| T&C´s |
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GENERAL TERMS AND CONDITIONS OF EVOC SPORTS GMBH 1. SCOPE The company EVOC Sports GmbH, hereinafter referred to as the “Seller” or “EVOC”, and the purchaser, hereinafter referred to as the “Buyer”, agree that these General Terms and Conditions (the “Terms and Conditions”) shall apply to all agreements made and entered into between the Seller and the Buyer and all purchase orders related to such agreements. Deviating conditions of whatsoever kind which the Buyer seeks to impose shall be null and void, unless EVOC expressly agrees to such deviations. 2. FORMATION OF AGREEMENTS The Terms and Conditions shall be deemed to be accepted upon acceptance of the products by the Buyer. Any amendments hereto shall only be effective if made in writing and signed by both the Buyer and the Seller. Unless otherwise agreed upon in writing, EVOC’s offers and quotes shall be non-binding. All offer or quote documents shall be treated as confidential information by the Buyer and shall not be shared with any party not affiliated with the Buyer. A binding agreement shall be formed upon EVOC’s written acknowledgment of a written order from the Buyer or upon delivery. Any additional oral agreements and amendments, including, but not limited to, agreements and amendments over the phone, shall require EVOC’s separate written consent. Silence on EVOC’s part regarding supplementary modifications and/or amendments shall be deemed to be a refusal. Drawings, illustrations, measures and weights, colours or any other performance figures shall only be binding if expressly agreed upon in writing by EVOC. 3. PRICES The prices for EVOC’s products shall be without cash discount or any other deduction and without value added tax, ex works EVOC’s warehouse or ex works EVOC’s manufacturer’s premises. Additional services, e.g. delivery, shall be charged separately. The prices valid on the day of delivery shall apply. 4. CHANGES IN DESIGN AND MODELS The Seller reserves the right to carry out changes in design and models at any time without the Buyer being entitled to rescind the agreement for this reason or to claim damages from the Seller. The Seller, however, shall not be obliged to make such changes to products already delivered. 5. DELIVERY Unless otherwise agreed upon in writing, the dates and deadlines given by the Seller shall not be binding. The Seller shall not be responsible, even in case of binding deadlines and periods of time agreed upon, for any delay in delivery and/or performance owing to force majeure and/ or events that hinder or prevent the Seller from delivering, including but not limited to, subsequent materials purchasing difficulties, plant interruptions, strikes, lockout, shortage of labour or means of transportation and orders by governmental authorities, whether such events affect the Seller or the Seller’s suppliers or their respective subcontractors. Under these circumstances the Seller shall be entitled to either postpone the delivery or performance for the duration of the delay plus a reasonable start-up period or to rescind the agreement in whole or in part with regard to the part of agreement not yet performed. The Buyer may demand that the Seller declare if the Seller rescinds the agreement or is willing to deliver within a reasonable period of time. Should the Seller make no statement, the Buyer may only rescind the agreement and shall not be entitled to assert any claim for damages. In case the Seller is unable to deliver or delivery is delayed due to any action or inaction on the part of the Seller’s suppliers, the Seller shall have the right to rescind the agreement in whole or in part and the Buyer shall not be entitled to bring any claim for damages resulting from such rescission of the agreement. If delivery is delayed due to the Seller’s gross negligence, the Buyer shall be entitled to a penalty amounting to 0.5% for each week of delay. Any such penalty shall not exceed 5% of the value of the whole delivery affected by delay and the Buyer shall not be entitled to bring any claims for damages or other claims as a result of such delay. At all times, the Seller shall have the right to perform an agreement in part or to deliver in part the products subject to an agreement. 6. PASSAGE OF RISK The risk of damage to or loss of the products shall pass to the Buyer ex works the Seller’s warehouse or manufacture’s premises, as applicable, even if delivery has been agreed upon. If shipment is impossible for reasons for which the Seller is not at fault, the risk shall pass to the Buyer upon being notified of the readiness for shipment of the products or upon availability of the products at the Seller’s warehouse or manufacturer’s premises, as applicable. Should the Seller be entitled to claim damages from the transport contractor, any such claims shall be assigned to the Buyer. Unless otherwise expressly agreed upon in writing, the transport expenses shall be borne by the Buyer. 7. RETENTION OF TITLE AND COLLECTION OF ACCOUNTS RECEIVABLE The Seller reserves legal title to the products delivered pending payment in full of the purchase price. The Buyer may resell the products subject to such reservation of title by the Seller, and the Buyer shall promptly assign to the Seller any claim against its buyers arising out of or in connection with the resale of the products up to a maximum of the outstanding amount of the purchase price. Should the Buyer receive payment from its buyer, it shall immediately forward the payment received to the Seller for the amount of the Seller’s claim, plus value added tax. The Buyer agrees to notify the Seller forthwith of any compulsory execution and shall assist the Seller in asserting its legal title. If the Buyer misuses or puts the products to improper use or if after delivery the Seller learns about an economic setback of the Buyer (including, but not limited to, suspension of payments, deferral of debt payments, insolvency and inadequate information), the Seller shall be entitled to immediately revoke the Buyer’s right to resell the conditional products pending payment in full and to demand security. Should the Buyer fail to pay within a grace period of 14 days despite revocation of the right to resell and/or demand for security and payment, the Seller shall be entitled to rescind the agreement. In such case, the Buyer shall be obliged to hand over to the Seller the products subject to the Seller’s reservation of title without setting up a defense of whatsoever kind. 8. PAYMENTS 50% of the order value is due at the time order. The remaining 50% is due the day of delivery and/or availability of the products. Payments shall always be used to settle the oldest debts due plus interest on arrears and any other expenses accrued. In case of delay in payment and after demand for payment, interest on arrears in the amount of 1.3% per month shall be payable. In case of delay in payment or in case EVOC learns about a deterioration of the Buyer’s economic position, in particular deferral of debt payments or insolvency, EVOC shall be entitled to assert forthwith all debt claims not yet due arising out of these business relations. The Buyer shall not be entitled to withhold any payments if claim and counterclaim do not correspond to the same contractual relationship. A setting-off of counterclaims by the Buyer shall not be permitted unless these counterclaims are indisputable or legally enforceable. If taken in payment, bills of exchange shall only be accepted against reimbursement of all and any banking, discount and collection charges. Unless otherwise agreed upon, bills of exchange with a maturity exceeding 3 months shall not be accepted. 9. WARRANTY If EVOC has not manufactured the products delivered to the Buyer, but purchased the same from third parties, EVOC shall assign to the Buyer any warranty claims EVOC may have against such third parties. The Buyer shall accept such assignment in settlement of all claims it might have against EVOC. The Seller warrants that the products are free of any defect in workmanship and material. The warranty period for all products shall be 24 months. The warranty period for defects that can be discovered by the Buyer shall start as of the date of delivery. For any other defect, the warranty period shall commence upon delivery of the products to the end user. The Buyer shall be obliged to inspect the products immediately after their arrival at the point of destination. Delivery shall be deemed accepted if EVOC does not receive a written notice of defect within 6 working days, or in case of hidden defects, within 3 months, after the arrival of the products at the point of destination. The Buyer shall notify the Seller forthwith and in writing of any defects discovered and in any case, no later than 6 working days after delivery or notification by the end user. In case the operating and assembly instructions given by the Seller are not complied with, the products are changed or altered, parts thereof are replaced or materials are used which do not meet the original specifications, any warranty claims shall be forfeited. The warranty shall not cover any parts subject to normal wear and tear. Should the notice of defect be legitimate, the Seller may, at its option, demand: a) that the products be returned freight prepaid to the Seller for repair with the costs of return shipment to the Buyer being borne by the Seller; or b) that the Buyer keep the products ready for repair by a representative of the Seller. If the defect cannot be remedied, the Buyer may, at its option, demand a reduction of the purchase price or rescind the agreement. Non-conforming products shall be returned to the Seller, with the original delivery note or a copy thereof. The above provisions shall be the exclusive warranty given by the Seller for its products. Except with respect to the foregoing warranty, no other warranty claims may be brought against the Seller. 10. LIABILITY EVOC shall be liable for its actions only in the event of intentional misconduct or gross negligence on the part of EVOC. Claims for reimbursement by the Buyer asserted against EVOC owing to the defective condition of the products shall be limited to intentional misconduct and gross negligence. Liability for property damage due to a defective product incurred by the Buyer as an entrepreneur shall be excluded. The Buyer shall be obliged to pass on this limitation-of-liability clause to its customers, in EVOC’s favour and in the same wording. If the Buyer fails to do so, the Buyer shall be obliged to pay any claim for damages. The limitation of product liability shall apply to products as well as packing materials. 11. GOVERNING LAW – JURISDICTION – SEVERABILITY The Terms and Conditions and all legal relations between the Buyer and the Seller shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The provisions of United Nations Convention on the International Sale of Goods shall not apply. Any disputes relating to an agreement or the Terms and Conditions which cannot be settled by the Buyer and the Seller shall be finally settled by binding arbitration before the ‘Schiedsgericht’ (commercial arbitration panel) in Munich, Germany. The language to be used the arbitration proceedings shall be German. Should any provision of the Terms and Conditions or any other provision contained in any agreement be or become invalid, this shall not affect the validity of any of the other provisions or agreements. The invalid provision shall be replaced by a provision serving the purpose of the Terms and Conditions. |