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General Terms and Conditions

A. Scope

The following conditions apply exclusively for all (also future) contracts between us and the customer. We do not accept conditions of the customer which are contrary to or different from our conditions, unless we have given our explicit written consent. Our General Terms and Conditions shall also apply if we – in knowledge of the conditions of the customer which deviate from or are different to these General Terms and Conditions – unconditionally perform a service to the customer.

B. Conclusion of the Contract

Unless otherwise stated therein, our offer shall not be binding. Orders of customers can be accepted or rejected by us within a deadline of three weeks after receipt of the respective order. The customer waives its right to receive a declaration of acceptance. To the extent that the order has not been made in writing, we can demand that the customer confirms the order in writing.

C. Conditions for Lease Contracts
1. Subject Matter of the Lease

We reserve the right to lease to the customer another property comparable in its function to the leased property described in the lease contract.

2. Lease Term

2.1 In principle, the lease term is computed in weeks. The minimum lease term is one week. Unless otherwise agreed, the lease term commences as of the delivery of the leased property. In the event that the lease contract has been concluded for an indefinite period of time, the customer has the right to terminate in writing the lease contract (i) by respecting a notice period of one week to the expiry of the seventh day following the date on which the notice was received or (ii) - to the extent the lease term has exceptionally been computed in days – by respecting a notice period of three days to the expiry of the third day following the date on which the notice was received.

2.2 The customer hereby agrees to accept the continuing presence of the Leased Property at the site of its use until the end of the third working day after the end of the contract.

2.3 The lease contract is not extended, if the customer does not return in time the leased property upon expiry of the lease term, in particular continues to use the leased property. Section 545 of the German Civil Code (BGB) is excluded.

3. Lease Fee

Unless stipulated otherwise in writing, the agreed lease fee is a net lease fee.

3.1. Incidental Costs

Unless otherwise agreed, costs for delivery and collection as well as installing and dismantling will be charged to the customer.

4. Warranty

4.1 Claims in connection with a defect of the leased property shall only be raised against us, if and to the extent we are responsible for such defect.

4.2 Immediately after the handing out of the leased property, the customer has to make a visual and, if appropriate, a functional examination of the leased property in respect of defects and completeness. If in doing so or at a later point of time a defect or the missing of parts of the leased property becomes apparent, the customer shall notify us in writing without delay. The notification shall describe the defects and the missing parts of the leased property. In case that the customer fails to issue such notification, the leased property shall be considered to be approved by the customer unless we have consciously concealed the defect or the missing of parts of the leased property. If the leased property is regarded as being approved, the customer is not released from the obligation to pay the lease fee in its full amount nor is the customer entitled to demand compensation for damages pursuant to section 536a German Civil Code (BGB) or terminate the lease contract for cause.

4.3 If a defect exists, it is our choice to either remove such defect or to supply a replacement property which is in its function comparable to the leased property. If a defect is not removed within an appropriate period of time or if we are not prepared to remove such defect, the customer is entitled to terminate the lease contract for cause without respecting a notice period.

5. Use of the Leased Property

5.1 Subject to the provision of section 536 a para. 2 of the German Civil Code (BGB) the customer is – without our prior written consent – not permitted to make any changes to the leased property, in particular the customer is not entitled to remove or to conceal attached serial numbers, manufacture plates or other identification or inspection tags.

5.2 During the lease term the customer has to inform us in respect of the leased property at once about (i) its destruction, (ii) any deterioration going beyond the normal wear-and-tear as well as (iii) every accident. Should we not consent to permit the use of the leased property by or to sub-lease it to a third party, the customer is not entitled to terminate the lease contract for such reason.

5.3 The leased property shall not be removed from the usage site. During normal business hours the customer has to grant access to our representatives and insurers to the usage site and the leased property.

6. Delivery and Collection of the Leased Property/Return of the Leased Property

6.1 Travel to and from the site will begin and end at the premises of eps holding gmbh; travel times to and from the site and setting-up times will be counted as working time and will be charged as such. Crane downtimes due to high winds which consecutively amount to more than 1 hour will be invoiced at 80% of the agreed hourly or daily rates; shorter interruptions will be considered as normal working time.

Access routes and the working environment for our equipment must be free of any objects that could prevent or hinder our access to or work on the site. It is also to be ensured that any roads that will be used and the site itself are suitably level and stable for our purposes. The preparation of the above areas is to be completed in good time and at no cost to ourselves. Any crop damage to the access routes will be the responsibility of the client.

6.2 To the extent that we are responsible for the delivery and the collection of the leased property and/or its construction or dismantling, the customer has to ascertain that the place, where the leased property shall be used (herein: Place of Use) is accessible for trucks with a permitted total weight of up to 40 tons, and that its use is suitable for the construction and the use of the leased property. To the extent that it is necessary for delivery and collection as well as construction and dismantling of the leased property, the customer has to provide us free of charge at the Place of Use with electricity, water and storage capacities. If the customer does not comply with the before-mentioned obligations and if due to this reason delivery or construction of the leased property cannot take place, we are not obliged to wait longer than at maximum two hours at the Place of Use for the provision of such facilities. If in such a case delivery and/or construction cannot take place, the customer is obliged to bear the costs of any additional delivery and construction attempt. For each day, by which the delivery of the leased property respectively its construction is delayed, the customer has to pay the contractually agreed lease fee for one day as liquidated damages. The customer shall be entitled to prove that we suffered no damage or only a substantially smaller damage due to the delay. If we are able to prove a higher damage caused by the delay, we are entitled to claim such higher damage.

6.3 After expiry of the lease term the customer is obliged (i) to return the leased property in a clean condition, or (ii), if we have committed ourselves to collect the leased property, to have it ready for collection in a clean condition and make it accessible for collection or dismantle. We are not obliged to wait longer than at maximum two hours for the provision of the readiness to collect or to dismantle. The additional costs of an additional dismantle or collection attempt as well as the cleaning of the leased property performed by us, if required, has to be paid by the customer. For each day after the expiry of the lease term, which the customer does not return the lease property or does not provide it ready for dismantling respectively collection, the customer has to pay the contractually agreed lease fee for one day as liquidated damages. The customer shall be entitled to prove that we suffered no damage or only a substantially smaller damage due to the delay. If we are able to prove a higher damage caused by the delay, we are entitled to claim such higher damage.

7. Client Liability

The Leased Property must be protected against theft, destruction and damage. The customer bears the risk of accidental destruction of or damage to the Leased Property.
The customer´s liability for the Leased Property begins on provision of the goods for unloading and ends on collection of the goods after they have been loaded and made safe for transport.

8. References

For marketing purposes we are entitled to (i) publish the services provided to the customer by naming the customer and quoting the type and volume of services provided and (ii) publish photos of our services.

D. Conditions for Purchase Contracts
1. Purchase Price

1.1 If not otherwise contractually stipulated, the purchase price is net, excluding packing, delivery and construction of the leased property as well as excluding statutory value added tax. If value added tax accrues, it shall be stated separately in the invoice at the statutory rate.

2. Retention of Ownership

2.1 The delivered goods shall remain our property until the purchase price has been fully paid by the customer.

2.2 The customer is entitled to re-sell the purchased goods in the ordinary course of business; the customer already now assigns to us all claims in the amount of the final invoice amount vis-à-vis its customers (including value added tax), which accrues to the customer from such re-sale, independent from the fact as to whether the purchased goods have been re-sold without or after having been processed.

2.3 The customer remains entitled to collect the assigned claim also after the assignment. Our entitlement to collect the claim ourselves remains unaffected thereby. We undertake, however, not to collect the claim as long as (i) the customer fulfils its payment commitments, (ii) the customer is not in delay of payment, (iii) an application for the opening of insolvency proceedings over the customer's assets has not been filed or (iv) the customer has not suspended its payments. If one of the before-mentioned circumstances occur, we are entitled to revoke the collection authorization and demand, that the customer (i) informs us about the assigned claims and their debtors, (ii) provides us with all information required for the collection, (iii) provides us with the documents belonging thereto and (iv) informs the debtors (third parties) about the assignment.

2.4 The processing or transformation of the purchased goods by the customer is always executed on our behalf. In the event that the purchased goods are processed with other material not forming part of items belonging to us, we acquire co-ownership in the new manufactured item in the ratio of the value to the other processed items at the time of process. For the goods resulting from the processing or transformation the provisions of clauses D 2.2 and 2.3 shall apply respectively.

3. Warranty

3.1 A pre-requisite for warranty claims of the customer in respect a defect of the purchased goods is the customer's compliance with its inspection and notification commitments pursuant to sections 377, 378 of the German Commercial Code.

3.2 If a defect exists for which we are responsible, we are entitled to a subsequent fulfilment (removal of the defect or delivery of an item without a defect). In case the subsequent fulfilment fails, the customer has the right to either demand an appropriate reduction of the purchase price or to withdraw from the purchase contract.

3.3 The warranty period is one year from handing out of the purchased goods.

E. Additional General Conditions
1. Liability

1.1 Unless stipulated otherwise below, all exceeding claims of the customer – irrespective of on which legal grounds they are based – are excluded. We are not liable for damages, which did not occur at the delivered good itself; in particular we are not liable for lost profit or other financial damages of the customer.

1.2 Unless contractually stipulated otherwise, we are within the scope of the contractual relationship with the customer not obliged to render advice to the customer or to make recommendations. Should, however, we nevertheless give advice or make recommendations, we are not liable for any damage arising from such advice or recommendation.

1.3 Claims for compensation are excluded in case of slight negligent behaviour on our side. If we infringe a duty forming an essential part of the contract or injure the customer's health, body or life, we are liable according to the statutory provisions. The compensation for damage is limited to the foreseeable, typically occurring damage.

1.4 The before mentioned exemption of liability shall not apply if the damage has been caused intentionally or by gross negligence and shall not apply to claims pursuant to the Product Liability Act (Produkthaftungsgesetz).

1.5 To the extent that our liability for compensation is excluded or limited, this shall also apply for our representatives, employees and vicarious agents (Erfüllungsgehilfen).

2. Payment Terms

2.1 Unless agreed otherwise, the invoice amount (net without any deductions) has to be paid within a period of twenty-one days as from issue of the invoice (evidenced by invoice date). For each week of default in payment the customer has to pay liquidated damages in the amount of 1% of the invoice amount including value added tax, up to in total 10% of such amount. The irrevocable and unconditional acceptance of a payment does not mean that claims for damages are waived.

2.2 Our employees and vicarious agents are not entitled to accept payments on our behalf, unless they are authorised by written power of attorney to do so. We are not obligated to accept cheques, bills of exchange (Wechsel) or cash. The acceptance of cheques and bills of exchange (Wechsel) is always made on the condition that fulfilment can be sought there from (erfüllungshalber).

3. Set-off/Place of Performance/Applicable Law

3.1 The customer is only entitled to set off against our claims or claim a right of retention, if the counter claim is undisputed, disputed but ready for decision, or has passed into res judicata.

3.2 Place of performance for statements of claims against us is Cologne. We are entitled to file a suit also at the legal seat of the customer.

3.3 German law shall apply. The applicability of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

3.4 Transportation which we undertake on behalf of third parties will be subject to the terms and conditions laid down in the General Terms and Conditions of the German Forwarding Trade (Allgemeine Deutsche Spediteurbedingungen ~ ADSp) and also the Convention on the Contract for the International Carriage of Goods by Road (CMR).

April 2013

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