GTC

EVE GmbH Terms of Delivery and Payment

1. Scope of application
   

   1. These terms and conditions of sale apply exclusively to entrepreneurs (section 14 of the German Civil Code), legal persons under public law or special funds under public law within the meaning of section 310 (1) of the German Civil Code.

   2. Deviating or conflicting terms and conditions shall not apply unless they have been expressly acknowledged in writing. These General Terms and Conditions shall also apply even if EVE GmbH supplies goods and services without reservation with knowledge of conflicting or deviating terms and conditions of the buyer.

2. Offer, offer documents and conclusion of a contract

   1. Upon sending and order to EVE GmbH, the buyer has made a binding offer to conclude a purchase contract. EVE GmbH is entitled to accept the buyer’s contract offer within a period of two weeks of receipt. Acceptance can be made either in writing (e.g., with an order confirmation), by delivery of the goods to the buyer or communication of the delivery date. The buyer is no longer bound by its offer in the event that EVE GmbH does not accept the buyer's offer within two weeks.

   2. In cases where a confirmation of receipt is provided -regardless of form - this does not represent acceptance of the offer or conclusion of a contract.

   3. We reserve ownership and copyright to all illustrations, drawings, calculations, data and other documents. This applies in particular to such written documents that are designated as “confidential”. Any disclosure to third parties by the buyer requires our express prior written consent.

3. Prices and payments
   

   1. The prices shown on our website (www.eve-electronics.com) at the time of the buyer's order, plus the respective statutory value added tax, are decisive. Additional deliveries and services that are not part of the stated purchase price will be charged separately.

   2. Unless otherwise agreed, the prices are understood to be exclusive of packaging and transport.

   3. Unless expressly agreed otherwise, the invoiced amount is due for payment without deduction 30 days after the invoice is payable and has been dispatched.

   4. After expiry of 30 days from the due date and dispatch of the invoice, EVE GmbH shall be entitled to claim interest from the buyer, provided the buyer is a merchant within the meaning the German Commercial Code, from the due date and dispatch of the invoice in accordance with the provisions of the German Commercial Code.

   5. In all other cases, and provided the buyer is not a merchant within the meaning the German Commercial Code, default interest shall be imposed according to section 288 of the Civil Code. EVE GmbH reserves the right to assert claims for additional damages.

   6. If circumstances are known which cast doubt on the creditworthiness of the buyer, EVE GmbH shall be entitled to demand advance payments or collateral without prejudice to any other additional legal claims.

   7. Cheques and bills of exchange, which we reserve the right to accept, are only valid after the unrestricted receipt of funds. Any discounts or bank charges shall be borne by the buyer.

4. Offsets

The buyer is only entitled to a right of offset in the event that its counter-claims are the subject of a final judgment, if they are uncontested, or if they have been acknowledged by us. Furthermore, it is only entitled to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.

5. Delivery and performance period, delay

   1. The beginning of the delivery period is dependent on timely and complete fulfilment of the buyer’s obligations. We reserve the right to claim the defence of non-performance of contract.

   2. In cases where delivery periods that have been communicated cannot be met on grounds for which EVE GmbH is not at fault (e.g. delay due to non-delivery from supplier for which we are not at fault, industrial action), the buyer will be notified thereof without undue delay and, and the same time, given a new expected delivery time. If delivery cannot be made by the new deadline, EVE GmbH is entitled to withdraw from the contract in whole or in part; any payments already made by the buyer for which no performance has been provided will be refunded without undue delay. The non-availability of goods and services as referred to above includes, without limitation, untimely delivery to us by EVE GmbH vendors, provided that we have concluded a congruent covering transaction.

   3. This is without prejudice to the statutory rights of withdrawal and termination on the part of EVE GmbH as well as the statutory provisions regarding performance of the contract in the event of the exclusion of the obligation to perform. This is similarly without prejudice to the buyer’s rights of withdrawal and termination of the contract.

   4. If delivery on call as been agreed (framework agreement), the buyer is required to call the ordered goods within a reasonable period.

   5. The seller is entitled to make partial deliveries provided that this appears to be necessary for prompt performance and the partial delivery would not be unreasonable to the buyer in the specific case concerned. Without limitation, partial delivery is reasonable if the buyer may use the partial delivery in accordance with its intended purposes regardless of any subsequent deliveries.

   6. We are entitled, but not obliged, to accept an offer from the buyer to cancel the order and, if applicable, retake possession of goods affected by such cancellation. In such cases, the buyer must agree to pay us 20% of the net value of the goods as a cancellation fee. In the case of goods that have already been delivered, cancellation of the contract also requires that the goods are returned to us at the place of performance undamaged, complete, without charge and sorted. The buyer bears the risk of loss until receipt by us. After review of the requirements set out above, we will notify the buyer of whether we will accept its offer of cancellation.

6. Passage of risk
   

   1. Delivery from our warehouse in Emsdetten is agreed absent any contrary arrangement. The risk of accidental loss or accidental deterioration of the goods passes to the customer no later than the transfer of the goods to the respective freight carrier or upon leaving our plant or warehouse. This also applies to partial deliveries.

   2. If the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, EVE GmbH is entitled to demand compensation for any resulting damages including additional expenses (e.g., storage costs). The right to assert further claims or rights is reserved.

   3. If the buyer is in default of acceptance, the risk of accidental deterioration and accidental loss of any goods purchased shall pass to the buyer in accordance with applicable statutory provisions.

7. Packaging

   1. Packaging for transport or any other kind of packaging according to the Packaging Ordinance (Verpackungsverordnung) will not be taken back, with the exception of multi-use transport aids such as pallets, etc. The buyer is obliged to dispose of single-use packaging materials at its own expense.

   2. Multi-use transport aids are only provided to the buyer on loan. The buyer is obliged to return them in good condition, i.e. completely empty and without damage. In the event of contamination or damage to such transport aids, the buyer shall bear any repair costs or is obliged to compensate us for their respective value if repair is impossible.

8. Retention of title
   

   1. Any goods subject to delivery remain our property until payment in full of all claims arising under the business relationship between EVE GmbH and the buyer in existence at the time of contract conclusion.

   2. We shall be entitled to repossess the goods in the case of breach of the contract by the buyer, especially in the case of default in payment. Any repossession of goods constitutes our withdrawal from the contract. We are entitled to dispose of the goods after their repossession; the proceeds of sale shall be deducted from the buyer’s liabilities - less reasonable costs of disposition.

   3. The buyer is obliged to handle purchased goods with care. Without limitation, it is obliged to insure the goods at its own expense against fire, water and theft at replacement cost.

   4. The buyer is furthermore obliged to separate goods subject to retained title from its other merchandise. If separate storage is not possible, the buyer must mark the goods subject to reserved title as goods subject to reserved title in a suitable, clear and permanent form without damaging the goods concerned by so marking them.

   5. In the case of seizures or other third-party attachments, the buyer shall immediately notify us in writing so that we can bring an action pursuant to section 771 of the Code of Civil Procedure (Zivilprozessordnung). The buyer shall be responsible for our losses if the third party is unable to reimburse us for the costs, incurred both in and out of court, associated with action pursuant to section 771 of the Code of Civil Procedure.

   6. The buyer is entitled to resell the purchased goods in the ordinary course of business, however it assigns to us all now in advance all receivables in the amount of our receivables equal to the invoice amount (including VAT) which arise from the resale to its customers or third parties, regardless of whether the goods were resold without or after processing. We hereby accept this assignment. In the event that the assigned receivable due from the buyer of goods subject to retained title is included in a current invoice (current account), the assignment likewise relates to the acknowledged balance and, in the case of insolvency on the part of the buyer, the then-present “causal balance”. The buyer shall retain its authority to collect the debt even following the assignment. This is without prejudice to our right to collect such claims ourselves. However, we undertake not to collect the claim as long as the buyer meets its payment obligations from the proceeds collected, is not in default of payment and, in particular, no petition for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, we can demand the buyer to inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and informs the debtors (third parties) of the assignment.

   7. Processing or transformation of goods subject to retained title by the buyer shall be undertaken for us in all cases. If the goods subject to retained title are processed with other objects not belonging to us, we acquire co-ownership of the new object in proportion to the value of the goods subject to retained title (final invoice price plus VAT) to such other processed objects at the time of processing. In all other respect, the same principles applicable to goods subject to retained title apply to objects created as a result of processing.

   8. If the goods subject to retained title are inseparably mixed with other objects that not belonging to us, we acquire co-ownership of the new object in proportion to the value of the goods subject to retained title (final invoice price plus VAT) to such other mixed objects at the time of mixing. If the mixing is done in a way that the buyer’s object can be regarded as the primary object, it is agreed that the buyer assigns proportional co-ownership to us. The buyer shall safeguard the resulting solely owned or co-owned object for us.

   9. We agree to release our security interest in the goods at the buyer's request once the realisable value of our collateral exceeds the value of the secured receivables by more than 10%; the selection of the collateral to be released is at our discretion.

9. Warranty

   1. The prerequisite for any warranty rights on the part of the buyer is its proper fulfilment of all inspection and notification obligations owed under section 377 of the German Commercial Code. If the buyer fails to carry out the proper inspection and/or provide proper notification of defects, EVE GmbH shall have no liability for defects for which notice is not given.

   2. Drawings, illustrations, dimensions, weights and/or other performance data are non-binding and do not give rise to any quality guarantee or assurance. They describe the general condition of the goods, however not their individual characteristics. This does not apply if an express agreement has been reached otherwise. Deviations from drawings, illustrations, dimensions, weights and/or other performance data only give the buyer the right to withdraw from the contract after the buyer has given timely notice of the defect and performance of the contract would be unreasonable for the buyer.

   3. In cases where the goods suffer from a defect for which we are at fault, we shall first be given the opportunity to cure such defect within a reasonable period. We are entitled to cure the defect or to provide a replacement delivery at our discretion.

   4. If an attempt at cure is unsuccessful, the buyer may withdraw from the contract or reduce the purchase price.

   5. Our liability for material defects shall lapse if our assembly and/or operating instructions are not followed, prohibited changes are made to products concerned and/or consumables are used which do not comply with the original specifications. The foregoing does not apply solely in cases where the warranty claim concerned is verifiably not related to any of the exclusionary grounds referred to above.

10. Lapse of claims for defects

    1. The limitation period for all claims for defects is 12 months from the performance of the contract. This applies likewise to all other claims to compensation for damages.

    2. The reduction of the limitation period to 12 months does not apply if
       a) The compensation claims relate to an injury to life, limb or health; or
       b) EVE GmbH has intentionally breached a duty or fraudulently concealed a defect. The statutory limitation period shall apply in such cases.

    3. Claims for damages related to material defects shall lapse within one year of commencement of the statutory limitation period.

    4. Unless otherwise provided below, any further warranty claims on the part of the buyer, regardless of their respective legal basis, shall be excluded. Accordingly, we are not liable for any damage not suffered by delivered goods themselves. Without limitation, we are not liable for lost profits or other financial damages incurred by the buyer.

11. Liability

    1. EVE GmbH shall be liable only in the event of intent and gross negligence.

    2. The limitation of liability set out in Section 11.1 shall not apply to damages due to injury to life, limb or health or the non-fulfilment/violation of essential contractual obligations. “Essential contractual obligations” are those obligations that are essential to proper performance of the contract and on whose fulfilment the buyer generally relies or is entitled to rely upon. The limitation of liability set out in Section 11.1 shall not apply in the event that we fraudulently conceal a defect or have assumed a warranty for the quality of the goods according to section 443 of the German Civil Code. This applies likewise for mandatory liability as provided in the Product Liability Act. In cases where liability is excluded or limited, this shall apply likewise to breaches by our vicarious agents.

    3. In cases where EVE GmbH is liable for simple negligence, the amount of such liability is limited to damages typical to the contract that are foreseeable at the time of contract conclusion.

12. Special conditions applicable to online sales ( www.eve-electronics.com )

    1. Only buyers authorised by us, i.e. approved buyers, are entitled to place orders within the scope of online trading. After successful registration - without this being mandatory - we will grant the respective buyer the non-transferable, non-exclusive right to place orders with us via online trading. We are under no obligation to accept individual orders.

    2. We have the right, at our discretion, to change, suspend, discontinue and/or restrict online access at any time and/or for any reason whatsoever and/or in its entirety without any liability to the buyer.

    3. The buyer undertakes only to use media and/or ordering processes specified by us. The buyer shall ensure that only authorised persons can make binding declarations on their behalf and have access to their passwords and/or other access control functions. Passwords shall be kept strictly confidential. The buyer is responsible for any abuses within their sphere of risk.

    4. We assume no liability for the continuous accessibility of our online services. The provisions set out in Section 5.2 above shall apply accordingly with regard to technical availability and/or the availability of goods. Without limitation, we make no warranties and/or representations that use of electronic data, in particular any content received and/or sent by an authorised buyer, will be accurate, complete, in correct order, without spelling mistakes, is reliable and/or available on a timely basis and/or that data will be available without interruption, errors, destructive elements and/or viruses.

    5. The user relationship for online trading can be terminated by us at any time in writing. Communication by email is sufficient for purposes of complying with the written form requirement. Without limitation, we shall be entitled to terminate the user relationship with immediate effect in the event of a violation of the terms of use. However, termination is without prejudice to any obligations then in effect based on the user relationship and/or other binding obligations of the contracting parties in effect on the date of termination.

    6. The validity, interpretation and implementation of these terms of use for “Online Trading” are subject to German law.

13. Data Protection
    

    1. We comply with applicable data protection laws. You may access our privacy policy at any time at: www.eve-electronics.com/data-privacy.

14. Place of jurisdiction, performance and applicable law

    1. Our registered office in Emsdetten shall be the place of jurisdiction (Rheine Local Court; Münster Regional Court) for all present and future claims arising within the scope of business relationships with merchants, legal entities under public law and special funds under public law, including claims based on bills of exchange and cheques. However, we are entitled to sue buyers at their place of domicile.

    2. Unless otherwise stated in the purchase order, the place of performance is our registered office in Emsdetten. Regardless of the place of delivery of goods or documents, the place of performance for the buyer’s payment obligation shall be our registered office in Emsdetten.

    3. These General Terms and Conditions of Sale, Delivery and Payment, and all legal relationships between us and a buyer, shall be subject to the law of the Federal Republic of Germany. Reference to the laws of other countries under principles of German IPL (International Private Law) is excluded. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (BGBl. 1989 II p. 588, rev. 1990 II, 1699) is excluded in all cases.

15. Severability

    1. Should any clause of these terms and conditions, or any other clause in any other agreement, be or become invalid, this shall be without prejudice to validity of all other clauses or agreements.