General Terms and Conditions
of Eckerle Industrie Elektronik GmbH
as of January 2003
1.1 All business dealings shall be governed by the following General Terms and Conditions exclusively; buyer’s terms to the contrary to or deviating from our terms and conditions shall be valid only if expressly confirmed by us in writing. Our terms and conditions shall also apply if we are aware of buyer’s terms to the contrary to or deviating from our terms but unconditionally effect delivery to the customer.
1.2 Our General Terms and Conditions shall only apply with respect to companies as defined by Article 14 BGB (German Civil Code).
1.3 Our terms and conditions shall also apply for future business with the customer.
2. Contract Conclusion, Subsequent Changes of Contents
2.1 Our offers are subject to change without notice.
2.2 We unrestrictedly reserve all titles, proprietary rights and exploitation rights originating from copyright on documentation relating to offers and contracts, especially illustrations, drawings and leaflets; these may not be made available to third parties without our prior consent. Upon our request, they shall be kept confidential. On our request, all documents pertaining to offers shall immediately be returned to us if the order is not placed with us. Buyer has no right of retention insofar.
2.3 We may transfer documentation only to such third parties whom we are entitled to engage for the performance of our duties under the Contract.
2.4 Scope and subject of our duty of performance under the contract shall be defined in our Contract Documents exclusively. After conclusion of contract we reserve the right to amend the goods in the following manner, if this is acceptable for the customer:
- product changes relating to permanent product advancement and product improvement;
- minor and insignificant variations relating to colour, form, design, measures,
weights or quantities;
- deviations customary in the trade.
2.5 Upon placing the order, the buyer undertakes to notify us if his specifications or given standards may under no circumstances be deviated from.
2.6 As far as reasonable and within our capacities, we endeavour to meet requests for modification of our performance which Buyer expresses even after conclusion of the Contract.
As far as the review of such requests or their execution have an impact on the conditions of this Contract, in particular regarding remuneration, stipulated time limits or procedure of acceptance of performance, an adjustment of the Contract shall be made in writing immediately.
For the term of an interims period that may occur due to the review of Buyer’s requests, we may claim a reasonable additional payment on the basis of the hourly rates of our staff, who due to the interims period cannot be put to performance elsewhere.
For the review of the question whether and under which conditions the request can be met, we may also claim a reasonable additional payment, if we have given notice to Buyer of the necessity of such review and if Buyer has thereupon asked for such review.
2.7 If, during contract conclusion, errors occur which are not due to our fault, e.g. due to errors in communication, misunderstandings etc, no claims for damages pursuant to Article 122 BGB (German Civil Code) may be asserted against us.
3. Prices, Supply of Precious Metals, Payment, Delay in Payment, Offsetting and Right of Retention of the Buyer
3.1 Price increases shall be admissible if they are justified by changes in the price determining factors which have come into existence after conclusion of contract and if we have not delayed delivery at the moment such price increasing factors occur. Where the price increases exceed prices stipulated in the contract by more than 20%, the buyer shall have the right to cancel the contract. However, such right of cancellation shall not apply if the cost increasing factors occur during a delay in our delivery or performance, which is the responsibility of the Buyer, or if price increases are due to requests for modification of Buyer.
3.2 Unless otherwise agreed upon, our prices are ex works and do not include postage, freight, packaging, insurance and other ancillary costs. In addition to this, the legally prescribed VAT shall be charged.
3.3 Payments shall be effected within thirty days upon date of invoice free domicile; in case of payment in advance, on delivery and by bank collection, we grant a cash discount of 2 %, in case of payment within 10 days from date of invoice. Payment shall only be deemed to have been received in lien, pending full discharge of debt, if and when we are definitely in a position to dispose of the full amount. Bills of exchange and cheques shall only be regarded as received in lieu of payment. Bills of exchange shall only be accepted subject to prior written agreement. Any discount charges, fees as well as any and all costs relating to collection of the amount payable by either cheque or bill of exchange shall be borne by the Buyer. Cheques or bills of exchange shall only be regarded as received when the funds have been credited to our account and we have been released from any liability under the bill of exchange.
3.4 We are entitled to claim payment in reasonable instalments, including VAT.
3.5 If buyer is in delay with payment we shall be entitled - without notification by way of a special reminder - to charge interest at the rate charged by the commercial banks for open current account credits. We reserve the right to claim further damages caused by such a delay. However, the buyer shall have the right to submit evidence to us proving that no damage at all or only a substantially minor damage has been caused to us as a consequence of such a delay in payment.
3.6 The buyer may set off only such claims as are undisputed or unappealable. Moreover, if and as far as we are liable for a breach of contract pursuant to § 276 BGB (German Civil Code) Buyer shall be entitled to a right of retention or of plea of nonperformance.
3.7 If substantial delays in payment have been caused by the buyer all and any claims we may have against the buyer from the same legal relationship shall be due for payment immediately pursuant to Article 273 BGB.
4. Plea of Uncertainty
If after conclusion of the contract, it becomes discernable that our claim to performance of buyer is jeopardised by lack of ability to pay of buyer, we may - without prejudice to any other rights we may have under the law – assert the following rights against the buyer:
We may refuse to perform according to the contract until the buyer meets in advance all and any claims we may have against him arising from the same legal relationship pursuant to Article 273 BGB or until he provides adequate security.
If we have already effected delivery we shall have the right to accelerate maturity of all and any claims resulting from such delivery, herein included all claims for which cheques or bills of exchange have been received, so that payment of all outstanding invoices shall be due immediately.
If, despite our granting an additional reasonnable time limit, the buyer fails to honour our demands for payment upon our delivery or fails to provide adequate security, we shall have the right at our option to cancel the contract and/ or to claim liquidated damages.
5. Delivery / Time of Delivery / Delay in Delivery
5.1 Unless otherwise agreed upon, delivery shall be ‘ex works’ unpacked. In case of any packing done by us, packaging for shipment as well as all and any other packaging shall not be taken back by us under the Packing Regulations, excluding pallets. The buyer undertakes to dispose of the packaging at his own expense.
5.2 Delivery dates indicated by us are not binding unless expressly stipulated to be binding.
5.3 Delivery dates shall only be complied with on condition that the buyer observes in due time all and any of his obligations to co-operate, especially with respect to the receipt of documentation and information to be supplied by the buyer, the receipt of down payments which may have been agreed upon, and, if applicable, the submission
of letters of credit, administrative permits and import licences. We reserve the right to plea non-performance of the contract.
Delivery dates shall be deemed to have been observed when the goods have left our company or if our readiness to dispatch the goods has been notified to the buyer within such term.
5.4 Delays in delivery due to the following causes shall not be our responsibility even if terms and dates have been stipulated to be binding - the same shall apply if such circumstances occur at our suppliers or their sub-suppliers: circumstances of ‘Force Majeure’ as well as any other unforeseeable circumstances which we are not responsible for and which only occur after conclusion of the contract or which have been unknown to us at the time of entering into the contract for no fault attributable to us; furthermore subsequent strikes and legal lock-outs. In such circumstances, we shall be entitled to postpone delivery for as long as the disturbance may last, plus a reasonable start-up time. If, in this respect, we can prove that the buyer causes or is liable for an unacceptable impediment with respect to our execution of the contract, we shall have the right to cancel the contract. In before-mentioned circumstances, the buyer shall have no right to claim damages or to cancel the contract.
5.5 If we are in default of delivery, buyer shall be obliged to grant an additional reasonnable time limit for delivery. If this time limit expires without delivery taking place, buyer shall be entitled to claim damage instead of performance and to cancel the contract. In such case, buyer shall notify us within appropriate delay of time, whether he insists on performance or whether he uses his rights.
5.6 We are liable for damages due to delay of performance and for damage instead of performance, however limited as follows: Except in cases of willful delay our liability is limited to the foresseable damage specific for the type of contract.
5.7 The limitation of liability as per clause 5.6 shall not apply if a commercial transaction for delivery at a fixed date has been agreed upon; the same shall apply if, due to a default of delivery we are liable for, the buyer may assert that he is no longer interested in our execution of the contract.
5.8 We shall have the right to effect partial deliveries if the remaining parts to be delivered can be delivered within the term stipulated.
In case of partial delay in delivery on our part or in case of partial impossibility to deliver which we are responsible for, the buyer shall not be entitled to claim damages instead of performance regarding the entire obligation or to cancel the entire contract, unless the buyer is no longer interested in such partial delivery.
6. Passing of Risk / Insurance
6.1 The risk of an accidental loss or of an accidental deterioration shall pass to the buyer as soon as the goods have been delivered to the person or institution designated to pick up or execute the delivery, no later, however, than when the goods leave our company. The same shall apply for deliveries effected by our own vehicles or if freight or carriage paid and packing included has been agreed upon and also in such cases where installation or other services from our part at Buyer’s facilities have been agreed upon.
6.2 In case of default in acceptance or default in delivery for reasons attributable to the buyer, the risk of an accidental loss or of an accidental deterioration of the goods shall pass to the buyer at the moment the same is in default in acceptance or when the picking up or the delivery could have taken place if the conduct of the buyer
had been in accordance with his duty.
6.3 At the request and expense of the buyer we shall insure the goods against breakage, fire and water damage, damages in transit as well as against other insurable risks.
7. Default in Taking Delivery, Delay in Acceptance or Delay in the Request for Delivery of the Buyer
If the buyer is in default in taking delivery of the goods or if he is in default in acceptance at the place of delivery or if he is in default in the request for delivery of the goods - also with respect to partial deliveries - or if delivery is delayed for other reasons attributable to the buyer, we shall have the right - without prejudice to any other rights we may have under the law - :
- to demand immediate payment of the goods affected by the delay and to storethe same for the account and at the risk of the buyer;
- upon expiry of a reasonable extension granted to the buyer and by drawing the buyer’s attention to our rights, to otherwise dispose of the goods affected by the default and to supply the buyer within a reasonable extension or to cancel the contract and/ or to claim damages instead of performance. In the latter case we shall be entitled to claim damages of 20 % of the gross amount of the order without having to submit any evidence unless it can be substantiated that a considerably minor damage has occurred. We reserve the right to assert an actualhigher damage.
8. Retention of Ownership
8.1 We retain ownership to all goods delivered by us until we receive full payment of all sums owed to us - herein included future payments - originating in the business relation with the buyer. The retained ownership shall be deemed collateral for the total account payable to us (current account retention) until all current liabilities
have been discharged. All goods subject to retention of ownership shall hereinafter be referred to as ‘reserved or privileged goods’. If such reserved goods are paid by way of a bill of exchange from which follows a liability on our part the retention of ownership shall only become extinct if and when our liability under a bill of exchange becomes extinct as well; if payment by way of cheque / bill procedure has been agreed upon with the buyer the retention of title shall also include the honouring of the bill of exchange accepted by us by the buyer and shall not be forfeited
once the cheque received has been credited to our account.
8.2 The buyer shall have the right to resell the reserved goods in the ordinary course of business; however, as early as today he shall assign to us all claims that he may have against his customers or against third parties on account of the resale to the amount of the invoice total (including VAT) of our claims. If the buyer includes the claims from a resale of the reserved goods in a current account business relation existing with his customer, this current account claim shall be assigned to us to the amount of the balance; the same shall apply for the balance if the buyer becomes insolvent. The buyer shall still have the right to collect the assigned claims
after they have been assigned.
Subject to the rules and regulations under the insolvency law, our right to collect claims ourselves shall remain unaffected; however, we bind ourselves not to collect claims as long as the buyer duly meets his contractual obligations and especially so if he is not in default of payment.
8.3 Under the right of resale, the buyer shall not be entitled to pledge or in any way charge by way of security any of the goods.
If the buyer is in breach of contract, especially if he defaults in payment, we shall have the right - subject to the rules and regulations under the insolvency law - to withdraw the right of resale and to take back the reserved goods or to require the buyer to assign to us the right to recovery he may have against third parties; the buyer shall be bound to surrender the goods; no right of retention may be asserted by the buyer against this right to recovery.
After having threatened to do so and after setting a deadline, reserved goods which have been taken back by us for before-mentioned reasons may - subject to the rules and regulations under the insolvency law - be reasonably exploited and used by us; the proceeds thereof shall be credited against the liabilities of the buyer - less reasonable exploitation costs.
Under the conditions stated entitling us to revoke the buyer’s right of resale, we may also revoke the collection authorisation and may require the buyer to disclose to us the claims assigned as well as the debtors of such claims; furthermore, we may require the buyer to disclose to us all information necessary for collection, to submit the relevant documentation and to notify the debtors (third parties) of the assignment.
8.4 In case of damage or loss of the reserved goods as well as in case of a change of domicile or of property, the buyer shall immediately notify us hereof in writing; the same applies for pledges or other interventions of third parties so that we are in a position to bring an action under Article 771 ZPO (German Code of Civil Procedure). If the third party is in no position to reimburse the judicial and extra-judicial costs incurred by us under Article 771 ZPO, the buyer shall be liable for the loss incurred by us. If the release of the reserved goods is achieved without legal proceedings,
costs hereby incurred may also be charged to the buyer, herein included costs of regaining pledged reserved goods.
8.5 Any processing or transformation of the goods purchased by the buyer shall always be deemed to be on our behalf. If the reserved goods are processed with other goods, the property of any person other than us, the product thereof shall be deemed to be owned in common with that other person, our share in the common property depending on the ratio of the total amount charged by us for the reserved goods plus VAT to the invoice totals of the other goods processed.
Furthermore, the provisions applicable for the reserved goods shall also apply for the product of such processing. With respect to the product of such processing, the buyer shall acquire expectant rights corresponding to the expectant rights to the reserved goods.
8.6 If the reserved goods are inseparably mixed or combined with other goods which are the property of any person other than us, the product thereof shall be deemed to be owned in common with that other person, our share in the common property depending on the ratio of the total amount charged by us for the reserved goods plus VAT to the invoice totals of the other goods which have been mixed or combined. If the mixing or combination of the goods has been done in such a way that the product of the buyer is to be considered to be the main product it is agreed that the buyer assigns to us co-ownership of such product on a pro rata basis. The buyer shall keep such property owned either exclusively by us or owned in common with another person properly stored for us.
8.7 If our reserved goods are resold after having been processed or transformed in any way, as early as today, the buyer shall assign to us as security his claims resulting from the resale of such goods up to the invoice total (including VAT) of our claims.
If, on account of the processing or transformation of or of the mixing or combination of the reserved goods with other goods which are the property of any person other than us, we have only acquired co-ownership pursuant to the above clauses 8.5 or 8.6, the claim to the purchase price of the buyer shall only be assigned to us in advance depending on the ratio of the total amount charged by us for the reserved goods plus VAT to the invoice totals of the other goods which are not our property.
Furthermore, provisions as laid down in clauses 8.2. - 8.4. above shall apply correspondingly for claims assigned to us in advance.
8.8 If under the laws of a foreign country within the borders of which the reserved goods are located, a reservation of ownership or an assignment is not legally effective, the security provision corresponding to reservation of ownership or assignment in this legal sphere shall be deemed to have been stipulated. If co-operation of the buyer is required in order to create such rights, the buyer shall be bound at our request to take all measures necessary in order to constitute and maintain such rights.
8.9 The buyer shall treat the reserved goods properly and keep them in good repair; in particular, the buyer shall at his expense sufficiently insure the reserved goods against theft, robbery, burglary, fire and water damage. As early as today, the buyer shall assign to us all rights resulting from such insurance and relating to the reserved goods. We accept such assignment.
Furthermore, we reserve all rights to assert our claims for performance or claimsfor damages.
8.10 Upon request of the buyer, we undertake to release the securities we are entitled to if the value of such securities exceeds the value of our claims to be secured by more than 10 %. We shall have the right to select the securities to be released at our discretion. For the assessment of the claims assigned to us in advance, their
net value shall be authoritative; for the assessment of the reserved goods, the purchase price paid by the buyer shall be authoritative - unless such goods have been processed, transformed or mixed with other goods which have not been our property. If the reserved goods have been processed, transformed or mixed by the buyer with other goods which are the property of any person other than us, the cost-price shall be authoritative.
9.1 Any description of our goods, delivery or service defining scope and subject of our duty of performance according to 2.4 above shall not be deemed as being subject to a special guarantee within the meaning of § 443 BGB (German Civil Code), unless otherwise agreed upon. Other descriptions of our goods, public statements or advertisement do not constitute a duty of performance.
9.2 The buyer may only assert warranty claims if he has duly observed his statutory duty to examine and to give notice of defects.
The Buyer undertakes to examine the goods carefully and to give written notice of any recognizable defects immediately, within eight days after a defect has become apparent during careful examination at the latest. The same applies if we have delivered to much or to little amount or other product than ordered. We shall then
notify the buyer whether the goods which are subject to a complaint shall be returned to us or whether the buyer shall wait until the goods are either picked up by us at his site or are inspected by us on site.
9.3 No warranty is given for any defect resulting from common use or deterioration due to use or external influence on the goods. Buyer looses all warranty claims if
- buyer repairs, amends, alters or otherwise works on the goods himself or letthird parties do so without our prior consent,
- goods are not used or handled in accordance with our indications or applicablerules or are otherwise handled inappropriately, and
- buyer in such cases does not prove, that defects are not partially or in whole due to the reasons set out hereinabove and that thus remedy is not renderedconsiderably more difficult for us.
9.4 If we are responsible for a defect of the goods delivered and if it has been notified to us in time, we have the option to either remedy the defect (removal of defects) or to deliver goods in replacement. Buyer shall not be entitled to choose between remedy or replacement. We shall have the right to have repair work done also by
third parties. Parts that have been replaced shall become our property. With respect to goods delivered in replacement or with respect to any rectifications of defects, the buyer may assert no further rights than the rights he could assert with respect to the rights relating to the original contractual products. In case of remedy of defects we are obliged to bear all necessary expenses, unless they increase due to the fact that delivered product was transported to a location other than the place of performance.
9.5 In cases of our serious and final refusal to remedy or replace, failure of remedy or replacement or if remedy or replacement is unacceptable for buyer, buyer shall be entitled to claim damage instead of performance or cancel the contract, provided however the defect is considerable. The right of buyer to claim reduction of price
9.6 We are liable without limitation for intentional breach or gross negligence, according to the product liability code or other statutory mandatory liability as well as for damage to life and/or health of a person.
9.7 In case of breach of an essential contractual duty in ordinary negligence, our liability is limited to the foreseeable damage specific for the type of Contract.
In case of a breach of an essential contractual duty in ordinary negligence, our liability is limited to the forseeable damage specific for the type of contract. Our liability is excluded in case of breach of a non-essential contractual duty in ordinary negligence.
However, we shall not plea this clause if we willfully omitted to mention a defect or if we granted a guarantee within the meaning of § 433 BGB with a scope of liability larger than provided for in this clause.
9.8 Except as provided in clause 9.9 below, the warranty period shall be 12 months. As far as the pre-conditions of a supplier´s recourse pursuant to §§ 478, 479 BGB (German Civil Code) are fulfilled, the warranty period shall be 5 years, beginning with delivery of the product.
9.9 In case of passing of risk pursuant to 6.2. hereinabove warranty period ends 18 months after such passing of risk at the latest.
10. Total liability
10.1 To the extent that our liability to pay damages is excluded or limited pursuant to No. 9 hereof, the same shall apply for all and any claims for damage (e.g. claim for damage instead of performance, product liability according to German Civil Code or in the event of extra-contractual liability like tort).
10.2 Insofar as our liability is excluded or limited the same shall apply accordingly in respect of the personal liability of our employees, workers, staff members, agents and all and any persons employed in performing our obligation.
10.3 The limitation period with respect to the claims between us and buyer shall be subject to clause 9.8 hereof as far as claims of tort in under Article 823 et seq. BGB are not concerned.
11. Cancellation of Contract
Except in cases of a defect and except as otherwise agreed upon, buyer shall be entitled to cancel the contract upon breach of contract only if we are responsible for such breach.
12. Contractual Penalty
All rights in contractual documentation (drafts, drawings, leaflets, catalogues etc) as well as in samples and models provided to the buyer under our business relation shall be exclusively to our benefit. The buyer may only use or exploit the aforesaid documentation, samples and models under the contract concluded with us and only with our consent; it is in particular prohibited based on beforementioned documentation, samples and models to imitate or in any way reproduce our goods, or to distribute or exploit in any other way such imitated or reproduced models.
The buyer undertakes to pay to us a contractual penalty amounting to 10,000.00 Euro for each violation thereof unless he submits evidence that he may not be held responsible. We reserve the right to assert additional damages.
13. Jurisdiction and Applicable Law
13.1 Place of delivery and place of payment for both contractual parties shall be our principal place of business exclusively.
13.2 If buyer is a merchand pursuant to the HGB (Commercial Code), juristic person under public law or public utility fund, place of jurisdiction for all liabilities resulting from the contractual relationship - herein included liabilities from cheques and bills of exchange - shall either be our principal place of business or, at our option, the location of the buyer. This agreement as to the place of jurisdiction shall also apply for buyers having their location in a foreign country.
13.3 For all rights and obligations resulting from the contractual relationship between us and the buyer German law, excluding UN Sales Convention (CISG convention on contracts for the international sale of goods of April 11, 1980), shall apply exclusively.
13.4 As of January 01, 1993, buyers from EC countries - when buying goods for use within countries of the European Community - shall be bound to compensate for all and any damage which may be incurred by us due to:
- tax violations committed by the buyer himself or
- false information given by the buyer or information which has been withheldfrom us by the buyer relating to his financial situation relevant for taxation.
13.5 Should individual provisions of these General Terms and Condition for Purchase and Delivery or individual provisions of other agreements concluded with us be or become invalid, this shall not affect the validity of the other provisions or agreements.