Standard Terms and Conditions
ETS Vertriebs - GmbH
I. General provisions, scope of application
1. These terms and conditions apply only to non-consumers (section 310 German Civil Code (BGB)). They shall apply exclusively to all future business transactions with the customer, even if not specifically agreed for each transaction. We do not recognise terms or customer provisions that deviate from our terms and conditions of sale, not even when we fulfil a contract without reservation.
2. All agreements made between us and the customer for the purpose of the performance of this agreement are detailed in writing herein or shall be recorded in a supplementary written agreement. This applies in particular to warranties of all types.
3. The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
II. Offers, offer documentation
1. Our offers are subject to confirmation, i.e. they are only an invitation to submit an offer. Technical descriptions and other information contained in offers, prospectuses and other information shall also be initially regarded as non-binding. Such information or any other information contained in public statements made by us, by the manufacturer or its agents (section 434 I 3 German Civil Code (BGB)), or by third parties shall only be deemed an integral part of the performance specifications if expressly referred to in this agreement.
2. We retain proprietary rights and copyright on all illustrations, drawings, calculations and other documents; these may only be made available to third parties with our express prior written permission.
III. Prices, payment terms
1. Our prices are the list prices as valid on the day the contract is concluded, subject to quote. Deduction of discounts, trade and otherwise, requires prior written confirmation. Packaging materials (e.g. palettes) are to be returned to us at customer cost. We do not accept return of transportation and secondary packaging.
2. Our prices do not include statutory value-added tax; this item shall be entered separately on the invoice at the statutory amount due on the day of delivery.
3. We retain the right to amend our prices if cost increases or decreases occur after conclusion of the agreement, particularly with respect to wage agreements, changes to freight, postage and ancillary expenses, currency fluctuations and commodity prices. The customer shall have the right to rescind the contract if there is an increase of more than 5% of the agreed purchase price.
4. The purchase price shall be due with immediate effect. The customer shall be considered in default if the purchase price is not paid in cash or by bank transfer within 30 days of the invoice date. The obligation is deemed settled as soon as the sum is at our free disposition. Other modes of payment require prior written agreement and any costs arising from this for either party shall be borne by the customer. Deferred settlement of the purchase price shall be subject to interest payment at the default rate.
5. Our invoices shall be deemed accepted if they are not queried in writing within five calendar days of the date of issue.
6. If after conclusion of the contract it becomes apparent that the customer cannot demonstrate sufficient solvency to settle its obligations and payment to us is threatened, we shall be entitled to refuse delivery until the customer makes the payment or has provided us with sufficient security as we demand. If payment by the customer is impeded, due to e.g. a transfer delay or refusal of a cheque or bill of exchange, we shall be entitled to demand immediate payment of all due, deferred or unpaid invoices and to request payment by cash or to require provision of security against return of bills of exchange. Any agreed discounts or rebates shall be invalid under such circumstances. If payments are not made or security is not provided within five working days of such a request being made, we may withdraw from the contract after issuing a written warning, or decline to supply any further goods or services and demand compensation for non-fulfilment. Under such circumstances the customer shall have no entitlement to claim damages of any kind.
7. The customer has rights of set-off or retention only with respect to undisputed claims or legally binding final judgments.
1. We are entitled to rescind the contract without penalty if
i.the customer has made false claims about its creditworthiness or solvency,
ii.it is impossible for us to procure the contractually stipulated goods due to matters beyond our control, or
iii. delivery cannot be made as intended within a reasonable cost.
In this respect we expressly reserve the right to procure the contractually stipulated goods.
2. We shall inform the customer immediately of our inability to perform contractual obligations and if the customer elects to rescind the contract we shall reimburse any monies received.
V. Delivery, delivery times
1. Our delivery obligations are determined solely by the provisions of this agreement. We reserve the right to make modifications to construction, form or processes based on technical improvements or legal requirements, provided that the modifications are insignificant or otherwise reasonable for the customer. Alternative equivalent basic materials and/or raw materials may be used without the express permission of the ordering customer, provided such materials are technically equivalent.
2. If commercial or other circumstances mean that full delivery is not possible, we have the right to make separate partial deliveries provided this is reasonable for the customer. If the customer does not settle invoices promptly, section 3(6) above shall apply.
3. Unless previously agreed in writing, deliveries shall be made free of charge to the buyer’s address in Germany. Otherwise, delivery shall be made to the agreed location. The place of performance for all transactions is the location of our registered office.
4. Unless we agree to binding delivery times, stated delivery times are subject to timely and correct receipt of deliveries to us. Commencement of delivery periods agreed by us in writing is subject to the satisfactory settlement of all technical issues, particularly the receipt of all documentation to be provided by the customer and clarification of any resulting commercial or technical data.
5. This limitation on liability shall not apply if the contract is expressly and exceptionally fixed and binding; the same applies if the customer can demonstrate that it no longer has any commercial interest in the transaction as a consequence of delays for which we bear responsibility.
6. If the customer delays acceptance of delivery, or if it breaches other duties of cooperation, we shall be entitled to demand reimbursement of any damage we have suffered, including any additional costs, but not less than an amount equal to 6% of the delivery price per full week of delay. We reserve the right to make further claims and to defend the non-performance of the contract. Under such circumstances, the risk of accidental loss or accidental damage to the goods shall also be transferred to the customer at the time the customer falls into default of acceptance. The customer retains the right to demonstrate that no damage has been suffered, or that the actual damage suffered is less than claimed.
VI. Liability for defects
1. Customers shall not derive any rights from material defects that we regard as having insignificant or no adverse affect on the value and fitness for purpose of the goods, or which vary only insignificantly from the agreed characteristics of the goods.
2. Where there is a material defect for which we are responsible, we shall be entitled to have an opportunity to correct the defect at our discretion either by rectifying the problem or by supplying a replacement item. If we choose to rectify the problem, we shall be responsible for any necessary costs, particularly transportation, goods, labour or materials costs, provided that these do not result from the goods having to be collected from a location other than the place of performance/delivery. Otherwise, statutory provisions shall apply.
3. If the customer predefines the circuit layout or circuit board construction, we cannot accept liability for the functioning of the products, particularly circuit boards. We provide a warranty that our own products function as per the product specifications in our offer or in the written product specifications requirements provided by the customer. We retain the right to make technical amendments, provided that functioning is warranted.
4. Test instructions and other documentation such as technical descriptions, production documentation and circuit diagrams that we generate are intended only for our own internal use. The customer may only take charge of such documentation with our written authorisation and after pro rata assumption of costs by the customer. Test specifications that are developed jointly with the customer, or which are notified to us by the customer when we receive the order, shall constitute an integral part of the contract.
5. Documentation provided by the customer shall be decisive for the performance specification of goods to be supplied. Production is carried out in accordance with DIN standards and IPC600, unless the production documentation contains instructions to the contrary. Production is certified by Underwriters Laboratories (UL). Deliveries may vary from the quantities ordered by +/-10%. A shortfall or oversupply shall have no effect on the scale of prices.
6. Damage caused by a defect in the delivered goods should be reported to us immediately, along with a description of the goods provided.
7. The warranty period is one year. Claims under the German Product Liability Act (ProdHaftG) or cases of deliberate intention or gross negligence are subject to statutory limitation periods.
8. Customer warranty rights require that the customer notify us in writing of obvious defects within three days of delivery. A business person as per the definition of the German Commercial Code (HGB) must fulfil in the proper manner the obligations of inspection of goods and notification of defects pursuant to section 377 HGB. Any damage caused during transportation must be reported to us immediately in writing, but no later than three days after delivery. Where delivery is made by railway, by local or long-distance commercial delivery vehicle or by some other means of transport, the purchaser must ensure that it fulfils the necessary formalities with the carrier. No claims may be made for standard incidental waste or breakage.
VII. Limitation of liability
Our liability is limited as follows:
1. We exclude any liability for obligations in kind with respect to procurement of goods, regardless of responsibility.
2. We shall only accept liability for advisory services, particularly for processing of goods, where such liability is confirmed in writing.
3. Where there is a breach of a pre-contractual obligation or of a pre-contractual impediment to performance (sections 311 II, 311(a) German Civil Code (BGB)), our reimbursement liability shall be limited to the negative interest.
4. We exclude any liability for simple negligence.
5. Strict statutory liability claims pursuant to the German Product Liability Act (ProdHaftG) shall remain unaffected. We exclude liability for circumstances where the customer informs the manufacturer or pre-supplier of the damage in writing within four weeks of the damage being reported.
6. Where our liability is excluded or limited, this applies also to personal liability of our employees, wage earners, associates, representatives and agents. Pre-suppliers are not agents.
7. No limitations of liability apply to damages from injury to life, limb or health, nor if there is a guarantee or assumption of a promotional guarantee, nor shall the liability limitations apply to breach of fundamental contractual obligations. Provided that we are not charged with intentional breach of contract, liability for damages is limited to foreseeable typically occurring losses.
VIII. Reservation of proprietary rights
IX. We reserve proprietary rights in the goods until all payments have been received (purchase price, transportation costs, interest on arrears, other default costs, etc.) with respect to the existing transaction with the customer. If the customer breaches the contract, such as by defaulting on payment, we shall be entitled to demand return of the goods and to access the customer’s premises for this purpose. This right is hereby authorised by the customer. This does not represent rescission of the contract, unless we have expressly declared this in writing. Should we seize the goods, the contract shall always be deemed rescinded. After seizure of the goods, we shall be entitled to realise any value and the proceeds shall be offset against the customer’s liabilities, less deduction of reasonable realisation expenses. We are also entitled to assume ownership of the goods and the customer hereby expressly acknowledges this fact, so that such circumstances cannot be deemed as unlawful interference.
X. The customer must take good care of the goods; in particular, the customer is required to insure the goods at its own expense for replacement value against damage from fire, water and theft. If maintenance and inspection work is required, the customer must carry these out in good time and at its own expense.
XI. The customer must inform us immediately in writing in case of seizure of goods or other actions by third parties, so that we may bring a claim in accordance with section 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for court and out-of-court costs with respect to a claim made pursuant to section 771 ZPO, the customer shall be liable to us for any losses suffered.
XII. The customer is entitled to utilise the goods in the normal course of business; however, the
customer hereby assigns to us all claims up to the amount of the final invoiced sum (including value-added tax) that it may receive from its buyer or a third party from the onward sale or further processing, regardless of whether the goods have been used with or without agreement. We hereby accept this assignment. The customer is still entitled to collect the receivable even after this assignment. This shall not affect our authority to collect the sum ourselves. However, we undertake not to collect the receivable so long as the customer meets its obligations towards us from the proceeds of the sale, is not in default of payment and, in particular, has not been subject to the opening of insolvency proceedings, has not reached an out-of-court settlement with the creditors, has not settled the debt by private agreement (section 350(I)(1) German Insolvency Code (InsO)), there is no refused cheque or bill of exchange, and the payment has not been stopped. If one of these circumstances should arise, we may require that the customer notify us of the claim and its debtor, makes all necessary declarations to permit recovery of the amount, hands over the required documentation and informs the debtor (third party) of the assignment. The authorisation for the collection of proceeds applies to the full amount.
XIII. Customers usually process or amend goods on our behalf. If goods are processed together with items that do not belong to us, we acquire joint ownership in the new goods pro rata with the value of the goods to the other items used in the processing at the time of processing. The same conditions apply to processed goods as to goods delivered with reservation of proprietary rights.
XIV. If the goods are irrevocably amalgamated with other items that do not belong to us, we acquire joint ownership of the new goods pro rata in relation to the value of the goods as against the amalgamated items at the time of the amalgamation. If the amalgamation is carried out in such a way that the customer’s goods constitute the principal goods, it is agreed that the customer shall transfer to us a pro rata percentage of joint ownership. The customer shall protect our interest in such sole ownership or joint ownership on our behalf free of charge.
XV. If the authority to collect the amount as per subsection (4) above is no longer valid, the customer shall no longer be authorised to install, irrevocably amalgamate or process the goods with reserved proprietary rights.
XVI. The customer also hereby assigns to us any claims against third parties that may arise as a result of amalgamating the goods with a property. This includes the right to secure a priority-ranking charge. We hereby accept the assignment.
XVII. If the customer installs goods with reserved proprietary rights to form a significant part of its own property, the customer hereby assigns a priority-ranking claim in the amount of the value of the goods with reserved proprietary rights, along with ancillary rights, as against any proceeds of the commercial sale of the property or property rights. We hereby accept the assignment.
XVIII. German Federal Data Protection Act (BDSG)
Pursuant to section 26(1) of the German Federal Data Protection Act (BDSG), we would like to advise that in the course of this business relationship this company and our associated companies shall collect, process and exchange data between the companies as per the provisions of the Federal Data Protection Act.
XIX. Jurisdiction, applicable law
1. The rights of the customer under this agreement may not be assigned.
2. The invalidity of individual provisions shall not affect the validity of the remaining provisions.
3. Any amendments to this agreement and these terms and conditions must be made in writing. This also applies where the requirement for the written form is to be waived.
4. The place of jurisdiction for any disputes is Hamburg.
Valid from 1 January 2018