General Terms of Business

General Terms of Business

of


Eckerle Technologies GmbH
Otto Eckerle Str. 6/12a
76316 Malsch
Germany

for supplies and services

Last updated: August 2014

1. Validity of our conditions of business

1.1 Our General Terms and Conditions of Business (T&Cs) apply to all of our quotations, deliveries and services to our customers, regardless of whether they are based on purchase, service or atypical contracts, whether we are providing advice or other contractual services, or whether or not our T&Cs are expressly mentioned at the time of the conclusion of the agreement. Our T&Cs apply exclusively.

1.2 Our T&Cs come into force with effect from 1 August 2014 and supersede our T&Cs applicable up until that date.

1.3 Any conditions imposed by our customers that differ from, conflict with or are supplementary to our T&Cs shall not form part of any agreement unless we have provided our express consent for expressly consented to their validity.

1.4 Our T&Cs shall also apply if we supply goods or services without reservation and in acknowledgement of alternative conditions from the customer or fail to include our T&Cs in individual cases of future business transactions. Our T&Cs are available to download at any time from our website.

1.5 Agreements made on an individual basis with customers take priority over our T&Cs. Rights that are assigned to us by statutory regulations beyond our T&Cs remain unaffected.

1.6 Our conditions of sale apply only to companies, legal persons under public law or public funds governed by public law as defined by Section 310 Para. 1 of the German Civil Code (BGB)

2. Offer, conclusion of agreements

2.1 Our offers are non-binding unless we have expressly designated them as binding on a case-by-case basis

2.2 Provided customer orders have not been expressly identified as non-binding, these shall be considered as binding offers that we are able to accept within 10 days following receipt.

2.3 Insofar as we are entitled to subcontract orders or jobs from a customer to third parties, we may provide our suppliers or subcontractors with access to the associated customer documentation.

2.4 The scope and content of the delivery / service due is defined solely by our contractual documentation. We reserve the right, following conclusion of an agreement, to make the following changes to the products of the agreement provided these are not unreasonable for the customer:

  • Product changes in the context of constant product development and improvement;
  • Slight and insignificant colour, shape, design, dimensional, weight or volume differences;
  • Conventional commercial deviations or deviations which cannot be avoided according to the state of the technological art.


2.5 We make every effort to accommodate any change request by the ordering party with regard to the deliveries and/or services forming the object of the agreement once the agreement has been concluded, provided it is reasonable for us to do so within the context of our commercial capacities and capabilities.
If the check of change options or actual implementation of changes has any impact on the contractual performance structure (remuneration, deadlines, modalities of acceptance, etc.), the contractual parties shall be obliged to engage in immediate negotiations to adapt the contractual regulations affected. For the duration of the interruption of ongoing production resulting from the examination of change requests and the agreement regarding the adaptation of the contractual regulations, we shall be entitled to demand appropriate supplementary remuneration.
For the examination if and at which terms the desired change can be realised, we may also demand a reasonable additional remuneration, as far as we have indicated the necessity of the examination to the contract partner and he has placed a corresponding examination order.

2.6 If, during the conclusion of an agreement, an inadvertent error occurs on our part, for example as a result of transmission errors, misunderstandings, etc., any entitlement to compensation from us as defined in Section 122 of the German Civil Code shall be null and void.

3. Prices, payment, payment delays, right of offset / retention

3.1 Unless otherwise agreed on a case-by-case basis, solely the prices quoted in our order confirmation shall apply, along with the scope of service and delivery quoted therein.

3.2 Subject to any alternative individual agreement, the prices specified in our order confirmation essentially do not include costs relating to

  • packaging, postage, freight costs, packaging, insurance, customs duties and public levies, but instead are considered “ex works”
  • as well as setup and installation services and any other ancillary costs
  • as well as the legally applicable VAT, which we will itemise separately in the invoice at the rate applicable on the day of invoicing.

 

3.3 Unless a fixed price has been expressly agreed and no cost increases attributable to ourselves have occurred between the conclusion of the agreement and the shipping of the ordered products - especially secondary to market price, material and raw material price changes that were unforeseeable at the time at which the agreement was concluded - and we therefore are only able to procure the goods or raw materials for the fulfilment of the agreement at less favourable economic conditions, we shall be entitled to adjust the prices agreed with the customer in the context of the altered circumstances and without charging any additional profit, provided the goods are to be shipped no sooner that two months after the conclusion of the agreement. This applies accordingly if we, due to currency rate fluctuations, are only able to procure the goods from our suppliers on less advantageous economic terms than had been foreseeable at the time the agreement was concluded. If the increase in the purchase price agreed with the customer is more than 10%, the customer shall be entitled to withdraw from the agreement concluded with us.


We are entitled to carry out or provide any outstanding deliveries or services only in exchange for advance payments or security if, following the conclusion of the agreement, we become aware of circumstances that significantly reduce the customer's creditworthiness and as a result of which the payment of our outstanding receivables by the customer from the contractual relationship may be jeopardised. This applies accordingly if our customer refuses to pay our outstanding receivables or fails to pay them and there are no indisputable or legally established objections to our demand for payment.

4. Terms of payment

4.1 Unless otherwise agreed, our invoices shall be due for payment within 30 days of receipt nett or within 14 days of receipt with a 2% discount. Payments must be made without deduction free to our payments centre. Payment is deemed effective only as soon as and provided we are able to claim final ownership of the sum. We only accept bills of exchange and cheques based on express written agreement and only on account of payment. Discount charges and other bill of exchange and cheque costs must be borne by the customer. Our rights governing retention of title remain enforced until the full satisfaction of all bills receivable. Bills of exchange and cheques are only accepted on account of payment; bills of exchange are only accepted following prior written agreement. The discount, charges and costs associated with the bill of exchange and cheque sum must be borne by the customer. Acquittance occurs only with the cashing-in of the cheque or bill of exchange and our release from any endorser’s liability.

4.2 We are entitled to demand appropriate instalment payments in addition to the legal VAT sum due.

4.3 If, following the expiry of a deadline set for him, the customer fails to accept purchased goods (delayed acceptance), we shall be entitled to demand an administration fee to cover storage costs from this point forward. This fee shall amount, without special evidence, to 1% of the purchase price per week or part thereof and is limited to 5% of the total purchase price. The customer and we are at liberty to provide evidence that, in relation to the non-acceptance of goods, no lower or higher storage costs have been incurred than those listed by us in the administration fee. Other claims remain unaffected by this.

4.4 Offset can only be declared by the customer in relation to uncontested or legally established counterclaims. The customer shall also be entitled to exercise his right of retention and objection to the unfulfilled agreement where a duty according to Section 276 of the German Civil Code has been breached

4.5 In the event of culpable default of payment by the customer, all receivables that are due to us from the customer which arise from the same legal relationship as defined in Section 273 of the German Civil Code shall become payable immediately.

5. Delivery / lead time / delayed delivery

5.1 Subject to any individual agreement to the contrary, deliveries shall be made “ex works” and unpackaged. Even if we do provide any packaging, transport and all other packaging will not be taken back as defined in the Packaging Directive; the exception to this is pallets. The customer shall be responsible for disposing of the packaging.

5.2 Lead times and delivery deadlines are only binding upon us if we have expressly designated or confirmed these as such. An agreed lead time shall be deemed to have been met if the goods leave our site before the expiry of the lead time or we have communicated the readiness for shipping and the goods have not yet left our site solely due to a refusal of acceptance announced by the customer. Contractually agreed deadlines are only fixed deadlines if they have been expressly defined as such in writing.

5.3 Compliance with delivery and service deadlines requires the timely fulfilment of all cooperation obligations incumbent upon the customer, in particular the receipt of documents and information to be provided by the customer, the clarification of all technical details with the customer, the receipt of all agreed advance payments and if necessary the opening of letters of credit, the confirmation of authority approval and the provision of import licences.

5.4 The plea of non-performance of the agreement remains reserved and our client dispenses with the receipt of a notice of delay.

5.5 If our service is delayed, our customer is obliged to first give us an appropriate extension. If this deadline passes without service, the customer shall be entitled to demand compensation instead of fulfilment and to withdraw from the agreement. In response to our demand within an appropriate deadline, the customer must therefore declare whether he will await delivery or, due to the delay in the delivery or service, will withdraw from the agreement.

6. Transfer of risk / insurance

6.1 The risk for accidental loss or deterioration of the goods shall be transferred to the customer no later than the transfer of the goods to the customer or his receiving agent, or with agreed shipment upon handover of the goods to the haulier, freight carrier or other person nominated to carry out the shipment. This also applies if partial deliveries are made or if carriage-paid or free-of-charge transfer has been agreed for the customer. The choice of transporting company and transport route shall be made by ourselves at our discretion, provided no written specifications have been received from the customer. At the request and expense of our customer, we will arrange transport for the shipping of the goods that as closely matches the corresponding wishes of the our customer as possible.

6.2 If there is any delay in acceptance, pick-up or retrieval by the customer or any delay in our deliveries or services due to reasons attributable to the customer, the risk of accidental damage or deterioration of the goods shall be transferred to the customer at the time at which the customer's delay begins or when the delivery or service could have been provided in accordance with the agreement had the customer's conduct been in accordance with his obligations.

6.3 If we choose the type of shipping, the shipping route and/or the shipping personnel, we shall be liable solely for cases of wilful intent or gross negligence in relation to the choice made.

7. Delayed acceptance, pick-up or retrieval by the ordering party

7.1 If the customer delays acceptance at the place of fulfilment, pick-up or retrieval of the delivery or services - even in the event of partial deliveries or partial services - or if the delivery or service is delayed in any other way for reasons attributable to the customer, we shall be entitled - irrespective of our statutory rights - to

  • demand immediate payment for the deliveries or services that are affected by the delay and also to deposit the objects of the delivery in storage at the expense and risk of the customer
  • following the expiry of an appropriate extension set to the customer - with notification of our rights - dispose of the delivery affected by the delay

 

and supply the customer with an appropriately extended deadline or withdraw from the agreement and/or demand compensation in lieu of performance. In the latter case, we shall be entitled to demand 20% of the gross order sum without proof as compensation provided no significantly lesser damage has occurred. We reserve the right to exercise a claim for higher actual damages.

8. Retention of title

8.1 The goods supplied remain our property until the full and final payment of all receivables arising from the business relationship with the customer. The receivables in question also include cheques and bills receivable as well as receivables from current account operations. If claims for payment are to be met by a bill of exchange, the retention of title is only discharged when our claim to the bill of exchange is excluded.

8.2 Any sale of the goods subject to the retention of title is permitted to the customer only within the course of his normal business proceedings. The customer is not entitled to pledge goods under retention of title, use them as security or enter into any other dispositions that endanger our property. In the case of seizure of the goods or other interventions by third parties the customer is to inform us in writing without delay and provide us to a reasonable extent with the information we request, to notify the third party regarding property rights we hold and to cooperate with all of our efforts to protect the goods under our retention of title and our receivables. The costs arising from the execution of these measures, in particular costs associated with the cancellation of access and the reprocurement of the goods shall be borne by the customer if, and to the extent that he is responsible for this, unless these can be obtained from the third party.

8.3 The customer hereby assigns to us all receivables from the further auctioning of the goods with all ancillary rights and value added tax, regardless of whether the goods under retention of title are sold on without or after processing. We accept this assignment herewith. Should any assignment not be permitted, the customer shall irrevocably notify the third-party debtor to make any payments only to us. The customer is provisionally empowered to collect the receivables assigned to us as a trustee acting on our behalf. The sums collected must be transferred to us without delay. We shall be entitled to withdraw the customer's right of collection and the customer's right to further auction goods if the customer does not fulfil its payment obligations to us in an orderly manner, falls behind with payments, ceases payments or if insolvency proceedings are initiated relating to the customer's assets or any similar process, such as insolvency protection proceedings or self-administration as defined by InSO or similar processes in accordance with foreign regulations. The onward sale of receivables requires our prior consent. With the notification of assignment to the third-party debtor, the customer’s right of collection is terminated. In the event of the collection authorisation being revoked, we may demand that the customer notifies us of the assigned receivables and their debtors, provides us with all of the information relating to collection, gives us the associated documentation and notifies the debtors in writing of the assignment.

8.4 We shall be entitled - subject to enforceable insolvency legislation regulations - to dispose of reserved goods taken back for the reasons outlined above following prior warning and following the setting of a deadline; the revenue earned from the disposal shall be offset against the customer's liabilities - less appropriate liquidation costs.

8.5 In the event of damage to or loss of the reserved goods, as well as any change of ownership, the customer must notify us of this fact immediately in writing.

8.6 Any processing or transformation of the reserved goods by the customer will always be carried out for us. If the reserved goods are processed with other objects that are not in our ownership, we shall acquire co-ownership of the new object in the proportion of the final sum we calculate for the reserved goods including VAT to the final invoice amounts of the other processed objects.
The same otherwise applies to the object brought about by processing as for the reserved goods. The customer shall be granted an expectant right to the object brought about by processing commensurate with his expectant right to the reserved goods.

8.7 If the reserved goods are inseparably mixed with or linked to other objects that are not in our ownership, we shall acquire co-ownership of the new object in the proportion of the final sum we calculate for the reserved goods including VAT to the final invoice amounts for the other mixed or linked objects. If the mixture or linking occurred in such a way that the customer's object is now regarded as the main object, it shall be deemed agreed that the customer will transfer proportional co-ownership to us. The customer retains sole ownership or co-ownership on our behalf.

8.8 In the event of the onward sale of our reserved goods after processing or transformation, for security, the customer shall hereby assign his claims to remuneration in the sum of the final invoice amount (including VAT) of our receivables to us.
If, as a result of the processing, transformation or mixing or linking of the reserved goods with other objects that are not in our ownership, we have only acquired co-ownership, the customer's claim to remuneration shall be assigned to us in advance only in the proportion of the final sum we calculate for the reserved goods including VAT to the final invoice sums for the other objects that are not in our ownership.

8.9 If the retention of title or assignment based on the foreign law of the country in which our reserve delivery is made is not enforceable, then the corresponding security agreed for the reservation of title and assignment in this legal territory shall be deemed agreed.
Should the cooperation of the customer be necessary for the creation of such rights, then he shall undertake all measures which are necessary to establish and maintain such rights.

8.10 The customer is obligated to handle the goods subject to retention of title with care and to keep them in a good state of repair; he is above all obligated to insure these goods at his own expense and at replacement value against fire damage, water damage, loss and natural hazards. The customer hereby assigns all rights to compensation from this insurance, including in the event of the customer asserting a claim for damages against third parties, to us. We accept the assignment herewith. Should any assignment not be permitted, the customer shall irrevocably notify the insuring party to make any payments only to us. If further claims are due to us, these remain unaffected. The customer must provide us with proof at our request of the conclusion of insurance in a suitable form. We reserve the right to assert further claims for performance or damages.

8.11 We are obligated, at the customer's request, to release securities owed to the customer insofar as the realisable value of the securities, taking account of conventional banking valuation discounts, exceeds our receivables from the business relationship with the customer by more than 20%. The choice of securities to be released shall be ours. During valuation, the invoice value of the goods subject to retention of title and of the nominal value in the case of receivables shall be assumed. If the goods subject to retention of title are subjected to processing, transformation or linking by the customer, the cost price is the determining price.

9. Claims for defects, limitation of use, liability

9.1 The prevailing basis of our liability for defects is the agreed quality of the merchandise. Any other descriptions of our merchandise, public statements, promotion and advertising statements do not represent a contractually owed indication of quality. The quality information decisive for the content and scope of our performance obligation according to Point 2.4. above with respect to our merchandise is always subject to a guarantee within the meaning of Section 443 of the German Civil Code only if this has been explicitly agreed.

9.2 Our merchandise is only intended for use for the applications indicated by us in the respective product specification or explicitly permitted purposes. This does not include the use in life-sustaining or life-supporting medical devices, in military systems, in nuclear installations, in installations according to Appendix 1 and Appendix 2 of the German Environmental Liability Act or any corresponding, comparable foreign provisions and in aviation and aerospace technology, unless the usability of the merchandise for such reserved applications has been explicitly confirmed by us. If the client uses the merchandise for the above-mentioned purposes without our explicit approval, such use is at the exclusive risk of the client. We do not accept any liability for any damages from any use for such purposes without express prior approval, unless it prevails due to indispensable compulsory legal provisions. The client agrees to release us from all third party claims if and as far as any compensation claims are related to the use of our merchandise for purposes that have not been admitted.

9.3 No warranty is given for defects arising due to natural usage, wear and tear and external influences.
Any warranty claims are cancelled if the client

  • repairs, modifies, processes the contractual deliveries or services or has such measures taken by third parties without our consent, or
  • does not handle, operate or use the contract products according to our conditions of use and guidelines or if another inappropriate treatment, use or operation occurs, or
  • if there are circumstances suggesting the above-mentioned grounds for exclusion - does not prove that the defects have been neither partially nor totally caused by the above-mentioned factors.

 

9.4 Any claims for damages by the client are subject to the condition that he has fulfilled his legal obligations of examination and notification according to Sections 377 and 381 of the German Commercial Code in time, in particular checked the delivered merchandise at reception and reported any obvious defects and any defects recognisable in such examinations in writing immediately after reception of the merchandise. Any hidden defects must be indicated to us by the client immediately after their detection. Notification is deemed immediate if it occurs within two weeks, in case of obvious defects and defects that could be detected in a due examination, after delivery or, in case of hidden defects, after their detection; here, compliance with this deadline is met if the notification/claim is sent in good time. If the customer fails to inspect the goods and/or report any defects, we accept no liability for the unreported defect.

As part of the notification, the client must describe the defects in writing. The same applies to over-deliveries, under-deliveries or any incorrect delivery. We will thereupon inform the client if defective goods constituting cause for complaint or parts thereof are to be returned to us or whether the client should wait until the goods are either picked up by us at his site or are inspected by us on site

9.5 In the case of defective merchandise, we are entitled to choose first and foremost, within an appropriate time period, whether we rectify the fault or supply a replacement product. The client shall not have the right to choose. We are also entitled to have repairs carried out by third parties. Replaced parts shall become our property. With regard to replacement deliveries and rework, the client does not have any rights beyond those existing for the original contract products. Our legal right to refuse subsequent performance under statutory conditions remains unaffected by this.

9.6 If we are not prepared or are unable, after an appropriate time period, to realise any subsequent performance, the client can, at his discretion, withdraw from the contract or reduce the purchase price. The same holds if the subsequent performance fails or is unacceptable to us.

9.7 Where the defect is due to our fault, the client can claim compensation for damages under the conditions defined in 9.8.

9.8 We assume unlimited liability for damages from the breach of a guarantee or from injury to life, body or health. The same applies to intent and gross negligence, to our compulsory legal liability for product defects and to our liability due to fraudulent concealment of defects. We are liable for slight negligence only if we violate material duties which result from the nature of the contract or which are of special importance for the achievement of the agreed contract purpose. Material contractual duties are in particular main performance obligations, as e.g. delivery of the merchandise free from defects and duties of consulting, protection and care to enable the client to use the merchandise as defined in the contract or intended to protect life and limb of the client and his personnel or to protect his property from significant damages.
In case of a breach of such material contractual duties, default or impossibility, our liability is limited to such damages that can typically be expected within the contract.
In case of our liability due to simple negligence, our duty to compensate for property damages and any resulting financial losses is limited to an amount of EUR 500,000 per case of damage, even if material contractual duties have been breached.
The above-mentioned disclaimers and limitations of liability hold to the same extent for the benefit of our corporate bodies, legal representatives, employees and other agents.

9.9 The period of limitation for claims for damages of the client is one year, as far as the defective merchandise has not been used for a building according to its usual application and has caused its defectiveness.
The period of limitation starts with the delivery of the merchandise. Our unlimited liability for damages from the breach of a guarantee or from injury to life, body or health, for intent and gross negligence and for product defects remains unaffected by this. Only the legal periods of limitation are valid for our liability for the above-mentioned causes, in particular those of the Product Liability Act.

9.10 In principle, we do not provide a statement on a claim for defects asserted by the client as recognition, nor do we hereby enter into negotiations about the claim or the circumstances on which it is based.

9.11 In the case of generic obligations, we shall not assume any procurement risk without express written agreement.

9.12 The place of performance for subsequent performance and rework is our company's registered office.

10. Withdrawal

10.1 Except where there is a defect and subject to a special agreement, the client is entitled to withdraw from the contract due to a breach of duty by us only if we are responsible for that breach of duty.

11. Contractual penalties

11.1 We reserve the unlimited right to ownership and our copyright exploitation rights in relation to all tender and contract documents, such as drafts, drawings, illustrations, brochures, catalogues etc., and all samples, models and prototypes. Our client may only make such documents available to third parties or utilise or exploit them with our prior written consent. If the order is not placed with us, all documents handed over in the course of a proposal must be immediately returned to us upon our request, whereby any rights of retention are excluded. In particular, the goods that we supply must not be copied or reproduced in any other way using the above-mentioned documents, samples, models and prototypes, and no products thus copied or reproduced must be distributed or exploited in any other way.
In case of any infringement against such obligations, the client undertakes to pay to us a contractual penalty of € 50,000, unless he is not responsible for the breach. This shall not prejudice any further claims for damages.

12. Force majeure

12.1 If we are prevented from fulfilling our contractual duties, in particular from delivering the merchandise, due to force majeure, we shall be released from the performance obligation for the duration of the impediment with the addition of a reasonable start-up time without having to pay the client compensation for damages. The same applies if fulfilling our main and ancillary contractual obligations has been made unacceptably difficult or temporarily impossible for us by any other unforeseeable circumstances for which we are not responsible, in particular through labour disputes, measures by public authorities, lack of energy supplies, delivery hold-ups from a supplier or substantial operational disruptions.

12.2 We are entitled to withdraw from the contract if the above-mentioned impediments continue for more than three months and the fulfilment of the contract is no longer of interest to us on account of such circumstances. At the request of the client, we will declare in due time before the expiry of this deadline whether we will exercise our right of withdrawal. If as a result of the delay the client cannot reasonably be expected to accept the goods or services, he may withdraw from the contract.

13. Concluding provisions

13.1 The exclusive place of performance for delivery and payment for both contracting partners is our registered office.

13.2 If our client is a merchant pursuant to the German Commercial Code, a legal entity under public law or a special fund as defined under public law, the place of jurisdiction for all obligations arising from the contract relationship – also for matters concerning bills of exchange or cheques – is our company's registered office or, at our discretion, the registered office of the client. The agreement on the place of jurisdiction above also applies to clients whose registered office is located abroad.

13.3 Only the law of the Federal Republic of Germany applies to all rights and obligations from the contractual relationship existing between us and the orderer, under exclusion of the UN Sales Law (CISG: United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980).

13.4 Clients based within the European Union member states are responsible for compensation of all damage which results from intra-community acquisition,

  • due to any tax offences committed by the client himself or
  • due to any false or omitted declarations by the client about his tax-related situation.

 

13.5 The delivered merchandise is intended to stay in the country of delivery agreed with the client. Merchandise subject to embargo regulations must not be exported from the country of delivery by the client. In particular, the delivered merchandise is subject to German, European and American export controls and embargo regulations. The client is obliged to become acquainted with the corresponding export and/or import regulations / restrictions and, if applicable, to obtain the relevant permits. In the same way, the client will also impose the above-mentioned obligations on his buyers.

13.6 Should one provision of these terms and conditions be completely or partly ineffective, or unable to be enforced, now or in future, or should these contain any omissions, the validity of the remaining provisions shall not be affected. Any ineffective, void or unenforceable provision shall be replaced by a valid or enforceable provision that comes as close as possible to the intended purpose of the ineffective or unenforceable provision. In the event of an omission, the provision deemed agreed shall be the one which corresponds to what would have been agreed according to the purpose of these T&Cs if the contracting parties had taken the issue into consideration from the outset.

Download T&C's August 2014.pdf (188,5 KB)