General Terms and Conditions
§1 Scope of our Terms and Conditions
1. The following terms of sale and delivery apply to all current and future supplies, payments and services of E&K Leiterplatten GmbH (the company). All deliveries are exclusively subject to our General Terms and Conditions. Other provisions or counter confirmations of the buyer with reference to his own business or purchase terms and conditions are herewith objected to and not binding for E&K Leiterplatten, unless they are explicitly acknowledged by the latter.
2. If individual provisions contained in these Terms and Conditions are ineffective, this shall not affect the validity of the remainder of these Terms and Conditions. For replacement of the invalid provision regulations are agreed upon that come closest possible to the desired economic purpose. Contractual agreements remain valid even if individual stipulations of the provisions are or become invalid.
1. Our quotations are by all means unconditional.
2. Documentation relating to an offer, like illustrations, drawings, data on weights and dimensions only provide approximate information, unless they are explicitly declared as binding. DIN norms, drawings, data on weights and dimensions, information presented in our brochures as well as the indication "suited for" are no contractually agreed properties. Contracual liability for certain properties is only assumed if they have been explicitly confirmed by E&K Leiterplatten.
3. Orders only become binding after written confirmation by E&K. Only the General Managers are authorised to make verbal confirmations, amendments, changes or side agreements. Sales representatives are not authorised to make any contractual agreements.
4. If the buyer does not receive a written offer from E&K prior to the order, the buyer is bound to his order for 20 days starting from the date of receipt of the order. If the goods are delivered within this period, the contract becomes binding without written confirmation of the order from the part of E&K. In this case the stipulations made in the attached delivery note provide the data for the contract.
1. The quantity of panels delivered is considered compliant with the contract if it does not exceed or fall below the quantity agreed in writing by more than 10%.
2. Delivery is effected ex-warehouse. If goods ready for dispatch are not called off immediately, E&K is entitled to dispatch the goods at their own discretion or store them at the buyer's risk and expenses. E&K is also entitled to store the goods if dispatch cannot be carried out for reasons beyond the company's control. Delivery is always effected at the risk of the buyer, even if postage paid delivery has been agreed upon. The risk shall pass to the buyer as soon as the goods have left the premises of the company or its supplier company. Should dispatch be delayed on grounds beyond the company's control, the risk passes to the buyer on the day the goods are ready to be shipped.
3. Insurance is provided only at the expense of the buyer. The company is not obliged to take out an insurance if it has not been explicitly requested by the buyer. If particular packing or delivery has been requested by the buyer, it must be borne by the buyer's own expenses and at his own risk.
§4 Delivery periods, default, impossibility
1. The delivery deadlines stated by the company are to be considered as approximate and will be adhered to as far as possible, provided that deliveries to the company are punctual and correct. Delivery deadlines commence after the order confirmation has been confirmed by the buyer, but not before all details relating to the execution of the order are clarified and not before the buyer has fulfilled all obligations relating to the contract. The same applies to the delivery dates. The obligations to be fulfilled by the buyer include arranging for an agreed down payment and the opening of a letter of credit from the part of the buyer.
2. Shipments before the expiry of the delivery deadline and part shipments are permitted. The date of notification of readiness for shipment shall be considered as the delivery date, failing which it shall be the date of shipment of the goods.
3.The company shall not be in default of delivery as long as the buyer is in default relating to obligations from his part.
4. We are entitled, in the event of acts of God, to defer delivery for the duration of the disruption or to withdraw partly or completely from the contract for the part which has not been fulfilled. Acts of god shall be strikes, lock-outs, official intervention, power shortages and shortages of raw materials, transport bottlenecks beyond our responsibility, company obstructions due to fire, water and damage to machinery and any other obstructions that considered objectively were not caused by our negligence. We shall even not be held responsible for any aforementioned circumstances if they arise while we are in default of our own obligations. The agreed delivery time shall be extended by the period of duration of the respective obstruction.
5. If the client has suffered damage due to a delay which is within our responsibility, he shall be entitled to demand compensation for the delayed performance. For each full week of the delay, such compensation shall be limited to 50%, in total however to a maximum of 5% of the value of that part of the total consignment that, as a result of the delay, cannot be used on time or according to contract. Any claims for damages that go beyond the aforementioned circumstances are hereby excluded, unless the delay is caused by wilful behaviour or gross negligence on our part or on the part of our agents. The customer's right to withdraw from the contract in accordance with the statutory requirements remains unaffected.
6. If - in cases of delivery on call agreements - the customer does not call off the respective part shipment on time, we shall invoice the customer for the cost incurred for the storage of the goods, but at least for 50% of the invoice amount for each month of storage on our premises or the premises or our suppliers - starting one month after we have notified the customer that the goods are ready for dispach. If, in addition, the goods are not called off within a reasonable deadline set by us, we shall be entitled to otherwise dispose of the items to be supplied, to partly or completely withdraw from the contract, to claim damages for non-performance or to supply the customer within a reasonably extended delivery time.
1. Rügen wegen nicht vertragsgemäßer Beschaffenheit der von uns gelieferten Ware sind unverzüglich nach Ablieferung, spätestens innerhalb von 8 Tagen schriftlich geltend zu machen. Versteckte Mängel, die trotz unverzüglicher Prüfung nicht zu finden sind, müssen bei Feststellung ebenfalls spätestens innerhalb von 8 Tagen angezeigt werden.
2. Provided that the buyer gives us the time and occasion required, we replace or rectify faulty goods free of cost while they are in transit of risk. If the buyer does not do so, E&K shall be released from the liability for any defects. Should rectification or replacement fail from the part of the company, the buyer is entitled to demand a reduction in price or to withdraw from the contract. The same applies if E&K does not undertake replacement or rectification in respect of a defect for which E&K is responsible within an appropriate period of grace.
3. Further claims by the buyer are excluded, in particular those relating to the withdrawal from the contract, the reduction in price or replacement claims regarding damage sustained by any other products but the product delivered. This exclusion of liability shall not apply if the damage sustained is due to intent or gross negligence on the part of the management directors or executive staff. The exclusion of liability shall also not apply in those cases where liability arises under the Product Liability Act for personal injuries and material damages caused to objects used for private purposes. The exclusion is equally not valid for the lack of expressively warranted properties if assuring them is specifically aimed at indemnifying the customer against damage which the goods themselves have not sustained.
§6 Period of respite, right of withdrawal
1. The company shall be entitled to withdraw from the contract partly or entirely or to postpone delivery or part delivery for reasons of acts of God, strikes or lockouts, government interventions, energy or raw material shortages, transport bottlenecks or impediments to operation which are not within the company's responsibility. In these cases, replacement claims by the buyer are excluded. If the company exceeds the delivery deadline by more than four weeks, the buyer is entitled to set a four week period of respite. If the company fails to deliver within this period, the buyer shall be entitled to rescind the contract. Claims for damages due to non-performance or default are excluded.
2. As long as the customer is in default - also relating to an obligation from another or an earlier contract - the company's delivery obligation is suspended, also in cases of respite. Should the company have reasonable doubts on the buyer's ability to pay, the company is entitled to withdraw from the contract without having set a respite period or to demand advance payments or collateral before delivery.
1. Unless otherwise specified, our prices are ex works exclusive of transport, customs and packaging. Packaging material is charged at the cost price and shall not be returnable. All prices are subject to the applicable value added tax (VAT). All prices are calculated in Euro.
2. Unless explicitly stipulated otherwise, our invoices shall be payable (without deductions) within 30 days from invoice date.
3. The buyer is not entitled to retain payment for or set off claims with counterclaims which are not recognised as legally binding or which are contested by the company.
4. In the event of delayed payment (more than 30 days from invoice date), we reserve the right to charge interest at 3% on the applicable discount rate of Deutsche Bundesbank. Any further claims relating to damage caused by payment delays shall herewith not be affected.
5. If we become aware of circumstances which, according to commercial discretion, give cause to justified doubts about the creditworthiness of the customer, we are entitled to immediately invoice all claims resulting from the business relationship, including those that have been deferred or for which we have accepted bills of exchange on account of performance. Before all outstanding debts including default interest and ancillary costs have been fully paid by the customer, we are not obliged to make further deliveries under any current contract.
6. All payments are to be made immediately to the company or to a representative authorised by the company. Bills of exchange are accepted only if they are issued based on a special agreement and only for the purpose of payment and if they are rediscountable with the German Federal Reserve Bank. Credit notes for bills of exchange and cheques are issued subject to receipt and minus all expenses valued on the day on which the exchange value is available.
§8 Retention of title
1. E&K retains the title to all goods delivered by the company until all claims under the business rekationship with the buyer are settled, including all claims arising from future contracts. Retention of title shall also apply if individual or all receivables due from the buyer have been included in a current account which has been balanced and acknowledged. If payment of the purchase price by the buyer involves liability under a bill of exchange for E&K, the reservation of title as well as the receivables resulting from the delivery of goods shall not expire until the buyer as the drawee has honoured the bill of exchange.
2. In case the buyer should be in breach of contract, which also includes any default in payments, E&K shall be entitled, after a reminder, to take back any goods that are subject to retention of title at the expense of the buyer. The buyer is legally obliged to surrender the respective goods. Neither the assertion of retention of title nor the pledging of the merchandise shall be deemed as cancellation of the contract by E&K.
3. The buyer is entitled to sell or process the goods delivered in the regular course of business. The buyer is not entitled to use the goods for other purposes, in particular as security or collateral. Notwithstanding a revocation by E&K, which is permissible at any time, the buyer's right to process goods subject to retention of title in the regular course of business ends if the buyer ceases payment or if insolvency or composition proceedings to avert bankruptcy are instituted against the buyer. By processing goods subject to retention of title, the buyer shall not acquire property of the newly created objects. Processing will be undertaken by the buyer on our behalf. The buyer shall hereby assign the claims along with all ancillary rights arising from the resale of the goods to E&K, including to the extent that the goods have been processed. We accept this assignment. If after processing, the product contains in addition to the reserved goods only goods that belong to the buyer or have only been delivered under simple retention of title, the buyer shall assign to E&K the entire claim arising from the selling of the goods. If the buyer has made advance assignments also to other suppliers, E&K shall be entitled to a proportion of the claims that corresponds to a ratio between the invoice value of the reserved goods to the invoice value of the other processed goods. If the value of collateral ecxeeds our total receivables by more than 20%, we shal undertake, at the buyer's request, to release collateral at our discretion. As long as the buyer complies with his payment obligations, we shall not collect the claims assigned. However, the buyer shall be obliged to list all available goods subject to retention of title, including those that have been processed, as well as all accounts receivable from the third party debtors accompanied by invoice copies, at our request at any time, particularly if the buyer has ceased payment. We shall be entitled to sell the returned goods subject to the reservation of title. The buyer shall store the reserved goods on our behalf and insure them against fire, theft and water damages. The buyer shall herewith assign all claims arising from damages insured with insurance companies or other obligated parties to E&K to the extent of their claims. If the goods are attached, seized or otherwise disposed of by third parties, the buyer shall inform them on E&K's retention of title and notify E&K immediately.
§9 Exclusion and limitation of liability
Unless otherwise provided, the buyer is not entitled to institute claims for damages arising from non-performance, default, impossibility, positive infringement of contract, breach of duties during contract negotiations, claims against jointly liable debors, unlawful act as well as from faulty rectification or replacement. Liability shall only be assumed in those cases where we are liable due to mandatory legislation relating to intent or gross negligence on the part of our legal representation, our management directors, executive staff or other agents.
§10 Applicable law, place of jurisdiction and performance
1. The law of the Federal Republic of Germany shall apply to all legal relations between E&K and the buyer, to the exclusion of supra-national and harmonised law or German International Private Law, as far as it contains reference to the legal conventions of other countries. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
2. The place of performance for any disputes arising between the parties from the contractual relationship is Heinsberg.
3. The place of jurisdiction for any disputes arising between the parties from the contractual relationship is Aachen, provided the buyer is a registered trader, a corporate body under public law or a public legal fund.