General terms of sale
and delivery
Article 1 Applicability, written form
1.1. Our general terms and conditions of trade apply exclusively.
General terms and conditions of the other contracting party which
differ from these will not be recognized by us unless we have
consented to their applicability in writing. Our general terms and
conditions of trade apply even if we carry out deliveries to the
other contracting party without reservations while knowing of
differences in the latter's general terms and conditions of trade.
1.2. All agreements which are made between us and the other
contracting party for the purpose of carrying out this contract are
to be set down in writing. This applies in particular to the
assumption of guarantees.
1.3. These general terms and conditions of trade also apply to all
future contracts with the other contracting party.
Article 2 Quotation, contract documents, contents of the contract
2.1. Our quotations are non-binding.
2.2. We retain ownership of and copyright to illustrations and
drawings, calculations and other files or documents; they may not be
made accessible to third parties. This applies in particular to
files or documents which are identified as "confidential"; the other
contracting party must have our express written consent before
conveying them to others.
Article 3 Prices, right to withdraw, payment terms
3.1. Unless agreed otherwise, all prices are ex warehouse or
plant in E , excluding packaging, freight, customs duties etc. or
other incidental costs, plus the
currently applicable value added tax. The current packing charges
and shipping costs you will find in our current price list.
3.2. Orders are subject to the prices in effect on the day of
the order. If increases in material cost or wages occur between
placement of the order and delivery, we reserve the right to adjust
prices accordingly.
3.3. Unless agreed upon otherwise, payment is due without discount
within 14 days after invoice. The fines for our reminders are
calculated as follows:
1. reminder: 5,--Euro
2. reminder: 5,--Euro
3. reminder: 5,--Euro and at the same time the claim will be handed
over to a collection agency.
3.4. We are not obligated to accept payment by check or draft. If we
accept such payment, this is done only for the sake of fulfilment.
3.5. If we become aware after entering into the contract of
circumstances for which the customer is responsible and which raise
doubts about the customer's creditworthiness (such as late payment),
we can demand immediate payment of the entire remaining indebtedness,
including amounts due from other invoices. This also applies in the
case of prior acceptance of bills of exchange or checks, which will
be returned in such cases in exchange for cash payment.
3.6. If a credit period is specified for the customer's payment,
then the customer will be in default if it does not pay by the
designated deadline, even if no reminder is issued.
3.7. Our charges can only be netted with recognized charges, or
those established by legally valid court judgment. Counter-claims
are not allowed. In addition, the customer is only authorized to
assert a right of lien insofar as its counterclaim is based on the
same contractual relationship.
Article 4 Delivery period, partial delivery, right of withdrawal.
4.1. Agreements concerning the delivery date and delivery deadline
are absolutely without obligation. The delivery period begins with
the date on which the order is confirmed. In addition, the beginning
of the delivery time stated by us assumes timely receipt of all
documents and information to be supplied by the customer, as well as
clarification of all details of the order, in particular of all
technical questions, release of drawings, delivery of any necessary
parts supplied by the customer, etc. This also applies to assembly
services. Partial deliveries are permissible as long as they are
within reason. Packing charges and shipping cost will only be
calculated once.
4.2. Delivery delays due to force majeure or other circumstances for
which we are not responsible, in particular disruptions of traffic
or of operations, strikes, lockouts, raw materials, wars, are not
our responsibility unless agreed upon otherwise.
4.2.1. If we are unable to deliver within the agreed-upon delivery
period as a result of the conditions named in Article 4.2., the
delivery period will be extended as appropriate.
4.2.2. If there is an obstacle to delivery which is not our
responsibility, in particular as described in Article 4.2., which
extends beyond the extended delivery deadline named in Article we
have the right to withdraw from the contract.
4.2.3. If we are not supplied on time and correctly by third parties,
for reasons for which we are not responsible, we have the right to
withdraw from the contract.
4.3. If we are unable to meet the agreed-upon delivery time, at our
request the customer is obligated to state within a reasonable time
whether it continues to insist on delivery or whether, if the
appropriate conditions are present, the customer will withdraw from
the contract and/or demand damages instead of performance. If the
customer does not declare its intent, then we have the right after a
reasonable length of time to withdraw from the contract.
Article 5 Passage of risk
5.1. Unless the order confirmation provides otherwise, "ex
factory" is agreed upon. Shipping, even in the event of delivery
from some place other than the place of fulfilment, will be at the
expense of and – even if the freight is prepaid – at the risk of the
customer. In all cases, if we handle the shipping ourselves we bear
the same liability as a carrier, unless liability is limited by law
or contract or by these general terms and conditions of trade.
Freight loads which we ourselves transport are subject to the German
laws covering freight carriage, in particular the currently valid
version of the Allgemeine Deutsche Spediteurbedingungen ('General
German Terms for Carriers').
5.2. If the customer so wishes, we will obtain transport insurance
to cover the delivery; the applicable costs will be borne by the
customer.
Article 6 Defect claims and product liability
6.1. Delivered goods are to be inspected by the customer no
later than within 5 days after delivery. If a defect appears, we are
to be informed immediately. If the customer fails to make such a
report, the goods are considered approved, unless the defect is
non-obvious. If such a defect becomes evident later,
the report must be made immediately no later than 5 days after the
defect is discovered; otherwise the goods are considered approved
even in view of this defect. The provisions of §§ 377, 378 HGB
(German Commercial Code) are not affected.
6.2. If there is a defect, we have the right – while taking into
account the nature of the defect and the justified interests of the
customer – to determine the manner of the follow-up fulfilment.
Under these contracts, follow-up fulfilment is considered a failure
if two attempts have been unsuccessful. This does not apply in the
event of recourse according to § 478 BGB ('German Civil Code').
6.3. In the event of non-fulfilment in the case of defects, we are
only obligated to bear all related necessary costs, in particular
transport, travel, labor and material costs, only insofar as these
costs are not increased by the item having been moved to a different
location than the headquarters or business site of the customer to
which delivery was made. This does not apply in the event of
recourse according to § 478 BGB.
6.4. Damage claims by the customer are not allowed unless provided
otherwise in Article 6.5. and Article 6.6. below or the debt
obligation.
6.5. If the damage is caused by an intentional or grossly negligent
breach of duty by us or our vicarious agents and/or there has been
fatal injury or bodily injury or injury to health, we are liable for
damages according to the provisions of law.
6.6. If we culpably violate a significant contractual obligation or
a cardinal duty and Article 6.5. does not apply, we are liable
according to the provisions of law; in such cases, however, the
liability is limited to the typical damages under such contracts.
6.7. The limitation of liability in Article 6.4. – Article 6.6. also
applies if claims are brought against us as a supplier according to
§ 478 BGB.
6.8. The provisions of 6.4. through 6.6. do not apply to claims
which may exist under §§ 1, 4 of the Product Liability Law. Unless
overridden by the product liability according to Article 6.6. for
claims resulting from producer liability according to § 823 BGB, our
liability under § 823 BGB is limited to the compensation paid by the
insurance. If this does not occur, or not completely, we are liable
up to the amount of the insurance coverage.
6.9. If our liability is ruled out or limited, this also applies to
the personal liability of our employees, representatives and
vicarious agents.
Article 7 Supplemental regulations for international contracts
If the customer is based outside of the Federal Republic of Germany,
and if the United Nations convention on contracts for the
international sale of goods (CISG, Vienna UN sales convention) in
its currently applicable version applies, then the following
regulations are in effect:
7.1. Changes to or suspensions of contracts must be in writing.
7.2. We are liable to the customer for damages under the provisions
of the law only insofar as a breach of contracted is based on an
intentional or grossly negligent violation of the contract for which
we, our representatives or our vicarious agents are responsible. We
are also liable under the provisions
of the law if we violate a significant duty under the contract.
7.3. If delivered purchases are not in conformity with the contract,
the customer has the right to cancel the contract or to receive a
replacement delivery only if damage claims against us are ruled out
or if it is unreasonable to expect the customer to make use of the
non-conforming goods and to claim the remaining damages. In these
cases we are first entitled to correct the defect. If the correction
of the defect fails, and/or if it leads to an unacceptable delay,
the customer is entitled at its choice to declare the contract
cancelled or to demand a replacement delivery. The customer is also
entitled to this if correction of the defect would cause
unreasonable inconvenience, or if there is uncertainty about the
reimbursement of any expenditures of the customer.
7.4. In the case of delivery outside of Germany we are not
responsible for the permissibility of the use of the delivered
article assumed by the contract under the regulations in effect at
that location. We are also not liable for taxes which are due there.
7.5. For deliveries outside of Germany we are not liable for
obstacles to delivery caused by governmental measures, in particular
import or export restrictions.
Article 8 Safeguarding reservation of ownership
8.1. Title to the delivered goods is reserved until all payments
under the contract have been received. Where a current business
connection exists, title is reserved until all payments there from
have been received. This also applies when claims have been included
in a current invoice and the balance has been calculated and is
recognized.
8.2. The customer is obligated to handle the delivered goods
carefully, in particular according to good professional practice;
the customer is also obligated to insure the goods adequately for
their replacement value against damage from fire, water and theft at
the customer's expense.
8.3. In the event of seizures and other interventions by third
parties the customer must notify us immediately in writing, so that
we can protect our rights. If the third party is not in a position
to reimburse us for the costs which accrue, the customer is liable
for our loss.
8.4. The customer has the right to sell delivered goods to others
and to use them in the regular course of business; however, the
customer already now assigns to us all claims against its customers
or third parties to which it is entitled from the sale, in the
amount of the value of the reserved goods, assessed
on the basis of the invoice amount, as long as this is not in
conflict with any rights of third parties. If the reserved goods
that have been sold are co-owned by us, the assigned claims extend
to the amount corresponding to our share of the co-ownership. The
customer is not authorized to other-wise dispose of the goods, in
particular to pledge them or to transfer them by way of security.
8.5. The customer remains entitled to collect the receivable account
from the sale even after assigning the rights. Our authority to
collect the account ourselves is not affected thereby. However, we
agree to not collect the account as long as the customer fulfils its
payment obligations from the proceeds collected, is not in default
of payment, and in particular as long as no application for
initiation of insolvency proceedings has been filed and there is no
stoppage of
payments. But if the latter is the case, we can demand that the
customer inform us of the assigned claims and the debtors, provide
all of the information requisite for collection, turn over the
associated documents and inform its debtor of the assignment. The
customer's collection authorization can be
revoked if our aforementioned pledge to not collect the receivable
accounts ends.
8.6. The processing or transformation of the delivered goods by the
customer is always performed on our behalf. The customer's expectant
right to delivered goods continues with respect to the transformed
article. If the delivered goods are reprocessed with other objects
that do not belong to us, we acquire co-ownership of the new article
in proportion to the objective value of the delivered goods compared
to the other processed objects at the time of the processing. The
article which results from processing is also subject in essence to
the same provisions that apply to the goods delivered with
reservation.
8.7. The customer assigns the accounts receivable to us in the
amount of the value of our reserved ownership, together with all
ancillary rights against third parties to which the customer is
entitled as a result of connecting our reserved goods with real
property as a significant component, as security for our open claims.
8.8. If goods subject to reservation of title are combined, mixed or
mingled with goods belonging to the customer or to third parties, we
become co-owners as provided by law. In the event that the customer
acquires sole ownership by combining, mixing or mingling, the
customer already now transfers to us co-ownership in proportion to
the value of the reserved goods compared to the other goods at the
time of the combination, mixing or mingling. In such cases the
customer must safeguard for article which we own or co-own for us
without charge.
8.9. We agree to release the collateral to which we are entitled, at
the request of the customer, to the extent that the realizable value
of our collateral exceeds the claims to be secured by more than 10%
or the nominal amount by more than 50%; selection of the items of
collateral to be released is our responsibility.
Article 9 Applicable law, place of fulfilment, jurisdiction
9.1. This contract is subject to the laws of the Federal
Republic of Germany.
9.2. The place of fulfilment for all items of performance under this
contract is Göppingen.
9.3. For contacts with Kaufleute (legally defined businesspersons
under German law), legal entities under public law and separate
trust assets under public law, and with foreigners who have no place
of legal jurisdiction in Germany, the place of jurisdiction is
Göppingen. However, we also reserve the right to bring suit at the
business domicile of the customer.
Article 10 E-mail-Communication
10.1 If the parties of the contract communicate by e-mail , they
accept unrestrictedly the efficacy of this communication method
according to the following regulations.
10.2. The e-mail has to contain the name and the e-mail-address of
the sender, the dispatching date and time and the name of the sender
as ending of the message. These points mustn’t be suppressed or
avoided by sending the message anonym.
10.3. There is no guaranteed confidentiality for un-coded data which
are transmitted via internet.
10.4. All e-mails have to be written in German or in English.
Article 11 Data protection and secrecy
11.1. All information and data from the customer will be treated
confidentially. The data, necessary for the business transaction,
will be stored and, should the occasion arise, transmitted to
connected companies, postmen or to the bank for payments
transactions.
Article 12 Other matters
If any provision of this contract should be or become
inoperative, the validity of the other provisions of this contract
shall not be affected thereby. In that case the parties are
obligated to replace the ineffective provision by a provision which
corresponds economically to what the parties would have agreed to if
they had been aware of the ineffectiveness.
Last update: 03/2008
eccola GmbH
Managing directors: Udo Maurer, Petra Angern
Commercial registration no.: 721962
District court Ulm
VAT No.: DE258038006
Legal domicile: Göppingen, Germany
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