Standard Terms and Conditions of Business and Delivery
of E-Systems GmbH
1. SCOPE OF APPLICATION
All offers, goods and services (including consultancy)
from E-Systems GmbH are made or supplied exclusively on
the basis of these terms and conditions; individual agreements
remain unaffected. These terms and conditions also apply to all
future business relations between E-Systems GmbH and the other
contracting party. Any confirmation on the part of the purchaser,
referring to the latter’s terms and conditions of business
or purchase, is hereby expressly excluded.
This also applies where the said terms and conditions are delivered
with the letter of confirmation. We expressly reserve the right to
make amendments to these standard terms and conditions.
2. OFFERS, CONCLUSION OF CONTRACT
2.1 Offers in catalogues and/or lists are non-binding; installation of
hardware is not included in the price. Unless expressly provided otherwise,
E-Systems GmbH is bound by its quotations for a period of 30 days as from
the date of submitting a quotation. Unless agreed otherwise, the customer is
bound by orders for a period of 30 days. 2.2 Unless agreed otherwise, a contract
is only concluded once E-Systems GmbH has confirmed in writing or delivered the
goods. Supplementary agreements made prior to, at the time of or after conclusion of
the contract require written form. It shall be permissible for goods to differ from the
description in the offer, provided the services are fulfilled or included or where the
original goods offered can no longer be supplied or have been subject to technical modifications.
2.3 E-Systems GmbH prices are subject to VAT at the statutory rate in force.
Prices do not include packing, freight or insurance, unless otherwise agreed in
writing. The valid prices at the time of delivery or provision of services shall
apply, subject to any price agreements made. All prices are quoted in euros
unless otherwise indicated. If the supply includes literature, software or
other services for which rights of use are granted, the manufacturer’s
separate terms of license shall apply in addition to these standard terms
3. TERMS OF DELIVERY / PASSING OF RISK
3.1 The times indicated are only approximate and are non-binding unless
expressly confirmed in writing.
3.2 Subsequent customer requests pursuant to amendments and supplements to
the contractual supply shall have the effect of extending agreed delivery
and service times accordingly. Delivery and service times shall be extended
accordingly where unforeseeable events beyond E-Systems GmbH control occur, e.g.
events of force majeure, fire, import and export bans, delays in delivery or
non-delivery of parts covered by the contract to E-Systems GmbH, strikes,
3.3 If the customer does not accept the service performed according to the
contract and, on account of which, is in default, E-Systems GmbH may demand
a refund of expenses for services ordered and performed. Further claims for
compensation remain unaffected.
3.4 E-Systems GmbH is entitled to deliver at any time; part deliveries are
permissible and may be invoiced separately.
3.5 If the goods are dispatched to the customer at the latter’s request, the
risk of any accidental destruction or impairment of the goods shall pass to
the customer when the goods are handed over to the carrier. If dispatch is
delayed at the customer’s request, the risk of accidental destruction passes to
the customer upon notice that the goods are ready for dispatch, whereby
E-Systems GmbH is entitled, although not under any obligation, to insure
the goods on behalf of and for the account of the customer.
4.1 In the case of warranty, E-Systems GmbH is entitled to choose whether to
repair the goods or replace them. The customer shall permit up to a maximum of
two attempts at supplementary performance on account of the same defect. If the
second attempt fails or if E-Systems GmbH is not prepared to or is unable to
remedy the defect or replace the goods, the customer is entitled, at the latter’s
discretion, to request a reduction in the purchase price or cancellation of the
contract with respect to the product concerned. The right of withdrawal is however
excluded for insignificant breaches of the contract (breaches of obligation),
particularly for slight quantity deviations and insignificant defects.
4.2 The customer is to examine the goods, immediately upon receipt, for
defects, particularlyfor any quantity deviations and other obvious defects.
The customer is immediately, but at the latest within 36 hours of delivery, to
report any defects in writing, giving all specific noticeable details. After this
period, all warranty claims for quantity deviation or obvious defects are excluded.
4.3 The warranty period is 12 months for new goods. For used goods, the warranty is
excluded unless E-Systems GmbH has fraudulently concealed any defects.
4.4 The warranty lapses where the delivery item is modified, incorrectly installed,
serviced, repaired, used or exposed to conditions that do not comply with the operating
requirements. If the delivery item is not installed by E-Systems GmbH, the customer is
required to produce evidence of correct installation in order to benefit from the warranty.
5. PAYMENT TERMS / DEFAULT IN PAYMENT
5.1 Amounts receivable are payable immediately in the case of cash-on-delivery sales; in other
cases, they are to be paid, in full without any cash discount, within 7 days as from receipt of
the invoice, to the accounts indicated by E-Systems GmbH. For orders with a total value of
€10,000 or more, 50% is payable upon signature of the contract and 50% is payable on delivery of the goods.
5.2. If the customer defaults on payment, the amount receivable shall bear interest at the rate
of 8% above the current base interest rate of the European Central Bank.
E-Systems GmbH is free to establish greater loss.
5.3 In the case of part deliveries and part services, the customer is liable for payment for each
individual part delivery, provided the part delivery/service is of reasonable use. Any delay in
delivery of an insignificant part does not entitle the customer to withhold the proportionate
share of the purchase price.
5.4 If the customer defaults on payment or if the customer's financial situation deteriorates in
the long term, E-Systems GmbH is entitled to withdraw from any contract not yet performed,to request
advance cash payment for further services or to immediately withdraw any circulating cheques or
bills of exchange issued therefor, at the customer’s expense.
5.5 The customer may only offset or assign any claims against E-Systems GmbH where such
claims are undisputed and have been legally established.
6. RESERVATION OF TITLE
6.1 The customer only acquires ownership of all goods delivered by E-Systems GmbH once
payment has been made in full for all outstanding invoices issued by E-Systems GmbH in the
context of the business relationship. The customer is not entitled to sell, transport abroad or
pledge (including as security) the goods without E-Systems GmbH express written consent.
6.2 The purchaser hereby assigns to E-Systems GmbH all rights, claims and demands with
respect to the goods under reservation of title, regardless of the legal basis (tort, claims, etc.).
6.3 The customer is to insure the goods under reservation of title, for the period thereof,
against water damage, fire and theft. The customer hereby assigns all claims arising from this
insurance to E-Systems GmbH. The customer is to immediately inform E-Systems GmbH, by fax
or email where necessary, of any seizure by third parties of the goods delivered subject to
reservation of title. The customer must inform these third parties of E-Systems GmbH reservation
6.4 Should the value of the securities granted to E-Systems GmbH herein exceed E-Systems
GmbH total claim arising under these business relations by more than 20%, then E-Systems
GmbH is, in this respect, under an obligation to assign ownership back to the customer at the
7. LIMITATION OF LIABILITY
7.1 E-Systems GmbH is liable for injury to life, body and health caused through fault of the
latter or as a result of absence of a warranted quality, fraud or breach of a cardinal obligation.
In other respects, E-Systems GmbH shall only be liable, regardless of the legal basis, for
damage caused by intent or gross negligence.
7.2 E-Systems GmbH shall not be liable for indirect loss, consequential damage arising from
defects or lost profit, unless liability was caused by intent or as a result of the absence of
a warranted quality, except where E-Systems GmbH warranty should have protected against precisely
that sort of damage. This also applies where E-Systems GmbH shuts down the hardware and/or the
software to check it for a strongly suspected malfunction or tampering.
7.3 If and to the extent to which liability is excluded, this also applies to the liability of
E-Systems GmbH employees, representatives and vicarious agents.
7.4 Liability under the German Product Liability Act remains unaffected by the above
8. FINAL PROVISIONS
8.1 The law of the Federal Republic of Germany applies.
8.2 All claims against E-Systems GmbH shall lapse after three years at the latest, unless the
order, these terms and conditions or the law provides for a shorter limitation period.
8.3 Where the customer is a registered trader, the place of performance and jurisdiction shall
8.4 Should a provision of this contract be or become invalid or unenforceable, the other
provisions of the contract shall remain valid. The parties agree to replace any invalid or
unenforceable provision by a valid and enforceable provision that most closely corresponds to
the economic intentions of the parties. The same applies in the case of any gaps in the