Terms and Conditions
General terms and conditions of eubus GmbH
1.1. Unless explicitly otherwise agreed, orders will be accepted and completed in accordance with the terms of sale and delivery specified below. This will also apply to all follow-up orders, without further reference required to this effect. Repairs and assembly will be subject to separate terms and conditions.
1.2. We (hereinafter: the supplier) hereby expressly oppose all terms and conditions of the customer.
1.3. Any agreements which deviate from these terms and conditions should be made in writing. Verbal agreements should be confirmed immediately in writing.
2. Offers, documentation and industrial property rights
2.1. Unless otherwise stipulated in the respective offer, offers will hold good for a period of four weeks. The goods are subject to prior sale. A delivery obligation is only established once the offer has been expressly confirmed by the supplier.
2.2. The customary industry approximations will apply to all technical data, material specifications etc., unless these are expressly stipulated as binding in the offer. Notification of amendments will only be provided in cases where a quality guarantee is affected.
2.3. All the documentation made available to the customer by the supplier will remain the property of the supplier; these documents may not be made available to third parties without the prior written consent of the supplier. Should the order not be placed with the supplier, all documentation must be returned immediately to the supplier at the latterâs request, together with any copies made.
2.4. The specifications contained in catalogues, brochures and other written documentation must be checked by the customer prior to acceptance and implementation in order to ensure their suitability for the intended application. This also applies to the selection of suitable materials. The customer must take it upon himself to obtain information on the productâs possible applications.
2.5. The supplier is not obliged to check specifications and/or instructions issued by the customer for accuracy and/or conformity with the law; the customer will accept sole responsibility for these specifications. This will apply in particular to liability in respect of any infringement of industrial property rights.
2.6. The customer will ensure that completion of the order does not involve any infringement of industrial property rights via products, drawings or models supplied by the customer or third parties, will conduct any defence proceedings at his own expense and will reimburse any expenditure of the supplier resulting from such proceedings.
2.7. Drawings, designs and contributions to discussions which arise in the context of consulting services as part of contract negotiations will be subject to confirmation. No claims of any kind may be lodged by the customer against the supplier and his employees in respect of such documentation or services, unless the latter have acted wilfully or with gross negligence.
2.8. The supplier will invoice requested models on a time and material basis.
3.1. Orders will only be considered to have been accepted once they have been confirmed by the supplier in writing. The content of the contract formed and type and content of the order will be governed by the text of the order confirmation. The customer is obliged to check all details of the latter and to object immediately to any discrepancies which may have occurred.
4. Delivery period and scope
4.1. Delivery periods will commence once all technical and commercial aspects have been fully clarified and will end with shipment and/or the ready-for-shipping notification. Observation of the delivery period furthermore requires that the customer discharge all his obligations, including any payment obligations.
4.2. The supplier will not accept any liability for delays in delivery caused by acts of God and other unforeseen events beyond his control, such as refusal to grant official permits, industrial disputes etc. Delivery lead times will be extended by the period of the delay.
4.3. Amendments requested by the customer will cause the delivery period to recommence as of the date of the amended order confirmation.
4.4. Only if the supplier has acted wilfully, with gross negligence or in breach of important contractual obligations will he be liable in cases where the supply contract is breached or delivery is delayed, even following expiry of a set time limit. This provision does not imply any change in the burden of proof to the detriment of the customer.
4.5. The right of the customer to withdraw once a time limit set to the supplier has passed without effect will remain unaffected.
4.6. Part deliveries will be acceptable, in as far as they can be deemed reasonable for the customer.
5. Place of delivery, passing of risk
5.1. Deliveries will be made from the manufacturing plant of the supplier at the risk and expense of the customer. Unless the customer specifies the shipping mode, the latter will be chosen at the reasonable discretion of the supplier.
5.2. In cases of delivery without installation or assembly, the risk in respect of the item supplied will pass to the customer as of the time when the products are surrendered to the customer, shipping agent or carrier, and at the latest when the products leave the plant or warehouse, even if it has been agreed that freight and carriage will be paid. In cases of default of acceptance by the customer, the risk will pass to the customer on readiness for shipment, even if the default of acceptance should only arise following readiness for shipment. The supplier will insure the consignment against breakage, transport and fire damage at the request and expense of the customer.
5.3. In cases of delivery with installation or assembly, the risk in respect of the item supplied will pass to the customer on the date of acceptance.
6.1. All prices will be valid ex works plus freight/postage, packing, insurance and the applicable rate of value added tax. Costs for commissioning, assembly, adjustment or similar services will be invoiced separately.
7.1. Unless otherwise arranged, the agreed price will be payable without deduction in euros within 20 days of the due date following receipt of an invoice or equivalent request for payment. The customer will bear any risk or expense involved in the payment transaction.
7.2. Should payment be delayed, default interest will be charged at a rate of 8 percentage points above the base rate of the European Central Bank. It will be up to the customer to supply proof of a lesser loss.
7.3. The customer will only have the right to a set-off in the case of undisputed or legally binding claims.
7.4. The customer will bear any expenses incurred for guarantees, letters of credit in the case of foreign business and similar aspects.
8. Liability for material defects
8.1. The customer will examine the products for material defects immediately upon receipt thereof. Obvious defects must be reported to the supplier in writing within 5 working days, hidden defects within 5 working days following their discovery.
8.2. Defects to products delivered by the supplier of which the latter is notified within 12 months following commissioning, but at the latest within 15 months following the passing of risk, will either be repaired by the supplier at his own option or he will provide a substitute product. The supplier will be entitled to take such action even following repeated unsuccessful attempts to repair the defect. The supplier must be granted reasonable time and opportunity to effect repairs.
8.3. Should the defect fail to be repaired within a reasonable time limit, the customer will have the right to withdraw from the sales agreement or to demand a deduction in payment (price reduction).
8.4. In the case of defects which the customer could reasonably have been expected to detect prior to installation or processing, all claims in respect of liability for material defects will lapse as soon as the product has been processed or installed.
8.5. The supplier will not accept any responsibility for a specific useful life of the products, particularly under aggravated operating conditions of which he was previously unaware. Claims resulting from untimely destruction will be excluded.
8.6. In the case of products manufactured to customer drawings or specifications, the supplier will only accept liability for material defects in respect of compliance with the specifications. Mandatory liability in accordance with the Product Liability Act, as well as liability for deliberate acts and gross negligence will remain unaffected.
8.7. Liability for material defects will not cover natural wear and tear, or damage occurring following the passing of risk as a result of incorrect or negligent treatment or use incompatible with the specifications.
8.8. Liability for material defects which either do not or only marginally compromise value or fitness for use will also be excluded.
8.9. Recourse claims in accordance with Â§Â§ 478, 479 of the German Civil Code will only exist in cases where the customer was entitled to make a claim and only within the scope of the law. They will not, however, be valid in cases where ex gratia settlements have not been agreed with the supplier. The person entitled to make recourse claims must have discharged the obligations incumbent upon him, in particular the duty to report defects.
9.1. Damages and claims for compensation of expenses on the part of the customer â on whatever legal grounds, even claims resulting from tort or for compensation of deficiency losses or consequential damage, those resulting from a culpable breach of contractual warranty or for loss of expected profit â will be excluded. This will not apply in cases where the supplier, his executive staff or auxiliary persons are charged with acting deliberately or with gross negligence, endangering life or health or causing bodily harm, where liability exists for breach of an important contractual obligation or is stipulated as mandatory in accordance with the Product Liability Act.
9.2. In cases of a breach of important contractual obligations which cannot be ascribed to deliberate acts or gross negligence and do not involve any endangering of life or health or causing of bodily harm or any quality guarantee, liability will be limited to compensation for the typical contractual, foreseeable damage.
9.3. Should the customer provide material for the manufacture of products which he has ordered, such material will only be insured against theft on the supplierâs premises. Liability for the loss or deterioration of such material will only exist in cases of deliberate acts or gross negligence on the part of the supplier.
9.4. Consultations with the customer, particularly as regards use of the delivery item, will only be binding for the supplier if notification or confirmation have been given in writing.
9.5. The statutory provisions in respect of the burden of proof will remain unaffected.
10. Joint ownership
10.1. The supplied product (hereinafter: joint product) will remain the property of the supplier until the payment in full of all matured claims derived by the supplier from his business relationship with the customer. While joint ownership exists, there may be no attachment, transfer as a guarantee or assignment of the claim on the part of the customer without the agreement of the supplier. The supplier must be notified immediately of attachment by a third party.
10.2. Should the joint product be processed by the customer to form a new object, the processing will be done on behalf of the supplier. There will be no acquisition of ownership by the customer in accordance with Â§ 950 of the German Civil Code. In cases where the joint product is processed, mixed or remodelled using products which do not belong to the supplier, the latter will acquire joint ownership of the new object proportional to the invoice value of the products supplied by him and the other products at the time of processing. The customer will hold the new object in safe custody for the supplier with the care of a responsible businessman.
10.3. The new object will be deemed a joint product within the meaning of these terms and conditions. The customer will already assign his claims from onward sale of these new joint products to the supplier to a value corresponding to the value percentage of the joint products in the new object, with the invoice value of the joint products being proportional to that of the products supplied by other parties.
10.4. The customer will also cede to the supplier as security any claims which may arise against a third party as a result of any link between a joint product and property.
10.5. The customer will be revocably entitled to collect claims arising from onward sale within the ordinary course of business. Irrespective of this, the supplier will be entitled to collect the claims himself if the customer has breached his contractual obligations, in particular in the case of default of payment. The customer must name the debtors of the assigned claim upon request and notify them of the assignment. The assertion of joint ownership, and in particular the claim to possession will only constitute cancellation of the agreement if this is expressly designated as cancellation.
10.6. The supplier will undertake to release securities to which he is entitled at his own option and at the request of the customer to the extent that the realized value of these securities exceeds the claims to be secured by over 10%.
11. Place of jurisdiction
1.1. The law of the Federal Republic of Germany will apply exclusively, excluding UN law on the sale of goods (UNCITRAL sales law). The contract language will be German.
11.2. Should the customer be a businessman, a legal entity within the meaning of public law or a separate estate under public law, the place of jurisdiction for both parties, also for disputes regarding deeds or cheque proceedings, will be the place of trial of the supplier. The supplier will be entitled to bring an action against the customer at any other legal venue.
12. General clause
12.1. Should individual provisions from these general terms and conditions prove invalid, this will not affect the validity of the remaining paragraphs. Should a provision be or become void, the parties to the contract will replace the invalid provision by a valid provision which reflects as closely as possible the commercial and legal purpose of the invalid provision.
eubus GmbH, Munich
Status: April, 2012