General Terms and Conditions of Purchase
1. Exclusive Validity of these Conditions; Acknowledgement of Ordinary-Retention of-Title Clauses
1.1. All and any orders placed by ecom with the Supplier shall exclusively be governed by these General Terms and Conditions of Purchase. Any conditions of the Supplier irrespective of their type and form are herewith explicitly rejected.
1.2. Ecom accepts (ordinary) clauses of retention of title by which the Supplier retains title to the Products delivered until full payment for such particular Products has been received.
2. Order Forms
In order to become effective, the placement of orders must either be made in writing or must be confirmed in writing by ecom.
3. Documents
By providing the Supplier with any data, in whichever form, ecom shall not be deemed in any way either to have disposed of any intellectual property rights it may have therein nor to have parted with its title in such data. Such data must not be copied or in any way be made available to third parties nor must they be used for any purpose other than the execution of the pertinent contract.
4. Payment
Payment shall be effected within 14 days with a 3% deduction or within 30 days net.
5. Assignment of Claims
Claims against ecom must not be assigned to a third party without ecom´s prior written consent.
6. Reduced Incoming Inspection; Notification
Ecom shall be obliged to inspect products received from the Supplier only for obvious (outwardly recognizable) defects, such as obvious transportation and/or packaging defects and with regard to the identity and the quantity of the products delivered as compared to those ordered (“Incoming inspection”). Notice of a defect found must be given by ecom forthwith, in no case later than 10 working days from discovery.
7. The Supplier’s Unlimited Liability for his Sub-Suppliers
The Supplier shall be liable for all and any acts and/or omissions committed by any of its sub-suppliers like he had committed them himself, whatever the nature of his relationship with ecom (pure sales contract or involving the duty to manufacture also).
8. Relevance of Specifications
Any agreed-upon specifications must be fully complied with by the Products delivered during the entire period of warranty (see clause 9.4 of these Conditions). This constitutes a full quality and durability warranty within the sense of § 443 German Civil Code (“BGB”).
9. Warranty
9.1. Parts Found to be Defective
If a Product is found by ecom to be defective, ecom shall be entitled to set the Supplier an appropriate deadline by which to either replace or repair (at ecom´s option) such Product including, where necessary, both its disassembly and its subsequent reassembly. If such supplementary performance is either impossible or totally uneconomical for the Supplier or if the Supplier has failed twice to properly accomplish such supplementary performance, ecom shall be entitled, at its option and at the Suppliers ´cost, either to carry out such repair itself or to have it carried out by a third person. In the case of a safety-critical defect, such right shall inure after only one failed attempt by the Supplier. A defect shall be considered safety-critical, if it puts into jeopardy either human health or property other than the defective product itself.
Alternatively, ecom shall be entitled, vis à vis the Supplier, either to reduce the price for such defective Products appropriately or to return them to the Supplier (by holding them at the ready for pick up by the Supplier) and to either retain payment or demand repayment (as the case may be) in full of the purchase price. Finally, if the Supplier so wishes and bears the associated costs, ecom may properly dispose of them.
All the rights outlined above in this paragraph shall also inure to ecom if either the Supplier declines to remedy the defect or if he is obviously unable to do so or if ecom cannot reasonably be expected to wait for such supplementary performance by the Supplier due to the danger of exceptionally high damage.
In addition to the above rights, ecom shall also be entitled to the reimbursement of any ancillary costs it may have had to endure due to such a defect, like the costs of identifying the defective products, line standstill or loss of profit. (both at ecom itself and at ecom´s customers).
9.2. Deliveries out of which only Samples are Tested.
9.2.1. Voluntary Character of Taking Samples; Definition of “Sample” and of “Basis Quantity”; Treatment of Products Actually Tested
Save as set out in section 6 above, ecom shall be entirely free as to whether and to what extent and on what occasion (reception of deliveries, during manufacturing or after the completion of the finished Products), if any, it conducts any quality controls at all. However, if ecom does subject a certain randomly selected part (“sample”) of any delivery received from the Supplier (“basis quantity”) to such an inspection, Products within such a sample that turn out to be actually defective shall without prejudice to the rights arising from section 9.2.2 below be treated as lined out under section 9.1, above. In contrast, with regard to Products that have been proven to be without defects, ecom shall be entitled to either return or dispose of them only, if the quantity of such non-defective Products is too small to be worthwhile for ecom.
9.2.2. Treatment of the Remaining Parts not Actually Tested; Inference From the Amount of Defective Products Within a Sample to the Defectiveness of the Pertinent Basis Quantity as a Whole.
In case even one Product within such a sample shows a safety-critical defect or if the sample as a whole exceeds an error rate of 100 ppm for defects of a non-safety-critical nature, the entire basis quantity shall be deemed to be defective regardless of whether or not any particular part out of such basis quantity actually is defective.
In such case, ecom may in freely eligible combination assert all rights provided for by section 9.1 above (for Products actually found defective) with regard to all Products belonging to the pertinent basis quantity.
9.3. Non-Exclusive Character of the Above Provisions
The above provisions shall in no way abridge any statutory rights in case of defects of the Products and defects of title ecom may otherwise have.
9.4. Prescription of Warranty Claims
The limitation period for all and any warranty claims of ecom´s shall be 36 months.
For replaced Products the original period of warranty shall begin to run anew when the replacement part is delivered, respectively re-installed.
For repaired Products the original period shall remain unchanged save that it shall run for at least 6 months from the date of delivery/re-installation of the repaired Product. However, the full period shall begin to run anew from this date with regard to defects of the kind that gave rise to the repair in question.
10. Reduced Duty of ecom Vis-à-Vis the Supplier to Assert Certain Defences Towards Its Customers as Part of ecom´s Obligation of Damage Minimization
If claims are made against ecom by one or several of its customers which are based on real or alleged facts for which, if true, the Supplier would be liable, ecom shall not be required, as part of its general duty to minimize the damage suffered from the Supplier, to defend itself against such claims by relying either on the prescription of such claims or on the failure of such customer properly to have notified ecom of such defect, provided such prescription occurred not longer than one year before such claim was first raised against ecom in a manner that stopped or interrupted such prescription to run, respectively if such notification was made not later than two months after the date of discovery.
11. Final Provisions
11.1 The place of performance for all obligations governed by these Conditions shall be Tauberbischofsheim
11.2 All deliveries, both present and future, made between the Parties, shall exclusively be governed by German law.
Any and all disputes arising thereunder shall exclusively be decided by the competent court in Würzburg, Germany.
ECOM Instruments GmbH, Assamstadt
February 20th , 2013