General Terms and Conditions
Current version – as of July 2022
§ 1 General, Scope of Application
1. These General Terms and Conditions of Delivery, Service and Sale (GTC) shall apply to all our business relations with our customers (hereinafter: "Customers"). The GTC shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "goods"), irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 of the German Civil Code) and the provision of other services by us. Unless otherwise agreed, the General Terms and Conditions in the version valid at the time of the Customer's order or, in any case, in the version last notified to the Customer in text form shall also apply as a framework agreement for similar future contracts without us having to refer to them again in each individual case.
3. Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer's GTC.
4. Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these GTC. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.
5. Legally relevant declarations and notifications to be made to us by the customer after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
6. References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Online store registration
1. Customers can register for the use of our online store. This requires the designation of a natural person with unlimited legal capacity. Registration in our online store is free of charge. A claim for admission to our online store does not exist. The data required for registration must be provided by the customer completely and truthfully.
2. Apart from the declaration of agreement with the validity of these GTC, the registration is not associated with any obligation for the customer. The registration can be deleted at any time in the section "My account". The registration in our online store alone does not create any purchase obligation with regard to the goods offered by us.
§ 3 Conclusion of contract
1. Our offers are subject to change and non-binding. This also applies if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), product descriptions or documents - also in electronic form - to which we reserve ownership and copyrights.
2. The presentation and advertising of articles in our online store does not constitute a binding offer to conclude a purchase contract.
3. The order of the goods by the customer is considered a binding offer of contract. In our online store, the customer places a legally binding order by sending the order by clicking the button "order now". Unless otherwise stated in the order, we are entitled to accept this contractual offer within 5 days of its receipt by us.
The following minimum order quantities apply for net value of goods:
Domestic: 100,-- Euro net
European Union: 250,-- Euro net
Rest of the world: 400,-- Euro net
Order values below this will be subject to minimum quantity surcharges:
Euro European Union: 25,--
Euro World: 35,-- Euro
Deviating from this, a minimum order value of 50,-- Euro net applies for domestic orders in our online store. The terms of payment and delivery apply, which can be viewed at: https://shop.eiko-europe.de/Shipping-and-payment-charges/
4. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
§ 4 Delivery time and delay in delivery
1. The delivery period is agreed individually or stated by us upon acceptance of the order.
2. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this without delay and at the same time notify the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the customer. A case of non-availability of the performance in this sense shall be deemed to be, in particular, the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
3. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required. If we are in default of delivery, the customer may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has incurred no damage at all or only significantly less damage than the aforementioned lump sum.
4. The rights of the customer pursuant to § 9 of these GTC and our statutory rights in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
§ 5 Delivery, installation and assembly, transfer of risk, acceptance
1. Delivery is made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the customer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). If the destination named by the customer is neither the customer's registered office nor a branch office, we shall charge a logistics surcharge of 10 euros per shipment. Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. If express deliveries are requested by the customer, the express costs shall generally be borne by the recipient.
2. In principle, we do not owe the assembly of the goods ordered by our customers. Only on the basis of an express written agreement do we (if necessary via a subcontractor) provide assembly or installation of the goods in addition to the delivery of the goods; with regard to the delivery of the goods, § 5 clause 1 shall apply without restriction.
3. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as an acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the customer is in default of acceptance.
§ 6 Prices and terms of payment
1. Unless otherwise agreed in individual cases, our current prices at the time of the conclusion of the contract shall apply, namely ex warehouse, plus statutory VAT as well as packaging and shipping costs.
2. In the case of a sale by delivery to a place other than the place of performance (§ 5 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. If we do not invoice the transport costs actually incurred in the individual case, a transport cost flat rate (excluding transport insurance) of 5.90 euros shall be deemed agreed. Any customs duties, fees, taxes and other public charges shall be borne by the customer.
3. The purchase price is due and payable within the agreed payment period. However, in the case of contracts with a delivery value of more than 10,000 euros, we are entitled to demand a deposit of 50% of the purchase price or corresponding securities customary in banking. The down payment is due and payable immediately upon issuance of the invoice.
4. Payment for initial orders takes place against prepayment. After a later positive credit check, a maximum period of 30 days from receipt of the invoice by the customer will be granted as a term of payment; the prices are net cash.
5. With expiration of the agreed upon term of payment the customer comes into delay. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB or German Commercial Code) shall remain unaffected.
6. The customer shall only be entitled to rights of set-off or retention insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer's counter rights shall remain unaffected, in particular pursuant to § 8 para. 7 sentence 2 of the present GTC.
7. If it becomes apparent after the conclusion of the contract that our claim to the purchase price is jeopardized by the customer's inability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB or German Civil Code). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 7 Retention of proprietary rights
1. We retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. The goods subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. pledges) seize the goods belonging to us.
3. In case of breach of contract by the customer, in particular in case of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions or/and to demand surrender of the goods on the basis of the reservation of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
4. Until revoked in accordance with (c) below, the customer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
a. The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b. The customer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in their entirety or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply in respect of the assigned claims.
c. The customer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to subsection 3. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the customer's authorization to further sell and process the goods subject to retention of title.
d. If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
§ 8 Claims for defects by the customer
1. The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including wrong delivery and short delivery as well as improper assembly or defective assembly instructions) pursuant to § 434 BGB (German Civil Code) as well as in the event of defects pursuant to § 634 BGB, unless otherwise stipulated below. In all cases, the special statutory provisions shall remain unaffected in the case of final delivery of the newly manufactured goods to a consumer (supplier recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u BGB), unless an equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
2. The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer), which were provided to the customer prior to his order or were included in the contract in the same way as these General Terms and Conditions, shall be deemed to be an agreement on the quality of the goods.
3. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not there is a defect (§ 434 para. 3 BGB or § 633 para. 2 sentence 2 BGB).
4. In the case of goods with digital elements or other digital content, we shall only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement pursuant to para. 2. In this respect, we shall not assume any liability for public statements made by the manufacturer and other third parties.
5. We are generally not liable for defects that the customer knows or is grossly negligent in not knowing at the time of conclusion of the contract (§ 442 BGB). Furthermore, the customer's claims for defects presuppose that he has fulfilled his statutory obligations to inspect and give notice of defects (§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or later, we must be notified thereof in writing without delay. In any case, obvious defects must be notified to us in writing within 10 calendar days of delivery, and defects not apparent upon inspection must be notified within the same period of time after discovery. If the customer fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect which was not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for incorporation, attachment or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, the customer shall in particular have no claims for reimbursement of corresponding costs ("removal and installation costs").
6. If the delivered item is defective, we may initially choose whether subsequent performance is to be effected by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, the customer may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
7. We shall be entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
8. The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained of for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us in accordance with the statutory provisions; however, the customer shall not be entitled to a return claim. Subsequent performance shall not include the dismantling, removal or de-installation of the defective item, nor the installation, fitting of a defect-free item if we were not originally obliged to perform these services. The replacement delivery shall be made here subject to the reservation that the goods delivered by us actually have a defect. The replacement delivery shall not constitute an acknowledgement of the defectiveness of the goods complained about. In the event that the goods are free of defects, the costs for the replacement delivery shall be borne by the customer in accordance with clause 9.
9. The customer shall have no claim to reimbursement of the costs of dismantling, removal or deinstallation of the defective item and the installation, attachment or installation of a defect-free item ("removal and installation costs") if we were not originally obligated to perform such services.
10. We shall bear or reimburse the other expenses necessary for the purpose of inspection and subsequent performance, in particular transport costs from the customer to EiKO as well as labor and material costs, in accordance with the statutory provisions and these GTC if a defect is actually present. Otherwise we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect if the customer knew or was negligent in not knowing that there was actually no defect.
11. In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the customer shall have the right to remedy the defect him/herself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of any such self-execution, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory regulations.
12. If the subsequent performance has failed or a reasonable period to be set by the customer for the subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there shall be no right to withdraw from the contract.
13. Claims of the customer for damages or reimbursement of futile expenses exist only in accordance with § 9 and are otherwise excluded.
§ 9 Other liability
1. Unless otherwise stipulated in these GTC including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
2. We shall be liable for damages - irrespective of the legal grounds - within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
a. for damages resulting from injury to life, body or health
b. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to the compensation of the foreseeable, typically occurring damage.
3. The limitations of liability resulting from para. 2 shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory regulations. They shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the customer under the Product Liability Act.
4. The customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. ln all other respects, the statutory requirements and legal consequences apply.
§ 10 Period of limitation
1. In deviation from Section 438 (1) No. 3 BGB and Section 634a (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
2. The above limitation periods of the law on sales as well as the law on contracts for work and services shall also apply to contractual and non-contractual claims for damages of the customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the customer according to § 9 para. 2 p. 1 and p. 2(a) as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.
§ 11 Choice of law and place of jurisdiction
1. The present GTC and all legal relations between us and the customer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. Prerequisites and effects of the retention of title according to § 7 shall be subject to the law at the respective place of storage of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.
2. If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction - including international jurisdiction - for all disputes arising directly or indirectly from the contractual relationship shall be Landau in der Pfalz, Germany. However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the customer. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.