I. General information
- Supplies, services and offerings from ELCOM shall be offered only subject to these General Terms and Conditions (GTC). No other conditions shall apply even if ELCOM delivers the product without specific reservations.
- These GTC also apply to future transactions with customer, even if ELCOM has not specifically referred to the applicability of these General Terms and Conditions. Any deviations from these terms shall require the written confirmation of ELCOM to be valid.
II. Conclusion of contract
- Offers by ELCOM, unless otherwise specified in writing, are subject to change and non-binding.
- The customer's order is binding for 14 days. The contract is concluded once ELCOM has confirmed acceptance in writing within that period or makes the delivery.
- ELCOM retains ownership and copyright on all documentation provided to the customer in the context of the offer and order placement, such as calculations, drawings, etc. These documents may not be disclosed to third parties unless ELCOM has given the customer explicit written permission to do so.
- The installation and commissioning of our products always assumes the qualified expertise of an electrician. The customer is undertakes to sell our products exclusively to specialised tradesmen/installers.
- ELCOM prices are considered ex factory (pursuant to INCOTERMS 2000), including VAT in the legally applicable amount.
- Orders valued 250 Euros or more shall be delivered without freight charges. Orders valued 500 Euros or more shall be delivered without freight or packaging charges.
- If salary, material or shared costs should rise before the day of delivery, ELCOM is entitled to adjust the prices accordingly.
IV. Delivery times
- The delivery time specified by ELCOM is non-binding unless otherwise agreed in writing. If a binding delivery time has been agreed upon, the agreed delivery time shall be extended accordingly in case of unforeseen, extraordinary and unavoidable events, particularly in case of strikes of any kind or if deliveries to us are delayed, even if these events only occur during an existing delay.
- Also, in case of a binding delivery time, ELCOM is entitled to exercise partial delivery and early deliveries.
- In the case of a delivery delay that is ELCOM's responsibility, the customer is obligated to provide ELCOM with a reasonable grace period. If the customer sets ELCOM a grace period appropriate to the circumstances in the case of a delivery delay, and ELCOM fails to meet this grace period for reasons that are ELCOM's responsibility, the customer is entitled to withdraw from the contract in writing; damage claims will be due only in the case of deliberate damage or gross negligence.
- Otherwise, the liability for damage compensation is limited to the value of the delivery.
V. Delivery/transfer of risk
- Delivered items, even if they exhibit significant defects, must be accepted by the customer without prejudice to warranty rights. According to §377 HGB, defects must be claimed within 6 working days. This claim must be made to ELCOM in writing. The receipt of the claim by ELCOM is the determining factor for compliance with the notification period. The customer must demonstrate compliance with the defect notification period; partial deliveries are permitted. Risk is transferred from the ELCOM Neckarsulm or Muldestausee plant (according to INCOTERMS 2000) to the customer when free delivery has been acknowledged. Upon the customer's request, the delivery may be insured at customer's cost against theft, breakage, transport, fire and water damage.
- If the customer culpably violates his or her contractual support obligations or if acceptance is delayed, the risk of accidental destruction or accidental degradation of the object of the agreement is transferred to the customer at the time he or she has delayed acceptance.
- Transport and all other packaging shall only be accepted if returned free of freight charges to ELCOM's Neckarsulm or Muldestausee plants.
VI. Delay in acceptance
- In the case of a default of acceptance by the customer, in the case that cost increases arise – for whatever reason, particularly due to tariff accords that apply to the product – ELCOM is entitled to adapt the originally agreed-upon price to these new conditions.
- The customer shall bear all costs incurred by ELCOM as a result of default of acceptance, including any resulting damage claims against ELCOM.
- ELCOM invoices are payable within 10 days at a 3% discount or within 30 days from the billing date with no deductions and exempt from charges. After this period has expired, the customer is in payment delay, with no additional notice required. During the delay period, the customer must pay interested on the amount owed at a rate of 8% over the base interest rate. The right to demonstrate higher damages from delay and require compensation is reserved. Any discount shall apply only to the net value of the goods, not to freight or packaging.
- The customer shall have rights of set-off only if his or her counterclaims are legally established, remain uncontested or are acknowledged by ELCOM. The customer may only exercise a right to withhold payment if the counterclaim stems from the same contractual relationship.
- If the customer fails to comply with payment deadlines, or if circumstances are known that reduce the creditworthiness of the customer, ELCOM retains the right to make deliveries only against payment in advance and/or to require a security payment.
VIII. Return of goods
- The return of properly delivered goods may only be carried out with the prior written approval of ELCOM. Return shipping is at the risk and cost of the customer.
- For undamaged goods, ELCOM shall invoice an amount of 15% of the net invoice amount for administrative costs, testing and repackaging.
- For damaged goods or goods with a net value under 25 Euros, there will be no credit. Custom fabrication and individual components from sets are generally excluded from return and credit.
IX. Custom designs
- If custom fabrication is ordered and the customer requests changes, any costs already incurred must be paid. If an order is cancelled, the entire value of the order less any savings due to cancellation of the order must be paid.
X. Guarantee, product liability
- The customer may not exercise any rights due to defects in an ELCOM delivery or service if the value or suitability of the ELCOM delivery or service is only insignificantly diminished.
- Notification of defects must be made immediately in case of obvious defects, but must be received by ELCOM no later than 6 working days after receipt of the goods at the determined location, in writing or by fax, with an exact description of the defect. Notification of hidden defects must be made in writing immediately after their discovery, with an exact description. ELCOM is not obligated to honour the warranty if the customer fails to notify ELCOM in writing of obvious damage within the claim period. The customer must demonstrate that the claim has been made in writing on time.
- ELCOM's warranty applies for a period of 2 years. If ELCOM has legally guaranteed only a shorter warranty period, this shall take precedence over the warranty period specified herein. In case of justified claims ELCOM undertakes – insofar as the defect was claimed in writing within the claims period – either to correct the defect or to replace the goods, as ELCOM deems suitable. However, this only applies if the complete unit has been returned. The customer may only withdraw from the contract and/or reduce the purchase price if ELCOM has failed to correct the defect after a reasonable period. Damage compensation shall only be due in case of gross negligence or malice.
- Insofar as ELCOM has corrected and/or replaced the defect, any reduction in the purchase price or withdrawal from the contract on the part of the customer is excluded.
- Damage compensation claims may only be made by the customer if replacement has failed or ELCOM has unjustifiably refused replacement.
- Any damage replacement obligation on the part of ELCOM, regardless of legal justification, is otherwise limited to typical foreseeable damages. Insofar as ELCOM's liability is excluded or limited, this also applies to the personal liability of ELCOM's employees, workers, colleagues, representatives and other fulfilment staff. Insofar as ELCOM does not bear responsibility for a defect, the costs of examination of the defect shall be borne by the customer.
- For third-party products supplied by ELCOM, ELCOM's liability is restricted to transfer of the liability claims made by ELCOM themselves against the supplier of the third-party product.
- Furthermore, no liability shall be accepted for damages due to unsuitable or improper use, incorrect installation and/or commissioning by the customer or third parties, or that cannot be traced to physical, chemical, electrochemical or electrical influences that are ELCOM's responsibility.
- Liability due to culpable harm to life, limb or health remains unaffected. This also applies to the mandatory liability governed by the German Product Liability Law. Otherwise – insofar as no other terms are previously agreed upon – liability on the part of ELCOM is excluded.
- ELCOM is liable according to legal requirements if the customer makes damage compensation claims due to malice or gross negligence – including malice or gross negligence of representatives of ELCOM or its agents. ELCOM has a right in any case to proof of exoneration as specified by §831 BGB.
- Insofar as ELCOM is not accused of malicious breach of contract, liability for damages is limited to typically foreseeable damages. Loss of profit and damage due to interruption of production shall not be compensated.
- Insofar as ELCOM's liability is excluded or limited, this applies also for the personal liability of ELCOM's employees, workers, representatives and fulfilment staff.
XI. Extended retention of ownership
- The objects to be supplied (retained goods) remain ELCOM's property until the fulfilment of all of ELCOM's claims against the customer proceeding from their business relationship.
- If the value of all security rights due to ELCOM exceeds the value of all secured claims by more than 120 percent, ELCOM will release a corresponding portion of the security rights at the customer's request.
- While ownership retention applies, the customer is not entitled to bailment or chattel mortgage, and is only entitled to sell the objects to resellers in the normal course of business and only subject to the condition that the reseller receives payment from his or her own customers or subject to the fact that ownership shall only be transferred to the customer if the customer has entirely fulfilled his or own payment obligations.
- If the customer resells retained goods, he or she thereby transfers his or her future claims against his or her own customers from said resale, with all auxiliary rights – including any payment balance requests – as security, without this requiring later special declaration. If the retained goods are resold together with other objects without an individual price being agreed upon for the retained goods, the customer transfers that portion of the total payment corresponding to the price charged by ELCOM to the retained goods to ELCOM, with priority over the remaining payment.
- If a justified prima facie interest is established, the customer must provide ELCOM with all information required to exercise ELCOM's rights against the customer, and must provide all required documentation. Until retracted, the customer is authorised to collect the transferred proceeds of the resale. If there is an important reason for the customer to be unable to pay, especially including delay in payment, failure to pay, commencement of an insolvency process of any nature, act of protest of a bill or if comparably justified reasons exist, ELCOM is entitled to withdraw authorisation of the customer to demand payment. Moreover, after prior threat to disclose the assignment for security and/or recovery of the transferred obligations, and after a reasonable period, ELCOM can disclose assignments for security, recover the transferred obligations, or require disclosure of assignments for security made by the customer against their own customers.
- The customer is entitled to process or reshape the retained goods, combine them with other objects and/or mix them inseparably. The processing, reforming, combination or mixture shall be done for ELCOM. The customer shall treat the objects with all due care. The processed, reshaped, combined or mixed object shall be considered retained goods.
- In the case of processing, reshaping, combination or mixture with other objects not belonging to ELCOM, ELCOM shall receive partial ownership of the new object in the proportion of the share resulting from the ratio of the value of the processed, reshaped, combined or mixed retained goods to the value of the remaining processed goods at the time of processing, reshaping, combination or mixture. If the customer receives general ownership of the object, ELCOM and the customer hereby agree that the customer transfers to ELCOM part ownership to the new object resulting from the processing, reshaping, combination or mixture in the ratio of the proportion of the share resulting from the ratio of the value of the processed, reshaped, combined or mixed retained goods to the value of the remaining processed goods at the time of processing, reshaping, combination or mixture. If the new object is resold, the customer hereby transfers to ELCOM his or her own claim from the resale against his or her own customers in security, along with all auxiliary rights, without this requiring additional specific declaration. However, this transfer applies only to the amount corresponding to the value invoiced by ELCOM for the processed, reshaped, combined or mixed retained goods. The payment share transferred to ELCOM must be satisfied with first priority. With respect to collection authorisation and the conditions of its retraction, the terms above apply.
- If the retained goods are combined by the customer with real estate or moveable objects, the customer hereby also transfers to ELCOM any claim to payment due him or her as payment for the combination as security, including all auxiliary claims, without requiring additional specific declaration, in the amount of the proportion of the value of the combined retained goods to the remainder of the combined goods, at the time of their combination.
- In case of bailment, seizure or intervention of third parties, the customer must notify ELCOM immediately.
- In the case of culpable violation on the part of the customer of significant obligations of the contract, and particularly in case of delay in payment, ELCOM is entitled to return of the goods after notification. The customer is obligated to return the goods. The return and/or exercise of retained ownership or bailment of the supplied objects by ELCOM does not represent withdrawal from the contract, unless ELCOM specifically so states.
- After prior notice, ELCOM is entitled to collect the retained goods and to satisfy any open claims by their sale.
XII. Place of fulfilment – legal jurisdiction – region of applicability
- The place of fulfilment and legal jurisdiction shall be Heilbronn, Germany.
- These general terms of business apply only to companies in the sense of §310 paragraph 1 of the BGB. ELCOM is a manufacturer; sales are exclusively on a b2b basis.
- German law shall shall apply to the contractual relationship exclusively. Application of the UN Convention on Contracts for the International Sales of Goods (CISG) is hereby excluded.
- Supplements, extensions, changes or the cancellation of this purchase contract require the written form to be effective. This shall also applyto the requirement of the written form.
- Should for any reasons individual terms of these GTC prove to be invalid in whole or in part, the validity of the remaining terms shall remain unaffected. The parties to the contract shall moreover undertake in such a case to replace the ineffective or inexecutable term with an effective and executable term that corresponds as closely as possible to the business and conceptual provisions within legal limits.