1. General
1.1. These General Terms and Conditions for Deliveries and Services (hereinafter: “Terms”) of eCOUNT Electronic GmbH (hereinafter: “eCOUNT”) apply to all present and future offers, contracts and other legal relationships between eCOUNT and its customers (hereinafter: “Buyer”).
1.2. General terms and conditions of the Buyer shall become part of the contract only if and to the extent that they correspond with eCOUNT’s Terms, or where eCOUNT has expressly acknowledged the Buyer’s general terms and conditions in text form, i.e. in writing, by fax or by e-mail.
2. Offers, Conclusion of Contract and Subject Matter of the Contract
2.1. Where an order placed by a Buyer qualifies as an offer within the meaning of section 145 of the German Civil Code (BGB), eCOUNT may accept that offer within two weeks of its receipt. Offers made by eCOUNT are in principle non-binding and subject to change, unless they are expressly designated as binding offers.
2.2. eCOUNT may accept an offer by declaration in text form (i.e. in writing, by fax or by e-mail) or by rendering the performance ordered. eCOUNT reserves the right not to accept orders even without any written statement or further explanation. Silence on the part of eCOUNT after expiry of the acceptance period shall, in case of doubt, be deemed a rejection.
2.3. Where the Buyer places its order by electronic means, eCOUNT will endeavour to confirm receipt of the order without undue delay. Such confirmation of receipt does not yet constitute a binding acceptance of the order; eCOUNT may, however, combine the confirmation of receipt with the declaration of acceptance.
2.4. In the case of contracts agreed orally, the scope of performance owed by eCOUNT shall be determined by eCOUNT’s contract confirmation in text form.
2.5. All deliveries and services to be rendered by eCOUNT are hereinafter referred to collectively as the “contractual goods and services”, irrespective of the legal nature of the underlying contract.
3. Delivery Dates, Delivery, Packaging
3.1. Partial performance is permissible and obliges the Buyer to pay the pro rata remuneration, unless the partial performance would be unreasonable for the Buyer.
3.2. Where the contractual goods and services are to be rendered by eCOUNT on call by the Buyer, the Buyer shall — subject to any agreement to the contrary — be obliged to accept the partial deliveries in approximately equal quantities. In all other respects, the entirety of the contractual goods and services shall be deemed to have been called off by the Buyer one calendar month after expiry of the period agreed for the call-off or, in the absence of an agreed period, three calendar months after conclusion of the contract.
3.3. Unless expressly agreed otherwise in writing, the performance periods stated by eCOUNT are non-binding and subject to change. Events of force majeure entitle eCOUNT to postpone the rendering of the contractual goods and services for the duration of the impediment, or to release itself from the contract with the Buyer against immediate reimbursement of any consideration already rendered. Force majeure shall be deemed to include all circumstances for which eCOUNT is not responsible and which render the rendering of the contractual goods and services impossible or unreasonably difficult for eCOUNT, such as lawful strike or lawful lock-out, war, import and export bans, shortages of energy and raw materials, official measures, and failure of eCOUNT’s own suppliers to deliver in time for reasons for which eCOUNT is not responsible. eCOUNT shall be obliged to inform the Buyer without undue delay of the occurrence of any of the aforementioned events. If the impediment lasts longer than two months, the Buyer shall be entitled, after setting a reasonable grace period combined with a warning of refusal, to release itself from the contract if it proves that, owing to the delay, it no longer has any interest in the performance of the contract that is still wholly or partly outstanding. In the event of subsequent amendments or supplements to the contract, the performance periods and dates shall start to run afresh or shall be postponed accordingly, even if they had previously been confirmed by eCOUNT, unless a diverging agreement in text form has been made with the Buyer in the individual case.
3.4. eCOUNT’s prices are ex works eCOUNT, including customary packaging, plus the applicable statutory value added tax, which is invoiced separately. Where special packaging is provided at the Buyer’s request, or where replacement packaging becomes necessary for reasons for which eCOUNT is not responsible, the Buyer shall reimburse eCOUNT for the costs so incurred. The costs of shipment and of any insurance shall be borne by the Buyer.
3.5. Subject to any agreement to the contrary in text form, price changes are permissible only where more than six weeks lie between the conclusion of the contract and the agreed date of performance. In the case of permissible price changes, the following shall apply: if wages, material costs or market purchase prices (list prices) increase, or if exchange rates change, before the contractual goods and services are rendered, eCOUNT shall be entitled to increase the price appropriately in line with the increases in cost.
4. Passing of Risk
In the case of all deliveries, the risk of accidental loss and of accidental deterioration of the contractual goods and services shall pass to the Buyer at the time when the contractual goods and services are handed over by eCOUNT to the carrier.
5. Obligations of the Buyer
5.1. The Buyer shall provide eCOUNT, free of charge and in good time, with any documents required for the rendering of the contractual goods and services. Unless expressly agreed otherwise in text form, eCOUNT shall not be obliged to examine the content of the documents and of the requirements requested by the Buyer (specifications, functions and technical details) for possible errors or for infringement of third-party rights resulting from the implementation of the requirements described.
5.2. Where the Buyer fails to perform its duties to cooperate to the extent required, or where eCOUNT is prevented from performing the services incumbent upon it owing to circumstances falling within the Buyer’s sphere of risk, eCOUNT shall be released from its performance obligations for the duration of the disruption and to the extent of its effect, and may demand reasonable compensation for the additional expenditure caused thereby. In such a case eCOUNT shall allow itself to be credited with whatever expenditure it saves or is able to acquire by way of other orders. The risk of accidental loss or accidental deterioration of the contractual goods and services shall pass to the Buyer at the time when the Buyer falls into default of acceptance.
5.3. In the event of a resale of the contractual goods and services (drop shipment), the Buyer shall be obliged — irrespective of the provision of section 377 of the German Commercial Code (HGB) — to impose in turn on its own customer an obligation to inspect the contractual goods and services, at the latest before their installation, combination, alteration, processing, transformation, mixing and/or blending, to the extent described in Section 8.2 of these Terms, and to document the results of that inspection in writing.
6. Terms of Payment, Default
6.1. eCOUNT’s invoices are payable within 14 days of the invoice date without deduction. No cash discounts or rebates are granted.
6.2. eCOUNT reserves the right to demand payments on account.
6.3. Where the Buyer is in default of payment, it shall owe eCOUNT default interest at the customary rate of interest for the use of bank credit, but at least at a rate of 8 percentage points above the applicable base rate, until the date of payment. The assertion of further damage remains unaffected.
6.4. Only persons holding written collection authority are entitled to receive payments. Payment receipts are valid only where they have been issued on eCOUNT’s receipt forms. The Buyer remains free to prove in an individual case that other persons are in fact authorised to collect payment.
6.5. Where, after conclusion of the contract, concerns arise as to the Buyer’s solvency or creditworthiness with the consequence that eCOUNT’s payment claims appear to be at risk, eCOUNT shall be entitled to demand performance concurrently against payment, or against security in the form of a directly enforceable, irrevocable guarantee issued by a major German bank. Where the Buyer fails to comply with this demand despite the setting of a deadline combined with a warning of withdrawal, eCOUNT may withdraw from the contract to the exclusion of any claims for compensation by the Buyer.
6.6. The Buyer may set off a claim against claims of eCOUNT, or exercise a right of retention — in particular in the event of notices of defects — only where its claim is undisputed or has been established by a final and binding court decision.
7. Retention of Title
7.1. The contractual goods and services shall remain the property of eCOUNT until the remuneration owed has been paid in full.
7.2. The Buyer is entitled to process the contractual goods and services; the retention of title shall, however, also extend to the finished goods obtained by such processing. eCOUNT, as supplier of the intermediate product, shall become the owner of the processed item, to the exclusion of section 950 BGB. The Buyer or processor shall merely be the custodian.
7.3. Where the contractual goods and services are combined or processed with other items not belonging to eCOUNT, eCOUNT shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to that of the other items.
7.4. The contractual goods and services may be sold only in the ordinary and proper course of business, and only where claims arising from resale have not previously been assigned to third parties. The Buyer hereby assigns to eCOUNT in advance the claims accruing to it from the resale, including to the extent that the contractual goods and services have been combined or processed with other items. In this case the assigned claims shall serve as security for eCOUNT only up to the value of the contractual goods and services. eCOUNT will not collect the assigned claims for as long as the Buyer meets its payment obligations.
7.5. The Buyer is, however, obliged to name the third-party debtors to eCOUNT upon request and to notify them of the assignment. It is entitled to collect the claims itself for as long as it has received no other instruction from eCOUNT. It shall pay the amounts collected by it to eCOUNT immediately, to the extent that eCOUNT’s claims are due.
7.6. eCOUNT undertakes to release the assigned claims, at eCOUNT’s option, to the extent that they exceed the claims to be secured for eCOUNT by more than 10 % and arise from deliveries paid for in full.
7.7. The pledging of the goods subject to retention of title or of the assigned claims, or their transfer by way of security, is not permitted.
7.8. The Buyer shall notify eCOUNT without undue delay of any access by third parties to the contractual goods and services delivered subject to retention of title, or to the assigned claims.
7.9. Where an agreement pursuant to this Section 7 of these Terms is not permissible under the law of the Buyer’s state, eCOUNT shall be entitled to all other rights which eCOUNT may reserve in respect of the contractual goods and services under the law of the Buyer’s state.
8. Warranty
8.1. The assertion of the Buyer’s rights in respect of defects presupposes that the Buyer has duly complied with its obligations to inspect and to give notice of defects owed under section 377 HGB.
8.2. The assertion of the Buyer’s rights in respect of defects further presupposes that the Buyer — to the extent that, pursuant to Section 8.1 of these Terms, it was subject only to the obligation to inspect representative samples on account of the delivery of larger quantities of goods — subjects, at the latest before their installation, combination, alteration, processing, transformation, mixing and/or blending (hereinafter referred to collectively as “processing”), at least 25 % of the delivery quantity to be processed to a functional and visual inspection, and a further at least 25 % of the delivery quantity to be processed to a visual inspection (only), unless the contractual goods and services would thereby be damaged and/or consumed. The Buyer shall document the results of this inspection in writing.
8.3. There shall be no warranty for defects attributable to a use of the contractual goods and services by the Buyer, or by third parties engaged by it, that is not in conformity with the contract. There shall further be no warranty where the Buyer makes technical modifications to the contractual goods and services to which eCOUNT has not previously consented in text form. There shall further be no warranty in the case of circumstances resulting from the Buyer’s failure to follow the operating instructions of eCOUNT or of the manufacturer. In all of the aforementioned cases, the Buyer remains free to preserve its warranty claims by proving that the aforementioned acts had no influence on the defect of the contractual goods and services.
8.4. To the extent that the contractual goods and services are defective, the Buyer shall be entitled, at eCOUNT’s option, to subsequent performance in the form of the remedying of the defect or of the delivery of new, defect-free goods or services. Contrary to sentence 1, this right of choice shall lie with the Buyer within the scope of supplier recourse pursuant to section 478 BGB (where applicable in conjunction with section 651 BGB). Where the defect is remedied, eCOUNT shall bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labour and material costs, to the extent that these are not increased by the fact that the object of the contract has been moved to a place other than the Buyer’s registered office or branch.
8.5. Where subsequent performance fails, the Buyer shall be entitled, at its option, to withdraw from the contract or to demand a reduction of the price. eCOUNT’s liability in damages shall be governed by Section 9 of these Terms. Any further liability of eCOUNT is excluded.
8.6. The limitation period for claims based on defects (including claims for damages and for reimbursement of expenses) is 12 months, calculated from the passing of risk pursuant to Section 4 of these Terms. In the case of supplier recourse pursuant to sections 478, 479 BGB (where applicable in conjunction with section 651 BGB), the statutory limitation period shall apply.
9. Liability
9.1. Claims for compensation for damage of any kind, on whatever legal grounds, including damage resulting from the use of the contractual goods and services, are excluded, unless eCOUNT or its legal representatives or vicarious agents have acted intentionally or with gross negligence, or unless the claims for damages result from the absence of a guaranteed characteristic. In the latter case, liability is limited to such damage as is covered by the guarantee. Compensation for consequential damage (e.g. damage resulting from the use, installation, mixing, further processing etc. of the contractual goods and services, lost profit and lost benefits of use) is — except in the case of intent on the part of eCOUNT or of its legal representatives or vicarious agents — limited to the foreseeable damage and to the risk of damage typical for this type of contract.
9.2. In the case of damage based on simple negligence, eCOUNT shall be liable only where material obligations (so-called cardinal obligations) have been breached in the performance of the contract. In this case liability is limited to the typical and foreseeable damage. Furthermore, the amount of damages payable is limited to three times the remuneration owed by the Buyer to eCOUNT. Compensation for consequential damage (e.g. damage resulting from the use, installation, mixing, further processing etc. of the contractual goods and services, lost profit and lost benefits of use) is excluded.
9.3. The manufacturer of the contractual goods and services and/or its supplier are not vicarious agents of eCOUNT.
9.4. The provisions set out in this Section 9 shall not apply to claims under the provisions of the German Product Liability Act (Produkthaftungsgesetz). The same applies in the case of injury to life, body or health. Furthermore, any mandatory statutory liability remains unaffected.
9.5. The foregoing provisions of Section 9 of these Terms shall apply accordingly to claims for reimbursement of expenses pursuant to section 284 BGB.
10. Seller's Liability under the German Electrical and Electronic Equipment Act
Except in cases of intent or gross negligence on the part of eCOUNT or of its legal representatives or vicarious agents, eCOUNT assumes no liability for the fact that the products acquired by eCOUNT from third parties contain substances in concentrations or applications the placing on the market of which is prohibited under the Act Governing the Placing on the Market, the Taking Back and the Environmentally Sound Disposal of Electrical and Electronic Equipment (“ElektroG”) as amended from time to time. The foregoing provision shall likewise apply where the acquired products have been treated, processed or transformed by eCOUNT prior to their sale to the Buyer. To the extent that recourse against eCOUNT is excluded as a result of the foregoing provision, eCOUNT hereby assigns to the Buyer any claims eCOUNT may have against the third party.
11. Intellectual Property
11.1. Tender documents, cost estimates, drafts, drawings and calculations prepared by eCOUNT (“Documents”) remain the sole property of eCOUNT and may neither be reproduced nor made accessible to third parties without eCOUNT’s consent in text form. Where no order is placed, the Documents shall be returned to eCOUNT without undue delay and in full, and any copies made shall be destroyed.
11.2. Where inventions are made by eCOUNT in the course of the business relationship with the Buyer, eCOUNT shall have the exclusive right to exploit the rights derivable therefrom, in particular patents.
12. Place of Performance, Place of Jurisdiction and Applicable Law, Miscellaneous
12.1. The place of performance for deliveries and other services is the place of eCOUNT’s registered office.
12.2. For all present and future claims arising from the business relationship with merchants, legal entities under public law or special funds under public law, the exclusive place of jurisdiction is eCOUNT’s registered office. eCOUNT is, however, entitled to bring an action against the Buyer at the Buyer’s registered office.
12.3. The contractual relationship, including all future contracts, is governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and of any rules referring to other legal systems.
12.4. The customer is advised that, when dispatching the contractual goods and services obtained from eCOUNT (onward dispatch to third parties or return to eCOUNT), it must observe the ICAO/IATA regulations applicable from time to time as well as customs, export and import provisions.
13. Export Control and Sanctions (No-Russia / No-Belarus Clause)
13.1. The Buyer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or to Belarus, nor sell, export or re-export for use in the Russian Federation or in Belarus, any goods or technology forming part of the contractual goods and services which are listed in Annexes XI, XX, XXXV or XL to Council Regulation (EU) No 833/2014 (Russia Sanctions Regulation), in Annexes XVI, XVII, XXVIII or XXX to Council Regulation (EC) No 765/2006 (Belarus Sanctions Regulation), or in Annex I to Regulation (EU) No 258/2012, each as amended from time to time. This shall likewise apply to products into which such goods have been incorporated, with which they have been combined or from which they have been manufactured, to the extent covered by the aforementioned regulations.
13.2. The Buyer shall undertake its best efforts to ensure that the purpose of Section 13.1 of these Terms is not frustrated by any third parties further down the commercial chain, including by possible resellers. Where the Buyer resells the contractual goods and services, it shall impose corresponding obligations under Section 13.1 of these Terms on its customer.
13.3. The Buyer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of Section 13.1 of these Terms.
13.4. A violation of Section 13.1 of these Terms shall constitute a material breach of an essential element of the respective contract. In such event eCOUNT shall be entitled to apply appropriate remedies, in particular to (i) withhold contractual goods and services not yet performed, (ii) terminate the affected contract as well as any further contracts with the Buyer for cause with immediate effect, or withdraw from such contracts, and (iii) claim damages in accordance with the applicable statutory provisions. In the event of a violation of Section 13.2 or Section 13.3 of these Terms, eCOUNT shall be entitled to these remedies if the Buyer fails to cure the violation within a reasonable period set by eCOUNT. The limitations of liability under Section 9 of these Terms shall not apply to claims of eCOUNT under this Section 13.4.
13.5. The Buyer shall inform eCOUNT without undue delay of any problems in applying Sections 13.1 to 13.3 of these Terms, including any relevant activities by third parties that could frustrate the purpose of Section 13.1 of these Terms. The Buyer shall make available to eCOUNT information concerning compliance with the obligations under Sections 13.1 to 13.3 of these Terms within two weeks of a corresponding request.
13.6. eCOUNT is under a statutory obligation to report to the competent authority any violation by the Buyer of the obligations under Section 13.1 of these Terms that comes to its knowledge. The Buyer is expressly notified of this.
13.7. The obligations under Sections 13.1, 13.2, 13.3 and 13.5 of these Terms shall survive the termination of the respective contract, in particular in the event of termination or withdrawal pursuant to Section 13.4 of these Terms.
14. Severability
The invalidity of individual provisions shall not affect the validity of the remainder of the contract. The invalid provision shall be replaced by the legally permissible provision which corresponds to, or comes closest to, the intended economic purpose.
This English text is a translation provided for convenience. In accordance with Section 12.3 of these Terms, the contractual relationship is governed exclusively by German law; in the event of any discrepancy between the language versions, the German version of these Terms shall prevail.
General Terms and Conditions of Purchase
1. General
1.1. These General Terms and Conditions of Purchase of eCOUNT Electronic GmbH (hereinafter: “eCOUNT”) apply exclusively to all orders placed by eCOUNT. Deviating or additional contractual or delivery terms of the Supplier shall not become part of the contract, even where they are not expressly objected to or where the Supplier’s delivery is accepted without reservation. Where the Supplier confirms an order of eCOUNT in a manner deviating from the order or from these Terms of Purchase, such deviations shall apply only if they are expressly acknowledged by eCOUNT in writing.
1.2. All agreements on deliveries and services (hereinafter referred to uniformly as “Deliveries”) concluded between eCOUNT and the Supplier shall be recorded in text form in the relevant contract and in any supplementary agreements. Oral agreements — in particular amendments and supplements to eCOUNT’s Terms of Purchase, including this written-form clause, as well as ancillary agreements of any kind — require eCOUNT’s written confirmation in order to be effective.
1.3. Where software or other intangible items (e.g. rights) form part of the Supplier’s Delivery, the non-exclusive rights of use and exploitation, unlimited in time, subject matter and territory, shall pass to eCOUNT — subject to any agreement to the contrary in writing — immediately upon payment of the remuneration owed on account of the respective Delivery. The foregoing grant of rights also includes eCOUNT’s right to edit, modify, reproduce, distribute and exploit in any manner whatsoever, as well as the right to transfer the rights of use and to grant sub-licences to the extent described above.
1.4. The Supplier warrants, by way of an independent guarantee, that the acquisition, sale and contractual use of the Deliveries do not infringe any industrial property rights or applications for such rights of third parties in the countries of the European Union, Switzerland, the USA, Japan, South Korea, Singapore, Hong Kong, China, Taiwan, Malaysia. The Supplier shall indemnify eCOUNT against all claims asserted against eCOUNT arising from an infringement of third-party industrial property rights. A limitation period of 10 years applies to the aforementioned claims of eCOUNT.
2. Orders
2.1. Where the Supplier does not accept eCOUNT’s order within a period of 2 weeks of its receipt, eCOUNT shall be entitled to revoke it.
2.2. Cost estimates are binding and are not to be remunerated, unless otherwise agreed in writing.
2.3. eCOUNT reserves title and copyright in illustrations, drawings, calculations and other documents; they may not be made accessible to third parties without eCOUNT’s express written consent. They are to be used exclusively for production on the basis of eCOUNT’s order; upon completion of the order they are to be returned to eCOUNT without being requested to do so. They are to be kept secret vis-à-vis third parties; in this respect the provision of Section 8.3 of these Terms of Purchase applies in addition.
3. Delivery Dates
3.1. The delivery dates stated in eCOUNT’s orders are binding. Where dates are stated by calendar week or month, the 1st working day shall apply in each case. The dates stated in the course of placing the order (including individual dates) are binding and, in the event of culpable delay on the part of the Supplier, are to be safeguarded by additional work at no charge, including outside regular working hours to the extent permissible. Where these dates are exceeded culpably, the statutory consequences of default shall apply.
3.2. The Supplier is answerable for the fault of its own suppliers as for its own fault.
3.3. Where a delay in delivery is imminent, eCOUNT shall be notified thereof without undue delay, stating the reasons.
3.4. Where the Supplier fails to meet an agreed delivery date, it shall pay eCOUNT a contractual penalty amounting to 0.5 % of the agreed total net fixed price (see also Section 5.1 of these Terms of Purchase) for each commenced calendar week by which the respective date is exceeded. This applies only on condition that the Supplier is responsible for the delay. The contractual penalty is limited to a maximum of 5 % of the total net fixed price.
3.5. Claims arising from non-compliance with the agreed delivery dates that go beyond Section 3.4 of these Terms of Purchase are not excluded by payment of the contractual penalty. In particular, eCOUNT is entitled, after the fruitless expiry of a reasonable period, to demand damages in lieu of performance and to withdraw from the contract. Where eCOUNT claims damages, the Supplier has the right to prove to eCOUNT that it is not responsible for the breach of duty. Any contractual penalty incurred shall be set off against the damages.
3.6. The unreserved acceptance of a delayed Delivery does not constitute a waiver of the claims for compensation to which eCOUNT is entitled on account of the delay; this applies until full payment of the remuneration owed by eCOUNT for the Delivery concerned.
3.7. Force majeure, labour disputes, operational disruptions for which eCOUNT is not responsible, civil unrest, official measures and other unavoidable events entitle eCOUNT — without prejudice to any other rights — to withdraw from the contract in whole or in part, to the extent that they are not of insignificant duration and result in a substantial reduction of eCOUNT’s requirements.
4. Delivery
4.1. All Deliveries are made at the Supplier’s risk and delivered free domicile to eCOUNT’s business address or to the place of delivery specified by eCOUNT. The costs of customs duties, packaging, freight and insurance are borne by the Supplier.
4.2. To the extent that delivery ex works is agreed in an individual case, the Supplier shall arrange for the carriage most favourable to eCOUNT and for correct declaration. The Supplier is liable for damage in transit in this case as well.
5. Remuneration
5.1. All prices are fixed prices and, unless otherwise agreed, include all ancillary costs (such as transport and installation costs, customs duties, travel expenses, surcharges, lump sums). The prices apply unchanged until completion of all services to be rendered under the contract.
5.2. Payment falls due by the 25th of the month following the Delivery, less a 3 % early-payment discount. For the purpose of calculating the due date, Deliveries made before the agreed delivery date shall be deemed received only at the time of the agreed delivery date.
5.3. Unless otherwise agreed, payment of the remuneration shall, however, only be made after receipt of the delivery item in accordance with the contract and receipt by eCOUNT of a proper and auditable invoice complying with the statutory requirements of section 14 of the German Value Added Tax Act (UStG), stating the order, purchase-order and supplier numbers set out in the order.
5.4. Payment is made by bank transfer or cheque. All payments are made subject to subsequent verification and to the possible assertion of claims for repayment together with claims for interest. The Supplier may therefore not, for example, invoke any cessation of enrichment (section 818 of the German Civil Code, BGB).
5.5. eCOUNT is entitled to rights of set-off and retention to the extent provided by law.
6. Claims Based on Defects and Recourse
6.1. eCOUNT is obliged to inspect the Supplier’s Deliveries within a reasonable period for any deviations in quality and quantity. A notice of deviations in quality and/or quantity is timely if it is received by the Supplier within a period of 15 business days (Monday to Friday, excluding public holidays), calculated from receipt of the Delivery at the place to which it was to be delivered by the Supplier in accordance with the order, or, in the case of latent defects, without undue delay upon discovery.
6.2. The statutory provisions on material defects and defects of title apply, unless otherwise provided below.
6.3. The right to choose the type of subsequent performance lies in principle with eCOUNT. The Supplier has the right to refuse the type of subsequent performance chosen by eCOUNT under the conditions of section 439 (3) BGB.
6.4. Where the Supplier does not begin to remedy the defect without undue delay after being requested to do so by eCOUNT, eCOUNT has the right, in urgent cases — in particular to avert acute dangers or to avoid greater damage — to carry out such remedy itself at the Supplier’s expense or to have it carried out by a third party.
6.5. Claims based on material defects become time-barred after two years, unless the Supplier’s Delivery has been used for a building in accordance with its customary use and has caused the building’s defectiveness. In that case the limitation period is five years. The limitation period for claims based on material defects begins upon delivery of the Delivery at the place to which it is to be delivered by the Supplier in accordance with the order (passing of risk).
6.6. In the case of defects of title, the Supplier shall additionally indemnify eCOUNT against any claims of third parties that may exist. A limitation period of 10 years applies with regard to defects of title.
6.7. For parts of the Delivery repaired or restored within the limitation period, the limitation period begins to run anew at the time when the Supplier has fully satisfied eCOUNT’s claims to subsequent performance.
6.8. Where eCOUNT incurs costs as a result of the Supplier’s defective Delivery — in particular transport, travel, labour or material costs, or costs for an incoming inspection exceeding the customary scope — the Supplier shall bear those costs.
6.9. Where eCOUNT takes back products manufactured and/or sold by eCOUNT as a result of the defectiveness of a Supplier’s Delivery, or where the remuneration owed to eCOUNT has been reduced on that account, or where eCOUNT has otherwise been held liable on that account, eCOUNT reserves the right of recourse against the Supplier; in that case no setting of a period that would otherwise be required is necessary for eCOUNT’s rights in respect of defects.
6.10. eCOUNT is entitled to demand from the Supplier reimbursement of the expenses which eCOUNT had to bear in relation to its own customers because the customer has a claim against eCOUNT for reimbursement of the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs.
6.11. Notwithstanding the provisions of Section 6.5 of these Terms of Purchase above, in the cases governed by Sections 6.9 and 6.10 of these Terms of Purchase the limitation period expires at the earliest two months after the time at which eCOUNT has satisfied the claims asserted against it by its customers, but at the latest five years after delivery by the Supplier.
6.12. Where a material defect becomes apparent within six months of the passing of risk, it is presumed that the defect already existed at the time of the passing of risk, unless this presumption is incompatible with the nature of the item or of the defect.
7. Product Liability
7.1. In the event that eCOUNT is held liable on the basis of product liability, the Supplier is obliged to indemnify eCOUNT against such claims, if and to the extent that the damage was caused by a defect in the Supplier’s Delivery. In cases of fault-based liability, however, this applies only where the Supplier is at fault. Where the cause of the damage lies within the Supplier’s sphere of responsibility, the Supplier bears the burden of proof in that respect.
7.2. Within the scope of its liability for cases of damage within the meaning of Section 7.1 of these Terms of Purchase, the Supplier is also obliged to reimburse any expenses pursuant to sections 683, 670 BGB or pursuant to sections 830, 840, 426 BGB arising from or in connection with a recall action carried out by eCOUNT. eCOUNT will inform the Supplier — to the extent possible and reasonable — of the content and scope of the recall measures to be carried out and give it the opportunity to comment. Other statutory claims remain unaffected.
7.3. The Supplier undertakes to maintain product liability insurance with a sum insured of EUR 5 million per personal injury/property damage — on a lump-sum basis; where eCOUNT is entitled to further claims for damages, these remain unaffected.
8. Retention of Title, Provision of Materials, Tools, Confidentiality
8.1. Where eCOUNT provides items to the Supplier, eCOUNT reserves title thereto. Processing or transformation by the Supplier is carried out on behalf of eCOUNT. Where eCOUNT’s goods subject to retention of title are processed with other items not belonging to eCOUNT, eCOUNT acquires co-ownership of the new item in the ratio of the value of the items provided (purchase price plus VAT) to the other processed items at the time of processing.
8.2. Where the goods provided by eCOUNT are inseparably mixed with other items not belonging to eCOUNT, eCOUNT acquires co-ownership of the new item in the ratio of the value of the goods provided subject to retention of title (purchase price plus VAT) to the other mixed items at the time of mixing. Where the mixing takes place in such a way that the Supplier’s item is to be regarded as the principal item, it is deemed agreed that the Supplier transfers proportionate co-ownership to eCOUNT; the Supplier holds the co-ownership in safekeeping for eCOUNT.
8.3. The Supplier is obliged to keep all illustrations, drawings, calculations and other documents and information received strictly confidential. They may be disclosed to third parties only with eCOUNT’s express consent. The confidentiality obligation also applies after completion of this contract; it lapses if and to the extent that the manufacturing knowledge contained in the illustrations, drawings, calculations and other documents provided has become generally known.
8.4. To the extent that the security rights to which eCOUNT is entitled pursuant to Section 8.1 and/or Section 8.2 of these Terms of Purchase exceed the purchase price of all goods subject to retention of title by more than 10 %, eCOUNT is obliged, at the Supplier’s request, to release security rights of its choice to the extent that the 10 % threshold is exceeded.
9. Assignment
The assignment of claims against eCOUNT is effective only with eCOUNT’s written consent.
10. Confidentiality
10.1. All documents or items which eCOUNT provides to the Supplier for the submission of a quotation or for the performance of an order remain the property of eCOUNT and may not be used for other purposes, reproduced or made accessible to third parties. Upon completion of the order, the documents or items are to be returned to eCOUNT free of charge.
10.2. The Supplier undertakes to use the knowledge and experience acquired by it on the occasion of performing an order of eCOUNT exclusively for the performance of orders of eCOUNT and not to disclose it to third parties.
11. Environmental Requirements, Electrical and Electronic Equipment Act
11.1. For deliveries of any kind, the applicable environmental statutory provisions and EC directives are to be observed in particular. The Supplier shall ensure the proper, appropriate and environmentally sound transport of the substances and products and shall ensure the use of suitable transport containers and transport packaging.
Transport containers and packaging materials delivered may be returned by eCOUNT to the Supplier or disposed of at the Supplier’s expense.
11.2. All Deliveries to eCOUNT must — where relevant — comply with the requirements of the Act Governing the Placing on the Market, the Taking Back and the Environmentally Sound Disposal of Electrical and Electronic Equipment (“ElektroG”) as amended from time to time, and must not contain any substances in concentrations or applications the placing on the market of which is prohibited under the ElektroG as amended from time to time. The Supplier undertakes to notify eCOUNT without undue delay of changes in the concentration or application of the Deliveries. The Supplier shall indemnify eCOUNT against any and all claims by third parties in the event of a breach of the foregoing provisions. This indemnity also covers claims against eCOUNT arising from the incurrence of administrative fines and regulatory offences.
12. Choice of Law, Place of Jurisdiction, Amendment of the Terms of Purchase, Severability
12.1. The place of performance and exclusive place of jurisdiction for all claims arising from or in connection with orders of eCOUNT is at eCOUNT’s registered office, unless another place of jurisdiction or place of performance is mandatorily prescribed by law.
12.2. German law applies exclusively, including in legal transactions with foreign suppliers, as it applies between German merchants. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
12.3. eCOUNT may amend these Terms of Purchase with effect for the future. The amendments will be notified to the Supplier in a suitable manner and take effect unless the Supplier objects in writing within one month.
12.4. Should individual provisions of these Terms of Purchase be or become invalid, the validity of the remainder of the Terms of Purchase shall not be affected thereby. In that case the Supplier and eCOUNT shall replace the invalid provision by a provision that comes as close as possible to it in economic effect.
This English text is a translation provided for convenience. In accordance with Section 12.2 of these Terms of Purchase, the contractual relationship is governed exclusively by German law; in the event of any discrepancy between the language versions, the German version of these Terms of Purchase shall prevail.