Current version - last revised June 2018
Section 1 General points, scope of validity
1. The present general terms and conditions (GTC) apply to all our business relationships with our customers (hereinafter: “Buyers”). The GTC apply only if the Buyer is an entrepreneur (Section 14 of the German Civil Code - BGB), a legal entity under public law or a special fund under public law.
2. The GTC apply in particular to contracts for the sale and/or supply of movable goods (hereinafter also: "Goods"), irrespective of whether we produce the goods ourselves or buy them from suppliers (Sections 433, 651 BGB). The GTC in their respectively amended version also apply as a framework agreement to future contracts for the sale and/or supply of movable goods with the same buyer, without any requirement on our part to refer to them in individual cases; in the event of changes to our GTC we will inform the Buyer thereof without undue delay.
3. Our GTC apply to the exclusion of all others. Deviating, conflicting or supplementary general terms and conditions of the Buyer will form part of the contract only if, and to the extent that, we have given our express consent to their validity. This consent requirement applies in all cases, for example, even if we execute delivery to the Buyer without reservation in the full knowledge of its GTC.
4. In some cases, individual agreements with the Buyer (including ancillary agreements, amendments and changes) always have priority over these GTC. A written contract or our written confirmation is authoritative for the content of such agreements.
5. Legally relevant declarations and notifications to be submitted to us by the Buyer once the contract has been entered into (e.g. the setting of deadlines, reporting of defects, declarations of withdrawal or reduction) must be submitted in writing to be effective.
6. References to the applicability of statutory provisions serve merely for the purpose of clarification. Even without such clarification, therefore, the statutory provisions apply unless they are directly changed or expressly excluded in these GTC.
Section 2 Registration in the Online Shop
1. Customers can register for the use of our online shop. This requires the designation of a natural person with full legal capacity. Registration in our online shop is free. There is no right to admission to our online shop. The data required for the registration must be provided by the customer, completely and truthfully.
2. Apart from declaring their agreement with the validity of these Terms and Conditions of Business, the customer has no obligation toregister. The registration can be deleted at any time under "My Account." Registration in our online shop entails no obligation to purchase the goods we offer.
Section 3 Conclusion of a Contract
1. Our offers are subject to change without notice and are non-binding. This applies also if we have entrusted catalogs, technical documentations (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to the Buyer in respect of which we reserve ownership rights and copyrights. the net value of goods:
2. The presentation and advertisement of articles in our online shop do not constitute a binding offer to conclude a purchase contract.
3. An order of goods by the Buyer is considered a binding offer to contract. In our online shop, the customer submits to a legally binding order by clicking on the "Confirm Payment" button when placing an order. Unless otherwise stated in the order, we are entitled to accept this contract offer within 5 days of receipt.
The following minimum order quantities apply for
Domestic: € 100.00 net
European Union: € 250.00 net
Rest of the world: € 400.00 net
Orders that do not meet the order values will have minimum order surcharges added:
Domestic: € 15.00
European Union: € 25.00
World: € 35.00
Deviating from this, a minimum order value of 50 euros applies to orders in Germany in our online shop. The applicable terms of payment and delivery can be found at: http://shop.eiko-europe.de/de/Zahlung-und-Lieferung/
4. The declaration of acceptance can either be in writing (e.g. by order confirmation) or take the form of delivery of the goods to the Buyer.
Section 4 Delivery time and delay in delivery
1. The delivery time is agreed to individually or, as the case may be, specified by us upon acceptance of the order.
2. If, for reasons for which we cannot be held responsible (non-availability of the performance), we cannot adhere to binding delivery periods, we will immediately inform the Buyer thereof and, at the same time, inform the Buyer of the anticipated new delivery period. If the performance is not available within the new delivery period, we will be entitled to withdraw fully or partially from the contract; we will refund any monetary amounts previously paid by the Buyer without undue delay. Non-availability of performance will be deemed to apply in this sense especially in the event of the failure of our own supplier to supply us punctually, if we have entered into a congruent hedging transaction, if neither our supplier nor we are at fault or if we are not obliged to provide in a particular case.
3. Whether or not a delivery is in default will be determined according to the statutory provisions. In any case, a reminder from the Buyer is required. If we are in default with a delivery, the Buyer may demand flat-rate compensation for damages caused by default. The flat rate for compensation for each full calendar week of default is 0.5% of the net price (delivery value), totaling no more than 5% of the delivery value of the delayed goods as a whole. We reserve the right to prove that the Buyer has suffered no loss at all, or a loss that is substantially smaller than the aforementioned flat rate.
4. The rights of the Buyer pursuant to Section 8 of these GTC and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g., due to the impossibility or unreasonableness of performance and/or subsequent performance), are unaffected.
Section 5 Delivery, transfer of risk, approval, delay in acceptance
1. The place of delivery and performance is our warehouse. The goods can be sent to another destination (direct shipping) at the request and the expense of the Buyer. In this case we will levy a logistics surcharge in the amount of €10 per shipment. Unless otherwise agreed we are entitled
to determine the method of dispatch (with particular reference to transport company, transport route, packaging). If the customer should request express delivery, the costs thereof are generally charged to the recipient.
2. The risk of accidental loss and accidental deterioration of the goods passes to the Buyer at the latest at the point of handover to the Buyer. In the case of direct shipping, however, the risk of accidental loss and accidental deterioration of the goods and the risk of delay passes to the customer at the point of handover to the hauler, forwarder or other person or institution charged with fulfilment of the delivery. If a date for testing and approval has been agreed, this is deemed decisive for the transfer of risk. In all other respects the statutory provisions of contract law for work and labor apply mutatis mutandis to an agreement on testing and approval. Default of acceptance by the Buyer will be deemed equivalent to delivery or testing and approval.
3. If the Buyer is in default of acceptance, or fails to provide an act of assistance, or if our delivery is delayed for other reasons for which the Buyer is responsible then we will be entitled to request compensation for the resulting damage, including additional expenses (e.g. storage costs). In this event we will charge a lump sum of compensation of € 5 per calendar day, starting with the delivery date or - in the absence of a delivery date - the notification of readiness for dispatch of the goods. Our right to furnish evidence of a higher amount of damage and our statutory claims (in particular to the reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is however to be offset against further monetary claims. The Buyer reserves the right to prove that we have suffered either no loss at all or only a substantially smaller loss than the above-mentioned lump sum amount.
Section 6 Prices and payment terms and conditions
1. Unless otherwise agreed in a particular case, the prices in force at the time the contract was entered into apply ex warehouse and exclusive of sales tax at the rate in force and packaging and shipping costs. We reserve the right, in the event of exchange rate fluctuations of more than 5%, to increase the prices at any time. The same applies to price changes during the term of a call-off agreement.
2. In the event of direct shipping (Section 4 (1)) the Buyer shall bear the costs of transport ex warehouse and the costs of any transport insurance requested by the Buyer. In those cases, in which we do not invoice the Buyer for the transport costs actually incurred, a flat-rate charge for transportation (excluding transport insurance) of € 4.90 is deemed to have been agreed. Any customs duties, fees, taxes and other public levies are payable by the Buyer.
3. The purchase price is due and payable within the agreed period for payment. For contracts with a delivery value of more than €10,000, we are however entitled to require a deposit payment of 50% of the purchase price or the provision of equivalent security deposits in line with standard banking practice. The deposit is due immediately and payable from the date of issue of the invoice.
4. Payment for first-time orders will be by payment in advance. After a subsequent positive creditworthiness check a payment term of 30 days from the date of invoice will be granted; all prices are net cash. In the event of settlement within 14 days of the date of invoice and provided that no other arrangements have been made, we will grant a 2% cash discount.
5. Once the agreed payment term has expired the Buyer will be deemed in default. Interest on the purchase price at the applicable statutory default interest rate in force at the time is to be paid during the period of default. We reserve the right to assert claims for further damage caused by default. Our claim against merchants for commercial interest after the due date (Section 353 of the German Commercial Code) will not be affected.
6. The Buyer will be entitled to set-off or retention rights only if the claim is res judicata or undisputed. The Buyer’s reciprocal rights, in particular pursuant to Section 7 (6) (2) of these GTC, will not be affected by defects in the delivery.
7. If after conclusion of the contract it becomes apparent that our claim for payment of the purchase price is jeopardized by the Buyer’s inability to pay (e.g. an application for instigation of insolvency proceedings) we will be entitled in accordance with statutory provisions to refuse to perform and – where applicable, after the setting of a deadline – to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of specific items (custom production) we can withdraw immediately; this will not affect the legal provisions concerning the dispensability of setting a deadline.
§ 7 Retention of title
1. We retain title to the goods sold until such time as full payment is made of all our present and future receivables arising from the contract of sale and current business relations (secured claims).
2. Until the secured receivables have been paid in full, the goods subject to retention of title may not be pledged to a third party or collateralized. The Buyer shall notify us immediately in writing if and insofar as a third party executes the seizure of goods belonging to us.
3. In case of a breach of contract by the Buyer, in particular in case of non-payment of the purchase price that is due, we shall be entitled to withdraw from the contract according to the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. Any demand for the return of goods shall not be deemed to include the declaration of withdrawal; rather, we shall be entitled only to demand the goods and to reserve the right of withdrawal. If the Buyer does not pay the purchase price that is due, we may assert such rights only if we have previously set a reasonable deadline for payment for the Buyer that was not kept, or if such a deadline is unnecessary according to the statutory provisions.
4. The Buyer is authorized to resell and/or to process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition.
a. Retention of title extends to the full value of the products created by processing, mixing or combining our goods, in which case we will be deemed the manufacturer. If, in the event of the processing, mixing or combining our goods with those of third parties, the ownership right of such third parties should continue to apply, we will acquire joint ownership in proportion to the invoice values of the processed, mixed or combined goods. In other respects the same rules apply to the product created as to the goods delivered subject to retention of title.
b. The Buyer assigns to us here and now as security the accounts receivable from third parties arising from the resale of the goods or product, either in their entirety or, as the case may be, in the amount of our joint ownership share pursuant to the previous clause. We hereby accept this assignment. The Buyer’s duties according to Section 2 also apply with regard to the assigned receivables.
c. The Buyer, in addition to us, is authorized to collect the receivables. We undertake not to collect the receivables as long as the Buyer meets his payment obligations to us, does not default in payment, no application for opening insolvency proceedings has been filed, there is no other deficiency in the Buyer's contractual performance and we do not assert our right of retention according to Paragraph 3. However, if this is the case, we can demand that the Buyer inform us of the assigned receivables and their obligors, provide all information necessary for collection, surrender the relevant documents and notify the obligors (third parties) of the assignment. In such case, we shall also be entitled to revoke the Buyer's authority to resell and process the goods subject to retention of title.
d. If the value of the securities granted to us should exceed that of our claims by more than 10 %, we will, if so required by the Buyer, release securities of our choice of the equivalent value.
Section 8 Warranty claims of the Buyer
1. In the absence of any other provision in the following, the Buyer’s rights in the event of defects of quality and of title (including incorrect and short shipments) and incorrect installation or defective installation instructions) will be governed by statutory provisions. The special legal provisions in the event of final delivery of the goods to an end consumer (suppliers’ recourse according to Sections 478, 479 BGB) will be unaffected in all cases.
2. The primary basis of our liability for defects will be the agreement made concerning the quality of the goods. Product descriptions (including those of the manufacture) that are designated as such and are given to the Buyer prior to purchase or integrated into the contract in the same manner as these GTC will be deemed to be an agreement concerning the quality of the goods.
3. In the absence of any agreement on quality, the existence or non-existence of a defect will be assessed according to the statutory provisions (Section 434 (1) (2) and (3) BGB). We cannot, however, be held liable for any public statements by the manufacturer or other third parties (e.g. advertising statements).
4. For the Buyer’s warranty claims to be recognized it must first have fulfilled its statutory duties of examination and notification of defects (Sections 377 and 381 of the German Commercial Code - HGB) We must be notified in writing without undue delay of any defect that comes to light at the time of examination or afterwards. Notification will be deemed to have been submitted without undue delay if it is submitted within 10 days, where the timely dispatch of the notification will be sufficient for the deadline to be deemed to have been adhered to. Irrespective of the above-mentioned duties of examination and notification of defects, the Buyer shall notify us of obvious defects (including wrong and short delivery) within two weeks of delivery; here, too, the deadline will be deemed to have been adhered to if the notification is sent in time. If the Buyer fails to duly examine the goods or notify us of defects as stipulated above, our liability for defects of which we are not notified will be excluded.
5. Should the delivered item be defective, we can choose at our discretion between the elimination of the defect (rectification) and delivery of a non-defective item (replacement). Our right to refuse subsequent performance under the statutory law remains unaffected.
6. We are entitled to make subsequent performance conditional upon the payment by the Buyer of the purchase price due. The Buyer shall, however, be entitled to withhold a part of the purchase price proportionate to the defect.
7. The Buyer must give us the necessary time and opportunity to deliver the performance owed; in particular, it must deliver the rejected goods for purposes of examination. In the case of a replacement delivery, the Buyer must return the defective item to us according to the statutory provisions. Any replacement delivery shall be carried out under the provison that the goods we deliver actually feature a defect. A replacement delivery shall not constitute an acknowledgment of the defectiveness of the rejected goods. In the event that the goods are free from defects, the Buyer shall bear the costs for the replacement delivery in accordance with paragraph 8.
8. If there is actually a defect, we shall bear the expenses required for the purpose of testing and subsequent performance, in particular transport costs from the Buyer to EiKO, as along with labor and material costs. However, if a Buyer's request to rectify a defect turns out to be unjustified, we can demand that the Buyer reimburse the costs incurred, unless the lack of defect was not apparent to the Buyer.
9. In urgent cases, e.g., if operating safety is jeopardized or to avert disproportionate damage, the Buyer will be entitled to remedy the defect itself and demand reimbursement by us of the objectively necessary expenses incurred. We are to be advised without undue delay, if possible beforehand, of any such decision by the Buyer to remedy the defect himself. The right of the Buyer to remedy a defect himself will not apply if we would have been entitled to refuse corresponding subsequent performance in accordance with the statutory provisions.
10. If subsequent performance is unsuccessful or a deadline to be set by the Buyer for subsequent performance has elapsed without result or may be dispensed with according to the statutory provisions, the Buyer may withdraw from the contract of sale or reduce the purchase price. However, no right of withdrawal applies in the case of a minor defect.
11. The Buyer will be entitled to claim compensation or reimbursement of expenses incurred in vain only as provided in Section 8; otherwise such claims are excluded.
Section 9 Other liability
1. In the absence of other provisions in these GTC, including the provisions below, in the event of the breach of contractual and non-contractual duties we will be liable in accordance with the relevant statutory provisions.
2. We will be liable to pay compensation irrespective of legal grounds in the event of intent and gross negligence. In the event of ordinary negligence, we will only be liable
a. for damage due to injury to life, limb or health
b. or damage due to breach of an essential contractual duty (an obligation that has to be fulfilled to enable the contract to be duly performed and on the fulfillment of which the other party regularly relies and may rely); in this case our liability will however be limited to compensation for any foreseeable, typical damage.
3. The limitations of liability according to Paragraph 2 will not apply if we conceal a defect with intent to deceive or have warranted the quality of the goods. The same applies to the Buyer’s claims under the Product Liability Act.
4. The Buyer may withdraw from or cancel the contract on the grounds of a breach of duty other than that relating to a defect only if we are responsible for the breach of duty. A free right of cancellation on the part of the Buyer (in particular pursuant to Sections 651 and 649 BGB) is excluded. In all other respects the statutory requirements and legal consequences apply.
Section 10 Period of limitation
1. Section 438 (1) (3) BGB notwithstanding, the general period of limitation for claims based on defects of quality and legal imperfections in title is one year from delivery. If acceptance has been agreed to, the limitation period commences at the point of acceptance.
2. The aforementioned periods of limitation under purchase law also apply to contractual and extra-contractual claims for compensation on the part of the Buyer based on a defect in the goods, unless the application of the regular statutory period of limitation (Sections 195, 199 BGB) would lead to a shorter period of limitation in the individual case. The periods of limitation of the Product Liability Act will in all cases remain unaffected. Otherwise, the statutory periods of limitation apply exclusively to claims for compensation on the part of the Buyer pursuant to Section 8.
Section 11 Choice of applicable law and place of jurisdiction
1. These GTC and all legal relations between us are governed by the law of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Preconditions and effects of retention of title pursuant to Section 6 are, however, subject to the law of the place where the item is stored if this law renders the choice of applicable law in favor of German law impermissible or ineffective.
2. If the Buyer is a merchant (Kaufmann) as defined by the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Jockgrim. However, in any event, we are also entitled to bring action at the place of the fulfillment of the delivery obligation, in accordance with these GTC or an overriding individual agreement, or at the general area of jurisdiction of the Buyer. Preferential legal provisions, in particular regarding exclusive jurisdictions, remain unaffected.