General Terms & Conditions

General conditions of delivery and payment of Elatec Vertriebs GmbH

Exclusive Validity of these Conditions
Any and all deliveries - including any and all future deliveries - shall exclusively be made on the basis of these General Conditions of Delivery and Payment Purchasing Conditions of the Customer shall not be applicable to the contract and are herewith rejected in so far as they do not correspond to these conditions They shall not be sustained even if they are not once again formally rejected by the Supplier after receipt. It is at the latest on receipt of the merchandise by the Customer that these Conditions of Delivery and Payment shall be deemed as having been accepted by the Customer.
Conclusion and Contents of Contract
2.1 All offers are submitted without any obligation unless the Supplier expressly gave a binding promise or declaration. Any statements by representatives or agents must be confirmed in writing by the Supplier. All contracts shall exclusively be governed by the Supplier's acknowledgement in writing of the order.
2.2 Alterations and Amendments to this contract must be in writing.
2.3 Documents attached to the offer by the Supplier serve as information for the Customer only and must be returned to the Supplier on demand. The Customer must supply all drawing documents, data and means of testing needed by the Supplier for the execution of the order free of charge.
2.4 The rights of the Customer deriving from this Contract are not transferable.
Prices
3.1 Prices quoted are ex works, exclusive of packing and net VAT (Sales Tax). Dispatch will be effected postage unpaid.
3.2 If in the case of call orders calls are made that in their aggregate exceed the quantity originally ordered, the Supplier may, at his discretion, either cancel the excess quantity or deliver and charge this quantity at the price effective on the day of delivery.
3.3 Even if the Customer pays Dart or all of the costs of tools used by the Supplier, such tools shall remain the exclusive property of the Supplier.
3.4 Necessary packaging (e.g. boxes or crates) shall be either provided or paid for by the Customer. If packaging is provided by the Supplier, the Supplier may charge the usual utilization charges. In such case, the packaging must be returned by the Customer in good condition within four weeks, freight and all charges prepaid.
3.5 Unavoidable increases in the costs of the production of the merchandise which are due to circumstances occurring after receipt of the order by the Supplier may be passed on to the Customer.
Passing of Risk
Any risk shall pass to the Customer when the merchandise is either leaving the factory or is placed at the Customer's disposal.
Delivery
5.1 Partial deliveries are permitted unless otherwise expressly stipulated. Differences between the quantity delivered and the quantity ordered of up to 10 per cent are permitted. This applies both to the delivered quantity as a whole and to partial deliveries.
5.2 Delivery periods accepted in the acknowledgement of order begin to run at the time of delivery from the Supplier’s works. They may be exceeded by the Supplier by up to one week. Furthermore, these periods do not run while the Customer does not fulfil all his contractual duties. An appropriate extension of the delivery time shall be granted in the following cases: unforeseeable shortfall of energy or of raw materials, strike, lock-out, unforeseeable state action, default or non-performance on the part of ancillary suppliers or any other, comparable unforeseeable and uncontrollable event lf such events either last for more than one month or if either the works of the Supplier himself or those of his ancillary suppliers close down or if any other event of comparable duration and gravity occurs, the Supplier shall be free to withdraw from the contract.
5.3 lf the Supplier makes default with regard to the delivery, the Customer must first set an additional period of time of reasonable length for this delivery. If this period expires without such delivery having been effected, the Customer shall be entitled to withdraw from the contract. The same right shall inure to the Customer if the Supplier is or becomes unable to perform delivery for reasons within his responsibility or control.
5.4 Once a stipulated delivery time has expired, the Supplier shall no longer be obligated further to effect deliveries.
5.5 Calls for part deliveries must be made for even quantities, in due time and at regular intervals, so as to make possible proper production and delivery. lf no intervals for calls and taking delivery are stipulated, a period of 3 (three) months shall be deemed to be agreed upon.
5.6 lf the delivery schedule and the taking of delivery of merchandise is not made in accordance with the foregoing provisions, the Supplier shall, notwithstanding his other rights, be entitled to cancel the contract or to claim damages.
Acceptance
lf the merchandise must undergo special testing, acceptance of the merchandise shall take place in the works of the Supplier. The costs of carrying out the tests necessary for acceptance shall be borne by the Supplier. All other costs, especially potential travelling costs and other expenses charged by state officials who are needed to effect acceptance, shall be borne by the Customer. If the Customer waives his right to attend such tests. acceptance shall be deemed to be granted at the time the merchandise leaves the Supplier's works.
Notice of Defects, Warranty, Liability
7.1 Notice of defects concerning either the quantity, the weight or the number of items delivered as well as notice of apparent defects must be given in writing within one week from the date of delivery. With regard to hidden defects this period shall run from the day of their respective recognizability. Failure of such notification shall lead to the forfeiture of all rights deriving from such defects.
7.2 Defective merchandise must, at the discretion of the Supplier, either be repaired or replaced. Replaced merchandise shall become the property of the Supplier. lf repair or replacement have failed the Customer shall be entitled to demand - at his option - either a reduction of the price payable or cancellation of the contract.
7.3 The period of warranty is 24 months from delivery at the merchandise. For replaced or repaired merchandise the period of warranty runs for 6 months, but at least until the end of the original period of warranty.
7.4 The Supplier shall not be liable to pay damages for default, impossibility of performance, positive violation of contractual duty, culpa in contrahendo or tortuous act unless the pertinent damage was caused either intentionally or by gross negligence. This limitation of liability does not apply for claims deriving from the "Produkthaftungsgesetz'' (Product Liability Act).
Supplier's Right of Rescission of Contract
The absolute creditworthiness of the Customer is an indispensable precondition for delivery. If, after the conclusion of the contract, the Supplier obtains information which warrants reasonable doubts in this respect, he shall have the right, at his discretion to demand either advance payment or collateral or, if a kind of payment other than cash had been agreed upon, to demand payment in cash, or to withdraw from the contract or to refuse performance or to demand compensation for nonperformance. Such doubts shall especially, but not exclusively, be warranted in the following cases: A considerable deterioration in the Customer’s financial situation, suspension of payments, proceedings of insolvency, termination of business, change of property relations or of stock ownership etc., substantial pledging by the Customer of inventories, claims or of merchandise as collateral to other creditors or failure of the Customer to pay due claims to the Supplier even after being formally reminded to do so.
Retention of Title
9.1 The Supplier shall retain full title in all delivered merchandise until all claims ate fully satisfied that either he or any company he is associated with have against the Customer in the case of payment by cheque or by draft satisfaction in this sense shall be deemed to have occurred only when the respective instrument is honoured.
9.2 lf the merchandise delivered is mixed or assembled with any other objects, such processing shall be deemed to be carried out on behalf and in the name of the Supplier. However, no obligation shall derive for the Supplier. If a new object is created by way of such assembly and the Customer obtains some proprietary or other right in this new object, the respective right shall, if legally possible, accrue directly to the Supplier. Otherwise, it shall immediately be assigned by the Customer to the Supplier. The Customer shall keep such new product with due care on behalf of the Supplier.
9.3 The Customer may sell the merchandise under retention only in the course of due business. He herewith assigns as collateral for all claims the Supplier or any company associated with the Supplier have against him all claims and rights he will obtain through such business. The Customer is authorized to collect the assigned claims. When the Supplier's claims are due, the Customer shall keep separately such collected amounts and remit them immediately to the Supplier. The Customer must immediately notify the Supplier when any third party claims attachment of the merchandise under retention or of any of the assigned claims. Any costs of a potential intervention shall be borne by the Customer.
9.4 lf the value of all collateral thus obtained by the Supplier in the aggregate exceeds the amount of all claims open to the Supplier by more than 20 per cent, the Supplier shall on request be obligated to transfer the excess amount back to the Customer.
9.5 The authorization of the Customer to process or resell merchandise under retention of title or to collect claims assigned to the Supplier expires in the following cases: the conditions of payment are not met, drafts or cheques of the Customer are protested, a petition for insolvency proceedings is filed, payments are suspended, business is terminated or negotiations regarding a moratorium of payments are initiated. In such case, the Supplier may take the merchandise into his possession. Such repossession, if conducted, shall not in itself constitute a withdrawal from the contract. In such case the Customer must, if the Supplier so requires, notify the garnishees about the above mentioned retention of title and assignment of claims. He shall also provide the Supplier with all information and data needed by the Supplier to pursue his claims against the garnishees. Any costs caused by such action shall be borne by the Customer. The Supplier may, at his discretion, credit merchandise retaken from the Customer either at its invoice value at its current market value or at the profit reasonably obtainable by the utilization of such merchandise.
Conditions of Payment
10.1 Invoices must be paid without deduction in advance
10.2 The Customer may not withhold due payments. Especially, he may not claim an offset with regard to claims that are not either legally decided or recognized by the Supplier. The Supplier may offset any claim he or any company he is associated with have against the Customer, irrespective of whether or not such payments are due and payable at that date.
10.3 If the financial situation of the Customer deteriorates substantially the Supplier shall hays the right to accelerate the maturity of and demand immediate payment for any claims he has against the Customer.
10.4 If payments of the Customer are delayed the Supplier shall, notwithstanding his other rights, have the right to claim damages for default in the amount of the usual debtor interest. Furthermore, in such case, he may demand, at his discretion, either the commission usually charged by commercial banks or the commission charged by his own bank.
10.5 In the absence of any express prior agreement to the contrary, the Supplier shall not be obligated to accept for payment any draft, cheque or other instrument. The costs for discounting and collection of such instruments shall be borne by the Customer. All such means of payment are accepted only conditionally pending receipt of the funds by the Supplier.
Final Provisions
11.1 The place of performance for all obligations deriving from this contract shall be Olching, Germany.
11.2 This contract as well as all disputes arising out of it or in connection with it shall exclusively be governed by German Law.
11.3 All disputes arising out of or in connection with this contract shall exclusively be decided by the competent court in Munich/Germany. This provision notwithstanding, the Supplier shall have the right alternatively to sue the Customer at the competent court at the Customer's seat.
11.4 The legal invalidity of individual provisions of this contract shall not release the Customer from this contract.