These General Terms and Conditions apply to all deliveries and services provided by Elektronica SM-Handels GmbH (Elektronica) towards any companies. Customer’s conflicting general terms of business or any terms deviating from these Terms and Conditions are not recognized unless their validity has explicitly been confirmed in writing. These Terms and Conditions shall even apply if Elektronica executes the delivery without any reservation with knowledge of conflicting terms of business or any terms deviating from these Terms and Conditions. Unless otherwise agreed the GTC shall apply as a framework agreement in the version currently valid at the time of buyer’s (customer’s) order or, in any case, in the version last communicated to them in text format and shall also apply for any equal future contracts without Elektronica having to refer to them in every individual case.
Deliveries and services, obligations to give notice of defects
Offers of Elektronica are always subject to confirmation and non-binding. A contract is only concluded upon Elektronica’s written order confirmation/sales order. Any technical and design deviations from data in brochures, catalogs and written materials deemed acceptable for the customer as well as any model, design and material modifications due to technical progress and further development shall remain reserved without the possibility to derive any rights against Elektronica from this. The reservation of the right of modification shall also apply with regard to customary deviations in quantity and quality of the contractual objects. The right of reasonable partial deliveries and their invoicing shall explicitly remain reserved for Elektronica. Any delivery dates agreed are deemed to have been met, if the contractual product is handed over to the third party commissioned with the shipment at the date fixed. Any delivery dates are always agreed subject to the timely and correct supply to ourselves by Elektronica’s specific suppliers. If the shipment of goods ready for dispatch is delayed for reasons for which Elektronica is not responsible, the contractual objects may be stored at the customer’s expense and risk. The customer is obliged to examine the contractual objects immediately. If they do not send a notice of defects within six days of receipt, the goods shall be regarded as delivered duly and completely, unless there is a defect that could not be recognized during the examination. Any minor defects which do not impair the functionality of the delivered objects shall not entitle the customer to refuse receipt and/or acceptance of the goods. The customer shall have any damage to the packaging of the goods confirmed in writing by the carrier upon receipt of the goods. Any transport damage that is detected only when unpacking the goods or later shall immediately be communicated to Elektronica in writing.
The prices offered are to be understood plus statutory VAT, packaging and shipping, unless otherwise agreed. Provided that price lists contain any sales prices, these are guide prices which are non-binding until order confirmation/sales order.
Transfer of risk and place of fulfillment
The risk of loss and deterioration of the goods, the risk of delivery delays as well as the price risk are transferred to the customer upon handing over to the third party commissioned with the transport. If the shipping is delayed or becomes impossible through no fault of Elektronica, the risk is transferred upon notice of readiness for dispatch. The exclusive place of fulfillment for delivery obligations and payment obligations for both parties shall be the registered office of Elektronica.
Payment, default, offsetting rights and rights of retention
Unless otherwise agreed, invoices shall be due and payable immediately after receipt of invoice and goods without deductions. The default interest is 9% p.a. above base rate. The assertion of further claims for damages shall remain unaffected. Offsetting with or assertion of a right of retention of any claims not recognized by Elektronica or not legally established shall be excluded. Any customer’s default in payment entitles Elektronica to perform deliveries and services not yet executed but confirmed only upon customer’s advance payment.
Retention of title
The goods delivered (goods subject to retention of title) shall remain the property of Elektronica until all claims have been paid which are or will be due to Elektronica against the customer now or in the future, including any current account balance claims. If the customer acts in breach of contract – particularly if they are in default of payment of a claim –, Elektronica shalll have the right to withdraw from the contract after having set a reasonable deadline for performance. The transport costs arising from the withdrawal shall be borne by the customer. If Elektronica takes back the goods subject to retention of title, this shall already constitute a withdrawal from the contract. It is also considered a withdrawal from the contract if Elektronica seizes the goods subject to retention of title. Any goods subject to retention to title taken back by Elektronica may be utilized by Elektronica. The proceeds of utilization will be set off against those amounts which the customer owes to Elektronica after Elektronica has deducted a reasonable amount for the costs of utilization. The customer shall treat the goods subject to retention of title with care. They shall sufficiently insure them at replacement value against damage by fire, water and theft at their own charge. The customer may use the goods subject to retention of title and resell them in the ordinary course of business unless the customer is in default of payment. However, they must not pawn the goods subject to retention of title or pledge them as security. Customer agrees to fully assign all customer’s claims for payments against their buyers from reselling the goods subject to retention of title as well as those claims of the customer regarding the goods subject to retention of title which arise against their buyers or third parties for any other legal reason (particularly claims from tortious acts and claims for insurance benefits), namely including any current account balance claims, already now to Elektronica as a security. Elektronica accepts this assignment. The customer may collect these claims assigned to Elektronica for their own account in their own name on behalf of Elektronica unless Elektronica revokes this authorization. Elektronica’s right to collect these claims themselves shall remain unaffected; however, Elektronica will not assert the claims themselves nor revoke the direct debit authorization as long as the customer duly perform their payment obligations. Provided that the customer acts in breach of contract – particularly if they are in default of payment of a claim – Elektronica can demand from the customer to communicate the assigned claims and the respective debtor to Elektronica, to inform the respective debtors of the assignment and to hand over to Elektronica all documents and information which Elektronica needs for the assertion of the claims. Any processing or restructuring of the goods subject to retention of title by the customer is always effected on behalf of Elektronica. If the goods subject to retention of title are processed together with other items not belonging to Elektronica, Elektronica shall acquire a co-property in the new item in the proportion of the value of the goods subject to retention of title (final invoice amount including VAT) to the other processed items at the time of processing. As for the rest, the same shall apply to the new item created by processing as to the goods subject to retentiont of title. If the goods subject to retention of title are linked or mixed inseparably with other items not belonging to Elektronica, Elektronica shall acquire a co-property in the new item in the proportion of the value of the goods subject to retention of title (final invoice amount including VAT) to the other linked or mixed items at the time of linking or mixing. If the goods subject to retention of title are linked or mixed in such a way that the customer’s item is to be regarded as the main item, the customer and Elektronica agree already now that the customer proportionately assigns a co-property in the item to Elektronica. Elektronica accepts this assignment. The customer shall keep the sole ownership or co-ownership of an item generated in this way in safe custody for Elektronica. In the event of attachment of the goods subject to retention of title by a third party or any other third-party interventions, the customer must point out to Elektronica’s property and must immediately inform Elektronica in writing in order that Elektronica’s property rights can be asserted. Provided that the third party is not able to reimburse Elektronica for any judicial or extra-judicial costs incurred in this context, the customer shall be liable for them. If required by the customer, Elektronica is obliged to release the securities due to Elektronica to the extent to which their realizable value exceeds the value of Elektronica’s outstanding claims against the customer by more than 10%. However, Elektronica may select the securities to be released.
Drafts, samples, industrial property rights
In order to minimize the economic loss, the customer explicitly entitles Elektronica to utilize themselves any goods marked with the customer’s label, trademark, logo or any other CI (corporate identity) which, in the event of continued purchase obligation, is not bought despite the respective request to do so within a specified period of time. Any patterns, changes, repros, proof copies, etc. shall be checked by the customer for text errors and any other errors. Errors shall immediately be communicated to Elektronica in writing. Any drafts, individual developments, samples, lithos, tools, final artwork, printing plates, films, repros and the like will be invoiced pro rata and, unless otherwise agreed, remain Elektronica’s explicit property and also their intellectual property. Any use not agreed in writing of Elektronica’s above-mentioned property by the customer on their own is strictly forbidden and constitutes an infringement of Elektronica’s industrial property rights. The assertion of associated claims for damages as well as the criminal prosecution of Elektronica’s claims shall remain reserved.
Industrial property rights and third-party copyrights
Provided that the products delivered are manufactured according to customer’s drafts or specifications, the customer is obliged to check whether any third-party property rights or any other rights are violated. The customer shall hold Elektronica harmless of all third-party claims due to the violation of third-party rights by products manufactured according to their drafts or specifications and shall recompense any damage created by such a violation of third-party rights.
Elektronica is liable for any damage to persons as well as for any claims arising from the Product Liability Act to the extent required by law. Besides, Elektronica shall be liable for any other damage only if they, their legal representatives or agents stand charged with intent or gross negligence. Furthermore, Elektronica is also liable in cases of slight negligence in the event of explicit assumption of a guarantee and in the event of violation of essential contractual obligations in the fulfillment of which the customer may particularly trust. In the event of slightly negligent violation of essential contractual obligations as well as gross negligence of any agents who are not executives, Elektronica is only liable to the amount of the typically foreseeable damage. As for the rest, Elektronica is not liable for cases of slight negligence, for whatever legal reason. Elektronica shall not be liable for any errors already contained in the documents sent to the customer which were not communicated by the customer in writing. Any liability for consequential damages, e.g. lost profit, missed savings and any other indirect damage, shall be excluded unless they jeopardize the purpose of the contract. The above limitations of liability also apply in favor of Elektronica’s employees. Based on any breach of duty not constituted by a defect, the customer may only exercise any statutory rights of withdrawal or termination if Elektronica is responsible for the breach of duty. The general period of limitation for claims from material defects and defects of title shall be one year from delivery - with the exception of the cases regulated in this paragraph (Liability) in clause 1 and 2, to which the statutory period of limitation applies.
Impediments to performance through no fault of Elektronica
If any contractual obligations cannot be fulfilled at all, not in time or otherwise not according to contract due to the effects of force majeure, e.g. war or turmoil, natural disasters or fire, epidemics or quarantine, strike or lockout, government measures or any other events for which Elektronica is not responsible, Elektronica shall be released from fulfilling this obligation to the extent of the effects and the customer shall be released from the respective obligation to counter-performance. This shall also apply if the events happen during an already occurred default. Any possible delivery dates shall be extended by the duration of the unforeseeable event, as far as reasonable.
Orders are processed within Elektronica using automatic data processing. More details on the handling of personal data possibly processed in this context as well as rights of the data subjects can be taken from the data privacy statement on Elektronica’s homepage. Data are exclusively processed to the extent required for order handling. Provided that data of third parties designated by the customer are also processed for order handling, the customer ensures that these have been informed by them about the disclosure and processing of data to sub-contractors and have agreed to it. As far as required, the customer shall conclude a contract about order data processing with Elektronica or third parties designated by them.
Unless otherwise agreed, Elektronica shall be entitled to affix a company label on all delivered items, provided that the value in use is not essentially affected by this. Where agreed in the individual order, the delivery object as well as customer logos may be used by Elektronica at no charge for their own sampling and advertising purposes.
Applicable law, place of fulfillment, place of jurisdiction
German law shall apply excluding the conflict of law rules of international private law and the CISG. The exclusive place of jurisdiction for all disputes arising from the business relationship shall be Münster/Westphalia. The institution of legal proceedings against the customer is also possible at the court responsible for the customer’s place of residence or business.
Elektronica is entitled to commission any third parties with the performance of individual services in the context of sub-contracting relationships. The customer is not entitled to assign their claims from the contract unless Elektronica has previously agreed in writing. Should one of the above stipulations be void or should there be a regulatory gap, the contract as a whole shall remain effective. The validity of the remaining stipulations shall not be affected by this.
Elektronica SM-Handels GmbH
Mergenthaler Str. 29 – 31