§ 1 General - Scope
1. The EZset general terms and conditions of sale apply to all present and future business relations with the Buyer.
2. Any dissenting, conflicting or supplementary general business terms and conditions, even when known, shall form no part of this agreement and shall only apply if expressly agreed to in writing.
3. If individual provisions of this agreement with the Buyer, including these general terms and conditions of sale, are or should become invalid in whole or in part, the validity of the remaining provisions shall not be affected. Invalid provisions, in whole or in part, shall be replaced by a valid provision that most closely approximates the economic purpose of the deleted provision, and provided that such provision causes no material changes to the contents of the agreement.
§ 2 Offer - Documentation
1. EZset contract offers are not binding.
2. Orders shall be regarded as accepted only after written confirmation of each order by EZset. The scope of the performance owed under this agreement shall be governed exclusively by the confirmation of the order by EZset. Any verbal agreements, irrespective of the parties making such verbal agreements, shall have no legal force unless confirmed in writing by EZset. The written form clause is mandatory and can be rescinded neither verbally by mutual agreement nor by estoppel.
3. If the Buyer places an electronic order for the delivery item, EZset shall acknowledge the order without delay. Acknowledgement of such order does not yet represent binding acceptance. EZset expressly excludes any obligation to furnish additional information.
4. All documents underlying the EZset offers or the EZset order confirmations, e.g. illustrations, drawings, declarations of weight and specifications of dimension, shall be understood to be approximate only, unless expressly defined as binding. EZset reserves title and copyright to cost estimates, illustrations, drawings, calculations and other documents. Any such documents may be transmitted to a third party only with the express written consent of EZset.
§ 3 Price – Payment Terms
1. Unless otherwise stipulated in the order confirmation, EZset prices are "ex factory", exclusive of packaging.
2. EZset prices shall exclude any statutory VAT, which shall be identified separately in the invoice in the amount set by law on the date of invoicing.
3. Payment of the purchase price is payable free of any deductions to EZset. Except as otherwise provided in the order confirmation, payment shall be made by cash in advance.
4. In the event the Buyer defaults on any payment to be made under this agreement, EZset shall have the right to recover default interest in an amount equaling 8% above the base rate in accordance with § 1 of the transitory law on discount rates of 1998-06-09. If EZset should incur additional default damages, EZset shall have the right to claim such additional damages. However, the Buyer has the right to demonstrate to EZset that the default on payment did not result in any damages or caused only minor damages to EZset.
5. The Buyer may not exercise any rights of set-off unless its counter claims have been conclusively confirmed or accepted by EZset. Furthermore the Buyer may only exercise a right of retention in so far as its counter claim is based on the same contractual relationship.
§ 4 Retention of Title
1. EZset shall retain full title of the goods that have been delivered until all claims arising from the current business relationship have been discharged.
2. The Buyer shall handle the delivered goods with care. In as far as maintenance or inspection work is required, the Buyer must perform such work in due time and at its own expense. Upon request by EZset, the Buyer, at its own expense, shall insure the delivered goods at replacement value against fire and water damage and theft.
3. In the event of a property seizure or other actions by a third party, the Buyer must immediately inform EZset in written. Should the third party be unable to reimburse EZset for the judicial and extra-judicial costs of third party proceedings in accordance with § 771 ZPO, the Buyer shall be liable for any loss sustained by EZset.
4. If the Buyer should be in breach of contract, in particular in payment default or violation of duty according to item 2 and 3 of this provision, EZset shall have the right to withdraw from the agreement and to repossess the object of sale.
5. The Buyer shall have the right to resell the goods delivered by EZset to a third party only after all claims arising from the current business relationship have been discharged. If the delivered goods are combined with other goods, EZset shall acquire co-title in the unified new goods in a proportion following from the value of the item at the time of combination. However, a resale of the new unified goods may occur only after all claims arising from the current business relationship have been discharged.
In the event the Buyer, contrary to the terms of the agreement, nevertheless resells to a third party, it shall assign its claim against the third party arising from the resale of the goods in an amount equal to the amount of the EZset claim or the EZset co-title to EZset (pre-assignment). EZset accepts such assignment. Upon request by EZset the Buyer must share without delay the name and address of the third party and must supply EZset with all information and documentation necessary for the collection of the assigned claims.
6. The Buyer is prohibited from pledging the goods delivered by EZset to a third party or to assign the delivered goods to a third party as security for a debt.
§ 5 Time of Delivery
1. Delivery dates or periods, whether binding or non-binding, must be agreed to in writing.
2. The stipulated period of delivery shall start to run at the time the order confirmation is sent off, or, in the case of cash in advance, when payment is received, not, however, before any documents, permits, releases, clarification of technical questions to be procured by the Buyer have been furnished or before advance payments have been received. EZset’s fulfillment of its delivery commitments is preconditioned on the timely and orderly fulfillment of the buyer’s obligations.
3. The delivery deadline is met if the goods have left the factory by the time of its expiration or if notification has been given that the goods are ready for shipment.
4. Delivery and performance delays resulting from force majeure and from events that would substantially impede or make impossible a delivery by EZset not only temporarily – including strikes, acts of public authorities, etc., even when taking place at the suppliers or subcontractors of EZset – shall relieve EZset from the obligation to comply even with binding time periods and deadlines. EZset shall then have the right to postpone the delivery or the performance for the duration of the impediment plus a reasonable start-up period or to withdraw from the agreement in total or in part because of the unfulfilled portion.
EZset shall inform the Buyer of the beginning and the end of any such impediments at the earliest possible time.
5. In the event EZset falls behind schedule in the delivery for reasons for which it bears responsibility, the Buyer shall have the right to claim for each whole week of delay a fixed lump sum of 0.5%, but no more than 5%, of the declared value of the goods to be delivered as compensation for the loss occasioned by the delay to the exclusion of further claims. Such compensation for loss applies on condition that the delay prevents the Buyer from making timely or contractual use of the goods ordered.
If, after EZset has already fallen behind schedule, EZset is granted a reasonable grace period with warning of refusal by the Buyer and this grace period expires without results, the Buyer shall have the right to rescind the agreement. Any further claims for damages, other than the above named fixed lump sum, shall be excluded.
6. If the Buyer should be in default of acceptance or in violation of other contributory obligations, EZset shall have the right to claim damages, including possible additional expenditures. In this case the price risk of accidental perishing or accidental deterioration of the goods purchased shall pass to the Buyer at that point in time at which the default of acceptance first occurs. EZset shall also have the right to specify a reasonable grace period for acceptance or fulfillment of contributory obligations. Following expiration of such reasonable grace period, EZset shall be entitled to dispose of the goods in other ways, to claim damages for default of acceptance, as well as to supply the Buyer with a product of equal value with a reasonable extension of the time limit.
§ 6 Transfer of Risk Packaging Costs
1. Unless otherwise stated in the order confirmation, the Parties agree to delivery "ex work.“
2. Packaging of any kind may not be returned and the Buyer shall dispose of packaging at its own expense.
3. If the Buyer so desires, EZset shall ship the goods covered by Buyer’s choice of insurance, notably transport insurance, at Buyer’s expense. In this case the risk passes to the Buyer as soon as the shipment is handed over to the person performing the transport.
Should shipment be delayed at the request of the Buyer, the risk of accidental perishing and of accidental deterioration shall pass to the Buyer.
§ 7 Warranty for Defects
1. The warranty rights of the Buyer require that it must duly meet its duty to inspection and objection in accordance with §§ 377,378 of the German Commercial Code (HGB). The Buyer bears the total burden of proof for all claim prerequisites, in particular for the defect itself, for the point in time at which the defect was detected and for the timeliness of notification regarding the defect.
2. In as far as EZset is responsible for a defect of the goods, EZset is entitled, at its option, to repair or replace the defective goods. In the case of repair, EZset shall bear all expenses associated with such repair, notably transport, toll, labor and material costs, so far as these are not increased because the goods were shipped to a location other than the place of delivery.
3. In the event EZset is unwilling or unable to repair or replace the defective goods or repair or replacement is delayed beyond a reasonable period of time for reasons for which EZset bears responsibility or if repair or replacement fail in any other way, the Buyer shall have the right, at its option, to demand a lowering of payment (reduction) or a cancellation of the agreement (rescission). A repair shall be considered to have failed following a second attempt at repair, provided the nature of the object or defect or other circumstances reveal nothing else. In the case of only minor non-conformity with the contract, in particular in regard to minor defects, the Buyer shall have no right of rescission.
Should the Buyer chose to withdraw from the agreement because of a defect and following failed fulfillment the Buyer shall not be entitled to further damages.
If the Buyer claims damages following failed fulfillment, the goods shall remain at the Buyer’s location as far as this can be considered reasonable. Damages are limited to the difference between purchase price and value of the defective goods. This shall not apply if the breach of contract was caused by fraudulent intent.
4. EZset shall not be liable for damages that have not occurred on the delivered goods themselves; in particular EZset is not liable for loss of profit or other economic loss to the Buyer.
5. EZset makes no warranty for normal wear and tear, inappropriate or improper use or condition, incorrect activation by the Buyer or third parties, as well as for all reasons outside the influence of EZset and for which no fault can be attributed to EZset.
6. The warranty period is 12 months, starting with the transfer of risk.
§ 8 Limitation of Liability
1. In the case of slight negligence of duty EZset’s liability shall be limited to contract-typical, direct, average damages foreseeable based on the nature of the goods. This applies as well to slight negligence on the part of the legal representatives or the vicarious agents of EZset.
EZset shall not be liable for the slightly negligent violation of insignificant contract obligations.
2. The above limitations of liability shall not apply to personal injuries and damage to health or loss of life attributable to EZset.
3. Damage claims by the Buyer arising from a defect are subject to a limitation period of 1 year from the date of the transfer of risk. This shall not apply if EZset can be accused of fraudulent intent.
Inasmuch as EZset’s liability is excluded or limited, this also applies to the personal liability of EZset employees, workers, staff members, representatives and vicarious agents.
§ 9 Construction Changes
EZset reserves the right to make construction changes, however, EZset shall not be obligated to perform such changes on already delivered products.
§ 10 Final Provisions
1. Unless otherwise determined in the order confirmation, the place of performance is the principal place of business of EZset.
2. The laws of Germany shall apply. The provisions of the UN Convention on the International Sale of Goods shall not apply.
3. If the Buyer is a business person, a legal person under public law or a public special fund the courts at the principal place of business of EZset shall have exclusive jurisdiction over all disputes arising from this agreement. This also applies if the client has no general place of jurisdiction in Germany or if neither the permanent residence nor the ordinary residence at the time of commencement of an action is known.
(valid as of 10-2008)