracting party is free at any time to collect the stored goods at its own risk and expense.
5. Change Requests and Force Majeure
5.1 Change requests accepted by EPG from the contracting party as well as force majeure, in particular unforeseen, unavoidable events (e.g. lawful strikes or lockouts, operational disruptions, difficulties in material and energy procurement, transport delays, shortage of labor, energy or raw materials, measures by authorities as well as difficulties in obtaining permits, in particular import and export licenses), extend the delivery period appropriately if applicable, unless these are the responsibility of EPG. This also applies if the obstacles occur at EPG’s suppliers without fault of EPG or fault of the supplier.
5.2 If the hindrance due to force majeure is not only of temporary duration, both contracting parties are entitled to withdraw from the contract with regard to the performance affected by the hindrance.
5.3 EPG will inform the contracting party of the beginning and end of force majeure as soon as possible.
6. Retention of Title
6.1 If the goods are owned by EPG, they remain the property of EPG until full payment of all claims against the contracting party from the business relationship (“Reserved Goods”).
6.2 The contracting party is entitled to process and sell the Reserved Goods in the ordinary course of business.
6.3 The contracting party hereby assigns all claims to which it is entitled, including balance claims from current account agreements, from processing or combining the goods delivered by EPG to EPG as security; this applies equally to claims of the contracting party arising from other legal grounds (insurance, tort, etc.) with regard to the Reserved Goods. In particular, the assignment also includes claims that the contracting party acquires against its credit institutions due to the payment of its customers. EPG accepts the assignment. The assignment is limited in each case to the delivery value of the goods delivered according to EPG’s invoices.
6.4 EPG revocably authorizes the contracting party to collect the claims assigned to EPG for its account in its own name. As soon as the contracting party fails to fulfill an obligation towards EPG, the contracting party shall, at EPG’s request, disclose the assignment to its debtor and provide EPG with the necessary information and documents. EPG is also entitled to directly notify the contracting party’s debtors of the assignment and request them to pay to EPG.
6.5 The Reserved Goods may not be pledged or transferred by way of security without EPG’s consent. In the event of third-party access to the Reserved Goods, the contracting party will point out EPG’s ownership, notify EPG immediately and provide EPG with any assistance necessary to protect EPG’s rights.
6.6 The contracting party must treat the Reserved Goods with care and insure them adequately at replacement value, in particular against fire, water and theft. Claims against the insurance from a case of damage are hereby assigned to EPG in the amount of the value of the Reserved Goods.
6.7 If the value of the securities existing for EPG exceeds EPG’s claims by more than 10% in total, EPG is obliged to release securities of EPG’s choice at the request of the contracting party.
7. Quality Agreement
7.1 When carrying out the commissioned services, EPG ensures the application of scientific diligence and the use of recognized technical rules.
7.2 The quality owed is based exclusively on the expressly agreed performance characteristics (e.g., specifications, technical delivery conditions, drawings, markings, other information). EPG only assumes a warranty beyond this quality for a specific purpose or a specific suitability, duration of use or durability if this is also expressly agreed; otherwise, the risk of suitability and use lies exclusively with the contractual partner. Even with an agreed purpose or agreed suitability, the contractual partner must inspect the goods themselves in this respect.
7.3 Information about the goods (e.g., product information, electronic media or on labels) is based on EPG’s general experience and knowledge and only represents guideline values. Any descriptions of parts and samples mentioned in EPG’s offer or order confirmation only serve as a general designation and description of the parts and samples and do not constitute a quality agreement. Such information or descriptions do not release the contractual partner from their own inspection.
7.4 Customary or technically unavoidable deviations from physical and chemical quantities including failure, colors, formulations, processes and the use of raw materials as well as reasonable quantitative deviations do not constitute a deviation from the agreed quality, unless this is unreasonable for the contractual partner.
7.5 EPG is generally not aware of the actual place of use or application of the goods. The contractual partner is therefore particularly obliged to check for themselves whether any infringements of property rights or other legal violations exist at the place of delivery or use through the delivery or application of the goods.
8. Notice of Defects and Warranty
8.1 Defects must be reported to EPG immediately, but no later than 8 working days after receipt of the goods, in the case of hidden defects no later than 3 working days after discovery in text form (email, fax is sufficient). Otherwise, the goods are deemed approved. In all other respects, the provision of § 377 HGB applies.
8.2 The limitation period for warranty claims expires one year after delivery of the goods or – if required by law or contract – after acceptance. The statutory limitation period applies to goods that have been used for a building in accordance with their usual use and have caused its defectiveness, or to buildings and works whose success consists in the provision of planning or monitoring services for this purpose, as well as in the case of fraudulent concealment of a defect. If EPG owes damages, the warranty period is governed by the statutory provisions.
8.3 If EPG’s performance is defective and the contractual partner has reported it in a timely manner, EPG will, at its discretion, either remedy the defect or deliver defect-free goods. EPG must always be given the opportunity to do so within a reasonable period, unless setting a deadline is dispensable. If subsequent performance fails or is dispensable, the contractual partner can withdraw from the contract, reduce the remuneration or demand compensation under the statutory conditions. In the case of compensation for damages, Section 9 must be observed.
8.4 If a third party prohibits EPG from manufacturing or delivering by invoking an industrial property right belonging to them, EPG is entitled – without further examination of the legal situation – to suspend work until the legal situation is clarified by the contractual partner. Should the continuation of the order no longer be reasonable for EPG due to the delay, EPG is entitled to withdraw. The same applies to the contractual partner.
9. Limited Liability for Damages of EPG
9.1 If EPG, its legal representatives, employees or vicarious agents intentionally or through gross negligence violate an obligation, regardless of its nature and on the basis of which legal grounds, in particular from the contractual relationship or in the case of intentional or grossly negligent commission of a tort, EPG is liable for the resulting damage to the contractual partner according to law
9.2 If EPG, its legal representatives, employees or vicarious agents merely violate an obligation through simple negligence, regardless of its nature and on the basis of which legal grounds, in particular from the contractual relationship or in the case of simple negligent commission of a tort, claims for damages by the contractual partner against EPG are excluded, unless there is a simple negligent violation of an essential contractual obligation. In this case, EPG’s liability is limited to the foreseeable damage typical for the contract. An essential contractual obligation in this sense is one whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may rely.
9.3 The foregoing disclaimers or limitations of liability do not apply in the case of culpable injury to life, body, or health, nor in the case of fraudulent concealment of a defect, nor if a quality guarantee is not fulfilled, nor if liability exists under the Product Liability Act.
9.4 The statutory rules on the burden of proof remain unaffected.
10. Protective and Usage Rights and Confidentiality
10.1 The contractual partner undertakes not to assert any rights with regard to intellectual property applications, prior use, or licensing from the documents, knowledge, and information provided by EPG, nor to pass on such knowledge and information to third parties.
10.2 EPG retains all rights to parts or samples that EPG makes available to the contractual partner. Only EPG has the right to and for intellectual property applications as well as to grant usage rights to them.
10.3 The contractual partner may not analytically investigate the material composition. However, the contractual partner is entitled to conduct property and applicability tests on the delivered parts or samples to check their suitability. Any use beyond this requires the prior written consent of EPG, the details of which will be regulated in a separate license agreement.
11. Compliance with Legal Regulations by Contractual Partner and Data Protection
11.1 The contractual partner must generally observe all legal regulations, especially regarding import, customs, transport, storage, and use of the goods, and obtain any necessary permits at their own expense, unless expressly agreed otherwise.
11.2 “In the context of EPG’s business transactions, especially for the fulfillment of contracts or the implementation of pre-contractual measures, EPG processes personal data. Further information can be found in EPG’s privacy policy at http://www.e-p-g.de/de
12. Place of Performance, Choice of Law, Jurisdiction, and Severability Clause
12.1 The place of performance for all services from the contractual relationship is the registered office of the respective EPG company.
12.2 The legal relationships between EPG and the contractual partner are exclusively governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods. This also applies if EPG does not have its registered office in Germany, unless EPG and the contractual partner have their registered offices outside the Federal Republic of Germany and in the same state. In that case, the law of that state applies.
12.3 The exclusive place of jurisdiction is Darmstadt, provided that the contractual partner is a merchant, a legal entity under public law, or a special fund under public law. However, EPG is entitled to sue the contractual partner at their place of business.
12.4 Should any provision of these General Terms and Conditions be or become invalid, unenforceable, or incomplete, the validity of the remaining provisions shall not be affected. In place of the invalid, unenforceable, or missing provision, that provision shall be deemed agreed which the parties would reasonably have agreed upon if they had been aware of the invalidity, unenforceability, or incompleteness.