The German version of the General Terms and Conditions forms the legal basis. Translation errors are not legally applicable.
General Terms and Conditions of EXC GmbH, Am Lenzenfleck 17b, 85737 Ismaning, Germany - Status August 2017
I) General provisions (scope of application of the GTC, contradictory GTC, Content and scope of offers, conclusion of contracts)
1. The General Terms and Conditions (hereinafter: GTC) of EXC GmbH (hereinafter: User) apply to all legal relationships and in particular for all contracts with the user, in particular for all purchase contracts, work and services, deliveries or other services (including consulting services).
2. For the legal relationships established with the user, their terms and conditions apply exclusively. Deviating terms and conditions of their business partners and customers shall only apply if the user has expressly agreed to their validity in writing.
3. The waiver of the written form requirement of the above para. I.2 must be in writing.
4. Unless expressly assured otherwise, offers or cost estimates of the user are always non-binding and are made in particular subject to the possibility of delivery and performance as well as technical feasibility. The performance, weight and dimension specifications made in catalogues, brochures, illustrations, drawings, samples or in other documents as well as other physical-technical information are only approximate unless they are declared binding in writing.
5. Orders or orders are binding on the customer. The contract is concluded when the user confirms the order in writing or actually executes the order.
II) Subject matter of the contract and obligations of the customer to perform and provide information
The user sells electronic components of domestic and foreign origin or provides the customer with the possibility of purchasing such components. In this respect:
1. The object of the contract is the sale of goods, provided that the user sells the goods to the customer in its own name.
2. The object of the contract is the mediation of a purchase opportunity for a certain goods, provided that the customer wants to acquire a certain product from third parties and the user shows the customer on his behalf the concrete purchase possibility for the coveted goods; in this case, the customer acquires from the third party and the purchase transaction is concluded between the customer and the third party. The following performance obligations exist vis-à-vis the user:
a) The customer owes the user a commission for the brokerage activity as soon as the customer orders goods from the third party as a result of the user's activity; unless otherwise agreed, the amount of the commission is based on a percentage to be determined by the user in accordance with § 315 BGB and related to the order value.
b) The customer must provide the user with information about the order value and the individual items immediately after each order in connection with the user's activity . The user has the right to obtain this information from the third party.
III) Delivery dates and withdrawal from the contract by the user
1. In the case of para. II.1 applies:
a) If a delivery date has been agreed, the user shall nevertheless not be in default without a reminder from the customer. Something else shall apply if the user expressly assures the delivery date as a fixed date.
b) Partial deliveries and partial services are permissible.
c) In the case of para. II.1 if goods are marked as out of stock, the user is entitled to a right of withdrawal within two weeks of the conclusion of the contract; the user is entitled to this right of withdrawal even if a delivery date has been agreed in the contract.
2. In the case of para. II.2 applies:
a) Information on delivery times of the manufacturer does not constitute an assurance by the user. This is the mere
Disclosure of information provided by the manufacturer.
b) If the non-compliance with contractual deadlines and deadlines is due to force majeure (e.g. mobilization, war, riot) or similar events (e.g. strike, lockout), the dates or deadlines shall be extended accordingly.
IV) Retention title upon sale (para. II.1) by the user
1. a) In the case of para. II.1 the ownership and right of disposal of the delivery items until receipt of all payments from the contract.
b) Insofar as the delivery items become essential components of other items or are combined with other items, the customer is obliged to tolerate the dismantling and removal of the items up to the limit of reasonableness in the event of non-compliance with the agreed or equitable payment dates set at the reasonable discretion of the user; provided that the customer such has already acquired ownership of the objects, he must transfer the ownership back to the user.
c) If the customer impairs the provisions of para. b) the rights of the user, the user is obliged to pay damages; further rights of the user remain unaffected by this.
d) The enforcement of the b) the rights mentioned, i.e. in particular dismantling and other costs, shall be borne by the customer.
2. If third parties become owners of the delivery items subject to retention of title, the customer shall, insofar as this in his favor, have claims against. Third parties and/or co-ownership arise to transfer their claims and/or co-ownership of the (new) object to the user.
V) Prices and terms of payment
1. All prices are net prices, unless otherwise stated.
2. Insofar as a price agreement is not or not effectively concluded, the prices and remuneration valid on the day of delivery or execution of the services or deemed appropriate shall be decisive for the basis of accounting.
3. Fixed prices, flat-rate agreements and maximum price limits are only effectively agreed if they are agreed in writing or confirmed in writing by the user.
4. In any case, the business partner or customer shall bear the burden of proof that fixed prices, lump-sum agreements and/or maximum price limits have been agreed in his favour.
VI) Transfer of risk
§ 447 BGB (German
Civil Code) applies to the transfer of risk.
VII) Defects of the goods
If the customer is a consumer, the statutory warranty rights apply. Insofar as the customer is an entrepreneur, the following
Regulations:
1. In the case of para. II.1 applies:
a) Only the user's own information and the manufacturer's product description shall be deemed to have been agreed upon as the quality of the goods, but not other advertising, public praise and statements made by the manufacturer.
b) If the customer is a merchant, he must inspect the goods immediately and with due care for quality and quantity deviations and notify the user in writing of obvious defects within 7 (seven) days of receipt of the goods; timely dispatch is sufficient to meet the deadline. This also applies to hidden defects discovered later upon discovery.
c) In the event of a breach of the obligation to inspect and give notice of defects in accordance with para. VII.1b) the assertion of warranty claims is excluded.
d) In the event of defects, the user shall, at its discretion, provide warranty by repair or replacement. If the remedy of the defect fails, the customer may, at his discretion, demand a reduction or withdraw from the contract. The remedy of defects shall be deemed to have failed after an unsuccessful second attempt, unless otherwise stated in particular by the nature of the item or the defect or the other circumstances. In the event of rectification, the user does not have to bear the increased costs incurred by the transfer of the goods to a place other than the place of performance, provided that the transfer does not correspond to the intended use of the goods.
e) Claims and rights of the customer in the event of defects in movable newly manufactured delivery items and other services shall become statute-barred after one year, subject to the provisions of the following section f).
f) The above provision para. e) the limitation periods shall not apply if the law provides for a longer limitation period in § 438 para. 1 no. 2 BGB and § 634a para. 1 no. 2 BGB. The above provision para. e) the limitation periods also do not apply if the user (within the meaning of § 309 No. 7 BGB) is liable for injury to life, body and health or due to at least gross negligence.
g) A defective assembly, use or operating instructions is only a minor, insignificant breach of duty. In this respect, there is only a right to delivery of a defect-free operating manual if otherwise a proper use of our parts is not possible. The customer has the right to refute the triviality/insignificantness.
2. In the case of para. II.2 applies:
a) Information on the quality of the goods does not constitute an assurance by the user. This is the mere disclosure of information provided by the manufacturer.
b) In principle, the user is only liable to the customer for damages to the extent that under German law a basis for the customer's claim for damages against the user arises and these claim bases for damages are not specified in para. VII.2c).
c) The customer's claims for damages according to para. VII.2b) are excluded insofar as the user (within the meaning of § 309 No. 7 BGB) is not liable for injury to life, body and health or for at least gross negligence.
d) Without prejudice to the preceding para. VII.2.a), b) the user is not liable for defects in the goods purchased from the third party, unless otherwise stipulated by law; nor is the user liable for errors and poor performance of the third party, unless otherwise required by law.
e) If the user is liable for defects in the goods purchased from the third party or for their defects/poor performance, para. VII.1b) to VII.1g).
VIII) Claims for damages
1. Claims for damages and reimbursement of expenses by the customer (hereinafter: claims for damages), regardless of the legal grounds, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded.
2. Para. VIII.1 does not apply if liability is mandatory, e.g. according to the Product Liability Act, in cases of intent, gross negligence, due to injury to life, limb or health or due to the violation of essential contractual obligations. However, the claim for damages for the breach of essential contractual obligations is limited to the contractually typical, foreseeable damage, unless there is intent or gross negligence or liability is assumed due to injury to life, body or health. A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
3. Insofar as the customer according to this para. VIII claims for damages, these shall become statute-barred upon expiry of the limitation period applicable to claims for material defects in accordance with Section VII. In the case of claims for damages under the Product Liability Act, the statutory statute of limitations shall apply.
IX) Place of jurisdiction and applicable law
1. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the registered office of the user. However, the user is entitled to sue at the customer's registered office.
2. German law shall apply.
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