I. Scope of application
1. These General Terms and Conditions (hereinafter referred to as GTC) apply to all business relations between eila GmbH & Co. KG and companies, legal entities under public law or special funds under public law according to § 14 Germen Civil Code. The General Terms and Conditions of eila GmbH & Co. KG shall also apply to all future transactions with the Customer, even if in individual cases no explicit reference is made to the GTCs. Any terms and conditions of the Customer which conflict with or deviate from these General Terms and Conditions shall not apply unless eila GmbH & Co. KG has expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if eila GmbH & Co. KG executes the orders without reservation in knowledge of conflicting or deviating conditions of the Customer. Even in this case the general terms and conditions of the Customer shall not become part of the contract. The General Terms and Conditions of eila GmbH & Co. KG shall apply to all contracts and orders, no matter whether they are placed or concluded on the Internet, in writing, by telephone or in any other way. In addition, unless otherwise provided for in these General Terms and Conditions, the provisions of the German Commercial Code, the provisions of the German Civil Code including the United Nations Convention on Contracts for the International Sale of Goods, CISG and the Incoterms of the International Chamber of Commerce in Paris in the version applicable at the time of delivery or performance (2020) shall apply. By accepting the goods, the customer waives the application of his terms and conditions of business, even if these conditions claim exclusivity. Verbal agreements or assurances are invalid without our written confirmation.
2. Individual agreements made with the contractual partner in individual cases, including collateral agreements, supplements and amendments, shall take precedence over the general terms and conditions. Either a written contract or alternatively our written acknowledgment shall be authoritative for the effectiveness of such agreements. A waiver in regards to the written form shall be in written.
II. Offer and contract conclusion
1. Our offers are always subject to change without notice, unless we indicate an explicit binding. A contract with our customer is concluded when we have confirmed the customer's order in writing. In this case (dispatch of the order confirmation) the contract is concluded.
Should some of the ordered and confirmed products not be available, the contract shall only be concluded for the subsequently confirmed available products. Oral statements are in any case non-binding. There is a minimum order value of 500.00 EUR.
2. The data and information contained in the product catalogues, information sheets, in the online-shop and price lists are only binding insofar as the contract expressly refers to them. All information about the products, in particular the illustrations, drawings, quality, quantity, weight, dimension and performance data contained in the offers are only approximate values and are not specifications of quality. We reserve the right to make necessary technical changes. Deviations customary in the industry are permissible. The condition, suitability, qualification and function as well as the intended use of our products are determined exclusively by our performance descriptions and technical qualifications. Any intended use not confirmed by us in writing or not specified in the contract is irrelevant to us. Public statements, promotions or advertising by us or third parties do not constitute a description of the quality of the goods.
3. If the customer specifies any particular requirements for us with regard to the provision of goods and services these specifications have to be laid down this in writing at the time of the placement of the order.
4. Offers are only valid for the country in which the requesting party is located. Any disadvantages and liabilities, caused by use of the supplied goods outside of this country are on the account of the requesting party.
5. We are authorized to either perform the work and the services assigned to us or to contract it to third parties.
III. Prices and costs of transport including packaging
1. Our prices are – except as otherwise agreed in a particular case - ex works Incoterms 2020, without packing and are exclusive of VAT. VAT will be charged separately at the applicable rate according to the applicable tax regulations. If more than 4 months have passed between the placement of the order and delivery of goods and services we may - pursuant to § 315 BGB - require a reasonable price surcharge reflecting our cost increase until delivery. We ship the ordered products at the request and risk of the customer. After receipt of the order, we will determine the expected transport costs and notify the customer. The customer accepts the offer to carry out the shipment of the goods/the transport of the goods by paying the notified expected transport costs. Otherwise, the customer is responsible for carrying out the transport himself.
2. Prices agreed for a specific order are not binding for reorders.
3. The purchase price does not include VAT and other taxes, duties and customs fees. As long as and insofar as sales taxes, other taxes, customs duties, costs and fees are incurred, these shall be additionally borne by the customer. The customer is responsible for proper taxation/customs clearance. The customer is obliged to indemnify us in full for all claims of third parties in connection with the taxes, costs and fees listed here.
4. The customer is neither entitled to reduce our claims by counterclaims nor to assert a right of retention unless the counterclaims or the right of retention have been acknowledged by us in writing or have been legally established. An assignment of claims of our customer against us to third parties without our written consent is not permitted.
IV. Deliveries, delivery times, delivery dates
1. Delivery times are quoted ex works and commence after the clarification of the technical issues, outstanding at the time of the conclusion of the contract, after we have received records from customers and advance payments , subject to correct and timely delivery to us. We inform customers immediately of the unavailability of the delivery item.
2. The non-delivery, incorrect or delayed delivery by our suppliers causes delivery times to be extended accordingly. The same applies for acts of God and strikes, lockouts, disruptions, shortages where we cannot be held accountable for. Delivery of goods and services may also by delayed by the customer requiring additional or amended goods and services.
3. Delivery dates are only valid if explicitly confirmed by the contractor. If the contract is concluded in writing, the confirmation of the delivery date requires the written form.
4. The risk shall pass to the customer when the supplied goods leave our or our sub-supplier’s plant. This also applies if we or our sub-supplier assume shipping, export or formation. The goods are insured under the relevant freight forwarding conditions of the carrier.
5. Our delayed delivery is always requires a reminder of the customer with an appropriate grace period. If we are in default with the provision of our goods and services, an appropriate grace period must be granted to us. After expiry of the grace period, the customer may withdraw from the contract. In the event of a delay in delivery, the damage to be compensated for is limited to 0.5% of the value of the untimely delivery or partial delivery for each completed week, but no more than 5% of the value of the delayed (partial) delivery, unless a lower damage is incurred. The limitation does not apply in cases of intent, gross negligence and / or injury to life, body or health.
6. Partial deliveries are permitted to a reasonable extent. If the shipping is delayed due to a request by the customer or a fault of the customer, the goods shall be stored at the expense and risk of the customer, in which case the notice of goods ready for shipment shall be deemed as shipment of goods.
7. The customer shall call off the goods, including partial deliverable goods, fully within 14 days of notification of completion or 14 days after the execution of the order. Upon expiry of such a period the customer shall otherwise be deemed to be in default of acceptance.
V. Payments and delayed payments
1. Unless otherwise agreed in individual cases, payments are to be made immediately after receipt of the invoice, without deduction. We will issue the invoice upfront. Our customer is obliged to make pre-payments.The customer is in default at latest 30 days after due date and reception of the counter-performance. From the beginning of default, interest for default amounting to 9 percent points above the basic rate of interest of the European Central Bank can be claimed. Claiming of further default damage is explicitly reserved.
2. We may charge instalment payments up to a reasonable extent.
3. If the fulfilment of a claim for payment is at risk due to deterioration of the financial condition of the customer, that occurred or become known after conclusion of the contract we may require advance payment and immediate payment of all outstanding invoices not yet due, and we may withhold goods not yet delivered and cease further processing of pending orders. We shall also be entitled to these rights if the customer does not make any payment in spite of a reminder following a default.
4. If the customer is in arrears with partial or final accounts, he loses all rights to the goods which are until then delivered under the contract. These goods are to be returned immediately in the original.
5. Bills of exchange are not accepted for payment. Cheques will be accepted on account of performance and at the customer's expense only.
VI. Complaints / Liability
1. The customer is obliged to immediately inspect delivered goods in any case. Our customer must provide proof of the defectiveness and that the customer is not responsible for the defectiveness. In order to enable the examination of the defect claim, the customer shall send the product to us at his own expense and risk. If the inspection reveals that the product is defective and that the customer is not responsible for the defect, we shall reimburse the customer for the transport costs incurred in this respect.
2. We warrant that our supplied goods are free of defects at the transfer of risk. For used goods we do not take over a warranty. Immaterial deviations from the agreed quality or non-essential restrictions in usability are irrelevant. Defects in part of the delivered goods shall not entitle to reject the entire delivery, unless the partial delivery of no interest for the customer is. The required nature, service life or use of our supplied goods is exclusively subject to the specifications agreed in writing and/ or the product description. Any requirements beyond that, including but not limited to statements during negotiations, in advertising or references to industry standards, will become part of the contract only if specifically incorporated in written form.
3. Manufacturing-specific deviations in measures, content, gauges, weights and coloration are permitted within the tolerances customary in the sector.
4. The customer must inspect the supplied goods as to quantity and defects immediately on receipt and has to notify any apparent defects without undue delay. The customer must report any transport damage to the deliverer immediately. Failure to meet these obligations excludes any and all potential claims for these defects.
5. Subsequent performance means, at our option, either elimination of the defect or delivery of goods free from defects. In the event of rejection, impossibility or failure of subsequent performance, the customer has the right to demand a reduction of the purchase price or to withdraw from the contract. Further claims by the customer for or in connection with defects or consequential damage caused by a defect are excluded as well as claims for a loss of profit. The reimbursement of expenses of the customer or buyers of the customer, which arise in the course of repair, including supply and disposal costs of the defective goods is also excluded. The customer has to bear the additional expenses to subsequent fulfilment arising from the fact that the supplied goods have been transported after delivery to a place other than the agreed place of delivery.
6. Our liability for slight negligence is limited to claims based on injury to life, body or health, to claims arising from product liability law and to claims from culpable infringement of essential contractual obligations with said infringement putting the purpose of the contract at risk. Our liability for the slightly negligent infringement of essential contractual obligations is restricted to typically occurring damage which we could have foreseen when the contract was concluded.
7. We are committed to carefully select and instruct our assistants but we are not responsible and liable for them.
8. We do not guarantee or warrant the accuracy or completeness, factual correctness made in advertising claims for the delivery products.
9. Customer claims for quality defects expire one year from delivery / delivery the contractual item to the customer. This does not include claims for damages for injury of life, body or health and / or claims for damages due to gross negligence or intentional damage caused by us. The statutory period of limitations shall apply.
10. Warranties and guarantees given by manufacturers going beyond our own warranty do not bind us.
VII. Copyright / Rights of use
1. The customer is responsible for ensuring that execution of the order does not violate the rights of third parties, in particular the rights of reproduction. The customer shall indemnify and hold us harmless from and against any and all claims of third parties asserted against us as a result of the execution of the customer’s order.
2. All copyrights and related rights of exploitation of sketches, drafts, originals, films, files, etc. created by us as part of the order fulfilment remain with us, provided this is permissible in law and no other agreement has been reached with the customer. In the event that rights of exploitation are transferred according to individual agreements, where we derive these rights from third parties, the rights shall be transferred only to that extent to which they have been granted to us by this same third party.
3. The customer shall observe secrecy towards third parties as to all knowledge acquired through the business relationship with us and which is not in the public domain.
VIII. Place of Performance, Language and Applicable Law
1. Place of fulfilment and performance for any obligation arising in context with our deliveries is Bayreuth.
2. The language of contract is only German. Existing translations are only made for the purpose of information. In case of discrepancies the German version shall prevail.
3. The Parties agree upon the exclusive application of the internal law of the Federal Republic of Germany, where as the applicability of the United Nations´ Convention of April 11, 1980 on contracts concerning the international sale of goods is included.
IX. Place of Jurisdiction and Arbitration
1. Exclusive jurisdiction for all disputes with a contractual partner who has his administrative headquarters or a branch within the European Union, Switzerland or the United Kingdom is Bayreuth.
2. For customers to whom XVII (1) does not apply, all disputes arising from or in connection with the business relationship, including the formation, validity or termination of the contract, shall be finally decided by the International Chamber of Commerce (ICC), excluding the ordinary courts of jurisdiction.
3. The Arbitration Tribunal shall also decide on the validity of this Arbitration Agreement. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Munich. The arbitration language shall be German.
Version number of the Terms and Conditions 1.0
Status: November 2021