General Sales, Delivery and Payment Conditions
Valid to all offers, sales, deliveries and services from ecobrain AG in Switzerland and also their subsidiaries
I. General
1. The conditions cited below apply to all offers, sales, deliveries and services from ecobrain AG and are part of each contract. They do not apply if our contractual partner is a private person who is not acting in a professional or commercial capacity. Changes and amendments to the contract or these conditions must be confirmed in writing by ourselves to be effective.
2. The seller hereby expressly rejects the buyer's general business terms which contradict, change or supplement these conditions. Such terms likewise do not apply even if the buyer makes these a basis for its order or other declarations.
3. German law shall exclusively prevail over the contractual relationship between the buyer and ourselves, even if the buyer is resident or has its registered offices abroad.
4. If the pursuit of our claims against the buyer rest upon the receipt of a declaration sent by us per mail, this is regarded as having been received on the third work day after being properly handed over for posting. The seller is able to demonstrate that it was received earlier, the buyer is able to prove that it arrived later or not at all.
II. Offers, Orders
1. Our offers are non-binding unless such are expressly designated as obligatory. A contract therefore only becomes effective on our confirmation of order or shipment of the goods.
2. Orders placed by the buyer are not binding upon us unless confirmed in writing (which may be given by invoice or delivery note).
3. Details given in catalogues, brochures, data sheets, leaflets, drawings or other informative material are not binding. They do not become a binding part of contract unless expressly confirmed by us in writing.
III. Doubtful solvency
1. If, after conclusion of contract, circumstances become known to us which cast doubt on the buyer's solvency, the seller can then demand advance payment for further deliveries of goods. The seller can set the buyer a reasonable deadline to pay for the goods in advance and withdraw from the contract if the seller does not receive the advance payment on time; the buyer can provide securities in the form of bank bonds instead of making an advance payment. Should the seller have already delivered the goods, the purchase price is then payable within fice (5) working days regardless of the agreed payment schedules.
2. Doubts about the buyer's solvency are justified if, among other things, an application is made to open insolvency proceedings against its assets or it dos not make payments to us or third parties on time.
IV. Prices
1. The prices quoted are in Euros (€) for deliveries loaded free of charge on a truck or wagon at our respective supply works.
2. Value-added tax is included in our prices.
V. Delivery Schedule
1. All delivery dates quoted are non-binding and are regarded as solely approximate dates unless the seller has expressly designated these as binding. The seller is not in default solely by not meeting non-binding delivery dates. The seller must be set periods of grace in writing extending at least two weeks from the date the seller receive these.
2. In the case of non-binding delivery dates, a delivery within 1 week of the stated delivery time is still regarded as having arrived on time.
3. If it is temporarily impossible or extremely difficult for us to perform in full or in part due to Force Majeure or for other exceptional and non-culpable circumstances, the agreed delivery schedule is extended by the period of the hindrance. The same applies to a legal deadline or one set by the buyer for providing the service, in particular to periods of grace set in case of default. In particular, Force Majeure includes war, circumstances similar to war, pandemic and epidemic, mobilisation, import and export bans and blockades. Other exceptional circumstances are, in particular, transport disruptions, operational disturbances, delays in supplies of raw materials, strikes, lock-outs and other industrial disputes, including those which occur at our suppliers' premises.
4. The buyer is not entitled to withdrawal or to demand damages before the delivery date or delivery deadline extended as per item 3 above has elapsed. If the hindrance lasts more than 10 weeks, both ourselves and the buyer are entitled to withdraw, insofar as the contract has still not been fulfilled. If the buyer is entitled under the contract or by law (e.g. due to loss of interest) to withdraw without setting a
period of grace, this right remains unaffected.
5. Claims to damages of all kinds due to any delays in delivery are excluded, unless these are based on malice aforethought or gross negligence.
VI. Packaging
Packaging materials are charged separately.
VII. Dispatch
1. Goods are dispatched at the expense of the buyer. Risk is transferred to the buyer once the goods have been loaded, even if carriage paid delivery has been agreed and/or the goods are dispatched in our own vehicles. The seller is not obliged to take out transport insurance.
2. Insofar as nothing has been expressly agreed to the contrary in writing, the seller is entitled to make part deliveries in reasonable volumes, these will be invoiced individually.
VIII. Payment, Period of Payment
1. Our invoices are payable within five (5) working days from date of invoice without deduction exclusively by wiretransfer to the bank account specified on the invoice.
2. If the buyer is in default of payment, all its payment obligations derived from business transactions with us become due immediately. The seller can furthermore withdraw from all contracts which the seller has not yet fulfilled after setting the buyer a period of grace of 7 days to fulfil its payment obligations and warning of our intention to withdraw.
3. The buyer may only offset claims which are undisputed or have been established under law.
5. The buyer agrees that our claims from the business relationship accrue to all companies belonging to ecobrain AG.
IX. Reservation of Ownership
1. The goods delivered only become the buyer's property after it has fulfilled all its obligations derived from the business relationship, including auxiliary claims, claims to damages and after cheques and bills of exchange have been honoured.
2. If the buyer is in default of its obligations to us, in particular is late making payments to us, the seller can take back the reserved goods. Taking back the reserved goods as such does not involve a withdrawal from contract. The buyer bears the costs of returning the goods. The seller is entitled to sell the reserved goods taken back by way of auction or on the open market, and to offset the proceeds against our outstanding claims. The seller can furthermore withdraw fully or partially from the contract, without setting a period of grace, whereby the buyer is liable for costs and any value reduction of the goods incurred. Our rights under § 48 of the German Bankruptcy Statute remain unaffected.
3. Should the reserved goods be processed by the buyer, the seller is then regarded as the manufacturer, although the seller accrues no obligations for the processing work. Our reservation of ownership therefore also extends to the products which result from processing. If the reserved goods are processed together with other goods owned by third parties, or if the reserved goods are mixed or combined with goods owned by third parties, the seller acquires co-ownership to the resulting products in the ratio of the invoice sum of our reserved goods to the invoice sum of the goods owned by third parties. If the reserved goods are combined or mixed with a main object owned by the buyer, the buyer hereby assigns its rights of ownership to the new object to us.
4. The buyer is obliged to look after the reserved goods carefully on our behalf, to maintain these at own cost and to insure them at own cost against loss, damage and decay to the extent expected of a prudent businessman. The buyer hereby assigns its claims from the insurance policies up to the value of the collateral security to us in advance, and consents that payments be made to us. Upon request, the buyer shall surrender the insurance policies to us in order to assert such insurance claims.
5. As long as the buyer duly fulfils its obligations to us, it is entitled to dispose over the reserved goods within the normal course of business. However, this does not apply if and insofar as a ban on assigning the claim to the purchase price has been agreed between the buyer and its customers. The buyer is not entitled to issue pledges, collateral assignments or other encumbrances. If the buyer resells the reserved goods, it shall make transfer of ownership dependent on its customer paying for the goods in full.
6. The buyer hereby assigns all claims which arise from reselling the reserved goods (including all auxiliary and collateral rights and claims from bills of exchange, cheques and balances) to us in advance, in order to secure all our claims against it from the business relationship.
If reserved goods are sold together with other objects for a total price, the assignment is limited to the proportional amount invoiced by us for the reserved goods sold. If reserved goods are sold in which the seller has co-ownership pursuant to the item above, the assignment is limited to that part of the claim which corresponds to our proportionate co-ownership. If the buyer uses the reserved goods to increase the
value of objects owned by a third party, it hereby assigns its claims to remuneration against that third party to us in advance for the aforesaid purpose of security. As long as the buyer duly fulfils its payment obligations, it is entitled to collect the claims from reselling or value increases itself.
The buyer is not entitled to issue pledges or make any kind of assignments.
7. If the enforcement of our claims appears to be in jeopardy, then at our request, the buyer shall inform us of its assignments to its customers and provide us with all the necessary information and documents.
The buyer shall inform us immediately of third-party seizures of the reserved goods and of assigned claims. The buyer shall bear the costs of any litigation necessary to intervene against seizures of the reserved goods brought by third parties for which the buyer is responsible.
X. Inspection of Goods
1. The buyer shall inspect the delivered goods immediately after their delivery for conformity to contract, particularly with regard to quantity, dimensions, form, quality, completeness and other defects. Any deviations or defects found shall be notified to us in writing without delay. This notice shall state the type of goods, the nature of the deviation or defect, the date of delivery and the delivery note number.
2. The buyer must notify hidden defects without delay, although at the latest one week after their discovery. The buyer has the burden of proof that the defect was hidden.
3. Regardless of any deviations or defects, the buyer shall initially accept the goods and store them properly. It shall furthermore give us the opportunity to inspect the goods subject to complaint.
4. If the buyer does not perform its duties of inspection and complaint pursuant to X. 1. to 3., the goods are regarded as approved.
5. The buyer may not process or install goods which are subject to complaint. If it infringes this obligation, the seller is not liable for any damage resulting from the processing or installation. In such cases, the buyer shall furthermore bear the additional costs required to rectify the defect caused by the processing or installation, or recompense us for these.
XI. The Buyer's Rights in Cases of Complaint
1. Deviations or changes do not constitute a defect if these are within the scope of the pertinent technical standards. The same applies to normal commercial,
technically unavoidable deviations, insofar as the use of the goods as foreseen by contract is not more than just insignificantly impaired.
2. If the delivered goods are defective and have not been approved, the buyer has the right to demand follow-up performance. The seller decides whether to perform rework or to make a new delivery of goods free of defects, unless the nature of follow-up performance is clearly unsuitable or is unacceptable to the buyer for important reasons. The seller may refuse follow-up performance in general if this is associated with disproportionate expenditure.
3. The buyer may not claim failure of follow-up performance until at least two attempts at follow-up performance have been unsuccessful and at least three weeks have passed since the complaint was made.
4. A period of grace for follow-up performance set by the buyer is unreasonable in every case if it is less than three weeks – calculated from the time the seller receives notice of the period of grace. Depending on the scope of follow-up performance, a longer period of grace may be required, of which the seller shall inform the buyer as necessary; instead of the period of grace set by the buyer, that notified by us then applies.
Periods of grace must be notified to us in writing.
5. The buyer may not withdraw from contract on account of a defect, nor reduce the purchase price or demand compensation for damages – under the further pre-conditions stated under XII. below – unless the legal prerequisites to do so exist.
6. If the buyer has effectively declared a reduction of the purchase price, withdrawal from contract due to the same defect is excluded.
7. Developmental products and/or products which are solely made on behalf of the buyer and are quoted as such are excluded from any warranty.
8. The period of limitation for all the buyer's rights due to a defect in the object of delivery is restricted to one year. This does not apply if the seller is culpable of malice aforethought and gross negligence, nor to claims to damages resulting from fatalities, physical injuries or harm to health, nor to the buyer's rights under § 478 BGB. If the object delivered is used in its normal purpose for construction work and a defect in the object causes non-conformities in the construction work, the buyer's rights of complaint against us due to the defect expire by limitation of time after 5 years.
9. §443 BGB cannot be claimed from the buyer by any means.
XII. Liability
1. The seller cannot be made liable for any defect of the semi-finished or finished product the buyer designs based and manufactures from the sellers goods.
2. The seller cannot be made liable for any content of consulting or recommendation as long as this contant is not subject of the written quotation and is ordered and paid by the buyer.
3. The production process of technically complex products, i.e. the sellers products, is depending on a variety of parameters and properties which are not under control of the seller, e.g. properties of natural raw materials. The processes do not meet the standard process capabilities which are governed in the industry, i.e. Cpk>1,33 and therefore deviations from the specified and quoted properties are likely.
4. The seller cannot be made liable for developmental products (design and/or make to order). Developmental products and/or products which are solely made on behalf of the buyer and are quoted as such are excluded from any warranty.
XIII. Place of Fulfilment
The place of fulfilment for payments is Zug, Switzerland, for our goods deliveries it is the place of dispatch.
XIV. Data Processing
The buyer agrees that the seller may process the data concerning the buyer received in the context of the business relationship to fulfil our business purposes in accordance with the German Data Protection Act, in particular the seller may store or transmit such data to a credit protection organisation, insofar as this is done within the framework of the contractual purpose or is necessary to protect our justified interests, and there is no reason to assume that the buyer's protectable interests outweigh the exclusion of the processing, in particular the transmittal, of such data.
XV. Place of Jurisdiction
If the buyer is a trader, a legal entity under public law or a public law special trust, the place of jurisdiction for both parties – including for actions based on bills of exchange and cheques – is Cologne, Germany. The seller is, however, also entitled to pursue action against the buyer at its general place of jurisdiction.
Zug, December 2020
Valid to all offers, sales, deliveries and services from ecobrain AG in Switzerland and also their subsidiaries
I. General
1. The conditions cited below apply to all offers, sales, deliveries and services from ecobrain AG and are part of each contract. They do not apply if our contractual partner is a private person who is not acting in a professional or commercial capacity. Changes and amendments to the contract or these conditions must be confirmed in writing by ourselves to be effective.
2. The seller hereby expressly rejects the buyer's general business terms which contradict, change or supplement these conditions. Such terms likewise do not apply even if the buyer makes these a basis for its order or other declarations.
3. German law shall exclusively prevail over the contractual relationship between the buyer and ourselves, even if the buyer is resident or has its registered offices abroad.
4. If the pursuit of our claims against the buyer rest upon the receipt of a declaration sent by us per mail, this is regarded as having been received on the third work day after being properly handed over for posting. The seller is able to demonstrate that it was received earlier, the buyer is able to prove that it arrived later or not at all.
II. Offers, Orders
1. Our offers are non-binding unless such are expressly designated as obligatory. A contract therefore only becomes effective on our confirmation of order or shipment of the goods.
2. Orders placed by the buyer are not binding upon us unless confirmed in writing (which may be given by invoice or delivery note).
3. Details given in catalogues, brochures, data sheets, leaflets, drawings or other informative material are not binding. They do not become a binding part of contract unless expressly confirmed by us in writing.
III. Doubtful solvency
1. If, after conclusion of contract, circumstances become known to us which cast doubt on the buyer's solvency, the seller can then demand advance payment for further deliveries of goods. The seller can set the buyer a reasonable deadline to pay for the goods in advance and withdraw from the contract if the seller does not receive the advance payment on time; the buyer can provide securities in the form of bank bonds instead of making an advance payment. Should the seller have already delivered the goods, the purchase price is then payable within fice (5) working days regardless of the agreed payment schedules.
2. Doubts about the buyer's solvency are justified if, among other things, an application is made to open insolvency proceedings against its assets or it dos not make payments to us or third parties on time.
IV. Prices
1. The prices quoted are in Euros (€) for deliveries loaded free of charge on a truck or wagon at our respective supply works.
2. Value-added tax is included in our prices.
V. Delivery Schedule
1. All delivery dates quoted are non-binding and are regarded as solely approximate dates unless the seller has expressly designated these as binding. The seller is not in default solely by not meeting non-binding delivery dates. The seller must be set periods of grace in writing extending at least two weeks from the date the seller receive these.
2. In the case of non-binding delivery dates, a delivery within 1 week of the stated delivery time is still regarded as having arrived on time.
3. If it is temporarily impossible or extremely difficult for us to perform in full or in part due to Force Majeure or for other exceptional and non-culpable circumstances, the agreed delivery schedule is extended by the period of the hindrance. The same applies to a legal deadline or one set by the buyer for providing the service, in particular to periods of grace set in case of default. In particular, Force Majeure includes war, circumstances similar to war, pandemic and epidemic, mobilisation, import and export bans and blockades. Other exceptional circumstances are, in particular, transport disruptions, operational disturbances, delays in supplies of raw materials, strikes, lock-outs and other industrial disputes, including those which occur at our suppliers' premises.
4. The buyer is not entitled to withdrawal or to demand damages before the delivery date or delivery deadline extended as per item 3 above has elapsed. If the hindrance lasts more than 10 weeks, both ourselves and the buyer are entitled to withdraw, insofar as the contract has still not been fulfilled. If the buyer is entitled under the contract or by law (e.g. due to loss of interest) to withdraw without setting a
period of grace, this right remains unaffected.
5. Claims to damages of all kinds due to any delays in delivery are excluded, unless these are based on malice aforethought or gross negligence.
VI. Packaging
Packaging materials are charged separately.
VII. Dispatch
1. Goods are dispatched at the expense of the buyer. Risk is transferred to the buyer once the goods have been loaded, even if carriage paid delivery has been agreed and/or the goods are dispatched in our own vehicles. The seller is not obliged to take out transport insurance.
2. Insofar as nothing has been expressly agreed to the contrary in writing, the seller is entitled to make part deliveries in reasonable volumes, these will be invoiced individually.
VIII. Payment, Period of Payment
1. Our invoices are payable within five (5) working days from date of invoice without deduction exclusively by wiretransfer to the bank account specified on the invoice.
2. If the buyer is in default of payment, all its payment obligations derived from business transactions with us become due immediately. The seller can furthermore withdraw from all contracts which the seller has not yet fulfilled after setting the buyer a period of grace of 7 days to fulfil its payment obligations and warning of our intention to withdraw.
3. The buyer may only offset claims which are undisputed or have been established under law.
5. The buyer agrees that our claims from the business relationship accrue to all companies belonging to ecobrain AG.
IX. Reservation of Ownership
1. The goods delivered only become the buyer's property after it has fulfilled all its obligations derived from the business relationship, including auxiliary claims, claims to damages and after cheques and bills of exchange have been honoured.
2. If the buyer is in default of its obligations to us, in particular is late making payments to us, the seller can take back the reserved goods. Taking back the reserved goods as such does not involve a withdrawal from contract. The buyer bears the costs of returning the goods. The seller is entitled to sell the reserved goods taken back by way of auction or on the open market, and to offset the proceeds against our outstanding claims. The seller can furthermore withdraw fully or partially from the contract, without setting a period of grace, whereby the buyer is liable for costs and any value reduction of the goods incurred. Our rights under § 48 of the German Bankruptcy Statute remain unaffected.
3. Should the reserved goods be processed by the buyer, the seller is then regarded as the manufacturer, although the seller accrues no obligations for the processing work. Our reservation of ownership therefore also extends to the products which result from processing. If the reserved goods are processed together with other goods owned by third parties, or if the reserved goods are mixed or combined with goods owned by third parties, the seller acquires co-ownership to the resulting products in the ratio of the invoice sum of our reserved goods to the invoice sum of the goods owned by third parties. If the reserved goods are combined or mixed with a main object owned by the buyer, the buyer hereby assigns its rights of ownership to the new object to us.
4. The buyer is obliged to look after the reserved goods carefully on our behalf, to maintain these at own cost and to insure them at own cost against loss, damage and decay to the extent expected of a prudent businessman. The buyer hereby assigns its claims from the insurance policies up to the value of the collateral security to us in advance, and consents that payments be made to us. Upon request, the buyer shall surrender the insurance policies to us in order to assert such insurance claims.
5. As long as the buyer duly fulfils its obligations to us, it is entitled to dispose over the reserved goods within the normal course of business. However, this does not apply if and insofar as a ban on assigning the claim to the purchase price has been agreed between the buyer and its customers. The buyer is not entitled to issue pledges, collateral assignments or other encumbrances. If the buyer resells the reserved goods, it shall make transfer of ownership dependent on its customer paying for the goods in full.
6. The buyer hereby assigns all claims which arise from reselling the reserved goods (including all auxiliary and collateral rights and claims from bills of exchange, cheques and balances) to us in advance, in order to secure all our claims against it from the business relationship.
If reserved goods are sold together with other objects for a total price, the assignment is limited to the proportional amount invoiced by us for the reserved goods sold. If reserved goods are sold in which the seller has co-ownership pursuant to the item above, the assignment is limited to that part of the claim which corresponds to our proportionate co-ownership. If the buyer uses the reserved goods to increase the
value of objects owned by a third party, it hereby assigns its claims to remuneration against that third party to us in advance for the aforesaid purpose of security. As long as the buyer duly fulfils its payment obligations, it is entitled to collect the claims from reselling or value increases itself.
The buyer is not entitled to issue pledges or make any kind of assignments.
7. If the enforcement of our claims appears to be in jeopardy, then at our request, the buyer shall inform us of its assignments to its customers and provide us with all the necessary information and documents.
The buyer shall inform us immediately of third-party seizures of the reserved goods and of assigned claims. The buyer shall bear the costs of any litigation necessary to intervene against seizures of the reserved goods brought by third parties for which the buyer is responsible.
X. Inspection of Goods
1. The buyer shall inspect the delivered goods immediately after their delivery for conformity to contract, particularly with regard to quantity, dimensions, form, quality, completeness and other defects. Any deviations or defects found shall be notified to us in writing without delay. This notice shall state the type of goods, the nature of the deviation or defect, the date of delivery and the delivery note number.
2. The buyer must notify hidden defects without delay, although at the latest one week after their discovery. The buyer has the burden of proof that the defect was hidden.
3. Regardless of any deviations or defects, the buyer shall initially accept the goods and store them properly. It shall furthermore give us the opportunity to inspect the goods subject to complaint.
4. If the buyer does not perform its duties of inspection and complaint pursuant to X. 1. to 3., the goods are regarded as approved.
5. The buyer may not process or install goods which are subject to complaint. If it infringes this obligation, the seller is not liable for any damage resulting from the processing or installation. In such cases, the buyer shall furthermore bear the additional costs required to rectify the defect caused by the processing or installation, or recompense us for these.
XI. The Buyer's Rights in Cases of Complaint
1. Deviations or changes do not constitute a defect if these are within the scope of the pertinent technical standards. The same applies to normal commercial,
technically unavoidable deviations, insofar as the use of the goods as foreseen by contract is not more than just insignificantly impaired.
2. If the delivered goods are defective and have not been approved, the buyer has the right to demand follow-up performance. The seller decides whether to perform rework or to make a new delivery of goods free of defects, unless the nature of follow-up performance is clearly unsuitable or is unacceptable to the buyer for important reasons. The seller may refuse follow-up performance in general if this is associated with disproportionate expenditure.
3. The buyer may not claim failure of follow-up performance until at least two attempts at follow-up performance have been unsuccessful and at least three weeks have passed since the complaint was made.
4. A period of grace for follow-up performance set by the buyer is unreasonable in every case if it is less than three weeks – calculated from the time the seller receives notice of the period of grace. Depending on the scope of follow-up performance, a longer period of grace may be required, of which the seller shall inform the buyer as necessary; instead of the period of grace set by the buyer, that notified by us then applies.
Periods of grace must be notified to us in writing.
5. The buyer may not withdraw from contract on account of a defect, nor reduce the purchase price or demand compensation for damages – under the further pre-conditions stated under XII. below – unless the legal prerequisites to do so exist.
6. If the buyer has effectively declared a reduction of the purchase price, withdrawal from contract due to the same defect is excluded.
7. Developmental products and/or products which are solely made on behalf of the buyer and are quoted as such are excluded from any warranty.
8. The period of limitation for all the buyer's rights due to a defect in the object of delivery is restricted to one year. This does not apply if the seller is culpable of malice aforethought and gross negligence, nor to claims to damages resulting from fatalities, physical injuries or harm to health, nor to the buyer's rights under § 478 BGB. If the object delivered is used in its normal purpose for construction work and a defect in the object causes non-conformities in the construction work, the buyer's rights of complaint against us due to the defect expire by limitation of time after 5 years.
9. §443 BGB cannot be claimed from the buyer by any means.
XII. Liability
1. The seller cannot be made liable for any defect of the semi-finished or finished product the buyer designs based and manufactures from the sellers goods.
2. The seller cannot be made liable for any content of consulting or recommendation as long as this contant is not subject of the written quotation and is ordered and paid by the buyer.
3. The production process of technically complex products, i.e. the sellers products, is depending on a variety of parameters and properties which are not under control of the seller, e.g. properties of natural raw materials. The processes do not meet the standard process capabilities which are governed in the industry, i.e. Cpk>1,33 and therefore deviations from the specified and quoted properties are likely.
4. The seller cannot be made liable for developmental products (design and/or make to order). Developmental products and/or products which are solely made on behalf of the buyer and are quoted as such are excluded from any warranty.
XIII. Place of Fulfilment
The place of fulfilment for payments is Zug, Switzerland, for our goods deliveries it is the place of dispatch.
XIV. Data Processing
The buyer agrees that the seller may process the data concerning the buyer received in the context of the business relationship to fulfil our business purposes in accordance with the German Data Protection Act, in particular the seller may store or transmit such data to a credit protection organisation, insofar as this is done within the framework of the contractual purpose or is necessary to protect our justified interests, and there is no reason to assume that the buyer's protectable interests outweigh the exclusion of the processing, in particular the transmittal, of such data.
XV. Place of Jurisdiction
If the buyer is a trader, a legal entity under public law or a public law special trust, the place of jurisdiction for both parties – including for actions based on bills of exchange and cheques – is Cologne, Germany. The seller is, however, also entitled to pursue action against the buyer at its general place of jurisdiction.
Zug, December 2020