General Terms and Conditions of Sale of EKT GmbH &. Co. KG (Status: January 2007)
§ 1 Scope of application
These Terms and Conditions of Sale shall apply exclusively and only to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). We shall only recognize terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions of Sale if we expressly agree to their validity in writing.
These Terms and Conditions of Sale shall also apply to all future transactions with the Purchaser, insofar as legal transactions of a related nature are concerned.
§ 2 Offer and conclusion of contract
If an order is to be regarded as an offer within the meaning of § 145 BGB, we may accept it within 2 weeks.
Orders, agreements and their amendments shall only be binding if they are placed or confirmed by us in writing, by fax or by e-mail. Orders or agreements placed orally or by telephone require our subsequent written confirmation to be legally effective. The same applies to verbal subsidiary agreements or amendments to the contract.
§ 3 Documents provided
We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as calculations, drawings, etc. These documents may not be made accessible to third parties. These documents may not be made accessible to third parties unless we give our express written consent to do so. If we do not accept the orderer's offer within the period according to § 2, these documents shall be returned to us without delay.
§ 4 Prices and payment
Unless otherwise agreed in writing, our prices shall be ex works excluding packaging costs and plus the statutory value added tax at the applicable rate. Costs of packaging shall be invoiced separately.
Payment of the purchase price shall be made exclusively to our company account stated overleaf.
Our employees are not authorized to collect cash unless we grant an express written power of attorney for collection in individual cases. The purchase price can therefore only be paid to our company account with discharging effect. The deduction of a cash discount is only permissible with a special written agreement.
Unless otherwise agreed, the purchase price shall be paid within 10 days after delivery. Interest on arrears shall be charged at a rate of 8% above the respective prime rate pursuant to § 247 BGB p.a.. We reserve the right to claim higher damages caused by default.
If no fixed price agreement has been made, we reserve the right to make reasonable price changes due to changes in wage, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
§ 5 Offsetting and rights of retention
The Purchaser shall only have the right to set-off against us if his counterclaims have been legally established or are undisputed by us. The customer shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 6 Delivery time
The commencement of the delivery period stated by us shall be subject to the timely and proper fulfillment of the obligations of the purchaser. We reserve the right to plead non-performance of the contract.
If the customer is in default of acceptance or culpably violates other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses.
We reserve the right to assert further claims.
If the above conditions are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
In the event of a delay in delivery not caused by us intentionally or through gross negligence, we shall be liable for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3% of the delivery value, but not more than 15% of the delivery value.
Further statutory claims and rights of the Purchaser due to a delay in delivery shall remain unaffected.
§ 7 Transfer of risk in case of shipment
If the goods are shipped to the Purchaser at the Purchaser's request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Purchaser upon dispatch to the Purchaser, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.
§ 8 Retention of title
We retain title to the delivered item until full payment of all claims arising from the delivery or purchase contract. This shall also apply to all future deliveries, even if we do not always expressly refer to this. We shall be entitled to take back the object of sale if the customer acts in breach of contract.
As long as ownership has not yet passed to him, the customer shall be obliged to treat the object of sale with care. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage at its replacement value. If maintenance and inspection work has to be carried out, the Purchaser shall carry this out in good time at its own expense. As long as ownership has not yet been transferred, the customer must inform us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
The purchaser shall be entitled to resell the reserved goods in the normal course of business. The Purchaser hereby assigns to us the claims of the customer arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply irrespective of whether the purchased goods have been resold without or after processing.
The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the receivables as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the purchaser's expectant right to the object of sale shall continue to apply to the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and shall keep the sole ownership or co-ownership thus created in safe custody for us. In order to secure our claims against the Purchaser, the Purchaser shall also assign to us such claims as accrue to it against a third party as a result of the combination of the reserved goods with real property; we hereby accept this assignment.
We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notice of defects as well as recourse/manufacturer's recourse
Warranty rights of the purchaser presuppose that he has duly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
Claims for defects shall become statute-barred 12 months after delivery of the goods supplied by us to our customer.
The above provisions shall not apply insofar as longer periods are prescribed by law in accordance with Section 438 (1) No. 2 of the German Civil Code (buildings and items for buildings), Section 479 (1) of the German Civil Code (right of recourse) and Section 634 (a) (1) of the German Civil Code (construction defects). Our consent must be obtained prior to any return of the goods.
If, despite all due care and attention, the delivered goods show a defect which was already present at the time of transfer of risk, we shall, at our discretion, either repair the goods or supply replacement goods, subject to timely notification of defects.
We shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction.
If the subsequent performance fails, the customer may - without prejudice to any claims for damages - withdraw from the contract or reduce the remuneration.
General Terms and Conditions of Purchase of EKT GmbH & Co. KG (Status: January 2007)
1. Validity of the terms and conditions
The following terms and conditions shall apply exclusively and only to a) entrepreneurs, b) legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB (German Civil Code), who are referred to in the following text as "Supplier/s" or "Order-taker".
We order exclusively on the basis of the following terms and conditions. Other terms and conditions shall not become part of the contract, even if we do not expressly object to them. Deviations from these terms and conditions shall only become effective if we expressly confirm them in writing. If we accept the delivery or service without express objection, it can under no circumstances be inferred from this that we have accepted the supplier's terms of delivery. The confirmation or execution of our order shall be deemed to be acceptance of our General Terms and Conditions of Purchase.
These terms and conditions shall also apply to all future business relations, even if the terms and conditions are not separately agreed upon again.
2 Order; Order Confirmation
Orders, agreements and amendments thereto shall only be binding if placed or confirmed by us in writing, by fax or by e-mail. Orders and agreements placed orally or by telephone require our subsequent written confirmation to be legally effective. The same applies to verbal subsidiary agreements or amendments to the contract.
Additions, restrictions or other deviations from our orders require our written confirmation to be legally effective. Our prior consent must be obtained in the event of quantity overruns or underruns.
Our orders shall be confirmed in writing, by fax or email. If the confirmation is not received within 10 days of the order date, we shall be entitled to cancel the order. Delivery schedules shall become binding if the supplier does not object within one week of receipt.
3 Delivery Dates, Delay in Delivery and Legal Consequences
Agreed delivery dates and periods shall be binding. The delivery period shall run from the date of the order. In the case of call-off orders, we reserve the right to determine the individual delivery dates and the call-off dates for partial deliveries, unless acceptance deadlines have been agreed.
If the supplier realizes that the agreed dates and deadlines cannot be met, he shall notify us thereof in writing without delay, stating the reasons and the duration of the delay. Acceptance of the delayed delivery or service shall not constitute a waiver of claims for compensation.
Force majeure, labor disputes, riots, official measures as well as other unforeseeable and serious events shall release us from our contractual obligations for the duration of the disturbance and to the extent of its effect.
If the agreed dates for delivery/service are not met due to a circumstance for which the supplier is responsible, we shall be entitled, after unsuccessful expiry of a reasonable grace period set by us for delivery/service, to demand, at our discretion, damages in lieu of performance or to procure a replacement from a third party at the supplier's expense and/or to withdraw from the contract. If our order is designated as a fixed purchase, i.e. if it is stipulated that the service or delivery is to be effected exactly at a fixed time or within a fixed period of time, the requirement to set a period of grace for delivery/service shall not apply: We shall then be entitled, already in the event of non-compliance with the fixed agreed date for delivery/service, to withdraw from the contract at our discretion or, if the supplier is in default, to demand damages instead of the service or to procure a replacement from a third party at the supplier's expense and / or to withdraw from the contract.
The risk of accidental loss and accidental deterioration of the item to be delivered shall not pass to us - even in the case of sale by delivery to a place other than the place of performance, i.e. if the Seller sends the item sold to a place other than the place of performance at our request - until the item has been accepted, unless we are in default of acceptance.
4. Contractual quality, warranty
The parties stipulate that the items, materials and substances to be supplied by the supplier - even if this has not been expressly agreed - must comply with the relevant legal provisions, regulations and guidelines applicable at the time and, in addition, with the agreed specifications, the data and quality standards specified by us.
If deviations from these regulations are necessary in individual cases, the supplier must obtain our written consent to this. The supplier's warranty obligation and any express warranty obligation of the supplier shall not be affected by this consent. If the supplier/contractor has reservations about the type of execution requested by us, he must inform us immediately.
We shall be entitled to take samples of deliveries and to examine them ourselves or have them examined by expert third parties to ensure that they are in order. If defects are found in the delivered goods or if it is established that the delivery is not in order, the Supplier shall bear the costs of the inspection or reimburse us, unless the costs of the inspection are disproportionate to the value of the delivered goods.
We shall notify the supplier in writing of any obvious defects in the delivery or service as soon as we have discovered them in the ordinary course of business within 14 days of delivery and discovery. Defects detected by an expert during an inspection pursuant to Section 4.3, Sentence 1, 1st Alt. shall be deemed to be hidden defects if they were not already evident without an expert inspection. In deviation from Section 377 (3) of the German Commercial Code (HGB), we shall be granted a period of up to 14 days after delivery and discovery of the obvious defects to submit a complaint to the supplier, whereby the timely dispatch of the written complaint notice shall suffice.
With regard to the warranty, the statutory provisions shall apply - unless otherwise stipulated in these terms and conditions.
The warranty period and, in the event of a warranty agreement, the warranty period shall be three years, unless we are granted longer warranty/guarantee periods by law or by individual contract. Unless otherwise agreed, the limitation period for claims for defects shall be 36 months from the transfer of risk. The warranty/guarantee and limitation period shall begin with the transfer of risk. In the case of defects of title, a limitation period of 3 years shall apply unless we are granted a longer limitation period by law or by individual contract.
In the event of subsequent performance, the Supplier shall be liable for the replacement item to the same extent as for the original item. For parts newly delivered or repaired by the supplier by way of subsequent improvement or subsequent delivery under warranty within the limitation period of our warranty/guarantee claims, the limitation period shall begin to run anew unless, from the viewpoint of the purchaser, the supplier recognizably performs the subsequent improvement or subsequent delivery without acknowledging a legal obligation only as a gesture of goodwill or to settle the dispute amicably.
The statutory provisions shall apply to our claims under a right of recourse for defective goods in accordance with §§ 478, 479 BGB.
If claims are asserted against us for violation of official safety regulations or statutory provisions or on the basis of domestic or foreign product liability regulations or laws due to defectiveness of our product, which are attributable to a product or activity of the supplier and for which the supplier is responsible, we shall be entitled to demand compensation for this damage from the supplier to the extent that it is caused by the products or activities supplied by him. This damage shall also include the costs of any necessary precautionary recall action in the case of clause 4.8, sentence 1. The supplier shall mark the delivery items - if possible - in such a way that they are permanently recognizable as his products. The supplier shall - insofar as he is also the producer of the delivered item - carry out a quality assurance which is suitable in terms of type and scope and which corresponds to the current state of the art and shall provide us with evidence of this upon request and - if we deem this necessary - conclude a corresponding quality assurance agreement with us and insure himself against all risks arising from product liability to an appropriate amount and provide us with proof of insurance upon request - insofar as this is in proportion to the order volume on the one hand and the respective costs and effort of the quality assurance, the proof of quality assurance and/or the insurance of the risks arising from product liability on the other hand. of the insurance of the risks arising from product liability is not disproportionate.
The supplier shall not be entitled to modify the delivery item after conclusion of the contract or during the delivery period. This shall also apply to the most minor changes and even if the specifications, dimensions, manufacturing processes, etc. prescribed by us in detail otherwise remain unchanged. Such deviations are only permissible after we have obtained a corresponding and express written declaration of consent in advance. If the supplier culpably fails to comply with these obligations, he shall be liable for all costs incurred by us or third parties as a result, e.g. due to necessary subsequent examinations, expert opinions, additional calculations, subsequent treatments, replacement deliveries, etc.
5. Goods provided and documents/drawings/samples etc. provided, industrial property rights of us
The Contractor shall be liable to us for the loss of or damage to goods provided by us to the Contractor for the execution of the order. We shall be informed immediately by the Contractor of any legal or actual impairment of such goods.
The materials provided by us to the Contractor for the execution of the order shall be treated and processed on our behalf and shall remain our property during the treatment and processing stage. It is agreed that we shall become co-owners of the products manufactured using the materials or parts provided by us to the contractor for the execution of the order in the ratio of the value of the materials provided to the value of the overall product. The same shall apply if our ownership should cease as a result of mixing or blending.
Models, samples, tools and other means of production as well as confidential information and drawings provided by us to the supplier or paid for by us may only be used for deliveries to third parties with our prior express written consent and may otherwise not be made available to third parties. We reserve the property rights and copyrights as well as all other industrial property rights to all documents provided by us to the supplier in connection with the placing of the order, such as calculations, drawings, plans, samples, etc.. These documents and items may not be made accessible to third parties without our express prior written consent. Should such documents have been made available by us to the potential supplier/contractor in the course of contract negotiations without a contract ultimately being concluded, or should the order have been completed, the documents, calculations, drawings, plans, samples etc. provided by us must be returned to us without delay and sent back to us at our request. If the documents/plans/drawings/samples etc. were handed over to the potential supplier by us at his request to facilitate the preparation of the offer or to check whether the order could be executed by him, the party to whom our documents were handed over in such a way shall bear the costs of a requested return; otherwise we shall bear the costs of the return if we have requested this, but not for documents returned unsolicited.
6. Prices, shipping, packaging
The price agreed in writing shall apply. If our order does not contain a price specification, the price specified in the supplier's order confirmation shall only be deemed to be agreed upon with our express written acknowledgement to the supplier. Should the supplier reduce his prices and improve the conditions in the period between the order and delivery, the prices and conditions valid on the day of delivery shall apply.
The prices are fixed prices plus the legally valid value added tax, but including costs for packaging, freight, transport and insurance. The prices shall apply free receiving plant.
The goods to be delivered shall be packaged in a customary and appropriate manner or, at our request, shall be provided with special packaging in accordance with our instructions. The supplier undertakes to take back or dispose of any packaging material supplied by him at his own expense.
A delivery bill shall be enclosed with each shipment from the supplier. Our order and article number must be stated in all correspondence relating to our order as well as in the shipping documents. Any costs or additional costs incurred due to non-observance of our shipping instructions or the above stipulation in the sentence shall be borne by the supplier.
The Supplier shall be obliged to provide the Purchaser with the required declarations on the customs origin of the goods in due time. The Supplier shall be liable for all disadvantages incurred by the Purchaser due to an improper or delayed Supplier declaration. If necessary, the Supplier shall provide evidence of its information on the origin of the goods by means of an information sheet confirmed by its customs office.
7. Invoicing and payment
Invoices shall be submitted by the Supplier separately from the delivery in compliance with the statutory requirements for invoicing. The invoice shall state our order number and article number in accordance with the provision in section 6.4 sentence 2 of these Terms and Conditions of Purchase. Payment periods shall run from receipt of the invoice by us. Invoices which have not been properly submitted shall only be deemed to have been received by us at the time of receipt of the corrected invoice.
Unless otherwise agreed, payments shall be made, at our option, by the 25th day of the following month after delivery and receipt of the invoice with a 3% discount on the gross invoice value or within 90 days after delivery and receipt of the invoice without deduction, whereby we reserve the right of set-off and retention, in particular due to incomplete or defective delivery.
We shall also be entitled to set off claims of the supplier against claims to which another company of the Eifler Group is entitled against the supplier or which have been assigned to us; in particular, we shall also be entitled to set off claims if the claim is disputed or has not been finally adjudicated.
The settlement of an invoice shall not be deemed to be a waiver of a notice of defects with regard to the invoiced goods.
In the case of invoices by weight, the weight determined by us by means of proper scales shall be decisive - insofar as there are deviations from the weight specifications of the supplier.
8. Industrial property rights of third parties
The Supplier warrants to us that all deliveries are free from third party industrial property rights and, in particular, that the delivery or performance and/or use of the delivery items does not infringe any patent rights, copyrights or property rights and other industrial property rights of third parties.
The supplier shall indemnify us and our customers against claims of third parties arising from any infringements of industrial property rights and shall also bear all costs incurred in this connection upon our first request.
We shall be entitled, at the Supplier's expense, to obtain the permission of the third party to use the relevant delivery items and services from the entitled party if, contrary to Section 8.1, third party property rights to the deliveries or services do exist.
9. General provisions
9.1 Assignment of claims
Claims of the supplier against us may only be assigned to third parties with our prior written consent. Payments shall only be made to the supplier/contractor. For advance assignments of claims of the supplier against us to sub-suppliers of the supplier within the scope of a reservation of title by the sub-supplier of the supplier, consent is hereby granted with the proviso that a set-off by us against the party to whom the supplier has assigned the claim against us is also permissible with counterclaims against the supplier acquired after notification of the assignment.
9.2 Confidentiality obligation
The supplier undertakes to treat as confidential all commercial or technical details which are not in the public domain and which become known to him through the business relationship with us and not to make them available to any third party. He shall oblige his possible sub-suppliers accordingly.
9.3 Offsetting and rights of retention of the supplier/contractor
The supplier/contractor shall only have the right of set-off and retention vis-à-vis us if his counterclaims have been legally established or are undisputed by us. The Purchaser shall only be entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
9.4 Place of performance agreement
Unless otherwise expressly agreed in writing, the place of performance for all rights and obligations shall be our registered office.
9.4 Place of jurisdiction agreement
The exclusive place of jurisdiction for all disputes arising from the contract shall be the court having jurisdiction over our place of business, unless expressly agreed otherwise in writing.
9.5 Choice of Law Agreement
This contract and the entire legal relationship between us and the supplier/contractor shall be governed exclusively by the law of the Federal Republic of Germany hereby chosen and agreed by both parties as a precautionary measure, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
9.6 Contract language
The sole binding contractual language shall be German. This shall also apply if contracts are drawn up in a language other than German; in this case, the contract copy in German alone shall be authoritative.
9.7 Severability clause
Should any of the provisions contained in these Terms and Conditions of Purchase be or become invalid in whole or in part or contain a loophole, the remaining provisions shall remain unaffected thereby. The wholly or partially invalid provision shall, as far as possible, be replaced by a provision whose economic success comes as close as possible to that of the invalid provision. In the event that a provision of these General Terms and Conditions of Purchase and Delivery is invalid, the statutory provisions shall otherwise apply instead of the invalid provision.