Terms and Conditions

TERMS OF SALE FOR BUSINESS CUSTOMERS

Eisele Pneumatics GmbH & Co. KG, Waiblingen

§ 1 General

(1) These terms and conditions of sale ("T&C") apply to contracts between Eisele Pneumatics GmbH and Co. KG, Waiblingen (hereinafter referred to as "Eisele") and its business buyers (hereinafter referred to as "buyer"), in particular also for all contracts concluded with us in online business transactions. Any terms and conditions of the buyer which are contrary to or deviate from these terms of sale shall not become part of the contract unless Eisele agrees to the validity of these Terms and Conditions in writing. These terms of sale shall also apply to all future contracts with the buyer and even if Eisele unconditionally carries out the delivery to the buyer in the knowledge of conflicting, supplementary or deviating terms and conditions of the buyer.

(2) These terms of sale shall apply only to entrepreneurs within the meaning of § 14 (1) BGB. In the context of ongoing business relations, these terms of sale shall also apply to future deliver-ies and services, even if they are not agreed upon again in each case.

§ 2 Offers, acceptance of order, changes

(1) Unless otherwise expressly stated in the offer, Eisele's offers are subject to change and are to be understood exclusively as an invitation to submit an offer. 

(2) Orders of the buyer contain binding offers. In the Web Shop, by clicking the button "Order with payment", the buyer submits a binding purchase offer. Eisele can accept the buyer's orders within 14 days of their receipt.

(3) Contracts between Eisele and the buyer are concluded exclusively by written confirmation of the order from Eisele to the buyer or by delivery of the ordered goods and their handover to the buyer. In the case of orders in online business transactions, a contract is only concluded with an e-mail expressly designated as order confirmation. The confirmation receipt of the order by automatically generated e-mail (confirmation of receipt) does not constitute ac-ceptance of the contract.

(4) The order text is (not) stored by Eisele after conclusion of the contract and cannot be re-trieved after completion of the ordering process. The information from the ordering process will be sent to the buyer again with the e-mail confirmation of the order. The order data can also be printed out immediately after sending the order. 

(5) The conclusion and fulfilment of the contract are subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law or embargoes or other sanctions.

(6) Customary or insignificant changes to the quality and quantity of the goods shall be con-ceded by the buyer. If the contract relates to goods which are subject to further development, Eisele shall be entitled to deliver the goods in accordance with the current state of develop-ment provided that the usability for the intended purpose is not impaired.

(7) Eisele may discontinue the sale of individual goods at any time for justified reasons without the buyer being able to derive any rights or claims against Eisele from this.

§ 3 Delivery periods, partial deliveries, call orders

(1) The delivery dates stated by Eisele are probable, non-binding dates. Delivery dates shall only be binding if Eisele designates or confirms the dates in writing as binding.

(2) Any agreed delivery period shall commence on the date of receipt of the order confirma-tion by the buyer, but not before complete clarification of all details of execution or advance payment to be rendered by the buyer. The possibility of Eisele pleading non-performance of the contract remains unaffected.

(3) Eisele may withhold the delivery from the buyer if Eisele is in arrears with the payment - also from another contract - from the buyer. The provision in § 6 (3) remains unaffected.

(4) Eisele is entitled to make partial deliveries to an extent reasonable for the buyer.

(5) Call orders in which the buyer orders a certain quantity of goods to be delivered in several partial deliveries over a certain period of time are only possible by separate agreement with fixed dates for the individual deliveries. Unless otherwise agreed, the term of a call order is 12 months from receipt of the order confirmation. The goods as well as remaining stocks thereof are due for delivery at the latest at the end of the term and must be accepted by the buyer.

(6) Unforeseeable events of force majeure such as, war, riots, strikes, lock-outs, unpredicta-ble traffic disruptions,failures caused by third parties or restrictions on electronic data ex-change and cyber attacks, epidemics or pandemics of disease with deaths occurring, official measures and the resulting restrictions of the performance capability of exempt suppliers shall release Eisele from its delivery obligation for the duration of their existence and for a further two weeks. In the event of the above-mentioned events lasting for more than 6 weeks, both parties are entitled to withdraw from the contract.

§ 4 Dispatch, Transport

§ 5 Prices

(1) Prices are calculated and also payable in euro. If the buyer nevertheless pays in foreign currency, the official average exchange rate on the day of receipt of payment shall apply for full settlement.

(2) The prices are ex works plus packaging, customs, insurance, shipping costs, statutory value added tax and, if applicable, other public charges and fees.

(3) Insofar as cost increases due to market, material or raw material price changes occurring between the conclusion of the contract and the delivery of the ordered goods by Eisele, and which were unforeseeable at the time of conclusion of the contract, Eisele is entitled to adjust the agreed prices accordingly without calculating an additional profit if the goods are to be delivered three months after conclusion of the contract or later. If the price increase is more than 10 %, the buyer may withdraw from the contract within one week from receipt of this information.   

§ 6 Payments

(1) Invoices are due for payment immediately upon receipt of the goods without discount, unless otherwise expressly agreed or noted in the invoice.

(2) In the event of delay of payment, Eisele is entitled to charge interest thereon for each due claim at a rate of 9 percentage points above the base rate plus a default lump sum of EUR 40.00 net, reasonable collection costs and lawyers' fees.  

(3) Eisele is entitled to offset payments of the buyer against the oldest debt of the buyer. If costs or interest have been incurred, Eisele is entitled to offset the payment first against the costs, then against the interest and finally against the principal claim.  

(4) As long as the purchaser is not only negligibly late with payments from other transactions, Eisele may make the delivery of prepayment by the purchaser conditional. If the advance payment is not made within a reasonable period of time, Eisele is entitled to withdraw from the contract that has not yet been fulfilled if the buyer has not yet rendered the consideration by the deadline.

(5) The buyer may only offset claims which are undisputed or have been declared final and absolute, otherwise not. The buyer may only exercise rights of retention from the same legal relationship and this only on the basis of undisputed or legally established counter rights.

(6) If the buyer does not accept the goods purchased by him (default of acceptance), the purchase price shall be due at the time of the buyer's declaration of refusal of acceptance or, in the event of failure to call off the goods by the buyer, at the time of Eisele's declaration of readiness for dispatch. At the same time, Eisele is entitled, in both cases, to charge a lump-sum fee for storage costs from the due date of the purchase price which, without any special proof, amounts to 1 % of the purchase price per week or part thereof and is limited to 5 % of the purchase price. The buyer and Eisele are at liberty to prove that no, lower or higher stor-age costs have been incurred in this connection.   

§ 7 Reservation of title

(1) Eisele reserves title to the goods until full payment of all of Eisele's claims that have arisen against the Customer under the business relationship in its entirety (extended reservation of title). In this respect, the cause in law on which Eisele's claims against the Customer are based is irrelevant. In particular, claims to the outstanding balance on current accounts shall also be covered thereby.

(2) The Customer must notify Eisele without delay of any third-party intervention, such as an attachment of property, which affects any of Eisele's rights (in particular Eisele's reservation of title). To the extent that the third party is not in a position to reimburse Eisele for its court fees and extrajudicial costs incurred by bringing an action pursuant to Sec. 771 German Code of Civil Procedure [Zivilprozessordnung; "ZPO"], the Customer shall be liable to Eisele for that default.

(3) Any processing or remodeling of the goods by the Customer shall always be done on Eisele's behalf. If the goods are processed with other items not belonging to Eisele, then Eisele shall acquire co-ownership of the new item at the ratio of the value of the goods to that of the other processed items at the time of processing. In all other respects, the provisions governing goods delivered subject to the reservation of title shall also apply to the item creat-ed after such processing.

(4) The Customer may resell and transfer the goods subject to the reservation of title (herein-after "Retained Goods") as part of its ordinary course of business. However, such resale and transfer shall be subject to the proviso that all claims the Customer is entitled to from the re-sale to third parties shall pass to Eisele. These claims the Customer has against third parties shall be assigned to Eisele as of now; Eisele hereby accepts this assignment. The Customer shall not be entitled to make any other disposition of the Retained Goods; it may specifically not pledge the Retained Goods or transfer title thereto to serve as security. The authorization granted to the Customer to resell and transfer the Retained Goods shall be void in the event of a considerable deterioration of the Customer's financial position or if it fails to properly comply with its payment obligations to Eisele.

(5) The Customer shall be entitled to collect the assigned claims itself until further notice from Eisele. The Customer may not assign the claims to third parties. Eisele shall have the right to revoke the authorization to collect at any time but will not make use of this right for as long as the Customer properly complies with its payment obligations. Upon Eisele's request, the Cus-tomer must notify its customers of the assignment to Eisele, and must provide Eisele with all information and records necessary to collect the claims.

(6) Eisele undertakes that it will release all collateral it is entitled to as provided above upon the Customer's request in so far as its realizable value exceeds the claims to be secured by more than ten percent (10%). Eisele shall have the option to choose which items of collateral are to be released.

§ 8 Rights

Eisele reserves all rights, including copyrights, to illustrations, drawings, calculations, drafts and other documents prepared by Eisele. This shall apply in particular to all written documents labeled "Confidential". Prior to their disclosure to third parties, the Customer must first obtain the express written consent from Eisele.

§ 9 Rights due to defects

(1) Descriptions of the products in catalogues, price lists, circulars, brochures or similar public statements of Eisele are not binding and do not represent the contractually agreed quality and serve only as general information about the products of Eisele, unless such information has been expressly confirmed by Eisele at the time of conclusion of the contract. This applies in particular to illustrations as well as dimension and weight specifications of the products. 

(2) The goods are only to be used for the purposes determined or approved by Eisele. The buyer is solely responsible for the suitability and safety of the goods for use or application by the buyer. Eisele does not assume any guarantee, in particular not for the composition, quality or durability of the goods. 

(3) Furthermore, it does not constitute a defect if the goods are not free of substances inhibit-ing wetting, especially silicone or greasing. Although the goods are manufactured as far as possible free of silicone and grease, it cannot be completely excluded that the goods are not completely free of silicone or grease or free of other substances that inhibit wetting.

(4) The delivered goods are to be inspected by the buyer immediately upon receipt and, if a defect is found, Eisele is to be notified in writing without delay, at the latest within 5 working days after receipt of the goods (defect detectable upon careful inspection) or after discovery of the defect (hidden defect), stating the specific complaints, the affected article number, the affected delivery batch and the affected quantity. The timely dispatch of the notification of defects shall be sufficient for compliance with the period for notification of defects.

(5) In the event of defects of the goods Eisele shall be liable in accordance with the statutory provisions unless otherwise provided for in these terms of sale. If the goods are demonstrably defective at the time of transfer of risk, the buyer may demand rectification. Eisele has the right to choose whether the defective goods are repaired or replaced. The buyer is entitled to reduce the purchase price or to withdraw from the contract if the rectification fails. This is the case if two replacements were also defective or if the rectification was carried out twice with-out success. 

(6) If the goods are demonstrably defective at the time of the transfer of risk, Eisele shall bear the expenses necessary for the purpose of rectification without profit shares and overheads, which the buyer must provide concrete evidence of. This shall also apply to necessary dis-mantling and installation costs, if the buyer has installed the goods in another object according to their type and intended use. Required are expenses which contribute to the remedy of the defect and which a reasonable third party had also incurred. Not required are expenses or parts thereof which, at the buyer's place of business, are higher than those customary in the market, which are increased by the fact that the buyer refuses a reasonable and suitable sub-sequent performance offered by Eisele or has taken the goods to a place other than the de-livery address, unless the goods were intended by the contract and their nature to be moved to another place. Not required expenses or costs are also loss of profit, operating downtime costs, business-as-usual costs and expenses which arise or increase due to the fact that the buyer grants his buyers rights or payments beyond the legal claims without contractual obliga-tion or waives or does not assert any defenses or objections to which he is entitled towards his buyers. 

(7) In so far as dismantling or installation of the goods is only possible at disproportionate costs, taking into account in particular the value of the goods, the significance of the defect and the extent of the goods concerned, Eisele shall, if Eisele is not responsible for the delivery of defective goods, reimburse the necessary expenses only to the amount of three times the order value of the goods delivery concerned. A liability for damages remains unaffected. 

(8) Recourse claims of the buyer according to § 445a BGB are excluded, unless the last con-tract for the goods in the supply chain is a consumer goods purchase according to § 474 BGB.

(9) If the buyer makes complaints or returns goods to Eisele, the buyer is obliged to observe and comply with Eisele's RMA regulations. This includes in particular the provision of all nec-essary information on defects or malfunctioning of the goods as well as place, time and ex-tent of the malfunctions or failures occurred and customer reports and the transmission of customer complaints and reports. If the buyer fails to comply with his obligation to provide information and cooperation either intentionally or negligently, his warranty claim shall be sus-pended. 

(10) If allegedly faulty but in fact faultless goods are returned, Eisele is entitled to charge the buyer an appropriate fee for the expenses caused thereby, in particular for the repeated in-spection of the goods.

(11) In case of declassified goods, special items, waste and not new goods, there are no rights due to defects. 

§ 10 Liability, limitation period

(1) Personal data of the buyer and his employees are processed for the purpose of fulfilling the contracts with the buyer or for the implementation of necessary pre-contractual measures, which are carried out on the buyer's request. The legal basis for this processing is Art. 6 para. 1 sentence 1 lit. b) General Data Protection Regulation (GDPR). 

(2) Eisele also processes personal data of the buyer and his employees for the purpose of direct advertising. This constitutes a legitimate interest according to Art. 6 para. 1 sentence 1 lit. f) GDPR. The buyer and his employees have the right to object to this type of processing of personal data at any time.

(3) Without prejudice to any statutory retention periods, data will be deleted after the termina-tion of the business relationship.

(4) Further information on Eisele's data processing and the data protection rights of the buyer and his employees can be found at www.eisele.eu/Datenschutz.   

§ 11 Data Protection

(1) Personal data of the buyer and his employees are processed for the purpose of fulfilling the contracts with the buyer or for the implementation of necessary pre-contractual measures, which are carried out on the buyer's request. The legal basis for this processing is Art. 6 para. 1 sentence 1 lit. b) General Data Protection Regulation (GDPR). 

(2) Eisele also processes personal data of the buyer and his employees for the purpose of direct advertising. This constitutes a legitimate interest according to Art. 6 para. 1 sentence 1 lit. f) GDPR. The buyer and his employees have the right to object to this type of processing of personal data at any time.

(3) Without prejudice to any statutory retention periods, data will be deleted after the termina-tion of the business relationship.

(4) Further information on Eisele's data processing and the data protection rights of the buyer and his employees can be found at www.eisele.eu/Datenschutz.     

§ 12 Final provisions, applicable law, place of jurisdiction

(1) Eisele is entitled to assign claims from the contractual relationship with the buyer. The buyer may assign claims against Eisele to third parties only with the consent of Eisele. 

(2) Contracts between Eisele and the buyer shall be governed exclusively by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Law or CISG).

(3) Exclusive place of jurisdiction for all disputes arising from or in connection with the busi-ness relationship between Eisele and the buyer is Waiblingen. However, Eisele may also file suits against the buyer before any other court having statutory jurisdiction over the buyer. Fur-thermore, Eisele has the right to appeal as plaintiff to the court of arbitration at the Chamber of Industry and Commerce (IHK) Stuttgart. In this case, the court of arbitration shall finally decide the dispute in accordance with the Rules of Arbitration of the German Institution of Arbitration. (DIS) excluding the ordinary legal process. The initiation of the judicial dunning procedure by Eisele does not yet constitute the exercise of the above right of choice and is in any case admissible.

(4) If these terms of sale contain an unconscious loophole, this shall be replaced by a regula-tion which Eisele and the buyer would have made if they had thought of the need for regula-tion of the respective point.

Waiblingen, February 2020