General Terms and Conditions for the Sale of Products and Provision of Services by A. Eberle GmbH & Co. KG
Article I: General Provisions
Legal relations between A. Eberle and Purchaser in connection with supplies and/or services of A. Eberle (hereinafter referred to as “Supplies”) shall be solely governed by the present GL. The Purchaser’s general terms and conditions shall apply only if expressly accepted by A. Eberle in writing.
Article II: Prices, Terms of Payment, and Set-Off
1. Prices are ex works and excluding packaging; value added tax shall be added at the then applicable rate.
2. Payments shall be made free A. Eberle’s paying office.
3. The Purchaser may set off only those claims which are undisputed or non-appealable.
4. Partial deliveries by A. Eberle are allowed, unless they are unreasonable to accept for the Purchaser.
Article III: Retention of Title
1. The items pertaining to the Supplies (“Retained Goods”) for which the purchase price claim is due immediately or for which a payment period of up to and including 30 days after delivery, delivery with installation/assembly or receipt of invoice has been agreed for the due date of the purchase price claim shall remain the property of A. Eberle until payment has been made in total
2. In all other cases, the items pertaining to the Supplies (“Retained Goods”) shall remain A. Eberle’s property until each and every claim A. Eberle has against the Purchaser on account of the business relationship has been fulfilled. If the combined value of A. Eberle’s security interests exceeds the value of all secured claims by more than 20 %, A. Eberle shall release a corresponding part of the security interest if so requested by the Purchaser; A. Eberle shall be entitled to choose which security interest it wishes to release
3. For the duration of the retention of title, the Purchaser may not pledge the Retained Goods or use them as security, and resale shall be possible only for resellers in the ordinary course of their business and only on condition that the reseller receives payment from its customer or makes the transfer of property to the customer dependent upon the customer fulfilling its obligation to effect payment.
4. Should Purchaser resell Retained Goods, it assigns to A. Eberle, already today, all claims it will have against its customers out of the resale, including any collateral rights and all balance claims, as security, without any subsequent declarations to this effect being necessary. If the Retained Goods are sold on together with other items and no individual price has been agreed with respect to the Retained Goods, Purchaser shall assign to A. Eberle such fraction of the total price claim as is attributable to the price of the Retained Goods invoiced by A. Eberle.
a) Purchaser may process, amalgamate or combine Retained Goods with other items. Processing is made for A. Eberle. Purchaser shall store the new item thus created for A. Eberle, exercising the due care of a diligent business person. The new items are considered as Retained Goods.
b) Already today, A. Eberle and Purchaser agree that if Retained Goods are combined or amalgamated with other items that are not the property of A. Eberle, A. Eberle shall acquire co-ownership in the new item in proportion of the value of the Retained Goods combined or amalgamated to the other items at the time of combination or amalgamation. In this respect, the new items are considered as Retained Goods.
c) The provisions on the assignment of claims according to No. 4 above shall also apply to the new item. The assignment, however, shall only apply to the amount corresponding to the value invoiced by A. Eberle for the Retained Goods that have been processed, combined or amalgamated.
d) Where Purchaser combines Retained Goods with real estate or movable goods, it shall, without any further declaration being necessary to this effect, also assign to A. Eberle as security its claim to consideration for the combination, including all collateral rights for the prorata amount of the value the combined Retained Goods have on the other combined items at the time of the combination.
6. Until further notice, Purchaser may collect assigned claims relating to the resale. A. Eberle is entitled to withdraw Purchaser’s permission to collect funds for good reason, including, but not limited to delayed payment, suspension of payments, start of insolvency proceedings, protest or justified indications for overindebtedness or pending insolvency of Purchaser. In addition, A. Eberle may, upon expiry of an adequate period of notice disclose the assignment, realize the claims assigned and demand that Purchaser informs its customer of the assignment.
7. The Purchaser shall inform A. Eberle forthwith of any seizure or other act of intervention by third parties. If a reasonable interest can be proven, Purchaser shall, without undue delay, provide A. Eberle with the information and/or Documents necessary to assert the claims it has against its customers.
8. Where the Purchaser fails to fulfill its duties, fails to make payment due, or otherwise violates its obligations A. Eberle shall be entitled to rescind the contract and take back the Retained Goods in the case of continued failure following expiry of a reasonable remedy period set by A. Eberle; the statutory provisions providing that a remedy period is not needed shall be unaffected. The Purchaser shall be obliged to return the Retained Goods. The fact that A. Eberle takes back Retained Goods and/or exercises the retention of title, or has the Retained Goods seized, shall not be construed to constitute a rescission of the contract, unless A. Eberle so expressly declares.
Article IV: Time for Supplies; Delay
1. Delivery periods specified in the offer or order confirmation are non-binding. Fixed delivery dates or periods must be expressly confirmed by A. Eberle in writing to be effective.
2. Times set for Supplies shall only be binding if all Documents to be furnished by the Purchaser, necessary permits and approvals, especially concerning plans, are received in time and if agreed terms of payment and other obligations of the Purchaser are fulfilled. If these conditions are not fulfilled in time, times set shall be extended reasonably; this shall not apply if A. Eberle is responsible for the delay.
3. If non-observance of the times set is due to:
a) force majeure, such as mobilization, war, terror attacks, rebellion or similar events (e. g. strike or lockout);
b) virus attacks or other attacks on A. Eberle’s IT systems occurring despite protective measures were in place that complied with the principles of proper care;
c) hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or to other circumstances for which A. Eberle is not responsible; or
d) late or incorrect deliveries to A. Eberle, especially due to pandemic-related delays or cancellations,
such times shall be extended accordingly.
4. If A. Eberle is responsible for the delay (hereinafter referred to as “Delay”) and the Purchaser has demonstrably suffered a loss therefrom, the Purchaser may claim a compensation as liquidated damages of 0.2 % for every completed week of Delay, but in no case more than a total of 2 % of the price of that part of the Supplies which due to the Delay could not be put to the intended use.
5. Purchaser’s claims for damages due to delayed Supplies as well as claims for damages in lieu of performance exceeding the limits specified in No. 4 above are excluded in all cases of delayed Supplies, even upon expiry of a time set to A. Eberle to effect the Supplies. This shall not apply in cases of liability based on intent, gross negligence, or due to loss of life, bodily injury or damage to health. Rescission of the contract by the Purchaser based on statute is limited to cases where A. Eberle is responsible for the delay. The above provisions do not imply a change in the burden of proof to the detriment of the Purchaser.
6. At A. Eberle’s request, the Purchaser shall declare within a reasonable period of time whether it, due to the delayed Supplies, rescinds the contract or insists on the delivery of the Supplies.
7. If dispatch or delivery, due to Purchaser’s request, is delayed by more than one month after notification of the readiness for dispatch was given, the Purchaser may be charged, for every additional month commenced, storage costs of 0.5% of the price of the items of the Supplies, but in no case more than a total of 5 %. The parties to the contract may prove that higher or, as the case may be, lower storage costs have been incurred.
Article V: Passing of Risk
1. Even where delivery has been agreed freight free, the risk shall pass to the Purchaser as follows:
a) if the delivery does not include assembly or erection, at the time when it is shipped or picked up by the carrier. Upon the Purchaser’s request, A. Eberle shall insure the delivery against the usual risks of transport at the Purchaser’s expense;
b) if the delivery includes assembly or erection, at the day of taking over in the Purchaser’s own works or, if so agreed, after a successful trial run.
2. The risk shall pass to the Purchaser if dispatch, delivery, the start or performance of assembly or erection, the taking over in the Purchaser’s own works, or the trial run is delayed for reasons for which the Purchaser is responsible or if the Purchaser has otherwise failed to accept the Supplies.
Article VI: Receiving Supplies
The Purchaser shall not refuse to receive Supplies due to minor defects.
Article VII: Defects as to Quality
A. Eberle shall be liable for defects as to quality as follows:
1. Defective parts or defective services shall be, at A. Eberle’s discretion, repaired, replaced or provided again free of charge, provided that the reason for the Defect had already existed at the time when the risk passed.
2. Claims for repair or replacement are subject to a statute of limitations of 24 months calculated from the start of the statutory statute of limitations; the same shall apply mutatis mutandis in the case of rescission and reduction. This shall not apply:
– where longer periods are prescribed by law according to Sec. 438 para. 1 No. 2 (buildings and things used for a building), and Sec. 634a para. 1 No.2 BGB (defects of a building),
– in the case of intent,
– in the case of fraudulent concealment of the Defect or
– non-compliance with guaranteed characteristic (“Beschaffenheitsgarantie”).
Claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse) shall likewise be subject to a statute of limitations of 24 months from the start of the statutory statute of limitations, provided the last contract in the supply chain is not a sale of consumer goods.
In any case, the suspension of the statute of limitations under Sec. 445b No. 2 BGB shall expire, at the latest, 5 years after the handover of the Supplies to the Purchaser if A. Eberle did not act with intent or fraudulently conceal a defect. The legal provisions regarding the suspension of the statute of limitations (“Ablaufhemmung”, “Hemmung”) and recommencement of limitation periods shall be unaffected.
3. Notifications of Defect by the Purchaser shall be given in written form without undue delay.
4. In the case of claims for Defects, the Purchaser may withhold payments to an amount that is in a reasonable proportion to the Defect. The Purchaser has no right to withhold payments to the extent that its claim of a Defect is time-barred. Unjustified notifications of Defect shall entitle A. Eberle to demand reimbursement of its expenses by the Purchaser
5. A. Eberle shall be given opportunity twice to cure a defect within an appropriate grace period. If the second cure fails, the Purchaser may—without prejudice to claims for damages under No. 10—rescind the contract or reduce payment.
6. There shall be no claims based on Defect including but not limited in cases of insignificant deviations from the agreed quality, of only minor impairment of usability, of natural wear and tear, or damage arising after the passing of risk from faulty or negligent handling, excessive strain, unsuitable equipment, defective civil works, inappropriate foundation soil, or claims based on particular external influences not assumed under the contract, or from non-reproducible software errors. Claims based on defects attributable to improper modifications, installation/ removal, or repair work carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
7. The Purchaser shall have no claim with respect to expenses incurred in the course of supplementary performance, to the extent that expenses are increased because the subject- matter of the Supplies has subsequently been brought to another location than the Purchaser’s branch office, unless doing so complies with the normal use of the Supplies. This applies accordingly to claims for the reimbursement of expenses on the part of the Purchaser in accordance with Sec. 445a BGB (entrepreneur’s right of recourse) and Sec. 439 para. 3 BGB, provided the last contract in the supply chain is not a sale of consumer goods.
8. The Purchaser’s right of recourse against A. Eberle pursuant Sec. 445a BGB (entrepreneur’s right of recourse) is limited to cases where the Purchaser has not concluded an agreement with its customers exceeding the scope of the statutory provisions governing claims based on Defects.
9. Claims for damages of the Purchaser based on defects as to quality are excluded. This shall not apply in case of fraudulent concealment of the defect, non-compliance with a guaranteed characteristic, injury to life, limb or health or intentional or grossly negligent breaches of A. Eberle’s duties. The above provisions do not entail a reversal of the burden of proof to the detriment of the Purchaser. Further or other claims of the Purchaser than those regulated in this Article VII based on defects as to quality are excluded.
10. For services, liability of A. Eberle for defects as to quality shall be limited to replaced parts and performed work.
Article VIII: Extended warranty
1. If A. Eberle provides an extended warranty for a product to the Purchaser, A. Eberle will grant the Purchaser an extended warranty as specified in the following provisions in addition to the extension in Article VII.
2. The extended warranty period shall commence 24 months after the handover of the Supplies and expire, at the latest, upon the expiration of the Supply-specific extended warranty after the date of delivery from A. Eberle as follows:
a) 5 years after delivery:
19″ systems: REG-D, REG-DP, PQI-D, EOR-D with additional components
- PQI-DA smart & PQI-DE
b) 3 years after delivery:
- PQ-Boxes & WeSense
3. In case of a defect under Article VII No. 1 during the extended warranty period, A. Eberle shall choose whether to repair or provide a replacement for the Supplies. However, under the extended warranty, any transport costs and road charges must be borne by the Purchaser.
4. Costs of removing defective and installing or attaching repaired or replacement defect-free Supplies will not be refunded by A. Eberle.
5. Claims for compensation of the Purchaser for defects detected outside of the warranty period of 24 months under Article VII are excluded. This liability exclusion does not apply to tortious claims established through gross negligence, under the German Product Liability Act (“Produkthaftungsgesetz”) or through culpable injuries to life, limb or health.
Article IX: Industrial Property Rights and Copyrights; Defects in Title
1. Unless otherwise agreed, A. Eberle shall provide the Supplies in the country of the place of delivery only, without infringing any third-party industrial property rights and copyrights (hereinafter referred to as “IPR”). If a third party asserts a justified claim against the Purchaser based on an infringement of an IPR by the Supplies made by A. Eberle and used in conformity with the contract, A. Eberle shall be liable to the Purchaser within the time period stipulated in Article VII No. 2 as follows:
a) A. Eberle shall choose whether to acquire, at its own expense, the right to use the IPR with respect to the Supplies concerned or whether to modify the Supplies such that they no longer infringe the IPR or replace them. If this would be impossible for A. Eberle under reasonable conditions, the Purchaser may rescind the contract or reduce the remuneration pursuant to the applicable statutory provisions. A. Eberle’s liability to pay damages is governed by Article XII.
b) The above obligations of A. Eberle shall apply only if the Purchaser immediately notifies A. Eberle of any such claim asserted by the third party in written form, does not concede the existence of an infringement and leaves any protective measures and settlement negotiations to A. Eberle’s discretion. If the Purchaser stops using the Supplies in order to reduce the damage or for other good reason, it shall be obliged to point out to the third party that no acknowledgement of the alleged infringement may be inferred from the fact that the use has been discontinued.
2. Claims of the Purchaser shall be excluded if it is responsible for the infringement of an IPR. Claims of the Purchaser are also excluded if the infringement of the IPR is caused by specifications made by the Purchaser, by a type of use not foreseeable by A. Eberle or by the Supplies being modified by the Purchaser or being used together with products not provided by A. Eberle.
3. In addition, with respect to claims by the Purchaser pursuant to No. 1 a) above, Article VIII Nos. 4, 5, 8, and 9 shall apply mutatis mutandis in the event of an infringement of an IPR.
4. Where other defects in title occur, Article VIII shall apply mutatis mutandis.
5. Any other claims of the Purchaser against A. Eberle or its agents or any such claims exceeding the claims provided for in this Article IX, based on a defect in title, are excluded.
6. A. Eberle herewith reserves any industrial property rights and/or copyrights and rights of use pertaining to its cost estimates, drawings and other documents. The documents shall not be made accessible to third parties without A. Eberle’s prior consent and shall, upon request, be returned without undue delay to A. Eberle if the contract is not awarded to A. Eberle. Sentences 1 and 2 shall apply mutatis mutandis to the Purchaser’s Documents; these may, however, be made accessible to those third parties to whom A. Eberle has rightfully subcontracted Supplies.
7. The Purchaser has the non-exclusive right to use standard software and firmware, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. Without express agreement, the Purchaser may make one back-up copy of standard software.
Article X: Conditional Performance
1. The performance of this contract is conditional upon that no hindrances attributable to German, US or otherwise applicable national, EU or international rules of foreign trade law or any embargos or other sanction exist.
2. The Purchaser shall provide any information and Documents required for export, transport and import purposes.
Article XI: Impossibility of Performance; Adaptation of Contract
1. To the extent that delivery is impossible, the Purchaser is entitled to claim damages, unless A. Eberle is not responsible for the impossibility. The Purchaser’s claim for damages is, however, limited to an amount of 10 % of the value of the part of the Supplies which, owing to the impossibility, cannot be put to the intended use. This limitation shall not apply in the case of liability based on intent, gross negligence or loss of life, bodily injury or damage to health; this does not imply a change in the burden of proof to the detriment of the Purchaser. The Purchaser’s right to rescind the contract shall be unaffected.
2. Where events within the meaning of Article IV No. 3 a) to d) substantially change the economic importance or the contents of the Supplies or considerably affect A. Eberle’s business, the contract shall be adapted taking into account the principles of reasonableness and good faith. To the extent this is not justifiable for economic reasons, A. Eberle shall have the right to rescind the contract. The same applies if required export permits are not granted or cannot be used. If A. Eberle intends to exercise its right to rescind the contract, it shall notify the Purchaser thereof without undue delay after having realized the repercussions of the event; this shall also apply even where an extension of the delivery period has previously been agreed with the Purchaser.
Article XII: Other Claims for Damages
1. Unless otherwise provided for in the present GL, the Purchaser has no claim for damages based on whatever legal reason, including infringement of duties arising in connection with the contract or tort.
2. This does not apply if liability is based on:
a) the German Product Liability Act (“Produkthaftungsgesetz”);
c) gross negligence on the part of the owners, legal representatives or executives;
e) failure to comply with a guarantee granted;
f) negligent injury to life, limb or health; or
g) negligent breach of a fundamental condition of contract (“wesentliche Vertragspflichten”).
However, claims for damages arising from a breach of a fundamental condition of contract shall be limited to the foreseeable damage which is intrinsic to the contract, provided that no other of the above case applies.
3. The above provision does not imply a change in the burden of proof to the detriment of the Purchaser.
Claims for damages to which the Purchaser is entitled under this Article XII will expire upon the expiration of the statute of limitations for defects as to quality under Article VII. Claims for damages established by injuries to life, limb or health or under the German Product Liability Act are governed by the statutory statute of limitations. For fault-based liability, the same shall apply in case of gross negligence or intent.
Article XIII Use of Non-Personal Data
Where A. Eberle obtains non-personal data of the Purchaser and/or third parties (e.g. device characteristics, performance parameters, other technical information), A. Eberle may use this data indefinitely for own business purposes (e.g. for further product development, quality controls or to improve its service offers). This shall especially apply to data properly anonymized by A. Eberle in compliance with applicable data protection law. A. Eberle shall not provide this data to third parties outside of A. Eberle.
Article XIV: Venue and Applicable law
1. If the Purchaser is a businessman, sole venue for all disputes arising directly or indirectly out of the contract shall be A. Eberle’s place of business. However, A. Eberle may also bring an action at the Purchaser’s place of business.
2. This contract and its interpretation shall be governed by German law, to the exclusion of the United Nations Convention on contracts for the International Sale of Goods (CISG).
Article XV: Severability Clause
The legal invalidity of one or more provisions of this Agreement in no way affects the validity of the remaining provisions. This shall not apply if it would be unreasonably onerous for one of the parties to be obligated to continue the contract.