General Terms and Conditions (GTC)
of EVA Technology GmbH, Landsberg am Lech
Table of Contents
1) Scope, Offer, Conclusion of Contract
1.1 These General Terms and Conditions apply exclusively to all deliveries and services provided by EVA Technology GmbH (hereinafter EVA®). Any general terms and conditions or purchasing conditions of the Buyer shall not apply. The contract is concluded exclusively under these General Terms and Conditions of EVA®.
1.2 Offers from EVA® are non-binding unless the parties have agreed otherwise in writing. Orders placed by the Buyer require written confirmation by EVA® in order to be legally effective.
1.3 The documents belonging to EVA®'s offer, such as brochures, device descriptions and specifications, only become part of the contract if this has been expressly agreed. EVA® is entitled, with appropriate and reasonable regard for the Buyer's interests, to make changes to the technical design of the products.
1.4 Collateral agreements, amendments and deviations from these General Terms and Conditions require written confirmation by EVA® in order to be effective. EVA® employees have no authority to conclude contracts and therefore no authority to make agreements that deviate from these General Terms and Conditions.
2) Purchase Price
2.1 The agreed selling price is exclusive of transport. For deliveries within Germany: orders with an order value of EUR 50.00 plus VAT or more are delivered free of shipping costs.
2.2 EVA®'s price lists state gross prices; statutory value-added tax is included.
3) Delivery
3.1 EVA® shall not be in default if delivery deadlines are exceeded or suppliers fail to deliver for reasons for which EVA® is not responsible, nor in the event of official orders (acts of public authority) and other circumstances of force majeure affecting EVA® and its suppliers. In these cases, the delivery period is extended by the duration of the impediment to performance.
3.2 If an impediment to performance for which EVA® is not responsible lasts longer than three months, the Buyer may withdraw from the contract once a grace period of one month set by the Buyer, coupled with a notice that the Buyer will withdraw from the contract if the period expires without result, has also expired without result.
3.3 Partial deliveries that are reasonable for the Buyer are permitted.
4) Shipping and Passing of Risk
4.1 EVA® determines the shipping route and method of shipment, whereby the Buyer's interests may be taken into appropriate account.
4.2 The risk of destruction, loss or damage of the goods delivered by EVA® passes to the Buyer upon handover of the goods to the Buyer or the Buyer's representative.
4.3 Goods that are subject to complaint, or goods that a Buyer wishes to return on the basis of a right of return granted to them, may only be returned to EVA® after prior notification by the Buyer and with the express written consent of EVA®.
5) Payments
5.1 If the Buyer is in default of payment, EVA® is entitled to demand default interest in accordance with Section 288 of the German Civil Code (BGB). If EVA® can prove higher damage caused by the default, it is entitled to claim this.
5.2 The Buyer is only entitled to rights of set-off if its counterclaims have been finally established by a court, are undisputed or have been acknowledged by EVA®.
6) Duty to Inspect
6.1 Upon receipt, the Buyer must inspect the goods delivered by EVA® without undue delay for completeness and functionality.
6.2 Defects must be notified to EVA® in writing without undue delay, but no later than 14 days after receipt of the goods; hidden defects must be notified no later than 7 days after their discovery.
7) Buyer's Rights in Case of Defects
7.1 In the case of properly notified and justified defects, EVA® is entitled, at its option, to rectify the defect or to deliver a replacement (subsequent performance). If subsequent performance fails or EVA® is unwilling to deliver a replacement, the Buyer is entitled to withdraw from the contract or to demand a price reduction.
7.2 Claims for subsequent performance for BIYOND® accessories become time-barred one year after delivery or handover to the Buyer or the Buyer's representative.
7.3 Claims for subsequent performance for BIYOND® devices become time-barred two years after delivery or handover to the Buyer or the Buyer's representative.
7.4 Claims arising from a declared withdrawal or from a price reduction demanded by the Buyer, as well as claims for fraudulently concealed defects, become time-barred three years after delivery or handover to the Buyer or the Buyer's representative.
8) Liability
8.1 EVA® is liable without limitation for damage attributable to intentional or grossly negligent conduct on the part of EVA® or its executive employees.
8.2 For intentional and grossly negligent conduct of simple vicarious agents (persons who are neither legal representatives nor executive employees of EVA®), EVA® is liable only insofar as the vicarious agents have breached material contractual obligations.
8.3 For breaches of non-material contractual obligations, EVA®'s liability is excluded insofar as EVA® may disclaim liability by virtue of commercial custom.
8.4 In all cases covered by clauses 8.2 and 8.3 above, EVA®'s liability is limited to compensation for the typical foreseeable damage.
8.5 If EVA® is in default, its obligation to pay damages in the case of slight negligence is limited to 50% of the typical foreseeable damage.
8.6 EVA® is not liable beyond this. In particular, EVA® is not liable for damage not incurred to the goods delivered by it, for loss of profit or for other pecuniary losses.
8.7 EVA®'s liability for warranted characteristics is not restricted by these provisions.
8.8 Claims under the Product Liability Act (Produkthaftungsgesetz) remain unaffected by these General Terms and Conditions.
9) Application Engineering Advice from EVA®
EVA® provides application engineering advice to the best of its knowledge. All information and advice regarding the suitability and application of the goods sold do not release the Buyer from its own duty of inspection. Except in the case of a written assurance, EVA® is only liable for technical advice, information or other recommendations that were given incorrectly or incompletely intentionally or through gross negligence.
10) Retention of Title
10.1 The goods remain the property of EVA® until the Buyer has fully satisfied all of its obligations arising from the business relationship with EVA®.
10.1 If the Buyer is in default of payment, EVA® is entitled, after withdrawing from the purchase contract, to demand from the Buyer, at the Buyer's expense, the provisional and immediate surrender of the goods owned by EVA®.
11) Place of Jurisdiction and Legal Validity
11.1 The agreed place of jurisdiction is Landsberg a. Lech.
11.2 Should a clause of these General Terms and Conditions or any other clause of the contract be legally invalid, the legal validity of the contract and of these General Terms and Conditions shall remain unaffected.