General Terms & Conditions, Terms of Delivery, Terms of Payment and Consumer Information for ESG Edelmetall-Service GmbH & Co. KG
Section 1 Company details - Information to be provided by law
ESG Edelmetall-Service GmbH & Co. KG (hereinafter "ESG")
Company registration number: HRA 10 47 47 Mannheim Local District Court (D)
VAT ID Number: DE 813 287 627
Legal representatives with individual signatory authority: Dominik Lochmann, Birgit Schüßler
Address: Gewerbering 29b, 76287 Rheinstetten, Germany Phone: (+49-7242) 5577, Fax: (+49-7242) 5240
Section 2 Material defects
ESG shall be liable for material defects as follows:
(1) According to our choosing, all parts or services demonstrating a material defect within the period of limitation are to be repaired, resupplied or reperformed, to the extent that the cause of the defect already existed at the time of the passing of risk.
(2) The burden of proving that the defect existed at the time of the passing of risk falls to the contracting partner.
(3) Claims of material defects become time-barred after twelve months. This does not apply where longer periods are prescribed by law and in cases of injury to life, body or health where obligations are breached intentionally or in gross negligence on our part or where a defect is concealed maliciously. The statutory requirements concerning the expiry, suspension and recommencement of such periods remain unaffected.
(4) The contracting partner must notify us in writing of any obvious material defects within three days of receiving the delivery item. Any defects that are not immediately obvious must be notified to us on their discovery; otherwise no claims under guarantee may be asserted. The deadlines for notification of defects are deemed met where notification is sent within the periods specified. The entire burden of proving all bases of any claim falls to the contracting partner, particularly of demonstrating the material defect itself, the time the defect is discovered and the timely notification of the defect.
(5) An appropriate period of grace is to be granted to us in the first instance for supplementary performance. If such supplementary performance fails twice, the contracting partner may withdraw from the contract or reduce remuneration. If, after failed supplementary performance, the contracting partner chooses to withdraw from the contract, he is entitled to no further claims for damages on the basis of the defect. If, after failed supplementary performance, the contracting partner chooses compensation, then the materials that are the subject of the contract shall remain in his possession, as far as this is reasonable. Compensation is limited to the difference between the purchase price and the value of the defect-free item. This does not apply if we have breached the contract maliciously.
(6) In describing properties and characteristics - including within the framework of preliminary discussions and advice, and in brochures or advertising materials, no guarantees or assurances concerning any characteristics are made.
Section 3 Scope
(1) The General Terms and Conditions set out above and below apply to all deliveries, services, offers, purchases and other commercial transactions conducted by ESG in its legal relations with consumers and businesses.
(2) They apply to all future business relations, even if not expressly agreed upon again.
(3) Consumers and businesses are those as defined in Germany's Civil Code.
(4) The consumer/business shall recognise these General Terms and Conditions at the time the order is placed, or at the latest on receiving our service or delivery.
(5) Only these General Terms and Conditions shall apply. Acknowledgements to the contrary made by the contracting partner referring to the validity of his own terms and conditions shall not be recognised.
Any deviations from and supplements to these General Terms and Conditions must be made in writing to be effective. If, notwithstanding the provisions set out above, General Terms and Conditions conflict, the provisions laid down here shall take precedence.
Section 4 Conclusion of the contract
(1) Our offers for sale and purchase are subject to change and are non-binding. The customer shall order/sell by phone, by fax, by e-mail or by entering the relevant details on the Internet platform. In the last-named case, all data will be displayed to the customer again before the order/offer of sale is submitted, allowing details to be corrected.
(2) Contracts are only formed once we have confirmed receipt of the order / offer of sale and their content (by means of order confirmation or sending of the invoice) or, in the case of an order, by means of delivering the material that is the subject of the contract to the contracting partner. Confirmation of receipt can be made by phone or in writing.
(3) Unless otherwise agreed, the parties agree to deliveries being made against prepayment.
(4) Unless agreed otherwise, the items to be provided are defined by class, i.e., if an item can no longer be supplied, we will send you an item that is equivalent in terms of quality and price.
(5) Offers of purchase and orders (offers within the meaning of Section 145 of Germany's Civil Code) with a value in excess of EUR 10,000 are only accepted in writing, by fax with a signature (no computer-generated faxes) or as a digitally signed e-mail.
(6) Contract data is stored by ESG. Contract data cannot be subsequently retrieved by the customer.
Section 5 Trading hours, prices
(1) The agreed prices are those that apply to buying and selling transactions, in euros plus the statutory value-added tax, valid on the day the contract is concluded, unless agreed otherwise.
(2) The trading hours indicated on www.scheideanstalt.de apply. For offers submitted within these trading hours, the respective system prices shall apply. If offers are submitted outside these trading hours, the price valid at the beginning of the next trading period shall apply.
Section 6 No right of withdrawal from precious metal purchases
Pursuant to Section 312d(4) No 6 of Germany's Civil Code, no right of withdrawal is enjoyed as the subject of the distance selling contract is the delivery of goods, the price of which is subject to fluctuations on the financial market, over which the business has no influence and which could occur within the withdrawal period.
Section 7 Money laundering
(3) For all cash transactions over EUR 15,000, in which the customer buys precious metals from ESG, the contracting partner is to prove his identity in keeping with the provisions of Germany's Money Laundering Act (GwG). To this end, the contracting partner shall provide a copy of his current personal ID card or passport. Where precious metals are sold to ESG at ESG's premises, individuals are required by law to prove their identity regardless of the value involved. Presentation of personal ID is therefore mandatory. Where materials are sent in by mail, the individual's identity is proved automatically by the fact that the payment can only be transferred to personalised bank accounts or paid out by cheques for deposit only. No cash will be sent under any circumstances.
Section 8 Delivery and passing of risk
(1) Binding dates for deliveries by ESG must be agreed in writing.
(2) We are entitled to provide part deliveries or part services at any time, unless the contract precludes us from doing so.
(3) If, in the event of delivery by ESG, the customer is a consumer, the risk of accidental destruction or accidental deterioration of the delivery item passes to the customer when the item is handed over. Items are deemed to have been handed over if the customer defaults on acceptance.
(4) If the customer is a business, risk passes to the contracting partner, including in the event of carriage paid delivery when materials are delivered by ESG, as soon as the shipment has been handed over to the transport company or has left our warehouse for the purposes of dispatch. If dispatch is delayed at the request of the contracting partner, risk passes to the contracting partner when he gives notification of being ready to accept the shipment. Items are deemed to have been handed over if the contracting partner defaults on acceptance.
(5) ESG shall coordinate the delivery date for the goods with the contracting partner, after the purchase price has been received in the event of prepayment. Unless agreed otherwise, materials will mainly be delivered by a valuables transport company. On the day of delivery, the contracting partner must be present at the delivery address for the whole day, as a specific delivery time is not agreed upon for security reasons. In general, deliveries are made between the hours of 8:00 am and 5:00 pm. The same correspondingly applies to the pick-up of goods (purchase). ESG's opening hours can be found on our website.
(6) The place of performance for purchased goods is ESG's place of business. If available, papers belonging to the goods are also to be provided to ESG. If the goods are not being picked up, the seller undertakes to ensure that they are sufficiently insured when sent. Materials are to be sent so that ESG has to confirm receipt of the materials (registered post requiring signature; no registered delivery without signature). The sender shall bear the burden of proving that any package has been received.
(7) The fact that goods are transported by a valuables transport company has no effect on the place of performance. Transportation by a valuables transport company shall only take place in Germany, France and Austria.
Section 9 Terms of payment, default, counterclaims, material inspection, material properties
(1) In the event of payment in advance, the invoice amount is due and payable, without any deductions, immediately after the order confirmation has been received or alternatively when the customer receives the invoice. If the contracting partner fails to pay within three value days of the due date, he falls into default without any reminder being issued.
(2) If failure to observe the delivery deadlines is attributable to force majeure, e.g., military mobilisation, war, insurgency, forces of nature or similar events such as strikes or lockouts, the deadlines shall be extended appropriately.
(3) ESG shall only be deemed to have defaulted on delivery if no delivery is made on the agreed delivery date and the written reminder has been fruitless for more than four weeks. If delivery dates can no longer be met due to shortages on the international commodity markets, the period set out above shall be extended to 12 weeks. ESG will inform the customer accordingly in the event of such delays.
(4) Delay in delivery has no effect on the prices agreed with the consumer/business. These apply as agreed.
(5) If, despite their contractual obligations to do so, our suppliers fail to supply us with the ordered items in good time, we are entitled to withdraw from the contract.
(6) In the case of purchase transactions, the purchase price becomes payable after the goods have been received and examined to confirm that they are genuine, they are in recyclable/usable condition and the precious metal content has been determined. ESG will transfer the purchase price to the account specified by the customer no later than two days after the examination has been completed. In general, the transfer is made by return mail after the value of the goods has been determined.
(7) ESG has to right to smelt down and homogenise the materials/scrap/goods offered/delivered for purchase in order to determine their value and to remove non-metallic residual materials such as stones, plastic, ceramics, filling materials, clock mechanisms etc. If the transaction does not subsequently take place, ESG shall not be liable for any resulting material defects.
The decisive factor in determining the material's value and issuing payment is the incoming weight determined by ESG when the materials are received in conjunction with the respective material analysis or, in the case of electronic waste, ESG's sorting criteria.
(8) If, in the case of purchase transactions, the outcome of the examination to ascertain that the materials are genuine or in usable/recyclable condition is negative, ESG has the right to abandon the purchase. In this case, the goods sent in will be returned to the customer carriage forward, if the customer so wishes or ESG will dispose of the materials appropriately with the customer bearing any associated costs. If, within five working days of notifying the customer, we have heard nothing in return, the material will automatically be disposed of. The same applies to material samples sent in.
(9) Material delivered to ESG in person or via a shipping agent must be free from all harmful substances in all cases. In particular, materials delivered and offered to ESG for purchase must not contain the following substances: mercury, bromine, arsenic, cyanide, radioactive substances or substances harmful to the environment.
The following substances are allowed in deliveries, however ESG must be notified if they are present: beryllium, cadmium, lead.
(10) The contracting partner is only entitled to exercise a right of retention or a right to set-off the value of any material against payment due in the event that counterclaims have been established as final and absolute, are undisputed or recognised by us.
(11) If we become aware of circumstances of any kind that cast doubt on the creditworthiness of the contracting partner, ESG has the right to call in all outstanding debts and to retain any goods not yet delivered or to demand payment or security.
Section 10 Retention of title
(1) Until payment of the fee including all current and future claims against the contracting partner that we are entitled to irrespective of legal basis, the following securities shall be granted to us, which we will release on request according to our choosing, if their value exceeds the claims on a permanent basis by more than 20%.
(2) We retain title to the goods. Processing and modification always take place for us, but without any obligation on us. The contracting partner undertakes to notify us immediately in writing of any processing or modification. If our (joint) ownership ceases as a result of combination, it is agreed here and now that the (joint) ownership of the contracting partner in the common property shall pass to us in terms of value (invoice value). The contracting partner shall keep our (joint) property free of charge. The goods to which we enjoy (joint) title are referred to hereinafter as retention of title goods.
(3) In the event of claims on retention of title goods by third parties, in particular in the case of garnishment, the contracting partner shall refer to our ownership and inform us immediately so that we are in a position to assert our rights of title. If the third party is not in a position to reimburse us with the court costs (or out of court costs) incurred in this respect, the contracting partner shall be held liable.
Section 11 Limitation of liability, claims for damages
(1) Claims for damages and reimbursement of expenses by the contracting partner (hereinafter: claims for damages), irrespective of legal basis, in particular due to the breach of obligations arising from the contractual agreement and illegal actions, are ruled out.
(2) This does not apply if liability is to be assumed by law. Claims for damages arising from the breach of material contractual obligations are, however, limited to damages or losses that are foreseeable and typical for this type of contract, provided that the breach is not intentional or grossly negligent or liability is assumed due to injury to life, body or health.
Section 12 Note on data protection
ESG attaches great importance to the protection of your personal data. As a matter of course we will comply with all legal provisions on data protection and data security. ESG will only process and use personal data arising from this contract for the purposes of executing the contract, providing customer support and for its own advertising campaigns.
Section 13 Final provisions / Severability clause
(1) All legal relations between ESG and the contracting partner shall be governed solely by the law of the Federal Republic of Germany. This English version of these General Terms and Conditions is a translation of the German version for the purposes of goodwill. In dispute situations, only the German version shall be the applicable legal document and shall be presented as and when required. Application of the U.N. Convention on Contracts for the International Sale of Goods is precluded.
(2) If a provision in these Terms and Conditions or a provision set down in the context of other agreements is or becomes ineffective, the remaining provisions or agreements remain unaffected. This does not apply if adherence to the contract would constitute unreasonable hardship for one party.
Conditions of Use for ESG Websites
When using this or any other ESG website, please note the following:
Permission of use
ESG grants natural persons who visit this website revocable, non-exclusive, non-transferable and limited permission to access and use the website and the information contained in it. Such permission is only granted if the user exclusively pursues the objectives set out below and adheres to the limitations outlined in these Conditions of Use. The user is not permitted to interrupt the operation of the website in any way or to attempt to do so.
Disclaimer
Accuracy and reliability of information:
This website and its content are provided "as is". ESG shall not be held liable for :
- the timeliness, accuracy or completeness of information provided on the website, including prices,
- the accuracy of the results achieved by the user or other third party in using the website. Any opinions or assessments presented as an opinion or assessment of ESG only reflect the opinions or assessments of ESG at the time of publishing and may change at any time without prior notice.
Regional legal restrictions:
This website contains, among other things, general information on the type of products and services offered by ESG. This website is not targeted at people in countries in which the publishing of such information or the selling of such products or services, as described on the website, is prohibited, be it on grounds of nationality, domicile or otherwise. People subject to such restrictions are not permitted to use this website.
References to other websites ("Links"):
"Links" included in the website lead to publicly available sites, the content of which is not determined by ESG. ESG is therefore not responsible for the content of these sites or the accuracy of information contained in these sites. You should read the conditions of use for such sites carefully. By including a link to another website on the ESG websites, ESG does not adopt the content of this site as its own nor does it determine its content or recommend it.
Changes to the website:
ESG reserves the right to change, interrupt or completely discontinue the operation of the website at any time, including the services, information or features offered on the website that are accessible within the context of proper use of the website.
Limitation of liability
The visitor uses the website entirely at his own risk. The visitor bears sole responsibility and the risk of loss arising from the downloading from, access to or use of the website and/or its content.
ESG shall not be liable for damage or losses of any kind arising from the information published on the website or from errors in or omissions from the website.
ESG assumes no liability whatsoever for damage arising from investment decisions based on information available on this website.
No offer, no advice
Our price analyses are based on sources we regard to be trustworthy and reliable. Despite selecting and evaluating sources carefully, we cannot assume liability for the completeness, accuracy and correctness of information given. All strategies resulting from our analyses must be examined by you or your investment advisors in terms of risk and realisation. The information on this website does not constitute investment advice; its aim is solely to facilitate any independent investment decisions you make.
Governing law and jurisdiction
Unless specified otherwise in contractual agreements, these Conditions of Use are based on German law and are to be interpreted under the laws of the Federal Republic of Germany.
Changes to the Conditions of Use
ESG reserves the right to change or add to these Conditions of Use at any time. The user should read these Conditions of Use at the start of every visit to this website to learn of any changes made.
Severability clause
If, at any time, a provision of part of a provision contained in these Conditions of Use becomes unlawful, invalid or unenforceable under the law of a legal system, this has no effect on the lawfulness, validity or enforceability of the other provisions in these Conditions of Use in this legal system or in any other legal system.
Copyright
The websites of ESG were produced for the first time in 1999 (then trading as Schüssler Metallgrosshandel GmbH & Co. KG), are regularly updated and are protected under copyright law at all times. ESG reserves all rights to data, images and text displayed on this website or passed on through it. Use of the website and the associated permission to do so does not afford the visitor any rights to the website or its content.
The visitor is NOT permitted:
- to use the website to offer services in favour of third parties,
- to change or remove the copyright marks indicated,
- to use logos, images and other devices identifying ESG without the prior written consent of ESG.
© 2009 Edelmetall-Service GmbH & Co. KG, 76287 Rheinstetten, Germany