General Terms and Conditions of Delivery

of EKU Elektronik GmbH (hereinafter referred to as EKU or Supplier) for legal transactions with businesspeople or self-employed professionals (entrepreneurs), legal entities under public law and special funds under public law (hereinafter referred to as Customers):

§ 1 Scope of application / General provisions

(1) These General Terms and Conditions apply to all deliveries and services provided by EKU, as well as work or services provided within the scope of installation, commissioning, maintenance or repair.
(2) Other terms and conditions shall only be recognised insofar as they do not contradict these terms and conditions and do not extend the customer's statutory rights. This shall also apply if EKU does not object to differing conditions or accepts the service without objection.

§ 2 Conclusion of the contract

(1) The customer is bound to his order (offer according to Sec. 145 German Commercial Code) for 2 weeks from receipt by the supplier, unless he declares otherwise when placing the order.

(2) Offers from EKU are non-binding unless expressly labelled as a binding offer.

(3) Written and verbal orders and other agreements as well as verbal collateral agreements and assurances shall only become effective and binding upon written confirmation by EKU. EKU may accept orders or commissions within 14 days of receipt.

§ 3 Prices and terms of payment 

(1) Unless otherwise agreed in writing, prices are ex works excluding freight, transport insurance and packaging plus the applicable statutory value added tax, customs duties, fees, taxes and other public charges. The prices apply to the scope of services and delivery listed in the order confirmations. Additional or special services will be charged separately.

(2) If the prices are not expressly agreed, then the supplier's list prices at the time of the order shall apply. Services are charged at the agreed daily rate plus the applicable legal VAT. In addition, any travel expenses incurred will be invoiced as expenses. The customer is obliged to bear the additional costs for accommodation on site, for continental meals and for transport on site as well as all ancillary costs in a reasonable amount incurred on site or on journey to the site and on the return journey.

(3) If the agreed prices are based on the Supplier's list prices and delivery is not to take place until more than four months after conclusion of the contract, then the list prices valid at the time of delivery shall apply.

(4) Unless otherwise agreed, invoices are due for payment immediately upon receipt without deduction. Late payment interest shall be charged at a rate of 8% above the respective base interest rate per annum. The assertion of higher damages caused by delay remains unaffected by this.

(5) The customer agrees to receive invoices electronically. Electronic invoices are sent to the customer by email in PDF format.

(6) Objections to the invoiced claims must be raised by the customer within 14 days of the invoice date, otherwise the claim shall be deemed approved by the customer. Such objections shall not prevent the maturity of the undisputed portion of the invoice amount.

(7) Invoices for services rendered are due for payment immediately upon receipt without deduction. In certain cases, e.g. for deliveries and services abroad, EKU may demand payment by irrevocable and confirmed letter of credit from a major bank in the Federal Republic of Germany, payable in favour of EKU Elektronik GmbH on presentation of the documents to this major bank or by advance payment.

(8) We reserve the right to make reasonable price increases due to changes in labour, material and distribution costs for deliveries made 3 months or more after conclusion of the contract.
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§ 4 Offsetting and rights of retention

The customer shall only be entitled to withhold payments or offset them against counterclaims if his counterclaims are undisputed or have been finally adjudicated. The customer is only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

§ 5 Packaging, delivery and delivery period

(1) If EKU undertakes to dispatch products to the customer, then the products shall be dispatched in appropriate packaging. In principle, the products are dispatched with transport insurance cover, unless the customer specifically requests that no insurance cover be arranged. The costs for despatch, packaging and insurance will be charged to the customer in addition to the ex works price.

(2) If EKU undertakes to ship the products abroad, then EKU shall ensure compliance with the statutory export regulations. Compliance with import and transit regulations is the responsibility of the purchaser or customer.

(3) If devices are unsuitable for shipping due to being oversize, then EKU is authorised to ship devices in individual components. 

(4) Compliance with the deadline for deliveries and services requires the clarification of all technical and commercial issues between the supplier and the customer, as well as the timely and proper fulfilment of the customer's obligations, e.g. making a down payment or providing all documents and approvals to be procured by the customer. If the above pre-conditions for compliance with the delivery deadline have not been met, then the delivery period shall be extended accordingly. The right to object to non-performance of the contract remains reserved. The delivery period shall be deemed to have been met if the delivered item has left the factory or readiness for dispatch has been notified by the time the delivery period expires.

(5) The deadline for deliveries and services shall be extended appropriately in the event of industrial disputes, in particular strikes, lockouts and unforeseen events beyond the control of the supplier. 

(6) If the dispatch of the products is delayed at the customer's request or if the customer is in default of acceptance or culpably violates other obligations to co-operate, then the supplier shall be entitled to demand compensation for the damage incurred in this respect, including any additional expenses. We reserve the right to assert further claims. If the above conditions are met, then the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or of payment or at the point in time originally intended for the dispatch of the products. 

(7) Further statutory claims and rights of the customer due to a delay in delivery remain unaffected by this.

§ 6 Transfer of risk on despatch

If the goods are dispatched to the customer at the customer's request, then the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time of dispatch to the customer, at the latest when they leave the factory. This applies regardless of whether the goods are dispatched from the place of fulfilment or who bears the freight costs.

If the assembly and commissioning of the delivery items by the supplier is within the scope of the delivery contract, then the risk shall pass to the customer upon commissioning.

§ 7 Retention of title

(1) The supplier retains title to the delivered item until all claims arising from the delivery contract have been paid in full. This shall also apply to all future services, even if the supplier does not expressly refer to this. The supplier is entitled to take back the purchased goods if the customer is in breach of contract.

(2) The customer is obliged to treat the purchased item with care as long as ownership has not yet been transferred to him. In particular, he is obliged to insure them adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, then the customer must carry this out in good time at his own expense. The customer must notify the supplier immediately in writing of any attachments, confiscations and other dispositions by third parties. If the third party is not in a position to reimburse the supplier for the judicial and extrajudicial costs of an action pursuant to Sec. 771 German Code of Civil Procedure, then the customer shall be liable for the loss incurred.
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(3) The customer is authorised to resell the reserved goods in the normal course of business. The customer hereby assigns to the supplier the customer's claims from this resale in the amount of the agreed invoice amount (including VAT). This assignment shall apply irrespective of whether the purchased item has been resold without or after processing. The customer remains authorised to collect the claim even after the assignment. This shall not affect the supplier's authorisation to collect the claim itself. The supplier shall not collect the claim, however, as long as the customer fulfils his payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed an application for the opening of insolvency proceedings or has not suspended payments. Upon request, the customer shall immediately inform the supplier in writing to whom he has sold delivery items and what receivables he is entitled to as a result of the sale and shall immediately hand over to the supplier the documents required for collection.

(4) The treatment and processing or transformation of the purchased item by the customer shall always be carried out in the name of and on behalf of the supplier. In this case, the customer shall continue to be entitled to an expectant right to the remodelled item. If the purchased item is processed or mixed with other items not belonging to the supplier, then the supplier shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the other processed items at the time of processing or mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, then it is agreed that the customer shall transfer co-ownership to the supplier on a pro rata basis and shall keep this in safe custody for the supplier.

(5) If the value of the securities existing for the supplier exceeds its total claims by more than 20%, then the supplier shall be obliged to release the securities of its own choice if the customer requests this.

§ 8 Warranty and notification of defects

(1) EKU grants a warranty that the products upon delivery and any work services upon acceptance comply with the conditions and specifications in the offer and the order confirmation and are otherwise of normal commercial quality and free from material defects and defects of title and that the services are performed professionally and expertly, as can normally be expected in the industry under similar conditions. No warranty is given for other product properties or requirements. In particular, the suitability of the product for certain applications is not guaranteed.

(2) Warranty rights of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with Sec. 377 German Commercial Code. Should complaints arise despite the utmost care, obvious defects must be reported in writing immediately, but no later than 14 days after receipt of the goods, and hidden defects immediately after their discovery, in accordance with Sec. 377 German Commercial Code, otherwise the goods shall be deemed approved. In the event of transport damage, a damage report must be drawn up to secure any claims for damages against the transport company. The supplier's consent must be obtained prior to any return of the goods.

(3) If, despite all due care, the delivered goods exhibit a defect that was already present at the time of the transfer of risk, and if written notice of defect has been received in a timely manner, then the supplier of the goods shall, at its own choice, either repair or replace all parts of the deliveries in which a material defect has been demonstrated before the expiry of the warranty period as soon as possible. Unless otherwise agreed, the customer shall return the defective products or their defective parts to EKU. EKU shall bear the shipping costs unless it later becomes evident that the product was free of defects. If the rectification of defects fails in whole or in part, then the customer shall be entitled to a reduction of the purchase price or to withdraw from the contract. The supplier must always be given the opportunity to provide subsequent fulfilment within a reasonable period of time. If the defects are so serious that a repair is not possible within a reasonable period of time and the products cannot be used for their intended purpose or their use is only possible to a limited extent, then the customer shall be entitled to refuse a subsequent rectification of defects.

(4) If the rectification of defects fails, then the customer shall be entitled to a reduction of the purchase price or to withdraw from the contract, without prejudice to any claims for damages. The customer may not demand compensation for useless expenditures.
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(5) EKU shall not be liable for defects caused by (i) natural wear and tear, (ii) use for purposes other than the proper purpose, (iii) incorrect or improper assembly, erection or installation, (iv) improper handling, treatment or excessive strain, (v) failure to comply with the instructions for use, (vi) improper or unauthorised modification or maintenance measures, (vii) only insignificant deviation from the agreed quality or insignificant impairment of usability or (viii) unsuitable operating materials. or for defects which (ix) the customer knew or was grossly negligent in not knowing at the time of conclusion of the contract (Sec. 422 German Commercial Code), (x) or for which the customer did not reserve the right to subsequent objection in the case of acceptance (Sec. 640.3 German Commercial Code).

(6) Claims asserted by the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the goods delivered by the supplier have been taken to a place other than the customer's branch office, unless the transport corresponds to their intended use. If the customer asserts a notice of defect but does not demonstrate a defect for which EKU is responsible, then EKU shall be entitled to demand reimbursement from the customer of the costs incurred as a result of the notice of defect.

(7) The limitation period for warranty claims for the sale of products and the provision of service or work is 12 months beginning with the delivery date of the product or the acceptance of a service or work.

(8) Claims for damages due to defects are limited to the scope specified in Sec.10 if the factual preconditions stipulated by law are met. Further claims of the customer against the supplier and its vicarious agents or claims other than those regulated here in Sec. 9 due to a defect are excluded.

§ 9 Liability

(1) EKU shall be liable for claims for compensation for damages asserted by the customer - irrespective of the legal grounds - up to the amount of the typically foreseeable damage. This shall also apply to the culpable breach of an obligation, the fulfilment of which is essential for the proper performance of the contract and in the fulfilment of which the customer could have reasonably confided ("cardinal obligation"). Notwithstanding the above, liability in the event of delay shall be limited to 5% of the value of the delayed delivery or service. Liability for production downtime or loss of profit is excluded.

(2) The limitations of liability in Sec. 10.1 shall not apply in the event of: a) wilful or grossly negligent causation of damage or fraudulent concealment of defects b) culpable injury to life, limb or health c) breach of guarantees d) claims by the customer under the German Product Liability Act.

(3) The above liability provisions shall also apply in favour of EKU's employees, legal representatives and vicarious agents.

§ 10 Copyright

(1) The supplier reserves its proprietary rights and copyrights to cost estimates, drawings and other documents etc. without restriction. These documents may only be made accessible to third parties with the prior express written consent of the supplier and must be returned to the supplier immediately if the order is not placed with the supplier.

(2) Weights and dimensions in brochures and offers are given to the best of our knowledge. We reserve the right to make reasonable changes to the design and construction. We also reserve the right to use as-new reconditioned parts for servicing.

§ 11 Unavoidable events

In the event of unforeseen events that cannot be averted by reasonable means for EKU or its subcontractors, including strikes, lockouts, operational disruptions and orders from higher authorities, the delivery, performance and acceptance obligations shall be suspended for as long as and to the extent that such obstacles exist. We shall not be responsible for the aforementioned circumstances even if they occur during a delay.

§ 12 Deliveries by third parties

EKU may have its delivery and service obligations fulfilled by another company.
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§ 13 Data protection

(1) EKU processes personal data provided by the customer. Personal data is information that relates to a living individual who can be identified from the data. 

(2) The personal data provided by customers is used: a) to deliver the agreed products and provide the agreed services; b) for invoicing, account maintenance, inventory management, statistical analysis and internal accounting; c) to check creditworthiness and prevent abuse. 

(3) For this purpose, EKU will also transfer personal data to data processing organisations and affiliated companies working for EKU or to licensed business information services or lawyers. 

(4) If EKU believes that this is required by law or in the interests of public safety and order, or if the customer has consented to this, EKU will also make the personal data available to government authorities, public bodies or third parties. 

(5) Further information on the processing of personal data can be found in EKU's privacy policy, which is made available to the customer at any time on request and which can be accessed at any time in its current version on EKU's website (www.eku- elektronik.de).

§ 14 Miscellaneous

(1) This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany; the UN Convention on Contracts for the International Sale of Goods (CISG), however, shall not apply.

(2) The place of fulfilment and exclusive place of jurisdiction for all disputes arising from this contract is Koblenz/Rhine.

(3) Amendments and supplements to this contract must be made in writing. This also applies to amendments to this written form clause. No verbal collateral agreements were made.

(4) Should individual provisions of these terms and conditions or other parts of the contract be or become invalid, or should there be a gap in provisions, the remaining provisions shall remain unaffected by this and valid. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills this gap.
Last updated: November 2024