General Terms and Conditions

General terms and conditions for sale, rental, repair

Eichler GmbH, Electronics Service Center
-Hereafter referred to as "company"-

For use with:

1. All persons who, at the time of contractual closure, exert their commercial or independent vocational activity (entrepreneur)

2. a legal person under public law or a public law special fund

-hereafter referred to as "customer"-

 

A. Common regulations for sale, rental and repair

I. General

1. All deliveries and services are based on these conditions. Deviating terms and conditions of customers will not become part of the contract by acceptance of offer, unless the company has given its explicit acceptance. This is also the case if the company fully performs the service while having knowledge of conflicting or deviating terms and conditions of the customer. Silence does not constitute acceptance of deviating terms and conditions. As part of an ongoing business relationship, these terms also apply to future conclusions of contract, without these having to be explained explicitly.

2. The written agreements between the two parties are final. Oral agreements require written confirmation to take effect.

 

II. Conclusion of contract

1. The quotations provided by the company are non-binding, unless stated otherwise in its description. If the customer's order is an offer according to §145 BGB, then the company can accept this offer within four weeks or complete delivery and service within this time frame.

2. Drawings, depictions, measurements, weight or other technical data as well as specifications regarding technical or mechanical characteristics are only binding if expressed explicitly in a written agreement.

3. The company maintains right of property and copyright of patterns, quotations, drawings and other documents and information, also in electronic form. This also includes written documents deemed confidential. Written consent by the customer is required before such information is passed on to third parties.

 

III. Prices and payments

1. Prices are valid for the scope of services and supply as described in the offer or quotation. Additional or special services will be charged separately.

2. Unless agreed otherwise, the company's invoices are net (without deduction), payable right after delivery and performance of service and must be paid at the latest within a period of 10 days after payment is due. Deduction of an early payment discount requires a special written agreement. The payment deadline does not express any agreement on maturity, but poses a temporary waiver of the company to enforce the debt. The statutory regulation, especially according to §286 paragraph 3 BGB remains untouched by this. The company explicitly maintains the right to demand interest on arrears according to legal regulations, after payment deadlines have been exceeded. For admonitions the company charges flat collection expenses of 19 €.

3. The customer's right to withhold payments or to offset them with counterclaims is only valid if his counterclaims are undisputed or can be established as legally effective.

4. Payment shall not be deemed paid until credited to our bank without reservation. This is also valid for payment by cheque or bill of exchange. Bills of exchange will only be accepted if specifically agreed. Any discount charges and bank charges related to this will be charged to the customer.

5. If the seller gains knowledge leading him to question the solvency of creditworthiness of the buyer, then the seller is entitled to demand advance payment or another provision of security or can demand outstanding debts as payable.

6. For initial orders the company requires delivery against advanced payment or a crossed cheque.

 

IV. Delivery, Execution

1. Mentioned delivery deadlines and processing dates are approximate deadlines and dates, unless a time was explicitly and bindingly agreed upon.

2. The observance of delivery periods and deadlines is subject to correct and prompt deliveries from suppliers. The company must inform the customer of expected delays as soon as possible.

3. The date of delivery/execution is met when the object of contract has left the repair center before the deadline or dispatch readiness has been communicated.

4. If delivery or acceptance of the delivery item is delayed for any reason attributed to the customer, then he will be charged any costs resulting from this delay, beginning a week after dispatch or acceptance readiness was communicated.

5. If acceptance is delayed by the customer or if he culpably violates his obligations to cooperate, and incapacity or impossibility on part of the supplier to perform, and if the customer is solely or largely responsible, he shall be liable to pay consideration in return.

6. If the company defaults in performance and the customer suffers undisputed damage, he is entitled to demand flat-rate default compensation. For every full week of delay, compensation amounting to 0.5% altogether but maximum 5% of the value of the corresponding part of the overall delivery, which cannot be used on time or in accordance with the contract because of the delay.

If in consideration of the statutory exceptions, the customer sets the supplier an appropriate period of grace after the due date and the corresponding deadline cannot be met, then the customer is justified in withdrawing from the contract in the scope of the statutory regulations.

Any other claims resulting from default in performance are defined solely according to section VI,2 of these terms. The terms are final.

7. The company is entitled to partial deliveries or payment, as long as these are not unreasonable towards the customer.

 

V. Warranty (not valid for rental)

In the case of material defects and defects of title regarding the delivery, the supplier shall warrant by way of exclusion of further claims - subject to section VI - as follows:

1. The warranty period shall be 12 months from the date on which the risk is passed.

2. All parts which prove defective as a result of circumstances lying before the time of acceptance must be repaired or replaced by perfect goods at the discretion of the supplier. Any faults which are discovered must be communicated to the company immediately and in writing, the latest within five working days following delivery and service. Before installation or processing, the customer is required to prudently inspect the subject matter of the contract for defects and to notify the company immediately if any are found. If defects are only noticed later, it is the customer's responsibility to prove that defects could not have been detected earlier and that defects attributed to the company's product already existed before the transfer of risk, without valid prima facie evidence. The product will otherwise be seen as accepted.

3. After consulting the supplier, the customer shall provide the necessary time and opportunity for the company to proceed with all apparently necessary repairs and replacement deliveries. The company can require that the defective part be sent back for repair and then returned to the customer. Costs for this are to be borne by the company and the part will be returned in original or professional packaging. During the repair period the customer is not entitled to claim back the purchase price.

4. Should the repair fail and should a significant defect persist, then the customer's warranty right is limited to an adequate reduction of the contract price. After expiry of a reasonable grace period for further repair the customer is furthermore entitled to resign from the contract according to legal regulations.

5. No liability will be accepted if the company's operating or maintenance instructions are not followed, if the products are modified, if parts are replaced or if consumables which do not comply with the original specifications are used, and the same applies for incorrect installation, use or maintenance, natural wear and tear, existence of chemical, electrochemical or electrical influences, as long as these were not caused by the company.

6. Defect of title
In the event of infringement of patent rights and trademark rights, the customer shall be liable for goods manufactured according to drawings, samples or other information provided by the customer; the company shall release the customer from any claims in this respect. Should the company for its part violate third party patent rights with a product manufactured by itself, the customer's claims shall hereby be limited to a release from third party claims and the free delivery of an alternative replacement product of the same value. The company also has the right to avert obligations acc to paragraph 1 to either:
a) to provide the required license for the infringed upon patents or
b) providing the customer with a changed item of delivery or parts of it which, after exchanging them for the infringing parts, remove the reproach of infringement related to the originally delivered item.

7. The regulations for warranty as well as the regulations in section VI are final.

 

VI. Company liability

1. If, due to the fault of the company, the subject of the delivery cannot be used as a result of omission or faulty execution of suggestions and advice issued prior to or after conclusion of the contract, or as the result of breach of other contractual obligations - in particular instructions on the operation and maintenance of the subject of the delivery - the rules of Sections V, 1,2 and VI, 1 apply accordingly, to the exclusion of further claims by the customer.

2. With regard to losses which have not occurred through damage to the delivery item itself, we shall be liable, regardless of the legal argument, only in the event of malice aforethought, of gross negligence by executive bodies or executive employees, of culpable injury to persons' lives, bodies, or health, of deficiencies involving malicious reticence with regard to the defect or involving a warranty on our part regarding the absence of the defect, or in the event of deficiencies in the delivery item in so far as there is liability on our part for personal injury or damage to property relating to privately-used articles in accordance with the Product Liability Law.

In the event of culpable breaches of material contractual obligations, the company shall also be liable for gross negligence on the part of non-executive employees and for minor negligence, whereby the latter instance shall be limited to the reasonably foreseeable damage that is typical of the contract.

Further claims shall be excluded. This is also valid for possible claims against employees, freelancers, and the seller's assistants and agents.

 

VII. Data protection and confidential material

1. The company is authorized to store all the customer's data relevant to the contractual fulfillment.

2. Information, drawings, patterns and other customer data are only then to be considered confidential if this has explicitly been agreed upon.

 

VIII. Software - Firmware

1. Software or firmware (all memory content) and the related documentation are only left with the customer for the purpose of use of applications in the delivered equipment or system, for which software or firmware was provided, as described in the order specification.

2. It is not allowed to duplicate any memory content. Provided that the storage contains customer-specific data the customer or operator is allowed to modify or duplicate this data when using the delivered equipment or system, as long as this serves the purpose of archiving. Without prior written consent the customer is not permitted to share the delivered soft or firmware and the relevant documentation with third parties.

3. All rights regarding the software or firmware (original, update) furthermore remain with the company. When the order is confirmed and the software and firmware are delivered the customer merely obtains the rights of use as explained in paragraph 1. The concession of any further rights, such as the handing over of source programs, or the right to duplicate software or firmware, is only possibly via a separate agreement.

 

IX. Statutory limitation

Any claims by the customer, for whatever legal argument, shall come under the statute of limitations after 12 months. The regular legal deadlines apply for compensation claims as in section VII.

The company's claims for payment shall expire after 3 years.
X. Applicable law, jurisdiction, place of performance, severability clause

1. The law of the Federal Republic of Germany shall apply to all legal matters arising between the Seller and the Buyer, which is the law governing legal matters arising between domestic parties. UN purchasing law is not applicable.

2. Place of jurisdiction is the court responsible for the area where the company headquarters are situated. The company is however permitted to press charges in the customer's jurisdiction. Place of performance of all contractual obligations is the company's headquarters.

3. Should one provision of these terms and conditions or one provision of an agreement individually concluded between the parties be invalid, the validity of the remaining provisions of these terms or of the individual agreement shall not be affected. Any provision that is null and void shall be replaced by a provision that is as close as possible to the actual purpose being sought by the contractual parties. The same shall apply in the case of a gap in the provisions of the agreement.

B. Special rules regarding selling

I. Delivery and payment terms

The prices are understood according to the relevant Incoterms to be "EXW" ex works D-86932 Lengenfeld, packaging excluded. The legally-required VAT will furthermore be added to all prices.

II. Transfer of risk, acceptance

1. Risk is transferred to the customer when the object of delivery is handed over to the carrier or it has left the works site of the company for dispatch, and even when partial deliveries occur or the company is covering other services, such as delivery costs or delivery and installation.

2. In the event that transport or the acceptance is delayed or becomes impossible due to circumstances that are not attributable to the seller, the risk shall pass to the buyer upon the day on which it has been notified that the goods are ready for dispatch.

III. Reservation of ownership

1. The following conditions on reservation of ownership are designed to safeguard all current and future claims of the company against the customer resulting from agreements for the delivery of goods between the contractual parties, including contractual relationships related to comparable products.

2. The goods delivered by the company to the customer remain property of the company until all secured claims have been completely paid. The goods and any goods taking their place and subject to the reservation of title in accordance with this clause shall hereinafter be referred to as the "reserved goods".

3. The customer is entitled to process and sell the reserved goods during the course of normal business operations until the time of the enforcement of the reservation of ownership. Pledges and collateral assignments are not allowed.

4. In the event that reserved goods are processed by the customer, it is covenanted that such processing shall be effected on behalf of and favoring the company in its capacity as manufacturer. Furthermore, the company is entitled to direct title acquisition or - should the processing of such goods involve materials supplied by multiple manufacturers, or should the value of the processed commodity be greater than that of the reserved goods - to co-acquisition (co-ownership) of the newly created commodity, taking into account the value of the reserved goods in relation to that of the newly-created commodity. In the event that such title acquisition is not effected to the benefit of the company, the customer shall undertake to transfer to the company with immediate effect any title to the goods or - within the parameters of the relationship specified above - co-ownership of the newly-created commodity as security. In the event that reserved goods combine with other articles to constitute a distinct article or are inextricably combined therewith, and should one of the other articles be deemed the principal article, the company shall transfer proportional co-ownership of the distinct article to the Customer in accordance with the relationship delineated in Clause 1. The customer relieves the company of all obligations that arise in connection with the property position of the company.

5. In the event of re-sale of reserved goods, the customer shall with immediate effect undertake to assign to the company as security the resultant claim vis-à-vis the buyer - and in the case of co-ownership reposed in the company a share of the reserved goods proportionate to co-ownership. The same applies in the case of other claims that take the place of reserved goods or otherwise arise in the context therof, such as insurance claims or claims arising on the basis of action ex delicto associated with loss or destruction. The company revocably authorizes the customer to collect the claims assigned to the company in its own name. The company may revoke this direct debit mandate only in the event that the collateral is realized.

6. Should third parties lay claim to reserved goods, specifically by attaching them, the customer shall immediately bring to the attention of such third parties the proprietary rights and title retained by the company and shall notify the company thereof in order to ensure assertion of the latter's proprietary rights. Should the third party not be in a position to pay legal or extralegal costs arising therefrom, the customer transacting with the company shall be liable to bear all such costs.

7. Upon request, the company shall release at its discretion the reserved goods and the commodities that take their place or any claims assigned, insofar as their value exceeds by more than 50% the amount constituted by secured claims.

8. Should the company withdraw from the agreement in consequence of the customer's violation of its terms - in particular delayed payment - (collateral realization), the company shall be entitled to reclaim the reserved goods or to realize substitutory securities.

9. When engaging in export business, if a reserved title does not have the same validity in the customer's country as it does according to German law, then the goods will remain property of the company until all the customer's receivables are paid, as long as this is legally possible at the location of the object of purchase. Should the agreed reserved title not have the same validity according to the customer's national laws or the laws of the country the object of purchase is located in, or if German law is not enforceable in this situation, then securities will be viewed according to either the laws of the customer's country or the country the object of purchase is located in, depending which laws most resemble the security function of the German reserved title.

C. Special rules regarding renting

I. Rental period

1. The rental period begins with the day of dispatch to the customer. If dispatch is delayed due to late receipt of advance payment, then the rental agreement begins on the day the dispatch would have occurred if payment were completed as contractually agreed. The end of rental is the day the rental object is delivered back. This is also true in case of delays, as long as these were not caused by the company.

2. In case of late payment by the customer, the company can enforce extraordinary termination of the rental agreement after setting a grace period of two weeks and can demand the immediate return of the rental object or can arrange collection at the expense of the customer.

II. Receipt of equipment and usage according to contract

1. On receipt of the rental object the customer must check if the object is in proper condition and fully functional. Deviations must be communicated to the company within one working day and the equipment must be sent back to the company in adequate packaging, if possible in original packaging. If defects are not communicated on time, then the customer must prove that the equipment was already defective at the time of delivery and is required to pay rent up until this point.

2. The company will replace defective equipment as soon as possible, at the latest within two weeks. The company is not liable for the time the equipment cannot be used, unless this was explicitly agreed upon.

3. The customer must treat the rental object with care and under consideration of the instruction manual and other technical instructions. He must ensure that only trained professionals use the rental equipment. Alterations or repairs can only be conducted with written consent by the company.

4. Damages to the rental object that go beyond the usual wear and tear must be covered by the customer. The company can repair the equipment at a fee, as long as the repair costs do not exceed the costs of purchasing equivalent new equipment by more than 30%.

5. The included software can only be used according to the instructions of the license holder and licensor. The customer must ensure that inappropriate use, even by auxiliary people, is prevented. In case of forbidden use of software, the company is relieved of all claims through third parties.

III. Returns

1. The rental object is to be sent back in good condition, originally packaged and at the expense of the customer. In case of delay, the company is entitled to arrange collection of the rental object at the cost of the customer.

2. In accordance with II. 4 the customer is responsible for damages or atypical wear and tear. The financial risk of price fluctuations at re-acquisition are to be carried by the customer, as long as the average re-acquisition value of the past two months has not been exceeded by more than 30%.

3. The risk of damage to the rental object during return transportation is carried by the customer.

D. Special rules regarding repairs

I. General conditions

1. Repairs occur as part of the placing of orders using generally accepted technology rules. Customer deadlines are only binding if these have explicit written confirmation. Repairs will otherwise be carried out in the usual processing time.

2. Quotations requested by the customer are free if an order is placed. If no order is placed, the customer has the opportunity to have the equipment disposed of free of charge at our company's service center. If the equipment is sent back to the customer on his request, a flat fee of 95 € will be charged.

3. The company only bears liability for destruction or damage of received equipment due to force majeure, such as fire, lightning, electricity and water, as well as simple faults, only if they fall within existing public liability insurance.

II. Delivery and return

Costs for transport and packaging are borne by the customer. The company is not liable for damages to customer objects during transportation. If the customer hasn't placed a repair order four weeks after provision of the quotation, the company can dispose of the object after setting a deadline of four weeks.

III. Acceptance

The customer must check the correctness of the performed repair right after delivery and accepts the object within five days, unless significant defects exist. If the customer does not file a complaint within five working days the goods will be seen as accepted and approved.

 

These terms and conditions replace the previous terms and conditions with immediate effect, unless the new terms have not yet been contractually agreed upon (old contracts).

Pürgen 2011