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Terms and Conditions for Esmeyer GmbH & Co KG

The offer is aimed exclusively at catering, companies, establishments and institutions.

All prices net in euros plus statutory VAT.
Errors in text and images reserved.

1. Scope of application

The following terms and conditions apply to business relationships with companies in the sense of Article 14 of the German Civil Code, regardless of whether the respective order is made offline (direct order) or via the online store. The version valid at the time of the respective order applies. 

Conflicting terms and conditions of the customer only apply if expressly acknowledged in writing. 

2. Entry into force of the agreement

Registration is required for use of the online store. The details required here are to be provided truthfully and in full. 

By sending the order when using the online store after completing the order process the customer is inviting the seller to enter into a contract for the sale of goods. The contract for the sale of goods does not enter into force until a written order confirmation is sent by the seller, or the item ordered is sent to the customer. 

Guarantees and ancillary agreements, regardless of how they are conveyed (by telephone, electronically) require written confirmation by the seller. Where details on the range are incorrect, the seller shall provide the customer with a counteroffer. The customer is free to decide about the counteroffer. The customer is notified separately where an order is not accepted. 

3. Delivery and prices 

Statutory VAT is to be added to all prices and they apply to orders included in the seller's sales offer. The prices at the time of the order apply, free shipping ex works and including packaging. Delivery is ex works/warehouse of the seller to the delivery address provided by the customer. 

Goods are shipped within the delivery period provided to the customer. It is regarded as having been met if the goods have left the works/warehouse by the end of the delivery period. The delivery period is extended where unforeseeable obstacles occur that the seller was unable to avoid despite reasonable care under the circumstances of the case. There is no entitlement to compensation due to delayed delivery. This also applies after expiry of a grace period granted to the seller for delivery.

The customer will be informed immediately where the ordered goods cannot be delivered due to a lack of availability or unforeseeable circumstances. In this event the seller may withdraw from the contract for the sale of goods.

Partial deliveries are permitted provided they do not cause an unreasonable burden for the customer.

The ordered goods are shipped at the customer's risk. This also applies where carriage is paid. Risk transfers to the customer as soon as the shipment has left the seller's works or warehouse, Article 447 (1) of the German Civil Code. The seller is free to determine methods of shipment (for example type, route) at its own discretion.

In the event of transport damage to the deliverable goods, the customer assigns its claims against the transport companies to the seller. A corresponding declaration of assignment is sent to the customer where required. 

4. Payment

Payments are invariably without discount and in accordance with the agreed payment terms. Depending on the customer's credit rating, the seller reserves the right to only deliver against either immediate or advance payment as may apply. The customer is informed about this prior to delivery of the goods. With advance payment or, as may apply, depending on the customer's credit rating, the seller is entitled to cancel the order after two weeks if no payment has been received by that point. This does not affect the seller’s right to damages for non-performance. 

The sales price of the order is to be paid on receipt of the respective invoice under the stated payment terms. A discount may only be deducted where there is a separate written agreement or there is a note on the invoice.

In the event of payment arrears the seller is entitled to demand arrears interest to the amount of the applicable arrears interest rate. The seller is free to require proof of more damage due to delays. Offsetting claims by the seller is only possible with legally binding counterclaims or ones recognised by the seller. A right of retention can only be exercised due to counterclaims involving the same contractual relationship. 

Where payment is by cheque or bill of exchange the delivered goods are not regarded as paid for until the cheque or bill of exchange has been redeemed, thus releasing the seller from its liability.

5. Retention of title

Title to the ordered goods remains with the seller until payment in full. 

The creation of individual receivables in an open invoice as well as the balancing of an account and its recognition does not affect retention of title.

The customer is not entitled to pledge or offer as security goods retained under retention of title. In accordance with Article 47 of the German Insolvency Regulations, in the event of the customer being insolvent a right of recovery is available to the seller under the right of retention.

The customer undertakes to ensure the rights of the conditional seller in the events of goods subject to reservation of ownership on credit. The customer now assigns its claims under the resale of the goods subject to reservation of ownership to the seller. The seller accepts this assignment. Regardless of the assignment and the right to collect of the seller, the customer is entitled to collect so long as it complies with its obligations towards the seller and is not at risk of its assets declining. 

Where the goods subject to reservation are processed, combined, mixed or blended with other goods, the seller is entitled to the resulting co-ownership share of the new item at the ratio of the value of the goods subject to reservation to the remaining processed goods at the time of processing. Where the customer acquires sole ownership of the new item it is obliged to concede the co-ownership in the new item at the ratio of the value of the processed or, as may apply, combined, mixed or blended goods subject to reservation and to keep them safe for it at no charge.

Where the goods subject to reservation are resold together with other goods, the advance assignment agreed above only applies for the amount of the value of the goods subject to reservation that are part of the delivery transaction together with the other goods. The customer shall immediately inform the supplier about third-party enforcement measures or claims assigned in advance with provision of the records required for an intervention. At the request of the customer the seller shall declare the release where the seller's claim is secured plus 20%. 

Where the customer's payment obligations are not met, the conditional seller is entitled to remove its goods at any time to secure its claims, even where there is no court order. For the purpose of securing the goods the customer grants the seller or its agents the right to enter areas where the seller's goods are located. 

6. Claims for defects and liability

Where there are defects with the purchased item the customer may choose to request the making good of the defect or delivery of a defect-free item.  Claims for defects by the customer require it to have complied with its statutory duties to inspect for and report defects under Article 377 of the German Commercial Code.

Warranty or defect claims may not be assigned by the customer.

In the event of a replacement delivery the goods initially delivered are to be returned to the seller within 14 days. The costs for such a return are borne by the customer. Claims for damages in accordance with statutory provisions remain unaffected by this rule.

The seller's liability for losses due to a breach of a warranty or injury to life and limb is unrestricted. The same applies to wilful intent and gross negligence. 

Claims for defect lapse one year after receipt of the goods. Claims for damages due to injury to life and limb and/or claims for damages due to grossly negligent or wilful losses caused by the seller are excluded here. Statutory limitation periods apply in this respect. 

7. Place of performance

The place of performance for all contractual relationships subject to the above terms and conditions is Mettman. 

8. Applicable law

German law applies.



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