(1) The following General Terms and Conditions of Sale and Delivery of eCOUNT embedded GmbH (hereinafter: “eCOUNT embedded”) apply exclusively; conflicting conditions or conditions of the Customer that deviate from the General Terms and Conditions of Sale and Delivery of eCOUNT embedded are not recognized, unless eCOUNT embedded has expressly agreed to their validity in writing. The General Terms and Conditions of Sale and Delivery of eCOUNT embedded also apply if eCOUNT embedded carries out the delivery or service to the Customer without reservation in the knowledge that the Customer’s terms and conditions contradict or deviate from these General Terms and Conditions of Sale and Delivery. The general terms and conditions of sale and delivery of eCOUNT embedded also apply to future business with the Customer.
(2) All agreements on deliveries and services (hereinafter referred to as “service” or “subject matter of the Contract”) that are made between eCOUNT embedded and the Customer are to be set down in writing in the relevant Contract and any supplementary agreements.
Offer and conclusion of Contract, scope of services, industrial property rights and copyrights, reservation of right of modification
(1) If an order from the Customer qualifies as an offer according to Section 145 BGB [German Civil Code], eCOUNT embedded can accept this offer within four weeks of receipt. Offers from eCOUNT embedded are subject to change.
(2) The acceptance of the offer can be made on the part of eCOUNT embedded by declaration in text form (i.e. in writing, by fax, or email) or by the provision of the commissioned service.
(3) In the case of verbally agreed contracts, the scope of services of eCOUNT embedded is determined by written contract confirmation on the part of eCOUNT embedded.
(4) Unless otherwise agreed in writing, the Customer has a non-exclusive right to use the standard software and firmware of eCOUNT embedded with the agreed service features in unchanged form on the agreed devices. The Customer may make a backup copy of the software without express agreement.
(5) Unless otherwise agreed in writing, eCOUNT embedded is only obligated to provide the delivery free of industrial property rights and copyrights of third parties (hereinafter: property rights) in the country of the place of delivery.
(6) eCOUNT embedded reserves the right to make changes to the construction, the form, as well as the execution of the service, as long as the quality and usability of the item is not affected or the deviation is unacceptable for other reasons.
(7) If a contract is concluded on the basis of a cost estimate from eCOUNT embedded, Section 650 BGB [German Civil Code] shall apply.
Time of delivery and service, delay in delivery
(1) Partial services shall be permissible and shall oblige the Customer to pay the pro rata remuneration, unless partial service would be unreasonable for the Customer.
(2) Insofar as services on the part of eCOUNT embedded are to be provided on call by the Customer, the Customer is obligated to accept partial deliveries in approximately equal quantities, unless otherwise agreed. Otherwise, the entire service shall be deemed to have been called by the Customer one calendar month after expiration of the period agreed for the call or, in the absence of an agreed period, three calendar months after conclusion of the Contract.
(3) The service deadlines stated by eCOUNT embedded are non-binding and subject to change unless expressly agreed otherwise in writing.
(4) The beginning of a delivery time stated by eCOUNT embedded requires the clarification of all technical questions.
(5) Compliance with the delivery obligation further requires the timely and proper fulfillment of the Customer’s obligations. The defense of non-performance of the Contract remains reserved.
(6) Delivery deadlines are met if by their expiration the subject matter of the Contract has left the factory of eCOUNT embedded or – if the shipment is not carried out by eCOUNT embedded or a carrier commissioned by eCOUNT embedded – the readiness for shipment has been communicated.
(7) Events of force majeure entitle eCOUNT embedded to postpone service for the duration of the hindrance. Equal to force majeure are all circumstances for which eCOUNT embedded is not responsible and by which eCOUNT embedded’s service is made impossible or unreasonably difficult, such as lawful strike or lawful lockout, war, import and export bans, shortage of energy and raw materials, official measures, untimely self-delivery for which eCOUNT embedded is not responsible. If the hindrance lasts longer than
two months, the Customer shall be entitled, after setting a reasonable grace period, to withdraw from the Contract if it proves that the full or partial performance of the Contract still outstanding is no longer of interest to it due to the delay.
(8) eCOUNT embedded is liable according to the legal regulations for a delay in delivery if this is based on an intentional or grossly negligent breach of contract for which eCOUNT embedded is responsible, a fault of the representatives and vicarious agents of eCOUNT embedded is to be attributed to eCOUNT embedded. If the delay in delivery is not based on an intentional breach of contract for which eCOUNT embedded is responsible, the liability for damages is limited to the foreseeable, typically occurring damage. eCOUNT embedded is furthermore liable according to the statutory provisions, insofar as the delay in delivery for which eCOUNT embedded is responsible is based on a culpable breach of an essential contractual obligation;
in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
(9) If the Customer is in default of acceptance or culpably violates other duties to cooperate, eCOUNT embedded is entitled to demand compensation for the damages incurred including any additional expenses. The risk of accidental loss or accidental deterioration of the subject matter of the Contract shall pass to the Customer at the time the Customer defaults on acceptance. If shipment or delivery is delayed at the request of the Customer by more than one month after notification of readiness for shipment, eCOUNT embedded may be charged storage fees of 0.5% of the price of the items of the deliveries for each month or part thereof, up to a maximum of 5% in total. The proof of higher or lower storage costs remains at the discretion of eCOUNT embedded as well as the Customer.
Prices, terms of payment, default, setoff, right of retention
(1) The prices of eCOUNT embedded are EXW (Incoterms 2010), including packaging without installation and assembly plus the applicable statutory VAT. The costs of taking back packaging will be charged separately. The same applies to delivery costs if the Customer requests a shipment. (2) Price changes are permissible if there are more than six weeks between the conclusion of the Contract and the agreed date of service. In the event of permissible price changes, the following shall apply: If the wages, material costs, or the market cost prices (list prices) increase or the exchange rates change until the provision of the contractual service, eCOUNT embedded is entitled to increase the price appropriately according to the cost increases.
(3) The accruing remuneration is due within 14 days after the invoice date without deduction. The decisive factor for the timeliness of the payment is the crediting of the account of eCOUNT embedded indicated on the invoice. If the Customer does not pay the remuneration within the aforementioned period, they shall be in default without a reminder. In the case of late payment, eCOUNT embedded is entitled to charge interest on arrears at a rate of nine percentage points above the base interest rate, but at least 12% of the outstanding amount per year. The right to claim further damages remains reserved in any case.
(4) eCOUNT embedded reserves the right to demand partial payments.
(5) If, after the conclusion of the Contract, concerns arise regarding the Customer’s solvency or creditworthiness with the consequence that eCOUNT embedded’s payment claims appear to be at risk, eCOUNT embedded has the right to demand service concurrently or against security in the form of a directly enforceable, irrevocable guarantee from a major German bank. If the Customer does not comply with this request, despite setting a deadline with the threat of withdrawal, eCOUNT embedded can withdraw from the Contract to the exclusion of any claims for compensation by the Customer.
(6) The Customer is only entitled to offset if their counterclaim has been legally established, is undisputed, or has been recognized by eCOUNT embedded.
(7) The Customer is only entitled to assert a right of retention if their counterclaim is legally established, undisputed, or recognized by eCOUNT embedded.
Obligations of the Customer to Cooperate, Acceptance
(1) The Customer is obligated to provide eCOUNT embedded with all documents required for the service provision free of charge and in a timely manner. Unless expressly agreed otherwise, eCOUNT embedded is not obligated to check the content of the documents and desired requirements (specifications, functions, and technical details) provided by the Customer for possible errors or infringement of third party rights by implementing the described requirements.
(2) Insofar as the Customer provides their own services or services are provided by third parties (including deliveries of goods), the Customer shall bear the responsibility for the coordination of the individual work processes and for compliance with the relevant safety regulations and accident prevention provisions.
(3) If the Customer does not perform their duties to cooperate to the required extent or if eCOUNT embedded is prevented from performing services incumbent upon eCOUNT embedded due to circumstances that lie in the Customer’s sphere of risk, eCOUNT embedded is released from its service obligations for the duration of the disruption and to the extent of its effect and can demand appropriate compensation for additional expenses caused by this. In such a case, eCOUNT embedded will allow itself to be credited for what eCOUNT embedded saves in expenses or can acquire through other orders. The risk of accidental loss or accidental deterioration of the service shall pass to the Customer at the time the Customer defaults on acceptance.
(4) If eCOUNT embedded owes the Customer a work service or work delivery, the Customer is obligated to accept the delivery within two weeks from the transfer of risk (see Section 6). If this does not happen, acceptance shall be deemed to have taken place. Acceptance shall likewise be deemed to have taken place when the delivery has been put into use – if applicable, after completion of an agreed test phase.
Transfer of Risk, Transport Insurance
(1) Unless otherwise agreed, deliveries by eCOUNT embedded are EXW, Munich (Incoterms 2010) or from another location named by eCOUNT embedded. Even if in individual cases it should be agreed that eCOUNT embedded takes over the shipment of the subject matter of the Contract, the risk is transferred to the Customer when the subject matter of the Contract is handed over to the carrier (i.e. the person carrying out the transport); this also applies to transport by eCOUNT embedded itself.
(2) In the case of shipment by eCOUNT embedded, eCOUNT embedded will, at the Customer’s request and at the Customer’s expense, take out transport insurance in the Customer’s favor. Transport damages are to be reported immediately in writing to eCOUNT embedded as well as to the delivering carrier.
Retention of Title
(1) eCOUNT embedded retains ownership of the subject matter of the Contract until all payments from the business relationship with the Customer have been received. In case of breach of contract by the Customer, especially in case of default of payment, eCOUNT embedded is entitled to take back the subject matter of the Contract; whereby taking back the subject matter of the Contract constitutes a withdrawal from the Contract. After taking back the subject matter of the Contract, eCOUNT embedded is entitled to realize it; the realization proceeds are to be credited against the Customer’s liabilities – minus reasonable realization costs.
(2) The Customer is obligated to treat the subject matter of the Contract with care; in particular, they are obligated to sufficiently insure the subject matter of the Contract at their own expense against damage by fire, water, and theft at replacement value. If maintenance and inspection work is required, the Customer must carry this out in good time at their own expense.
(3) In the case of seizures or other interventions by third parties, the Customer must inform eCOUNT embedded immediately in writing so that eCOUNT embedded can take legal action according to Section 771 ZPO [German Code of Civil Procedure]. As far as the third party is not able to reimburse eCOUNT embedded for the judicial and extrajudicial costs of a lawsuit according to section 771 ZPO [German Code of Civil Procedure], the Customer is liable for the loss incurred by eCOUNT embedded.
(4) The Customer is entitled to resell the subject matter of the Contract in the ordinary course of business; however, he already now assigns to eCOUNT embedded all claims in the amount of the final invoice amount (including VAT in the legally owed amount) of the claim eCOUNT embedded accrues from the resale against their customers or third parties, regardless of whether the subject matter of the Contract has been resold without or after processing. The Customer remains authorized to collect this claim even after the assignment. The authority of eCOUNT embedded to collect the claim itself remains unaffected. However, eCOUNT embedded commits itself not to collect the claim as long as the Customer meets his payment obligations from the collected proceeds, is not in default of payment and in particular no application
for the opening of composition or insolvency proceedings has been filed or there is no cessation of payments. If this is the case, however, eCOUNT embedded can demand that the Customer informs eCOUNT embedded of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents, and informs the debtors (third parties) of the assignment.
(5) The processing or transformation of the subject matter of the Contract by the Customer is always carried out for eCOUNT embedded. If the subject matter of the Contract is processed with other items not belonging to eCOUNT embedded, eCOUNT embedded acquires co-ownership of the new item in the ratio of the value of the subject matter of the Contract (final invoice amount, including VAT in the amount owed by law) to the other processed items at the time of processing. In all other respects, the same shall apply to the item resulting from the processing as to the subject matter of the Contract delivered under reservation. (6) If the subject matter of the Contract is inseparably mixed with other items not belonging to eCOUNT embedded, eCOUNT embedded acquires co-ownership of the new item in the ratio of the value of the subject matter of the Contract (final invoice amount, including VAT in the amount owed by law) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it is agreed that the Customer transfers co-ownership to eCOUNT embedded on a pro rata basis. The Customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(7) The Customer also assigns to eCOUNT embedded the claims to secure eCOUNT embedded’s claims against the Customer, which accrue to the Customer against a third party through the connection of the subject matter of the Contract with a property.
(8) eCOUNT embedded is obligated to release the securities to which eCOUNT embedded is entitled at the Customer’s request to the extent that the realizable value of the securities exceeds eCOUNT embedded’s claims to be secured by more than 10%; the selection of the securities to be released is incumbent upon eCOUNT embedded.
Defect Rights of the Customer
(1) The assertion of the Customer’s rights in respect of defects shall require that the Customer has duly complied with its obligations to inspect the goods and give notice of defects pursuant to Section 377 of the HGB [German Commercial Code]. Complaints must be made in writing with specific indication of the defect. Complaints due to incomplete delivery and other recognizable defects are to be communicated to eCOUNT embedded in writing immediately, at the latest within one week after delivery, hidden defects immediately, at the latest within one week after discovery. Acceptance may not be refused due to insignificant defects. Claims due to late notification of material defects are excluded. The costs of the examination of the subject matter of the Contract shall be borne by the Customer. Defective subjects of the Contract are to be made available to eCOUNT embedded for inspection upon request. (2) In the case of defects of title, eCOUNT embedded is liable to the Customer as follows:
a) eCOUNT embedded will, at its own discretion and at its own expense, either obtain a right of use for the deliveries in question, change the service in such a way
that the rights of third parties are not violated, or replace the service. If this is not possible for eCOUNT embedded under reasonable conditions,
the Customer is entitled to the legal rights of withdrawal or reduction.
b) The obligation of eCOUNT embedded to pay damages in the case of defects of title is governed by the following subsections (5) et seqq.
c) The aforementioned obligations of eCOUNT embedded only exist insofar as the Customer immediately notifies eCOUNT embedded in writing of the claims asserted by the third party, does not acknowledge an infringement, and eCOUNT embedded reserves the right to all defensive measures and settlement negotiations. If the Customer discontinues the use of the delivery for reasons of mitigation of damages or other important reasons, they are obliged to point out to the third party that the discontinuation of use does not imply any acknowledgement of an infringement of rights. Claims of the Customer are excluded, as far as they are responsible for the infringement or as far as the infringement is caused by special specifications of the Customer, by an application not foreseeable by eCOUNT embedded, or by the fact that the delivery is changed by the Customer or used together with products not
delivered by eCOUNT embedded.
(3) In the case of material defects, the Customer is entitled, at the discretion of eCOUNT embedded, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. Contrary to sentence 1, the Customer shall have this right of choice within the scope of the entrepreneur’s recourse pursuant to Section 478 BGB [German Civil Code]. In the case of remedying a defect, eCOUNT embedded is obligated to bear all expenses necessary for the purpose of remedying the defect, in particular transport, travel, labor, and material costs, insofar as these are not increased by the fact that the subject matter of the Contract was brought to a location other than the place of performance.
(4) If the subsequent performance fails in the case of a material defect, the Customer shall be entitled to demand rescission or reduction at its discretion.
(5) eCOUNT embedded is liable according to the legal regulations, if the Customer asserts claims for damages that are based on intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of eCOUNT embedded. As far as eCOUNT embedded is not accused of intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage.
(6) eCOUNT embedded is liable according to the legal regulations, if eCOUNT embedded culpably violates an essential contractual obligation; in this case, however, the liability for damages is limited to the foreseeable, typically occurring damage.
(7) Liability for culpable injury to life, limb, or health shall remain unaffected; this shall also apply to mandatory liability under the German Product Liability Act.
(8) Unless otherwise stipulated above, liability is excluded.
(1) Any further liability for damages than provided for in Section 8 is excluded – regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty, or from tortious claims for compensation for property damage pursuant to Section 823 of the BGB [German Civil Code].
(2) The limitation pursuant to subsection (1) above shall also apply if the Customer demands reimbursement of useless expenses instead of a claim for damages in lieu of service.
(3) As far as the liability for damages of eCOUNT embedded towards the Customer is excluded or limited, this also applies with regard to the personal liability for damages of the employees, representatives, and vicarious agents of eCOUNT embedded.
(1) Claims arising from material defects and defects of title shall become statute-barred twelve months after the statutory commencement of the limitation period; the same shall apply mutatis mutandis to rescission and reduction. This period shall not apply insofar as longer periods are prescribed by law in accordance with Sections 438 subsection 1 No. 2 (buildings and items for buildings), 479 subsection 1 (right of recourse), and 634 a subsection 1 No. 2 (construction defects) of the BGB [German Civil Code], as well as in the case of intent or gross negligence, fraudulent concealment of the defect, and non-compliance with a quality guarantee. The statutory provisions on the expiration, suspension, and recommencement of time limits shall remain unaffected.
(2) The above limitation periods shall also apply to contractual and non-contractual claims for damages of the Customer based on a defect, unless the application of the regular statutory limitation period (Sections 195, 199 BGB [German Civil Code]) would lead to a shorter limitation period in individual cases. However, claims for damages by the Customer due to culpable injury to life, limb, or health, in the event of intent or gross negligence, as well as under the German Product Liability Act, shall become time-barred exclusively in accordance with the statutory limitation periods.
(1) Offer documents, cost estimates, drafts, drawings, and calculations or similar documents (“documents”) created by eCOUNT embedded remain the sole property of eCOUNT embedded and may not be reproduced or made accessible to third parties without the written consent of eCOUNT embedded. If an order is not placed, the documents are to be returned immediately and completely to eCOUNT embedded and any copies made are to be destroyed.
(2) If inventions are made by eCOUNT embedded within the scope of the business relationship with the Customer, eCOUNT embedded is entitled to the sole exploitation of the rights derivable from this, in particular patents.
Regulatory Compliance, Export, and the Dodd-Frank Act.
(1) The Customer shall comply with all statutory regulations and official requirements as well as all other applicable laws and, in particular, implementing regulations and the laws of the country in which the Customer does business. The Customer shall obtain in a timely manner all necessary permits and licenses and any other necessary permissions required for the use or export of the subject matter of the Contract under all such applicable laws.
(2) eCOUNT embedded is entitled to withhold delivery of the subject matter of the Contract from the Customer if the Customer would violate such applicable laws or if not all permits are available and this is not due to the fault or responsibility of eCOUNT embedded.
(3) eCOUNT embedded shall endeavor to keep all subjects of the contract manufactured by eCOUNT embedded free of conflict minerals as defined by the applicable version of the Dodd-Frank Act (tantalum, tin, gold, and tungsten from the Democratic Republic of the Congo or its neighboring countries). Therefore, it is the goal of eCOUNT embedded to also obligate the suppliers of eCOUNT embedded to the effect that the goods purchased from the suppliers of eCOUNT embedded do not contain any of the aforementioned conflict materials. The assumption of a responsibility as well as any liability of eCOUNT embedded, for the materials used by suppliers of eCOUNT embedded or their suppliers is hereby excluded as far as permissible.
(1) If the Customer is a merchant, the place of business of eCOUNT embedded is the place of jurisdiction; however, eCOUNT embedded is also entitled to sue the Customer at their place of jurisdiction.
(2) Unless otherwise stated in the order confirmation, the registered office of eCOUNT embedded is the place of performance.
(3) The law of the Federal Republic of Germany applies. The validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(4) The Customer is advised that when sending the products purchased from eCOUNT embedded (forwarding to third parties or returning to eCOUNT embedded), they must observe the currently valid ICAO/IATA regulations.