GENERAL TERMS AND CONDITIONS
of E.I.S. Aircraft GmbH, Kolumbusstraße 31, 53881 Euskirchen, Germany, and all other sites – hereinafter referred to as EIS – to carry out work at aircraft and for the distribution and sale of spare parts.
1. General terms
1.1 The following terms shall be exclusively applicable to orders placed with EIS to carry out work onaircraft (e.g. disassembly or assembly, maintenance service, overhaul, including replacement of components, fitting accessories, maintenance and other work)as well as the sale of replacement or spare parts.
1.2 Agreements between the Principal/Purchaser and EIS shall be binding for the parties involved if they have been confirmed in written form or by telex. The acceptance or forwarding of orders placed by phone or telex shall be at Purchaser’s/Principal’s riskand for the account of Purchaser/Principal.
1.3 The work order shall include the authorization to carry out test flights, test runs or other work required for testing the contract item without separate approval of the principal. The Principal/Purchaser shall agree that additional and overtime work turning out to be necessary during repair may be invoiced separately without special authorization unless a binding quotation has been submitted according to paragraph II.
1.4 EIS shall be entitled to have work they have been commissioned with carried out by another company deemed appropriate as performing agent within and outside the Federal Republic of Germany.
1.5 Replacement and spare partsshall be sold exclusively to end consumers. The Purchaser shall expressly acknowledge this. Resale shall require the approval of EIS.
2. Offers and quotations
All offers are subject to change. Quotations shall only be binding if made in written form or explicitly identified in writing as binding. The Principal/Purchaser shall be invoiced for specific deliveries and supplies rendered for submitting a requested quotation, e.g. travels, check-operations, disassembly work etc., even if the work provided for in the quotation is not carried out or carried out in modified form.
3.1 The prices for parts used, material, test flights and extra services, as well as the prices for work performance shall be indicated separately.
3.2 If a fixed price has been agreed when the order was placed, only this price may be invoiced.
3.3 Objections to invoices must be made vis-à-vis EIS in writing and not later than eight days upon receipt. Otherwise the settlement shall be considered as approved. The Principal/Purchaser shall be made specifically aware of this legal consequence upon presentation of the invoice.
4.1 The performance period shall be extended by the period of default EIS is not responsible for or the default of the Principal/Purchaser with consideration or cooperation.
4.2 EIS shall be obliged to observe the deadline bindingly agreed upon. If the amount of work is increased compared to the original order volume, the deadline shall be deferred accordingly.
4.3 Deadlines shall only be binding for EIS if they have been identified as binding expressly and in written form by EIS.
4.4 If EIS is responsible for non-compliance with the delivery deadline, the Principal/Purchaser shall be entitled to withdraw from the contract after a reasonable period of grace. Further claims, particularly to compensation for damages due to missed deadlines shall be excluded except for proven responsibility in cases of intent or gross negligence.
5.1 The contract item is considered accepted with delivery, unless a written objection is made vis-à-vis EIS within ten days. Upon delivery the customer shall be made aware of this legal consequence. As a general rule, the delivery shall be made on the premises of EIS.
5.2 If the Principal/Purchaserrequests the delivery of the contract item, this shall be at his risk and for his account.
5.3 The Principal/Purchaser shall be in default with acceptance if he fails to pick up the contract item against payment of the invoice within 14 days after he has been informed of completion and the preliminary or final invoice has been issued. After that deadline EIS shall be entitled to invoice the usual storage and parking fees. The contract item may also be otherwise correctly stored or parked on usual terms at the discretion of EIS. If the contract item is an aircraft, the usual storage or parking fees will be invoiced upon completion unless the Principal/Purchaser picks up the aircraft within a period of two days of notification of completion.
5.4 During the period the Principal/Purchaser is in default with acceptance, EIS shall only be liable for intent and gross negligence.
6.1 EIS shall only be liable for poor workmanship they are responsible for. EIS shall grant rights vis-à-vis a third party to the Principal/Purchaser for parts not produced by EIS or foreign material, spare parts and accessories. The Principal/Purchaser shall be entitled to demand replacement from a third party. Moreover, he shall be entitled to demand the reduction of the remuneration or annulment of the contract instead of replacement. If the third party has restricted warranty to replacement, the Principal/Purchaser shall be entitled to choose reduction or annulment if replacement failed. The Principal/Purchaser shall be obliged to initially assert his ceded claims out-of-court vis-à-vis the third party.
6.2 Visible defects, quantity and quality included, must be reported immediately upon acceptance of the contract item. Otherwise the delivery is considered according to contract.
6.3 The warranty period for hidden defects that were not visible upon acceptance shall expire if:
6.3.1 thePrincipal/Purchaser does not immediately notify EIS in written form upon detection and the rejected contract item is not delivered to EIS free of charge within ten days upon detection of the defect, unless otherwise agreed.
6.3.2 the part of the aircraft affected by the defect has been modified or repaired by the Principal/Purchaseror a third party, with the exception of emergencies.
6.3.3 two weeks or 10 flight hours have passed between acceptance and sending the notification of defects for merchants and minor traders in termsof HGB (German Commercial Code).
6.3.4 For non-traders, if EIS has not been notified of the defect in writing within six months of acceptance.
6.3.5 The damages detected after acceptance are based on natural wear, faulty or negligent treatment, misuse, excessive use or other circumstances the Principal/Purchaser is responsible for.
6.4 The warranty of EIS shall be restricted to the obligation to remedy the defect in their own hangar or a workshop approved by them. If spare parts are purchased the warranty of EIS shall be restricted to the right to spare parts supply or repair of the defect. If the replacement or repair fails, the Principal/Purchaser shall be entitled to demand the reduction of compensation or optionally the annulment of the contract. The repair is considered failed if the defect is not entirely remedied after the work or replacement has been carried out twice.
6.5 Set-off with warranty rights shall be excluded with the exception of undisputed claims or claims awarded by final and non-appealable judgement. For merchants and minor traders in terms of HGB (German Commercial Code) a lien due to warranty rights shall be excluded.
7.1 EIS shall not be liable for damages and losses of the contract items and parts of those that have been delivered to them for processing unless the damages were caused by EIS or their employees with intent or gross negligence.
7.2 Unless otherwise stipulated in these terms, the liability of EIS shall be restricted to the repair of damages of the contract item or parts thereof. If repair is not possible or entails disproportionate costs, liability of EIS shall be restricted to the difference between the value of the damaged object before the damaging event and its value after its occurrence.
7.3 EIS shall not be liable for additional contents of aircraft unless they have been delivered for special storage.
7.4 The risk of test flights shall be with the Principal. During default of acceptance by thePrincipal EIS shall only be responsible for intent or gross negligence.
7.5 If EIS commission another company as performance agent to execute the granted order completely or partially, according to paragraph II clause 4 of these terms, liability of EIS, their employees and the third party as performance agent shall be restricted to intent and gross negligence.
7.6 EIS shall only be liable vis-à-vis the Principal/Purchaser for intent and gross negligence. Apart from that, the Principal/Purchaser or a third party shall not be granted compensation by EIS for a direct or indirect damage regardless of the legal reason.
7.7 The Principal/Purchaser shall undertake to exempt EIS from any and all liability vis-à-vis a third party and all claims raised by a third party vis-à-vis EIS caused by him or in relation with the order he has granted unless EIS acted with intent or gross negligence.
7.8 The Principal shall be liable vis-à-vis EIS for all damages caused by him or his performance agents with intent or gross negligence.
8.1 As a general rule, the Principal shall be responsible for insurance cover for damage of all kinds. If requested, he shall at any time prove to EIS that sufficient insurance cover is in place.
8.1 If the Principal violates this obligation or necessary insurance cover does not exist, EIS shall be entitled to take out appropriate insurance on the Principal’s account, disburse premium amount and assert it as part of their claims.
9.1 The payment of work shall be due upon acceptance of the contract item, however, not later than 14 days upon notification of completion and delivery of the preliminary or final invoice. For contracts with regard to spare or replacement parts, the amount shall be due upon conclusion of the purchase contract. The payments shall be due net without deduction to the bank account of EIS on the dates agreed.
9.2 Upon prior agreement cheques and drafts shall only be accepted as an offer for payment – not as actual payment.
9.3 Offset of payments with potential counterclaims shall only be permitted if these are undisputed or final.
9.4 EIS shall be entitled to claim advance payment of 50 % of expected costs.
9.5 If payment is not made within 14 days upon receipt of the invoice, the Principal shall be automatically in default. In such a case we are entitled to claim default interest of 5% above the respective base rate of the European Central Bank (ECB). For purchase contracts between companies default interest of 8 % above the respective base rate of the ECB shall be due.
10.1 Due to their entire claims from this Contract and claims from other repairs, supplies of material and other services generated by past contracts,EIS shall be entitled to a lien to all objects of the Principal acquired by EIS. EIS shall be entitled to a lien even when the financial situation of the Principal turns out to be unfavorable or due invoice amounts are not paid as agreed.
10.2 To cover outstanding invoice amounts including those of former orders, EIS shall be entitled – eight weeks after the due date of the claims – to private sale of the objects owned by them without prior threat and compliance with a sales period.
11. Reservation of title
11.1 EIS shall reserve the title to all accessories and replacement components until the claims from the business relation have been paid in full.
11.2 In the case of third party access, in particular in the case of distraint of the object of purchase or execution of entrepreneurial lien of a third party, the Principal/Purchaser must immediately inform EIS in written form thereof and inform the third party immediately of EIS’s reservation of title.The Principal/Purchaser shall bear all costs incurred for the cancellation of access and recovery of the object of purchase, provided that they cannot be collected by a third party.
11.3 If the title of EIS is lost by combination, blending or processing, they will become co-owner of the object in relation to the value the object has at the time of blending or processing.
12. Final provisions
12.1 Place of performance shall be the head office of EIS.
12.2 Legal venue of present and future claims from this business relationship with fully qualified merchants including draft and cheque claims shall be the head office of EIS.
12.3 The right of EIS to sue the Principal/Purchaser at his residence or head office shall not be affected.
12.4 Legal venue shall be the head office of EIS even if the Principal/Purchaser does not have a place of general jurisdiction in Germany, relocates his domicile or habitual residence, or his domicile or habitual residence is not known when the proceedings are instituted.
All claims arising from this Contract shall be subject to German law.
GENERAL PURCHASING CONDITIONS
1. Subject matter of the contract and scope of application
1.1 The following terms shall be applicable to all services provided to EIS Aircraft GmbH (hereinafter referred to as “EIS“ or“Principal”) regardless of the legal nature of the contract the service is based on. The purchasing conditions of EIS shall apply exclusively.
1.2 We do not accept contradictory or purchasing conditions deviating from ours, unless we have expressly approved their applicability in advance and in written form. Deviating General Terms and Conditions used by the contractual partner of EIS, hereinafter referred to as “Agent“, shall not become subject matter of the contract, even if EIS do not expressly contradict. If EIS accept the delivery or service without express opposition, it cannot be derived that EIS would have accepted the contract terms of the Agent.
1.3 These terms shall also be applicable to all future business between EIS and the Agent, even if reference is not expressly made to these purchase conditions in a specific case.
2. Tender / Purchase order / Order documents
2.1 Tender preparation shall be free of charge for the Principal. In his quotation the Agent shall inform EIS about deviations.
2.2 If the Agent does not accept the order within three days of receipt of the purchase order by a written order confirmation, EIS shall be entitled to cancel the purchase order without entitling the Agent to claims for damage.
2.3 Purchase orders shall require text/written form. Otherwise purchase orders are invalid.Orders by phone may only be carried out by authorized persons (purchasing staff). These shall be appointed by EIS. If the authorized persons are replaced, the Agent shall be informed accordingly in written form. The current version shall be the last written notification with the most recent date.
2.4 Supply agreements shall come into being when the Agent confirms in writing the Principal’s purchase order or signs and returns the contract (or purchase order) sent. Supply agreements and call-offs as well as their amendments and supplements require written form.
2.5 If our purchase order or order is not confirmed, but carried out, a contract is also concluded. Our purchase conditions shall be considered as implicitly accepted. If our order is carried out, even if reference is made to the rejection of our purchasing conditions, the execution of the order shall be considered as acceptance of our purchasing conditions.
2.6 By accepting the purchase order the Agent shall acknowledge that by examining the existing documents he has informed himself sufficiently of the type of execution and scope of services. In the case of obvious mistakes, typing and calculation errors in the documents provided by us etc. there shall be no liability for us. The Agent shall be obliged to inform us immediately of such errors to enable us to correct the purchase order accordingly. This shall also apply if documents are missing.
2.7 We shall reserve all titles and copyrights to all figures, drawings, calculations and other documents. Without our express consent they may not be disclosed to a third party. They shall be exclusively used for production based on our purchase order and returned to us without prompting or disposed of upon completion of order transaction. Absolute confidentiality obligation vis-à-vis a third party is taken for granted.
3. Prices / Remuneration
3.1 The price indicated on the purchase order shall be binding. The prices agreed on shall be fixed prices and exclude any additional charges, in particular due to potential wage and material price increases or amendments to work regulations or other taxes of whatever kind. Unless otherwise expressly agreed by contract, all additional expenses such as customs, insurance premiums, packing costs and similar shall be borne by the Agent.
3.2 All prices are plus value-added tax.
3.3 Deviations in quantity and quality compared to the text and content of the purchase order and contract amendments at a later stage shall not be considered agreed unless we have expressly confirmed these in written form.
3.4 Invoices can only be processed if they contain the order number of our purchase order according to our specifications; the Agent shall be solely responsible for any and all consequences arising from the non-compliance with this obligation, unless he proves that he is not responsible for them. The Agent shall be aware of the fact that invoices not complying with the specifications of EIS will be returned untreated.
3.5 Payment will be made within 14 working days upon receipt of the invoice with a deduction of 2 % discount or unless otherwise agreed in writing within 30 calendar days net by means of payment at our discretion. Payment terms shall be initiated by the later of the following options:
(a) Delivery or acceptance of the service, (b) receipt of invoice or (c) the delivery date indicated on the purchase order.
3.6 If a payment schedule has been agreed on, payment shall be made upon receipt of an appropriate partial invoice according to the deadlines and partial amounts agreed on the payment schedule. Prior to the acceptance of the overall performance by the Principal or the final customer, all payments shall be made as down payments without acknowledging the previous service as fulfillment. The final instalment shall not be invoiced prior to the acceptance of the service.
3.7 If EIS pay before transfer of risk, the transfer or ownership shall be considered as agreed on.
3.8 Value-added tax shall be separately listed on the invoice.
3.9 Unless otherwise agreed on, the Agent shall not be entitled to assign his claims to a third party or have thesecollected by a third party. If the Agent assigns his claims vis-à-vis EIS to a third party without the consent of EIS and contrary to clause 1, the assignment shall neverthelessbe valid. The Principal, however, can make payments with releasing effect to the Agent or a third party at his own choice.
3.10 Payments of the Principal shall be considered made, as soon as they have been authorized for payment by the Principal.
3.11 EIS shall be entitled to off-set rights and liens to the extent provided for by law.
3.12 In the case of non-conformity, in particular defective delivery, EIS shall be entitled to withhold payment proportionately until proper fulfilment without the Agent being entitled to assert claims for damages or default interests and without loss of discounts, rebates or similar payment benefits.
4. Service content, Execution, Modifications
4.1 The service content shall be based on the respective individual order. Documentation, reports, ideas, drafts, models, templates and all other results produced in connection with the rendering of services shall be part of the contractual service.
4.2 The Agent shall render his services with meticulous care, taking into account the latest developments of science and technology, safety regulations of authorities and professional associations (of the Federal Republic of Germany), in particular, taking into account DIN or ISO verification regulations insofar as they refer to his part of services, as well as his own findings and experience gained during commissioned work. The Agent shall ensure compliance with statutory provisions, the agreed technical specifications and other defaults.
4.3 The Agent shall prepare drawings, data and other documentation in accordance with the requirements, regulations and directives of the Principal and his customers without asserting additional costs. In the case of uncertainties the Agent shall be obliged to obtain any information required for order fulfillmentfrom the Principal before work starts. This shall be particularly applicable to EDP systems and specifications of the final customer of EIS to be used. Documents provided by the Principal such as drawings, instructions etc. shall be stored so that they are not accessible to third parties and shall be delivered or disposed of upon request. Notes shall be stored in line with statutory duties and made available to the Principal at any time.
4.4 If requested by EIS the Agent shall provide all information on the structure of the delivery item insofar as it is required for compliance with official regulations and the statutory regulations respectively applicable at home and abroad.
4.5 EIS shall be entitled to demand order changes as regards structure, execution, quantity and delivery period – within the bounds of what is reasonable – as long as the Agent has not fulfilled his obligations in full.
4.6 The Agent shall be obliged to communicate immediately in written form his concerns as regards the ways and means of carrying out the delivery/service and propose changes (if necessary of the EIS product) he considers necessary to comply with the agreed specification or statutory requirements.
4.7 As a general rule, the delivery of non-compliant products shall not be permitted. In the case of non-compliant execution, the Agent shall be free to contact the Principal to coordinate a potential usability despite the problem of non-conformity. If the Principal receives non-compliant products or goods, he shall be entitled to reject them and have a right to repair/replacement within statutory periods. Payments by the Principal will be suspended until contract performance has been completed in full.
4.8 Moreover, the Agent shall undertake to inform the Principal without delay about defective products and goods that were detected following delivery. This has to be made not later than within three working days.
5. Performance deadlines, Default and Exclusion of the obligation to perform
5.1 Agreed deadlines and time limits shall be binding. The delivery of the contractual overall performance (i.e. the entire subject matter of the contract incl. documentation) to EIS or the reception of the contract item by the recipient specified by EIS shall be decisive for compliance with delivery date or delivery term. If it has not been agreed on “free delivery” or “free delivery on site”, the Agent has to provide the service, taking into account the regular time for transportation or consignment.
5.2 If the Agent does not observe the delivery date, the Principal shall be entitled to demand at his own choice without further respite of subsequent delivery, compensation for damages instead of the performance due to services not rendered or services not rendered as owed or to withdraw from the order. For delay in delivery a penalty of 0.5 % of the order value shall be agreed on for each week of default beginning, limited to a maximumof 5 % of the agreed compensation. The assertion of further rights shall not be affected. The delay penalty shall be set off against damage caused by delay actually occurred and asserted. The right to demand payment of the penalty shall not be forfeited by unconditional acceptance of delayed delivery.
5.3 As soon as it becomes obvious that agreed intermediate deadlines and final deadlines cannot be met,the Agent shall be obliged to inform the Principal without delay. The statutory rights of the Principal shall not be affected by this notification. The assertion of damage caused by delay shall also be reserved.
5.4 Premature deliveries and partial deliveries shall only be allowed with our written consent.Premature invoices for premature deliveries will not be accepted and returned promptly.
6. Force Majeure
6.1 Force majeure, labor disputes, riots, governmental measures and other unpredictable, inevitable and serious events shall cause mutual suspension of the obligation to perform of the contractual partners for the duration of the disruption. The contract partners shall be obliged to immediately provide the necessary information within the scope of what is reasonable and adapt in good faith their obligations to the modified conditions.
6.2 If the obligations to perform are suspended for more than two weeks due to force majeure, the Principal shall be entitled to terminate the contractual relationship with immediate effect. In such a case the Agent shall be entitled to demand compensation for duly justified expenses incurred with confidence in the continuation of the contractual relationship to the suspension of contractual obligations.
7. Provisions, Tools
7.1 Provisions shall remain the property of the Principal and be stored by the Agent free of charge, identified separately as provisions and administered with care. They shall only be used for the underlying order. In the case of reduction in value or loss, the Agent shall be obliged to replace them and take out insurance at his own expense for this purpose. This shall also apply to the cession of order-related material charged. Excess material shall be returned to EIS upon completion of the individual purchase order at the Agent’s expense.
7.2 If the material is processed and modified, the Principal shall become owner of the new or modified object when it comes into being. The Agent shall store the new or modified object for the Principal free of charge and with due diligence of a prudent businessman. Thus, reservation of title to the performance result in any form whatsoever shall be excluded.
7.3 The ownership of auxiliary models, tools, models, molds etc. (hereinafter referred to as “tools”) required for rendering the contractual service shall be transferred to the Principal when they come into being. Thus, tools shall be treated as provisions by the Principal. The Principal shall be entitled to demand the supply of tools at his own discretion or have them scrapped by the supplier free of charge. Scrapping of tools shall require the written approval of the Principal.
7.4 The Agent shall identify confidential documents as property of the Principal and store them separately and safely. Upon the Principal’s request, all confidential documents and objects shall be returned to the Principal or destroyed by the Agent immediately and without demand. Reservations of title shall be excluded.
Orders may only be subcontracted to a third party with the prior written consent of the Principal. In the case of violation by the Agent the Principal shall be entitled to terminate the contract with immediate effect. In such a case the Agent shall not be entitled to assert compensation claims in any form whatsoever.
9. Transfer of risk / Acceptance
9.1 The risk shall be transferred to EIS upon delivery of the goods to EIS or the recipient appointed by EIS. A delivery note according to the specifications of EIS must be attached to every delivery. The Agent shall bear the risk of accidental loss or deterioration of the goods until they are handed over at that destination. In any case,the Agent shall bear the costs for freight and packaging, including extra costs for express delivery or expedited consignment due to reasons he is responsible for.
9.2 If the installation or assembly of the delivery item is included in the order volume as ancillary service, formal acceptance shall be required. It cannot be carried out before the testing phase has been completed. Apart from that, the delivery item shall be considered accepted six weeks upon commissioning at the latest, provided that during this period the Principal does not assert any defects impairing acceptance.
9.3 If, however, the Agent’s performance is integrated into the overall performance of EIS vis-à-vis their final customer, the Agent’s performance shall only be accepted by the final customer together with the acceptance of EIS without any express statement in that respect being required. Payments shall in no way mean the acceptance of the delivery item or the acknowledgement of its flawlessness. The risk shall be transferred at the latest upon acceptance of the contractual service.
10.1 The Agent shall undertake to treat as a business secret any and all evident, commercial and technical details he becomes aware of due to the business relation and protect them from unauthorized inspection, loss or use. Drawings, models, patterns, templates and similar objects provided by us or produced at our expense shall remain the Principal’s property and may not be made accessible or ceded to an unauthorized third party without the written approval of the Principal. Reproduction of these objects shall only be permitted in line with operating requirements and copyright regulations. The documents provided to the Agent shall be returned to the Principal without prompting or disposed of safely upon coordination with the Principal and upon completion of works, taking into account the confidentiality requirement. The Agent shall not be entitled to withhold or store copies, duplicates etc. unless he is obliged to archive them due to statutory provisions. Subject to further rights, the Principal shall be entitled to demand the surrender of the same, should the Agent violate his obligations.
10.2 Staff members and sub-suppliers have to be obliged accordingly.
10.3 Unless otherwise stipulated in the order, this secrecy obligation shall continue for five years upon delivery and/or performance.
10.4 The supplier shall only be entitled to promote this business relationship with the written consent of the Principal.
11. Liability for defects
11.1 If the period of limitation for claims for material defects has not been agreed upon separately, the Agent shall warrant that his contractual services will be flawless during a period of 24 months upon acceptance of the overall performance by the Principal or his final customer, however, not longer than 36 months upon delivery of the overall performance to the Principal. The period of limitation for claims for material defects shall be applicable regardless of the operating time. Defects of the supplied goods shall be communicated by the Principal once detected, according to the circumstances of the ordinary course of business. If the defects are obviously detectable in the business routine of EIS, the notification of defects shall be made within a period of one week. If the defects are not obviously detectable, the notification of defects shall be made within a period of 14 days upon identification of defects. Insofar the supplier shall waive the claim of late notification of defects. The notification of defects shall interrupt the period of limitation for claims for material defects as regards the faulty delivery item until the defect has been remedied in full. Defects of title shall be in lapse after the statutory limitation period.
11.2 The Principal shall be entitled to assert statutory warranty claims at his own discretion. In the case of improvement or replacement the Agent shall be obliged to remedy defects immediately free at destination at his own expense or render the service again. He shall bear all costs incurring in relation with improvement or replacement including necessary travel expenses. The right to possible claims for damages shall be reserved.
11.3 In urgent cases, e.g. in imminent danger or when the Principal’s own obligations to perform require immediate improvement or the Agent refuses a quick remedy of defects, the Principal himself may perform the improvement at the expenses of the Agent or have it performed by a third party without setting a time limit. The same shall be applicable, if the Agent delivers after the original deadline.
11.4 Apart from that, statutory provisions shall apply.
12.1 If claims are asserted against the Agent where derogation of statutory provisions is possible because of liability without fault vis-à-vis a third party, the Agent shall indemnify the Principal to the extent to which he would otherwise be found directly liable. The principles of § 254 BGB (German Civil Code) shall be applicable to compensation for damages between Principal and Agent. 1
12.2 Apart from that, statutory provisions shall apply.
13. Industrial property rights
13.1 The Agent shall be liable for claims arising from the violation of trademark rights granted and applied for, provided that deliveries and services are used according to the contract. The Agent shall exempt the Principal and his customers from any and all claims arising from the violation of such patent rights. This shall not be applicable if the Agent works in accordance with drawings, models, data etc. provided by the Principal and does not know or may not know in connection with the services rendered by him that patent rights are violated.
13.2 In the case of violation the Principal shall be entitled to obtain – at the Agent’s expenses – the necessary permission from the owner of such patent rights to deliver, commission, use, resell etc. the delivery item.Any further claim for damages of the Principal shall not be affected.
The Principal shall be entitled to withdraw from the contract at any time if the criteria of § 6 have been fulfilled or labor disputes, shortage of raw materials or natural disasters, impossibility or delay of the Agent occur.
15. Right of access
In line with the commission, the Agent shall be considered as an approved supplier of EIS Aircraft GmbH, which hold various certifications and operate in the aerospace industry. This requires right of access tobe forwarded to the Principal, his QM, customers and authorities. This right of access is a prerequisite for the Principal.
16.1 If the Agent stops payments or insolvency proceedings are opened as to his assets, or judicial or extra-judicial settlement proceedings have been filed, the Principal shall be entitled to withdraw from the contract. If the Principal does not withdraw, he shall be entitled to withhold an amount of at least 10 % of the remuneration as a security for contractual claims until the expiry of the contractual limitation period of the claims for defect.
16.2 If one of these provisions or a part of the other provisions agreed upon are or become invalid, the rest of the contract shall remain valid. The contract partners shall be obliged to replace the ineffective provision with one that comes closest to supporting the economic success.
16.3 Place of performance for deliveries and services from the respective individual order shall be the head office of the Principal, unless another place of performance is indicated on the individual order.
16.4 Exclusive legal venue, where permitted by law, shall be Bonn. These General Purchasing Terms shall be governed by German law.
16.5 As a supplement to these terms, the law of the Federal Republic of Germany shall apply exclusively. The application of the standardized UN sales law shall be excluded.
EIS-Aircraft GmbH, Euskichen 26.11.2014 (current version)
General Business Terms for the Sale and Delivery in the Plastics Converting Industry
(based on the non-binding recommendation of the Terms of Business of IK,
Industrievereinigung Kunststoffverpackungen e.V. (Association of Plastic Packaging Industry)
The following General Terms of Business for the Sale and Delivery in the Plastic Converting Industry are being recommended as a non-binding agreement by GKV, Gesamtverband Kunststoffverarbeitende Industrie Bad Homburg. Association members and their contract partners are free to make use of other and alternative terms of business.
The following terms are applicable only to business persons, legal entities under public law or of public utilities or separate public legal assets.
1. Orders become binding only after the supplier has confirmed the order. If the customer does not disagree with the content of the order confirmation within 7 days, the contract shall become binding under the conditions listed in the confirmation, even if due to a transmission, communication or clerical error the conditions differ from the original agreement. Variations and additions to the tender shall be made in writing. All offers and tenders are subject to alterations, unless they are explicitly marked as fixed. Quantities or sizes are, unless expressly specified as binding, non-binding approximate values.
2. These terms are valid in respect to on-going business and also future business, even if not expressly stated, as long as these terms have been referred to at the occasion of a previous supplier confirmed order.
3. Business terms of the customer do not apply, even if not expressly disagreed with by the supplier, unless the supplier has expressly agreed to them in writing. The regulations governing distance selling to customers are not transferable to commercial business relationships, not even in corresponding situations.
4. Should any one clause be or become void, the validity of the remaining clauses is not affected.
1. Prices shall be considered to be ex works, excluding freight, customs or import duties or ancillary export charges and packing, plus VAT, applied at the legally proscribed rate.
2. Should after submission of the offer or after confirmation of the order prior to delivery a major cost factor, such as the cost of materials, energy, or labour vary by more than 5%, either party may request a price adjustment. The adjustment shall be determined according to the applicable cost factor in respect of the total price.
3. Previous prices do not bind the supplier in subsequent orders.
III. Delivery and A ceptance Obligations, Force Majeure
1. Delivery schedules commence with the receipt of documentation, necessary for the execution of the order, down payment or the timely provision of materials, if such were agreed. The supply deadline is considered fulfilled upon receipt of the delivery advice note, even when the actual delivery is delayed or has become impossible, provided the supplier did not cause the delay.
2. If an agreed delivery was not completed on time due to the direct fault of the supplier, the customer must in each case allow an appropriate period of grace.
3. Reasonable partial delivery is deemed acceptable.
4. The supplier may demand a firm commitment to on-call contract periods, manufacturing quantities and delivery schedules three months after receipt of an order at the latest. If the customer is unwilling to make such a commitment within three weeks, the supplier is entitled, after further extension of two weeks, to withdraw from the contract after expiration of the latest deadline and/or demand compensation.
5. If the customer fails to duly accept a delivery, the supplier is not bound by any regulation regarding re-sale and may freely dispose of any delivery items after prior notification of the customer, regardless of any other rights or regulations governing disposal sales.
6. The supplier may delay delivery because of force majeure for the duration of the difficulties, including an appropriate time for a return to normalcy, or in the case of non-completion of a delivery rescinds the contract wholly or in part. As force majeure qualify strikes, lockouts or unforeseeable and unavoidable situations, such as breakdowns or transport delays or interruptions, lack of raw materials or energy through no fault of the supplier, which, notwithstanding all reasonable efforts, render on-time delivery by the supplier impossible. This also is the case when the aforementioned delays occur after previous delays or when delays occur with a subcontractor.
The customer may request the supplier to declare within two weeks, whether a cancellation of the contract or a late delivery within a suitable period of grace is appropriate. If the supplier does not respond to the request, the customer may rescind not yet completed parts of the contract. The supplier shall inform the customer without delay when force majeure, as defined in clause 1 has occurred.
The supplier is obliged to minimize the inconvenience to the customer; if necessary, he may have to hand over the forms for the duration of the obstruction.
IV. Terms of Payment
1. All payments are to be made in € (EURO) and shall go solely to the supplier. In the absence of a different arrangement the purchase price for supplies or other services is to be paid net within 30 days from the billing date.
2. Payments made on accounts in arrears attract interest at the legal interest rate charge of 8 percentage points over and above the applicable base rate as per § 247 BGB (Common Law Code), unless the supplier proves higher damages.
3. Cheques or bills of exchange are only acceptable with the expressly written agreement and only to discharge existing obligations. All costs, associated with these forms of payment, shall be born by the customer.
4. The customer may offset an account or exercise his right to withhold payment only if his claims are indisputable or established in law.
5. Sustained non-compliance with the terms of payment or circumstances that raise serious doubts as to the creditworthiness of the customer will result in claims for all payments becoming due immediately. Moreover the supplier is also entitled to demand pre-payment for all outstanding deliveries and even to cancel the contract if an appropriate deadline has not been kept.
V. Packaging, Despatch, Risk Transfer and Acceptance Delays
1. Unless agreed to differently, the supplier chooses the packaging, mode of transport and transport route. The supplier is entitled to conduct his shipping business by commissioning his selected dispatcher under the customary agreed conditions.
2. The transport risk transfers to the customer upon goods leaving the works, even if delivery is free ex works. If the customer delays a delivery, the risk transfers to the customer as soon as the despatch advice note has been issued.
3. If requested in writing by the customer, goods shall be insured at cost to the customer for the risk coverage requested.
4. If the customer delays acceptance of the delivery the supplier shall be entitled to store the goods with cost to the customer. Should the supplier facilitate the storage of the goods, storage costs to the value of 0.5% of the account value of the stored goods for each commenced storage week shall fall due. Higher storage costs must be proven to be applicable.
VI. Reservation of Property Rights
1. Deliveries remain the property of the supplier until all claims of the supplier on the customer have been met, even when the purchase price for specially marked claims has been met. For account customers the reserved property rights to the delivered goods (reserved ownership of goods) are in force as security for the supplier until the balance has been paid in full. If payments are made by means of a bill of exchange, then reserved ownership is not transferred until the bill of exchange has been cleared.
2. Further processing or treatment of goods supplied by the customer may only be carried out by excluding the ownership rights of the customer according to § 950 BGB (Common Law Code) as contracted by the supplier. The supplier becomes coowner of the thus produced goods to the proportional value of the net sale price to the net post-manufacturing processed cost of the thus produced goods, which serve as reserved ownership goods to secure the property claims of the supplier as per clause 1.
3. For further processing by the customer (in combination or addition) with other goods not owned by the supplier, § 947, 948 BGB (Common Law Code) are applicable, resulting in proportional co-ownership by the supplier in the resulting goods, which are now considered reserved ownership goods.
4. The re-sale of reserved ownership goods by the customer is only permissible as part of normal commercial practise and on condition that the customer reaches an agreement with the supplier regarding reserved ownership goods as defined in clauses 1 to 3. The customer is not entitled to take any other action in respect of reserved ownership goods, in particular pawning, or using the goods as security.
5. The customer relinquishes herewith already now all claims to the supplier, which may result from the re-sale of goods and all other justifiable claims, including associated rights to his customers. The customer is duty-bound upon request to inform the supplier immediately and supply all necessary documentation to secure the rights of the supplier against the customers of the customer.
6. When reserved property is re-sold by the customer after further processing action in combination or addition with other goods, not owned by the supplier, as outlined in clause 2 and/or 3 above, the customer cedes all purchase price claims according to clause 5 to the account value of the reserved ownership goods of the supplier.
7. Should the value of the securities held by the supplier exceed the total billed value of the goods by more than 10% the supplier must release such securities to a commensurate value; the supplier may nominate the securities to be released.
8. The supplier must be notified without delay of any confiscation or seizure of reserved ownership goods by a third party. All associated costs due to such intervention are to be born by the customer to the extent that costs are not born by third parties.
9. Should the supplier, taking action according to the above clauses, make use of his right to take back the reserved ownership goods, the supplier is entitled to an unencumbered sale or auction of said goods. The value of the returned reserved ownership goods shall be as sold or auctioned and no higher than the agreed supply price. Further claims for compensation, in particular compensation for loss of earnings, are reserved.
VII. Warranty for Material Defects
1. The product description defines the quality and design of the products or the implementation in the case of an agreed product sample, which the supplier at his discretion shall submit to the customer for evaluation. Apart from that No. XII clause 1 applies. Any reference to technical standards is an aid to define product quality and is not to be interpreted as a definition of product integrity. The usual industry standard tolerances apply. In the absence of a written agreement, the production shall be executed with standard industry materials and according to agreed, and in the absence of an agreement, according to generally accepted production processes. Minor variations from the original in the reproduction of colour do not constitute a defect; this also applies to variations in the final proof and the print run.
2. The supplier, after advising the customer beyond his contractual obligation, is liable to warrant the functionality and suitability of the supplied goods only after expressed prior assurance.
3. Defects are to be notified in writing without delay. Hidden defects are to be notified immediately after discovery. In either case the warranty only extends to twelve months after risk transfer, unless agreed to differently.
4. If defects are proven the supplier is obliged to make good (at his discretion either by rectifying or replacing the faulty product). The customer is entitled to reduce the purchase price or rescind the contract, if the supplier does not fulfil his obligation to replace goods within a reasonable period, or after replacements fail repeatedly. Further claims, especially reimbursement of incurred costs or compensation and damages due to the faults are covered under warranty liability limitations according to No. VIII. Replaced parts are to be returned to the supplier at his request and cost.
5. Unauthorized re-working and improper handling of parts result in the loss of any right to claim compensation for to defective parts. The customer is entitled, after prior consultation with the supplier, to repair defective parts to avoid excessive damage or if the supplier fails to make good the defects, and as a consequence to demand reimbursement of appropriate costs.
6. Normal wear and tear caused by normal usage does not provide the right to make warranty claims.
7. A right to referred warranty provision according to §§ 478, 479 BGB (Common Law Code) exists only to the extent of a rightful claim by the consumer and to the limit of statutory provisions, but not for any arrangement of goodwill made with the supplier and supposes the exercise of the obligation of the party holding the rights to referred warranty provisions to report any deficiencies.
8. In order to ensure the quality of his products the supplier is obliged:
- To improve or immediately introduce apply and maintain an efficient quality assurance system
- Use only suitable processes
- Further develop his QM system based on EN 9100
VIII. General Limitations of Liability
1. The supplier’s liability is limited only to cases in which he, his leading employees or sub-contractors are guilty of culpable intent, gross negligence or injury to life, limb and health.
2. The statutory product warranty is unaffected independent of any blame as well as any liability in respect of the legal fulfilment in regard of any product integrity warranty.
3. Unaffected also is the liability in the case of culpable neglect of major contractual obligations; however, the liability is restricted in cases of No. 1 to foreseeable direct damages commonly encountered in contracts. Major contractual obligations shall be understood to cover fundamental, elementary obligations resulting from the contract relationship, which are important to the orderly and proper execution of the contract and substantially influence the relationship of trust between the contract partners, especially the supply and important reporting obligations.
4. However, this implies no change in the requirement of proof to the disadvantage of the purchaser.
IX. Forms (Tooling)
1. The price for forms also contains the once-off costs for the making of patterns, but does not contain the costs for test and processing procedures, nor costs incurred by customer initiated alterations. Any further patterns required by the supplier are at his own costs.
2. The supplier has and retains ownership of all forms made by the supplier for the customer or by a contracted third party, unless agreed to differently. Forms shall be used only for customer orders as expressly agreed, for as long as the customer continues payment and acceptance obligations. The supplier is obliged to replace the forms free of charge only when the required production quantity necessitates its replacement. The supplier’s requirement to store the forms is extinguished two years after the last delivery of parts produced with the forms. The customer shall be notified before their disposal.
3. If the forms have not been fully paid for at the completion of a contract, the supplier may claim in total the remaining amount still owed on the forms.
4. If so contractually agreed, the property of the forms shall transfer to the customer after full payment of their purchase price has been made. The actual transfer of forms to the customer is replaced by the storage of the said forms to the benefit of the customer. Irrespective of the legal right of surrender the customer and the life of the forms, the supplier is entitled to exclusive possession of same until the end of the contract period. The supplier shall mark the forms as outside property and insure said property at the customer’s request and expense.
5. The liability of the supplier in respect of storage, care and maintenance of forms owned by the customer as per clause No. 4 and/or forms loaned by the customer to the supplier is subject to like treatment of proprietary property. Costs for maintenance and insurance are born by the customer. The obligations of the supplier cease when, after completion of the contract and a corresponding request, the customer fails to collect the forms within an appropriate period. The supplier has the right to withhold the forms as long as the customer has not complied with the full extent of contractual obligation.
X. Design/Mock up/Documentation
1. The supplier retains the sole ownership rights and copyrights of the drafts, documentation, sketches, drawings and sundry other documents. Inasmuch as the customer provides patterns and ideas, the supplier receives a co-copyright to the extent to which the pattern or concept was fashioned by the supplier.
2. If no order results, the customer is obliged to return to the supplier without delay all provided documentation, including any copies made. Digital copies are to be permanently destroyed.
3. The supplier is released from any possible claims of third parties during the provision of models and ideas.
4. Any produced drafts, drawings, mock-ups and similar by the supplier remain the property of the supplier, even if the customer was charged production costs.
XI. Provision of Materials
1. If the customer supplies production materials, said materials are to be delivered at the customer’s own cost and risk, on time and in good order and a quantity premium of at least 5%.
2. If the above provision is not complied with, the delivery deadline shall slip accordingly. The customer has to bear any additional costs, including extra costs incurred due to breaks in production, except in the case of force majeure.
XII. Rights to Commercial Protection and Legal Limitation
1. For all deliveries based on drawings, models, patterns or parts supplied by the customer, the customer warrants that the commercial rights of third parties in the country for which the goods are being manufactured are not injured. The supplier may draw the customer’s attention to known laws, but is not obliged to undertake investigations. The customer shall release the supplier from any claims of a third party at first request and pay compensation for any resulting damage. The supplier is entitled to stop all work – without any examination of the legal position – until the legal position has been clarified by the customer after an injunction by the third party to protect the commercial rights of the third party has been issued. If the continuation of the contract should become untenable to the supplier, the supplier may rescind the contract.
2. Any drawings and patterns that were made available to the supplier, but did not result in a contract, shall be returned when requested; else the supplier is entitled to destroy the same three month after the issue of the quote or tender. The same obligation applies also to the customer. The party entitled to dispose shall inform the other party of the intention prior to doing so and in good time.
3. The supplier retains all property rights, copyrights and, if applicable, rights to commercial protection, in particular the rights of utilization and exploitation of models, forms, facilities, designs and drawings made by him or for him under contract by a third party. If requested, the customer shall return all records, documentation, forms, patterns or models, including all copies made thereof, to the supplier without delay.
4. For all other legal product limitations No. VII respectively applies.
XIII. Pure Food Manufacturing Practices and Recycling Materials
1. If a product is intended to come into contact with food stuffs, the customer shall be responsible for ascertaining in advance the suitability of the used materials for specific foods.
2. Raw materials shall be carefully selected by the supplier to be recyclable. Regenerative plastics may, however, exhibit greater variation of surface characteristics from one charge to another, such as colour, purity, odour and physical or chemical properties, which the customer may not claim as a fault. However, the supplier, if requested, shall relinquish possible claims of sub suppliers to the customer; but the supplier does not guarantee the continuance of these claims.
XIV. Production and Legal Venue
1. The production venue is the works of the supplier.
2. Legal venue at the supplier’s discretion is the principal office of the supplier or the customer.
3. German law applies exclusively, excluding the UN Law on Trade.