eloona.eu

General Terms and Conditions of Sale

§ 1 Generalities, Scope

(1) These general terms and conditions of sale (GTC) shall apply to all our business relations with our customers (hereinafter referred to as „Purchaser“). The GTC shall only be valid if the Purchaser is an entrepreneur (§ 14 of the German Civil Code), a legal public entity or a public law special fund.

(2) The GTC shall in particular apply to contracts regarding the sale and/or supply of movable objects (hereinafter also referred to as „Goods“), irrespectively of whether we manufacture the Goods or acquire these from other suppliers (§§ 433, 651 of the German Civil Code). The GTC shall also apply in their respective version as framework agreement for future contracts regarding the sale and/or supply of movable objects with the same Purchaser, without us having to refer to them in each individual case.

(3) Our GTC shall apply exclusively. Deviating, contrary or supplementary general terms and conditions of sale of the Purchaser shall only then and insofar be considered as part of the contract if we expressly agree to their application. This need of consent shall apply in all cases, for example also if we carry out the delivery to the Purchaser without reservation, fully aware of the GTC thereof.

(4) Any individual agreements reached in a particular case with the Purchaser (including collateral agreements, supplements or amendments) shall in all cases have primacy over these GTC. A written contract or a written confirmation shall determine the contents of such agreements.

(5) Any legally binding declarations and notifications which have to be submitted to us by the Purchaser after subscribing a contract (e.g. deadlines, complaints, declarations of cancellation or reduction) require the written form in order to be effective.

(6) References concerning the validity of statutory regulations shall only have a clarifying purpose. Consequently, the statutory regulations shall also apply without such a clarification insofar as they are not directly modified or are expressly excluded in these GTC.

§ 2 Conclusion of a contract

(1) Our offers are subject to change and nonbinding. This shall apply also if we have handed over catalogues, technical documentation (e.g. drawings, plans, computations, calculations, references to DIN standards), other product descriptions or documents -also in an electronic form- to the Purchaser, to which we reserve property rights and copyrights.

(2) A product order made by the Purchaser is considered as a binding contractual offer. Insofar as not otherwise derived from the order, we are entitled to accept this contractual offer within 14 days after its receipt.

(3) The acceptance can either be declared in writing (e.g. by means of an order confirmation per post, fax or e-mail) or by delivery of the goods to the Purchaser.

§ 3 Delivery deadline and delay in the delivery

(1) The delivery deadline shall be determined individually and will be respectively stated by us with the acceptance of the order. Otherwise the term of delivery shall be of 4-6 weeks upon conclusion of the contract.

(2) In case we are not able to comply with the binding delivery deadlines for reasons beyond our responsibility (non-availability of the service), we shall inform the Purchaser immediately and simultaneously indicate the estimated, new delivery deadline. If the service is still not available within the new delivery deadline, we shall be entitled to cancel the contract in part or in full. We shall immediately reimburse any compensation already provided by the Purchaser. In particular deemed as case of non-availability of the service in this sense is the late self-delivery by our suppliers when we have concluded a congruent hedging transaction. Our statutory rights to cancellation and termination and the statutory regulations regarding the processing of the contract with an exclusion of the service obligation (i.e. impossibility of service and/or supplementary performance or if these are deemed unreasonable) remain unaffected. The rights of the Purchaser to cancellation and termination according to § 8 of these GTC remain unaffected as well.

(3) The occurrence of a delay in delivery is determined according to the statutory regulations. However, in any case, a reminder by the Purchaser is necessary. Seller’s liability for the damages caused to the Purchaser because of the delay shall arise only in case the delay happened due to violation of basic contractual obligations or if it was caused deliberately or due to rough negligence. The right to compensation for damages due to delay is of 5% of the net price (value of goods delivered), limited however to a maximum of 5% of the value of the delayed delivered goods. We reserve the right to prove that the Purchaser did not suffer any damages at all or only substantially less damages than the aforementioned flat rate.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

(1) The delivery is carried out ex works, where the place of performance is also located. Upon request and at expense of the Purchaser the goods shall be sent to another place of destination (contract of sale involving the carriage of goods). Insofar as not otherwise agreed we are entitled to determine ourselves the type of shipment (in particular transport company, shipment route, packaging).

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the latest when the goods are handed over. However, in case of a contract of sale involving the carriage of goods, the risk of accidental loss and accidental deterioration of the goods and the risk of delay shall however pass already with the delivery of the goods to the shipper, the freight carrier or any other person or institution assigned to carry out the shipment. Insofar as an acceptance has been agreed, this shall determine the passing of risk. Also incidentally the statutory regulations of the law governing contracts for work and services shall also apply accordingly to an agreed acceptance. The handover or acceptance is deemed as occurred although the Purchaser is in default with the acceptance.

(3) If the Purchaser is in default with the acceptance, fails to act in cooperation or if our delivery is delayed for other reasons for which the Purchaser is responsible then we are entitled to request compensation for the thus arising damages, including additional expenses (e.g. storage costs). As a result, we shall charge a flat rate compensation in the amount of 250.00 euros per calendar day, beginning with the delivery deadline or –in the absence of a delivery deadline– with the notification indicating that the goods are ready for shipment.

The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected. The flat rate is however to be compensated against further monetary claims. The Purchaser reserves the right to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned flat rate.

§ 5 Price and terms of payment

(1) Insofar as not otherwise agreed in an individual case our current prices which respectively apply at the time of the delivery shall apply and in fact ex works plus the applicable rate of value added tax.

(2) In case of a contract of sale involving the carriage of goods (§ 4 Par. 1) the Purchaser assumes the transportation costs ex works and the costs for any shipment insurance desired by the Purchaser as the case may be. Any customs duties, fees, taxes, and other official charges shall be assumed by the Purchaser. We do not take back any transportation packaging or other packing material pursuant to the German Packaging Ordinance and these shall be deemed as property of the Purchaser; excluding palettes.

(3) The purchase price is due and payable within 10 days from invoicing and delivery, or acceptance of the goods. However, in the case of contracts with a value of goods delivered higher than 20,000.00 euros we are entitled to request an advance payment of 30% of the purchase price. Such advance payment is due and payable within 10 days from invoicing.

(4) With the expiry of the above-mentioned payment deadline the Purchaser shall fall in default. Interests are to be paid on the purchase price at the respective applicable interest rate for default during the default. We reserve the right to assert further damages in case of default. Our right to commercial maturity interests from traders (§ 353 of the German Commercial Code) remains unaffected.

(5) The Purchaser is only entitled to rights of compensation or retention to the extent that such entitlement has been legally determined or is undisputed. In case of defects regarding the delivery § 7 Par. 6 remains unaffected.

(6) If after conclusion of the contract there are indications that our entitlement to the purchase price is at risk through insufficient ability of the Purchaser to pay (e.g. by means of a petition to initiate an insolvency proceeding), we are then entitled according to the statutory regulations to refuse service and -if applicable after setting a deadline- to cancel the contract (§ 321 of the German Civil Code). In case of contracts concerning the manufacture of non-interchangeable goods (custom-made item) we shall be entitled to cancel immediately; the statutory regulations concerning the dispensability of setting a deadline remain unaffected.

§ 6 Reservation of title

(1) We reserve the right to the property of the sold goods until receiving full payment of all of our current and future claims from the purchase contract and a current business relationship (secured claims).

(2) The goods subject to reservation of title may neither be pledged to third parties nor be assigned as collateral before the full payment of the secured claims. The Purchaser must notify us immediately in writing if and insofar as there are any accesses of third parties to the goods which belong to us.

(3) In case of a conduct of the Purchaser which is in breach of the contract, in particular in case of non-payment of the due purchase price, we are entitled to cancel the contract according to the statutory regulations and to request the return of the goods owing to the reservation of title and cancellation. If the Purchaser does not pay the due purchase price we may however only reserve the right to the cancellation if we have unsuccessfully set the Purchaser a reasonable deadline for payment or if it is not necessary to set such a deadline pursuant to the statutory regulations.

(4) The Purchaser is authorized to resell and/or to process the goods which are subject to reservation of title in proper business transactions. In this case the following provisions shall additionally apply:

(a) The reservation of title covers the products which are generated by processing, mixing or combining our goods at their full value, whereby we shall be deemed as manufacturer. If the ownership right of third parties continues to exist after processing, mixing or combining with third-party goods then we shall acquire co-ownership in the ratio of the invoice values of the processed, mixed or combined goods. Incidentally the same shall apply to the generated product as to the goods delivered under reservation of title.

(b) The Purchaser hereby already assigns to us as collateral the claims against third parties which arise from the resale of the goods or product in total or in the amount of our possible co-ownership share, pursuant to the afore-mentioned paragraph.  We hereby accept the assignment. The obligations of the Purchaser stated in Par. 2 shall also apply in view of the assigned claims.

(c) The Purchaser shall remain authorized to collect the claim besides us. We agree not to collect the claim as long as the Purchaser meets its payment obligations towards us, is not in default of payment, no petition to initiate an insolvency proceeding has been filed, and there is no other deficiency to its ability to pay. However, shall this be the case, we can request the Purchaser to inform us about the assigned claims and their debtors, to provide all information which is necessary for the collection, to hand over the relevant documents and to inform the debtors (third parties) about the assignment.

(d) If the realizable value of the collateral items exceeds our claims by more than 10%, we shall release collateral items at our choice upon request of the Purchaser.

§ 7 Purchaser's claims for defects

(1) The statutory regulations shall apply for the rights of the Purchaser in case of defects of quality and title (including false and short delivery as well as improper assembly or erroneous assembly instructions) insofar as not otherwise determined below. The special statutory provisions in the case of ultimate delivery of the goods to a consumer (supplier's recourse according to §§ 478, 479 of the German Civil Code) shall remain unaffected in all cases.

(2) The agreement met concerning the quality of the goods shall be deemed as the primary basis of our liability for defects. All product descriptions (including those of the manufacturer) that are not objected by the Purchaser before ordering or that are incorporated as subject of the contract in the same way as these GTC shall be considered as an agreement concerning the quality of the goods.

(3) In the absence of any quality agreement, the existence or non-existence of a defect shall be assessed according to the statutory regulations (§ 434 Par. 1, Num. 2 and 3 of the German Civil Code). However, we shall not be held liable for any public statements made by the manufacturer or any other third parties (e.g. advertisements).

(4) The Purchaser's claims for defects presuppose that it has satisfied its statutory obligations for inspection and reporting of complaints (§§ 377, 381 of the German Commercial Code). If a defect is determined during the inspection or afterwards then this is to be reported to us immediately in writing. The report is deemed as immediate if it is made within two weeks whereby the timely dispatch of the report is sufficient in order to safeguard the deadline. Irrespective of this obligation for inspection and reporting of complaints, the Purchaser must report obvious defects (including wrong and short delivery) within two weeks from delivery in writing whereby the timely dispatch of the report is also sufficient in this case to safeguard the deadline. If the Purchaser fails to carry out the proper inspection and/or report of complaints, our liability for the defect which was not reported is excluded.

(5) If the delivered object is faulty we can initially choose whether we shall provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a faultless object (substitute delivery). Our right to refuse the chosen type of subsequent performance under the statutory preconditions remains unaffected.

(6) We are entitled to make the owed subsequent performance dependent on the fact that the Purchaser pays the due purchase price. The Purchaser is however entitled to retain a part of the purchase price which is reasonable in proportion to the defect.

(7) The Purchaser must give us the time and opportunity which are necessary for the owed subsequent performance, in particular to hand over the goods for which a complaint was made for purposes of inspection. In the event of a substitute delivery the Purchaser must return the faulty object to us according to the statutory regulations.

(8) The expenses which are necessary for the purpose of inspection and subsequent performance, in particular transport, routing, work and material costs shall be borne by us if there is actually a defect. However, if it is determined that a request for remedy of a defect by the Purchaser is unjustified, we can request from the Purchaser the reimbursement of the costs incurred hereby.

(9) In urgent cases, e.g. when the operational safety is at risk or in order to avoid disproportionate damages, the Purchaser shall be entitled to remedy the defect on its own and claim from us reimbursement of the objectively necessary expenses incurred. We shall be notified immediately, if possible beforehand, about such a self-remedying of defects. The right to self-remedy shall not apply if we would have been entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

(10) If the subsequent performance has failed or a reasonable deadline which is to be set by the Purchaser for the subsequent performance has expired unsuccessfully or it is dispensable according to the statutory regulations, the Purchaser can cancel the purchase contract or reduce the purchase price. However, no right to cancellation exists in case of an insignificant defect.

(11) Claims of the Purchaser for damages or reimbursement of fruitless expenses shall only exist according to § 8 and are incidentally excluded.

§ 8 Other liability

(1) Insofar as not otherwise derived from these GTC, including the following provisions, we shall be liable according to the relevant statutory regulations in case of a breach of contractual and non-contractual obligations.

(2) We shall be liable for damages –no matter for what legal grounds– in case of deliberate intention and rough negligence. In case of simple negligence we shall only be liable

a) for damages due to injury to life, limb or health,

b) for damages resulting from the breach of an essential contractual obligation (a duty that must be fulfilled to enable at all the proper execution of the contract and on whose compliance the other party of the contract relies as a rule and may rely); in this case our liability is however limited to the reimbursement of the foreseeable, typically occurring damages.

(3) The liability restrictions which can be derived from Par. 2 shall not apply insofar as we have maliciously failed to disclose a defect or have assumed a guarantee for the condition of the goods. The same shall apply to claims of the Purchaser according to the Product Liability Act.

(4) The Purchaser can only cancel or terminate the contract due to the breach of a duty, which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination of the Purchaser (in particular according to §§ 651, 649 of the German Civil Code) is excluded. Incidentally the statutory preconditions and legal consequences shall apply.

§ 9 Statute-of-limitations

(1) Notwithstanding § 438 Par. 1 Num. 3 of the German Civil Code, the general statute-of-limitations for claims from defects of quality and title is of one year from delivery. Insofar as an acceptance has been agreed, the statute-of-limitations shall begin with the acceptance.

(2) Special statutory regulations for in rem claims for restitution to third parties, in case of willful deceit of the Seller (§ 438 Par. 3 of the German Civil Code), and for claims through recourse against the supplier in final delivery to a consumer (§ 479 of the German Civil Code) shall remain unaffected.

(3) The afore-mentioned statutes-of-limitations of the law governing purchases shall also apply to contractual and non-contractual claims for damages of the Purchaser which are due to a defect of the Goods, unless the application of the regular legal statute-of-limitations (§§ 195, 199 of the German Civil Code) would lead to a shorter statute-of-limitations in an individual case. The statutes-of-limitations of the Product Liability Law shall remain unaffected in any case. Otherwise the legal statute-of-limitations shall apply exclusively to claims for damages of the Purchaser according to § 8.

§ 10 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relations between us and the Purchaser under the exclusion of all international and supranational (contractual) legal regulations, in particular the UN Convention on Contracts for the International Sale of Goods. The premises and effects of the reservation of title according to § 6 are on the other hand subject to the law of the respective storage location of the object insofar as accordingly the choice of law which was agreed is inadmissible or invalid for the benefit of the German Law.

(2) If the Purchaser is a trader in terms of the German Commercial Code, a legal public entity or a public law special fund, the exclusive –also international– place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Ingolstadt. We are however also entitled to file an action at the general place of jurisdiction of the Purchaser.