EISELE GmbH, Waiblingen
§ 1 General
(1) These terms and conditions of sale ("T&C") shall apply to contracts between EISELE GmbH, Waiblingen, Germany, (hereinafter "Eisele") and its commercial customers (hereinafter "Customer(s)"). Any Customer terms and conditions conflicting with or deviating from these T&C shall not become an integral part of the contract unless Eisele has agreed to their applicability in writing. These T&C shall apply also in cases where Eisele, despite its awareness of conflicting or deviating terms and conditions of the Customer, makes deliveries to the Customer without any reservation.
(2) If the Customer does not agree to these T&C, it must inform Eisele accordingly without delay in writing.
(3) These T&C shall apply only to B2B dealings, i.e. for transactions with entrepreneurs as defined in Sec. 310(l) German Civil Code [Burgerliches Gesetzbuch; "BGB"]. Even if not separately agreed upon in each case, Eisele's T&C shall always apply to all future deliveries and services performed under an ongoing business relationship.
§ 2 Offers, acceptance of orders
(1) Unless expressly provided otherwise in the offer, Eisele's offers are non-binding and shall be deemed a mere request to the Customer to submit an offer itself. Contracts between Eisele and the Customer enter into force by Eisele's written confirmation order to the Customer, or by delivery of the ordered item.
§ 3 Delivery periods, partial deliveries
(1) Unless specified in greater detail, a delivery period that has been agreed upon shall start to run upon receipt of the confirmation order by the Customer.
(2) Observance of the delivery period by Eisele shall be subject to the Customer's timely and proper compliance with its duty of cooperation. Eisele's right to invoke the plea of non-performance of contract shall remain unaffected thereby.
(3) Eisele shall be entitled to retain delivery to the Customer if Eisele has a non-negligible claim due from the Customer, even if this claim has arisen under a different legal relationship. The provisions set forth under Clause 6 (2) hereof shall remain unaffected thereby.
(4) Eisele shall be entitled to make partial deliveries to an extent reasonably acceptable to the Customer.
(5) Unforeseeable events of force majeure, such as, in particular, war, riot, strike, lock-out, acts of government, and the resulting restriction on suppliers' ability to supply, shall release Eisele from its delivery obligation for the duration of any such event plus two additional weeks. Should the aforementioned events last longer than six (6) weeks, both parties may rescind the contract.
§ 4 Transport, dispatch, insurance
Shipments shall be made EXW ex the Waiblingen factory (Incoterms 2010). In the event of any deviation therefrom, the delivery shall nonetheless, absent an express provision stipulating otherwise, be made at the Customer's risk.
§ 5 Currency
Prices are charged in Euro and must be paid in Euro. Should the Customer pay in any other currency despite this rule, the official middle exchange rate on the date of receipt of payment shall be the basis for determining whether the Customer has fully performed under the contract.
§ 6 Payments
(1) Invoices are due and payable without delay upon receipt of the goods without deduction of any cash discount, unless expressly agreed otherwise or specified in the invoice.
(2) For as long as the Customer is in non-negligible default of payment arising from other transactions, Eisele shall be entitled to make its delivery contingent on prepayment by the Customer. If the prepayment is not made within a reasonable period, Eisele shall be entitled to rescind the (as yet unfulfilled) contract if the consideration owed by the Customer has not been provided on or before the expiration of that period.
(3) The Customer may set off only with claims that are uncontested, have been awarded by a final and legally binding judgment, or are mature for judgment; other than that, there is no right of setoff. The Customer may claim a right of retention only if it arises from the same legal relationship and only for counterclaims that are uncontested, have been awarded by a final and legally binding judgment, or are mature for judgment.
§ 7 Retention of title
(1) Eisele reserves title to the goods until full payment of all of Eisele's claims that have arisen against the Customer under the business relationship in its entirety (extended reservation of title). In this respect, the cause in law on which Eisele's claims against the Customer are based is irrelevant. In particular, claims to the outstanding balance on current accounts shall also be covered thereby.
(2) The Customer must notify Eisele without delay of any third-party intervention, such as an attachment of property, which affects any of Eisele's rights (in particular Eisele's reservation of title). To the extent that the third party is not in a position to reimburse Eisele for its court fees and extrajudicial costs incurred by bringing an action pursuant to Sec. 771 German Code of Civil Procedure [Zivilprozessordnung; "ZPO"], the Customer shall be liable to Eisele for that default.
(3) Any processing or remodeling of the goods by the Customer shall always be done on Eisele's behalf. If the goods are processed with other items not belonging to Eisele, then Eisele shall acquire co-ownership of the new item at the ratio of the value of the goods to that of the other processed items at the time of processing. In all other respects, the provisions governing goods delivered subject to the reservation of title shall also apply to the item created after such processing.
(4) The Customer may resell and transfer the goods subject to the reservation of title (hereinafter "Retained Goods") as part of its ordinary course of business. However, such resale and transfer shall be subject to the proviso that all claims the Customer is entitled to from the resale to third parties shall pass to Eisele. These claims the Customer has against third parties shall be assigned to Eisele as of now; Eisele hereby accepts this assignment. The Customer shall not be entitled to make any other disposition of the Retained Goods; it may specifically not pledge the Retained Goods or transfer title thereto to serve as security. The authorization granted to the Customer to resell and transfer the Retained Goods shall be void in the event of a considerable deterioration of the Customer's financial position or if it fails to properly comply with its payment obligations to Eisele.
(5) The Customer shall be entitled to collect the assigned claims itself until further notice from Eisele. The Customer may not assign the claims to third parties. Eisele shall have the right to revoke the authorization to collect at any time but will not make use of this right for as long as the Customer properly complies with its payment obligations. Upon Eisele's request, the Customer must notify its customers of the assignment to Eisele, and must provide Eisele with all information and records necessary to collect the claims.
(6) Eisele undertakes that it will release all collateral it is entitled to as provided above upon the Customer's request in so far as its realizable value exceeds the claims to be secured by more than ten percent (10%). Eisele shall have the option to choose which items of collateral are to be released.
§ 8 Rights
Eisele reserves all rights, including copyrights, to illustrations, drawings, calculations, drafts and other documents prepared by Eisele. This shall apply in particular to all written documents labeled "Confidential". Prior to their disclosure to third parties, the Customer must first obtain the express written consent from Eisele.
§ 9 Rights in case of defects
(1) Product descriptions in catalogues, price lists, circulars, prospectuses or similar public statements made by Eisele are non-binding and shall not be deemed to constitute the contractually agreed-upon quality; they merely serve the purpose of providing general information on Eisele's products, unless the statements made and data provided therein have been expressly confirmed by Eisele upon entering into the contract. This shall in particular also apply to illustrations as well as the measurements and weights of the products.
(2) If the goods are not free from substances that inhibit moistening, in particular silicone or greasing, this shall not be deemed a defect. Although the products are made such that they are free from silicone and grease to the greatest possible extent, the possibility still remains that the goods are not entirely free from silicone, grease, or other substances that inhibit moistening.
(3) The goods delivered must be examined by the Customer without delay. If there is a defect, Eisele must be notified of the defect without delay but no later than within ten (10) business days after receipt of the goods; any defects not recognizable upon thorough examination must be reported without delay after their discovery. Anye notice of defect must be made in writing.
(4) If the goods are proven to be defective at the time of passing of risk, the Customer may request a cure. Eisele shall have the option to choose whether it will repair the defect or replace the defective item. The Customer shall be entitled to reduce the purchase price or rescind the contract if the cure fails. The cure shall be deemed failed if two replacements have been found to be defective, or if the repair has twice failed.
(5) If goods are returned that are alleged to be defective but, in reality, are free from defects, Eisele shall have the right to charge an adequate compensation to the Customer for expenses incurred thereby, in particular for the repeated quality control inspection of the goods.
(6) The Customer's rights due to defects of the goods shall be barred under the statute of limitation after a period of (12) months from the date of delivery of the goods. This shall not apply to items that, due to their typical use, have been used for buildings and have caused that buildings´defectiveness; in this case, the limitation period shall be five (5) years. The shortened limitation period according to the first sentence of this paragraph shall also not apply in all cases specified under Clause 10 (2) (i) or (ii).
(7) There are no rights in the event of defects of declassified goods, special items, scraps, and used goods.
§ 10 Liability
(1) Subject to the provisions under (2) below, Eisele's liability for direct or indirect loss or damage (such as due to interruption of operations, or the Customer's loss of profit) shall be excluded regardless of the cause in law.
(2) The exclusion of liability set forth under (1) above shall not apply in the event of: (i) violations of Eisele's obligations by its executive bodies, employees, or vicarious agents (Erfullungsgehilfen) based on willful misconduct or gross negligence, (ii) wrongful death, personal injury, or harmful health effects, (iii) the violation of essential contractual obligations (fundamental obligation). In this case, Eisele's liability shall, however, be limited to the damage typical of that type of contract and foreseeable at the time of entering into the contract. A fundamental obligation is an obligation on the part of Eisele the compliance with which is essential to achieve the purpose of the contract with the Customer, and for which the Customer generally may rely, and does rely, on compliance.
(3) Liability under the Product Liability Act shall not be affected.
§ 11 Final provisions, applicable law, jurisdiction
(1) Contracts between Eisele and the Customer shall be exclusively subject to German law, but without the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention or CISG).
(2) The exclusive place of jurisdiction for all disputes arising out of or in connection with the business relationship between Eisele and the Customer shall be Waiblingen, Germany, if the Customer is a merchant as defined in German law. Eisele shall also be entitled to bring action against the Customer before any other court that has jurisdiction under the law over the Customer (and for the Customer to file counterclaim in any such court notwithstanding sentence 1 above).
(3) Any unwitting gap in these T&C shall be replaced by a provision that Eisele and the Customer would have agreed upon if they had considered the necessity of stipulating a provision regarding the matter involved.