Ecker
Heiz- und Kühlflächensysteme GmbH

• Manufacture of copper tube-meanders and plastic tubular elements
• Manufacture of high quality metallic climate-control ceilings
• Manufacture of ready-to-install copper tube-elements for gypsum plasterboard climate-control ceilings
• Complete solutions for connection and pipework
• Certified in conformance with DIN EN ISO 9001:2008

Section 1 Validity
(1) All goods, services and quotes by the vendor are made exclusively on the basis of these General Terms and Conditions of delivery. The General Terms and Conditions are an integral part of all contracts entered into by the vendor with any contracting party (hereinafter referred to as "the customer") concerning any and all deliveries and services offered by him. They are also valid for all future deliveries, services and quotations provided to the customer regardless of whether or not any other terms and conditions were agreed upon.
(2) The terms and conditions of the customer or other third parties are not applicable even if the vendor does not contradict their validity in individual cases. Even if the vendor refers to a letter that includes or refers to the terms and conditions of the customer or a third party, it does not signify an agreement to the validity of these terms and conditions by any means.

Section 2 Quotation and Contract Conclusion
(1) All quotations by the vendor are subject to change and non-binding unless expressly identified as binding or unless they contain a specific term of acceptance. Orders or contracts can be accepted by the vendor up to 14 days after receipt.
(2) The legal ties between the vendor and the customer are solely governed by the signed contract in conjunction with these General Terms and Conditions of delivery. These entirely reflect the arrangements made between the parties of the contract concerning the object of agreement. Verbal agreements made by the vendor before the conclusion of the contract are not legally binding and any verbal agreements between contractual partners are replaced by the written contract, provided that they are not expressly defined as a continuing component of the contract. Amendments and modifications to the agreements made, including these General Terms and Conditions, must be in writing in order to be valid.
(3) Information from the vendor on the object of the supply or service (e.g. weights, dimensions, practical values, capacity, tolerances and technical data) as well as depictions thereof, (i.e. drawings, illustrations) are only approximations unless their usability for the contractually stipulated purpose does not require an exact match. The descriptions and depictions are not guaranteed characteristics but designations or features of the delivery or service. Deviations considered trade-customary or deviations that are made in order to comply with legal regulations or those that constitute technical improvements, as well as the replacement of equivalent components are acceptable, as long as the intended function provided for in the contract is not compromised.
(4) The vendor retains the ownership or copyright for all offers and cost estimates issued by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and resources made available to the customer. Without the express agreement of the vendor, the customer may not make these objects, or their content, accessible to third parties or make them known to third parties, or have them used or reproduced, either by himself or by third parties. On request by the vendor he must return these objects to him in their entirety and, where applicable, destroy any copies made of them, if they are no longer needed by him in the proper course of business or if negotiations do not result in the conclusion of a contract.

Section 3 Prices and payment
(1) Prices are valid for the scope or services or supplies listed in the order confirmations. Additional or special services will be calculated separately. The prices are in Euros and ex works, excluding packaging, the statutory VAT, customs for export deliveries plus duties and other official charges.

(2) Amounts invoiced are to be paid within thirty days without any deductions, unless otherwise agreed upon in writing. The date of the receipt of payment is the date the payment is actually credited to the vendor's account. Cheque payments are not accepted. If the customer does not pay by the due date, then interest will be charged on the outstanding amounts at a rate of 5% p. a. as from the due date and the application of higher interest rate and claim compensation for additional damages in case of late payment remains unaffected.

(3) Offsetting with counter-claims of the Client or the retention of payments on account of such claims is only permissible to the extent that the counter-claims are undisputed or legally established.

(4) The vendor is entitled only to make deliveries or provide services against prior payment or deposit if, after the conclusion of the contract, circumstances become known to him which are of a nature to considerably reduce the customer's creditworthiness and on account of which the payment of the vendor's outstanding demands from the relevant contractual relations (including those from other individual orders for which the same framework contract applies) is put at risk.

(5) If the customer gets into delay with the acceptance of the vendor's deliveries or services, the vendor has the right to demand a flat rate compensation amounting to 15 % of the net sales price plus the statutory VAT. The vendor must provide evidence for higher damages if any. A lower amount of loss if any must be substantiated by the customer.

Section 4 Delivery and Delivery Time
(1) All deliveries are ex works.

(2) All proposals for deadlines and time limits made by the vendor for deliveries and services are only approximations unless a fixed date or a fixed period is agreed upon or stipulated in the contract. If the consignment is agreed upon, then the delivery deadline or delivery dates refer to the date of transfer to the forwarder or other third party assigned with the delivery.

(3) If the customer is delayed in complying with its contractual commitments, the vendor can, without prejudice to any rights, insist upon an extension or adjustment of the delivery date of equipment or services to include the delay caused by the customer.

(4) The vendor is not liable in any way for the impossibility or delay of delivery due to force majeure or other occurrences that were unforeseeable at the time of the conclusion of the contract for which the vendor cannot be held responsible (i.e. company disruptions of any kind, difficulty in material or energy procurement, transportation delays, strikes, legal lockout, shortage of manpower, energy or raw materials, difficulty in the procurement of the necessary official permits, governmental measures; or the absence of incorrect or delayed delivery by suppliers). If such occurrences cause the delivery of the equipment or service to be considerably delayed or impossible to provide and the situation will not be rectified in the near future, then the vendor has the right to withdraw from the contract. However, in the case of a temporary delay, the delivery dates or service deadlines will be extended or postponed for the same amount of time as the delay in addition to an adequate start-up period. If the customer cannot be expected to accept delivery or service due to circumstances caused by the delay, then he may withdraw from the contract by means of a prompt letter of explanation.
(5) Should the vendor be in default with a delivery or service or if a delivery or service should become impossible to deliver for whatever reason, the liability of the vendor for damages is restricted as defined in Section 7 of these General Terms & Conditions of delivery.

Section 5 Place of fulfilment, Shipping, Packaging, Transfer of Risk, Acceptance
(1) Unless otherwise specified, the place of fulfilment for all commitments in the contractual relationship is Wallerfing.
(2) The shipping and packaging are subject to the conscientious discretion of the vendor.
(3) The transfer of risk occurs at the latest with the delivery of the article of sale (where the beginning of the loading process is relevant) to the shipper or forwarding agent or whichever third party has been contracted with the delivery to the customer. This also holds true for partial deliveries or when the vendor is contractually responsible for other services (i.e. shipping or installation). If the delivery or the transfer is delayed due to reasons for which the customer is responsible, then the transfer of risk begins on the day the article of sale is ready to be shipped and the customer has been notified by the vendor of the delivery status.
(4) The customer is responsible for warehouse charges after the transfer of risk. If the storage is provided by the vendor, then the costs for this service will be 0.25% of the invoice amount per week for the articles stored. The vendor reserves the right to the claim and proof of further or lower warehouse costs.
(5) The vendor will only insure the shipment against theft, breakage, and damage in transit or due to fire or water or any other insurable risks on the specific request of and at the cost of the customer.
(6) In so far as the inspection and approval of the article of sale is concerned, the article of sale is considered legally accepted when the delivery and the installation, if installation was ordered, are completed. The vendor notifies the customer of notional acceptance of the General Terms and Conditions under article Section 5 (6) and requests the acceptance of the delivery, twelve business days have passed since the delivery or installation or the customer has already begun using the articles of sale (i.e. the equipment has been put into operation) and in this case, if six business days have passed since the delivery or installation, or the customer fails to give its acceptance within the above-mentioned period for reasons other than a defect indicated by the vendor which considerably impairs the use of the article of sale or even makes its usage impossible.

Section 6 Warranty / Liability
(1) The warranty period is valid for one year from the date of delivery or if an inspection and approval is necessary, then from the date of the approval.
(2) The delivered articles must be inspected promptly after the delivery to the customer or the customer's third party representatives. They are considered approved if the vendor does not receive a written notification of defects stating obvious defects or other defects that are noticeable during a prompt and thorough examination within seven business days after delivery or within seven business days after the discovery of a defect or any earlier point in time in which the defect, without close inspection, became noticeable to the customer through normal use of the product. At the request of vendor the defective product is to be returned to the vendor with the freight paid. If the complaint is legitimate, then the least expensive shipping rate will be reimbursed to the customer. This does not hold true if the article of sale is located at a place other than the place of use originally stipulated.
(3) For material defects in the delivered products, the vendor is required to and has the right to either repair or replace the product within a reasonable period of time. Should the vendor be unable to repair or replace the product in question within a reasonable period of time due to impossibility, impracticality, refusal or unreasonable delay, then the customer has the right to withdraw from the contract or reduce the price stipulated in the contract accordingly.
(4) If the vendor is to blame for a defect, the customer may demand compensation under the conditions stipulated in Section 7.
(5) In case of defects in components from other manufacturers, which the vendor cannot remedy for reasons of licensing law or for factual reasons, then, at his choice, the vendor will make his warranty claims against the manufacturer and the supplier on the customer's account or transfer the title to this to the customer. Warranty claims against the vendor only exist for defects of this kind under other conditions and in accordance with these General Terms and Conditions of delivery if the legal enforcement of the above-mentioned claims against the manufacturer and the supplier was unsuccessful or is futile, for instance due to insolvency. During the period of the legal dispute the period of limitation of the customer's warranty claims in this matter against the vendor is suspended.
(6) The warranty becomes invalid if the customer modifies the item supplied without the approval of the vendor or allows this to be done by third parties and the remedying of the defect is made impossible or unreasonably harder because of this. In each case the customer must bear the additional costs of remedying defects caused by the modification.
(7) A supply of used items agreed in individual cases with the Client is done under exclusion of any warranty.

Section 7 Liability for damages in case of default
(1) The vendor's liability for damages, regardless of the legal grounds but in particular due to impossibility, delay, defective or incorrect delivery, contractual infringement, infringement of duties during contractual negotiations and action in tort is, in so far as there is a question of blame in each case, limited in accordance with this Section 7.
(2) The vendor is not liable
a) in the event of simple negligence by his agents, legal representatives, employees or other vicarious agents;
b) in the event of gross negligence by his non-executive employees or other vicarious agents, in so far as this does not amount to an infringement of essential contractual obligations. Considered essential to the contract are the obligations for prompt supply without any defects in deliveries and installation as well as duties of consultation, protection and care, which will enable the customer the use of the supplied item in accordance with the contract or which serve the purpose of protecting the life and limb of personnel of the customer or third parties or the customer's property against considerable damage.
(3) In so far as the vendor is liable for damages on the grounds of and in accordance with Section 7 (2), this liability is limited to damage which the vendor has foreseen when concluding the contract as a possible consequence of a contractual infringement or which, under consideration of the circumstances, were or should have been known to him or which, by applying due care and attention, he should have foreseen. Furthermore, indirect damage and consequential damage resulting from defects in the item supplied are only subject to compensation in so far as such damage is typically to be expected when using the item supplied as stipulated.
(4) In the event of liability for simple negligence, the vendor's obligation to make compensation for property damage and personal injury is limited to an amount of EUR 3 million per claim (corresponding to the current cover sum of his personal liability insurance or third party insurance), even if this is a case of infringement of obligations essential to the contract.
(5) The above liability exclusions and limitations apply to the same extent in favour of the vendor's agents, legal representatives, employees and other vicarious agents.
(6) In so far as the vendor provides technical information or acts as an adviser and this information or advice is not part of the contractually agreed scope of services owed by him, this is done free of charge and with the exclusion of any and every liability.
(7) The limitations of this Section 7 do not apply to the vendor's liability on account of deliberate actions, for guaranteed characteristics, on account of injury to life, limb or health or in conformance with the product liability law.

Section 8 Reservation of title
(1) The following agreed reservation of title serves as security for all and any demands of the vendor against the customer, existing currently and in the future, arising out of the supply relationship existing between the contractual partners ((including claims on account in the event of the operation of current accounts for deliveries of goods).
(2) The goods delivered by the vendor to the customer remain the vendor's property until complete payment of all secured demands. The goods, as well as the goods included in the reservation of title to take their place in accordance with this clause, are hereinafter referred to as reserved goods.
(3) The customer stores the reserved goods free of charge for the vendor.
(4) The customer is entitled to process and sell the reserved goods in normal business dealings up to the point of instigation of recovery (paragraph 9). Pledging as collateral and transfer by way of security are not permissible.
(5) If the reserved goods are processed by the customer then it is agreed that the processing is done in the name and on behalf of the vendor as being the manufacturer and the vendor directly acquires the ownership or, if the processing is carried out with materials from a number of owners or the value of the processed objects is higher than the reserved goods, the co-ownership (fractional ownership) of the newly produced objects in relation of the value of the reserved goods to the value of the newly produced objects. In the event that no such acquisition of ownership should occur with the vendor, the customer hereby transfers his future ownership or – in the above-mentioned relationship – the co-ownership of the newly produced objects as security to the vendor. If the reserved goods are combined or inseparably mixed with other objects to form an integral object and if one of the other objects is to be seen as the main object, then, in so far as the main object belongs to him, the vendor transfers the proportional co-ownership of the integral object to the customer in the ratio stated in the first sentence.
(6) In the event that the reserved goods are sold on, the customer hereby transfers the resulting claim against the acquirer – or in case of co-ownership of the vendor of the reserved goods in proportion to the share of co-ownership – to the vendor by way of security. The same applies for other claims which take the place of the reserved goods or which arise with reference to the reserved goods, such as insurance claims or claims arising from actions in tort in the event of loss or destruction. The vendor empowers the customer, in a revocable manner, to collect the claims transferred to the vendor in his own name on behalf of the vendor. The vendor may only revoke this power of collection in case of recovery.
(7) If a third party takes possession of the reserved goods, in particular by distraint, the customer will immediately point out the vendor's ownership and inform the vendor thereof, in order to allow him to assert his rights of ownership. In so far as the third party is not in a position to compensate the vendor for legal or out-of-court costs incurred in this connection, the customer is liable for this to the vendor.
(8) On request and if he so chooses, the vendor shall release the reserved goods and/or the objects or claims standing in their stead, in so far as their value exceeds the amount of the secured claims by more than 50%.
(9) If, in the event of any behaviour by the customer which is contrary to the terms of the contract – in particular regarding late payment – the vendor withdraws from the contract (case of recovery) he is entitled to demand the reserved goods.

Section 9 Final clauses
(1) The place of jurisdiction for any and all disputes arising out of the business relations between the vendor and the customer is Deggendorf. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this ruling.
(2) The laws of the Federal Republic of Germany shall exclusively govern the relationship between the vendor and the customer. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) does not apply.
(3) In so far as the contract or these General Supply Conditions of delivery contain any loopholes, those legally effective provisions which the contracting partners would have agreed according to the commercial objectives of the contract and the purpose of these General Supply Conditions if they had been aware of the loopholes are considered to be agreed for filling these loopholes.
Note:
The customer takes note of the fact that the vendor stores data arising out of the contractual relations in conformance with Section 28 of the Federal data protection law for the purposes of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) in so far as may be necessary for the fulfilment of the contract.

Version: 07/2013