(1) The following General Terms and Conditions of Sale and Delivery of eCOUNT embedded GmbH (hereinafter: “eCOUNT embedded”) shall apply exclusively; conflicting terms or terms of the Customer deviating from the General Terms and Conditions of Sale and Delivery of eCOUNT embedded shall not be recognised unless eCOUNT embedded has expressly agreed to their validity in writing. The General Terms and Conditions of Sale and Delivery of eCOUNT embedded shall also apply where eCOUNT embedded, being aware of conflicting terms or terms of the Customer deviating from these General Terms and Conditions of Sale and Delivery, carries out the delivery or Performance to the Customer without reservation. The General Terms and Conditions of Sale and Delivery of eCOUNT embedded shall also apply to future transactions with the Customer.
(2) All agreements on deliveries and services (hereinafter referred to as the “Performance” or the “Contractual Goods”) made between eCOUNT embedded and the Customer shall be set out in writing in the relevant contract and any supplementary agreements.
(3) These General Terms and Conditions of Sale and Delivery shall apply only vis-à-vis entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and special funds under public law.
(1) If an order placed by the Customer qualifies as an offer within the meaning of Section 145 of the German Civil Code (BGB), eCOUNT embedded may accept this offer within four weeks of its receipt. Offers made by eCOUNT embedded are non-binding.
(2) Acceptance of the offer may be declared by eCOUNT embedded in text form (that is, in writing, by fax or by e-mail) or effected by rendering the commissioned Performance.
(3) In the case of contracts agreed orally, the scope of Performance owed by eCOUNT embedded shall be determined by written confirmation of the contract issued by eCOUNT embedded.
(4) Unless otherwise agreed in writing, the Customer shall have the non-exclusive right to use standard software and firmware of eCOUNT embedded with the agreed performance characteristics in unmodified 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 shall be obliged to render the delivery free of industrial property rights and copyrights of third parties (hereinafter: Property Rights) only in the country of the place of delivery.
(6) eCOUNT embedded reserves the right to make changes to the design, form and workmanship of the Performance, provided that the quality and fitness for use of the item are not impaired thereby or the deviation is reasonable for the Customer for other reasons.
(7) If a contract is concluded on the basis of a cost estimate prepared by eCOUNT embedded, Section 649 of the German Civil Code (BGB) shall apply.
(1) Partial performances are permissible and oblige the Customer to pay the proportionate remuneration, unless the partial performance is unreasonable for the Customer.
(2) Where performances are to be rendered by eCOUNT embedded on call by the Customer, the Customer shall – subject to any deviating agreement – be obliged to accept partial deliveries in approximately equal quantities. In all other respects, the entire Performance shall be deemed to have been called by the Customer one calendar month after expiry 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 performance periods stated by eCOUNT embedded are non-binding and subject to change unless expressly agreed otherwise in writing.
(4) The commencement of any delivery time stated by eCOUNT embedded is subject to the clarification of all technical questions.
(5) Compliance with the delivery obligation is further subject to the timely and proper fulfilment of the Customer’s obligations. The defence of non-performance of the contract remains reserved.
(6) Delivery periods are deemed to have been met if, by the time they expire, the Contractual Goods have left the works of eCOUNT embedded or – where dispatch is not carried out by eCOUNT embedded or a carrier commissioned by eCOUNT embedded – readiness for dispatch has been notified.
(7) Events of force majeure entitle eCOUNT embedded to postpone the Performance for the duration of the hindrance. Force majeure shall be deemed equivalent to all circumstances for which eCOUNT embedded is not responsible and which make the rendering of the Performance impossible for eCOUNT embedded or unreasonably difficult, such as lawful strike or lawful lockout, war, import and export bans, shortages of energy and raw materials, official measures, or failure of eCOUNT embedded’s own suppliers to deliver on time for which eCOUNT embedded is not responsible. If the hindrance lasts longer than two months, the Customer shall be entitled, after setting a reasonable period of grace, to release itself from the contract if the Customer proves that the complete or partial outstanding fulfilment of the contract is no longer of interest to the Customer owing to the delay.
(8) eCOUNT embedded shall be liable in accordance with the statutory provisions for a delay in delivery insofar as the delay is based on an intentional or grossly negligent breach of contract for which eCOUNT embedded is responsible; any fault of the representatives and vicarious agents of eCOUNT embedded shall be attributed to eCOUNT embedded. Insofar as the delay in delivery is not based on an intentional breach of contract for which eCOUNT embedded is responsible, the liability for damages shall be limited to the foreseeable damage typically occurring. eCOUNT embedded shall furthermore be liable in accordance with the statutory provisions insofar as the delay in delivery for which eCOUNT embedded is responsible is based on a culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable damage typically occurring.
(9) If the Customer is in default of acceptance or culpably breaches other duties to cooperate, eCOUNT embedded shall be entitled to demand compensation for the damage incurred by it, including any additional expenses. The risk of accidental loss or accidental deterioration of the Contractual Goods shall pass to the Customer at the point in time at which the Customer enters into default of acceptance. If dispatch or delivery is delayed at the Customer’s request by more than one month after notification of readiness for dispatch, eCOUNT embedded may charge storage money in the amount of 0.5% of the price of the items of the deliveries for each month commenced, up to a maximum, however, of 5 % in total. Proof of higher or lower storage costs remains open to eCOUNT embedded as well as to the Customer.
(1) The prices of eCOUNT embedded are ex works EXW (Incoterms 2020), including packaging, excluding installation and assembly, plus the applicable statutory value added tax. The costs of taking back packaging shall be invoiced separately. The same applies to delivery costs where the Customer requests dispatch.
(2) Price changes are permissible if more than six weeks lie between the conclusion of the contract and the agreed performance date. In the case of permissible price changes, the following shall apply: if, up to the rendering of the contractual Performance, wages, material costs or the market purchase prices (list prices) increase or exchange rates change, eCOUNT embedded shall be entitled to increase the price reasonably in accordance with the cost increases.
(3) The remuneration due shall be payable without deduction within 14 days of the invoice date. Decisive for the timeliness of payment is the credit entry on the account of eCOUNT embedded stated on the invoice. If the Customer does not pay the remuneration within the aforementioned period, the Customer shall be in default without a reminder. In the event of default of payment, eCOUNT embedded shall be entitled to demand default interest in the amount of nine percentage points above the base interest rate. The assertion of further damage remains reserved in any case.
(4) eCOUNT embedded reserves the right to demand payments on account.
(5) If, after conclusion of the contract, concerns arise with regard to the Customer’s ability to pay or creditworthiness with the result that the payment claims of eCOUNT embedded appear to be jeopardised, eCOUNT embedded shall have the right to demand that the Performance be rendered concurrently against payment or against security in the form of a directly enforceable, irrevocable guarantee issued by a major German bank. If the Customer does not comply with this demand despite the setting of a deadline combined with a threat of withdrawal, eCOUNT embedded may withdraw from the contract to the exclusion of any claims for compensation by the Customer.
(6) The Customer shall be entitled to set-off only if the Customer’s counterclaim has been finally established by a court, is undisputed or has been acknowledged by eCOUNT embedded.
(7) The Customer shall be entitled to assert a right of retention only if the Customer’s counterclaim has been finally established by a court, is undisputed or has been acknowledged by eCOUNT embedded.
(1) The Customer shall be obliged to provide eCOUNT embedded with all documents required for rendering the Performance free of charge and in good time. Unless expressly agreed otherwise, eCOUNT embedded shall not be obliged to examine the content of the documents provided by the Customer and the requested requirements (specifications, functions and technical details) for possible errors or infringement of third-party rights resulting from the implementation of the described requirements.
(2) Where the Customer renders its own services or services are rendered by third parties (including deliveries of goods), the Customer shall bear the responsibility for coordinating the individual work processes and for compliance with the relevant safety regulations and accident prevention provisions.
(3) If the Customer does not fulfil its duties to cooperate to the required extent, or if eCOUNT embedded is prevented from carrying out performances incumbent on eCOUNT embedded owing to circumstances within the Customer’s sphere of risk, eCOUNT embedded shall be released from its performance obligations for the duration of the disruption and to the extent of its effect and may demand reasonable compensation for additional expenses caused thereby. In such a case, eCOUNT embedded shall allow to be credited what eCOUNT embedded saves in expenses or can acquire through other orders. The risk of accidental loss or accidental deterioration of the Performance shall pass to the Customer at the point in time at which the Customer enters into default of acceptance.
(4) Where eCOUNT embedded owes the Customer a work performance or a delivery of work, the Customer shall be obliged to carry out acceptance of the delivery within two weeks of the passing of risk (cf. Section 6). If this does not occur, acceptance shall be deemed to have taken place. Acceptance shall likewise be deemed to have taken place if the delivery – where applicable after completion of an agreed test phase – has been taken into use.
(1) Deliveries by eCOUNT embedded are made, unless otherwise agreed, ex works EXW, Munich (Incoterms 2020) or from another place designated by eCOUNT embedded. Even where it has been agreed in an individual case that eCOUNT embedded undertakes the dispatch of the Contractual Goods, the risk shall pass to the Customer when the Contractual Goods are handed over to the carrier (that is, the person carrying out the transport); this shall also apply where the transport is carried out by eCOUNT embedded itself.
(2) In the case of dispatch by eCOUNT embedded, eCOUNT embedded shall, at the Customer’s request and at the Customer’s expense, take out transport insurance in the Customer’s favour. Transport damage shall be notified in writing without undue delay to eCOUNT embedded and to the delivering forwarder.
(1) eCOUNT embedded retains title to the Contractual Goods until receipt of all payments arising from the business relationship with the Customer. In the event of conduct by the Customer in breach of the contract, in particular default of payment, eCOUNT embedded shall be entitled to take back the Contractual Goods; the taking back constitutes a withdrawal from the contract. After taking back the Contractual Goods, eCOUNT embedded shall be authorised to realise them; the realisation proceeds shall be credited against the Customer’s liabilities – less reasonable realisation costs.
(2) The Customer shall be obliged to treat the Contractual Goods with care; in particular, the Customer shall be obliged to insure them adequately at their replacement value at the Customer’s own expense against damage by fire, water and theft. Where maintenance and inspection work is required, the Customer shall carry it out in good time at the Customer’s own expense.
(3) In the event of attachments or other interventions by third parties, the Customer shall notify eCOUNT embedded in writing without undue delay so that eCOUNT embedded can bring an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse eCOUNT embedded for the judicial and extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable for the loss incurred by eCOUNT embedded.
(4) The Customer shall be entitled to resell the Contractual Goods in the ordinary course of business; however, the Customer hereby already assigns to eCOUNT embedded all claims in the amount of the final invoice amount (including VAT in the statutorily owed amount) of the claim of eCOUNT embedded which accrue to the Customer from the resale against its purchasers or third parties, irrespective of whether the Contractual Goods have been resold without or after processing. The Customer remains authorised to collect this claim even after the assignment. The authority of eCOUNT embedded to collect the claim itself remains unaffected thereby. However, eCOUNT embedded undertakes not to collect the claim as long as the Customer meets its payment obligations from the proceeds collected, does not fall into default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed and no suspension of payments exists. If this is the case, however, eCOUNT embedded may demand that the Customer discloses to eCOUNT embedded the assigned claims and their debtors, provides all information required for collection, hands over the associated documents and notifies the debtors (third parties) of the assignment.
(5) Any processing or transformation of the Contractual Goods by the Customer shall always be carried out for eCOUNT embedded. If the Contractual Goods are processed with other items not belonging to eCOUNT embedded, eCOUNT embedded shall acquire co-ownership of the new item in the proportion of the value of the Contractual Goods (final invoice amount, including VAT in the statutorily owed amount) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the Contractual Goods delivered under reservation of title.
(6) If the Contractual Goods are inseparably mixed with other items not belonging to eCOUNT embedded, eCOUNT embedded shall acquire co-ownership of the new item in the proportion of the value of the Contractual Goods (final invoice amount, including VAT in the statutorily owed amount) 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 principal item, it shall be deemed agreed that the Customer transfers proportionate co-ownership to eCOUNT embedded. 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, as security for the claims of eCOUNT embedded against the Customer, the claims which accrue to the Customer against a third party through the combination of the Contractual Goods with real property.
(8) eCOUNT embedded undertakes to release the securities to which eCOUNT embedded is entitled, at the Customer’s request, insofar as the realisable value of the securities exceeds the claims of eCOUNT embedded to be secured by more than 10%; the selection of the securities to be released shall be incumbent on eCOUNT embedded.
(1) The assertion of the Customer’s rights in respect of defects presupposes that the Customer has properly complied with its obligations of examination and notification of defects incumbent on it under Section 377 of the German Commercial Code (HGB). Notices of defects shall be given in writing, specifying the defect. Notices of defects on account of incomplete delivery and other recognisable defects shall be given to eCOUNT embedded in writing without undue delay, but at the latest within one week of delivery; hidden defects shall be notified without undue delay, at the latest within one week of their discovery. Taking delivery may not be refused on account of insignificant defects. Claims based on material defects notified late are excluded. The costs of examining the Contractual Goods shall be borne by the Customer. Defective Contractual Goods shall be made available to eCOUNT embedded for examination upon request.
(2) In the case of defects of title, eCOUNT embedded shall be liable to the Customer as follows:
a) eCOUNT embedded shall, at its own discretion and at its own expense, for the deliveries concerned either obtain a right of use, modify the Performance in such a way that third-party rights are not infringed, or exchange the Performance. If this is not possible for eCOUNT embedded on reasonable terms, the Customer shall be entitled to the statutory rights of withdrawal or reduction of the price.
b) The obligation of eCOUNT embedded to pay damages in the case of defects of title shall be governed by paragraphs (5) to (8) below.
c) The aforementioned obligations of eCOUNT embedded shall exist only insofar as the Customer notifies eCOUNT embedded in writing without undue delay of the claims asserted by the third party, does not acknowledge an infringement, and all defensive measures and settlement negotiations remain reserved to eCOUNT embedded. If the Customer ceases to use the delivery for reasons of mitigation of damage or other important reasons, the Customer shall be obliged to point out to the third party that the cessation of use does not constitute an acknowledgement of an infringement. Claims of the Customer are excluded insofar as the Customer is responsible for the infringement, or insofar as the infringement is caused by specific requirements of the Customer, by an application not foreseeable by eCOUNT embedded, or by the delivery being modified by the Customer or used together with products not supplied by eCOUNT embedded.
(3) In the case of material defects, the Customer shall be entitled, at the option of eCOUNT embedded, to subsequent performance in the form of removal of the defect or delivery of a new item free of defects. Contrary to sentence 1, this right of option shall be vested in the Customer within the scope of the entrepreneur’s recourse pursuant to Section 478 of the German Civil Code (BGB). In the case of removal of the defect, eCOUNT embedded shall be obliged to bear all expenses required for the purpose of removing the defect, in particular transport, travel, labour and material costs, insofar as these are not increased by the Contractual Goods having been taken to a place other than the place of performance.
(4) If subsequent performance fails in the case of a material defect, the Customer shall be entitled, at the Customer’s option, to demand withdrawal or reduction of the price.
(5) eCOUNT embedded shall be liable in accordance with the statutory provisions if the Customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of the representatives or vicarious agents of eCOUNT embedded. Insofar as eCOUNT embedded is not charged with an intentional breach of contract, the liability for damages shall be limited to the foreseeable damage typically occurring.
(6) eCOUNT embedded shall be liable in accordance with the statutory provisions if eCOUNT embedded culpably breaches a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable damage typically occurring.
(7) Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the German Product Liability Act.
(8) Unless otherwise provided above, liability is excluded.
(1) Any further liability for damages than provided for in Section 8 is excluded – irrespective of the legal nature of the claim asserted. This applies in particular to claims for damages arising from fault upon conclusion of the contract, from other breaches of duty or from tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB).
(2) The limitation under paragraph (1) above shall also apply if the Customer, instead of the claim for compensation for the damage in lieu of the Performance, demands compensation for futile expenses.
(3) Insofar as the liability for damages of eCOUNT embedded vis-à-vis the Customer is excluded or limited, this shall also apply with regard to the personal liability for damages of the employees, workers, staff, representatives and vicarious agents of eCOUNT embedded.
(1) Claims arising from material defects and defects of title shall become time-barred in twelve months from the statutory commencement of the limitation period; the same applies to withdrawal and reduction of the price. This period shall not apply insofar as the law prescribes longer periods pursuant to Sections 438 paragraph 1 no. 2 (buildings and items used for buildings), 445b paragraph 1 (recourse claims) and 634a paragraph 1 no. 2 (building defects) of the German Civil Code (BGB), as well as in cases of intent or gross negligence, fraudulent concealment of the defect and non-compliance with a guarantee of quality. The statutory provisions on suspension of expiry, suspension and recommencement of the periods 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 of the German Civil Code (BGB)) would lead to a shorter limitation period in the individual case. Claims for damages of the Customer for culpable injury to life, body or health, in cases of intent or gross negligence, and under the German Product Liability Act shall, however, become time-barred exclusively in accordance with the statutory limitation periods.
(1) Offer documents, cost estimates, drafts, drawings and calculations or similar documents prepared by eCOUNT embedded (“Documents”) remain the sole property of eCOUNT embedded and may neither be reproduced nor made accessible to third parties without the written consent of eCOUNT embedded. If no contract is concluded, the Documents shall be returned to eCOUNT embedded without undue delay and in full, and any copies made shall be destroyed.
(2) If inventions are made by eCOUNT embedded in the course of the business relationship with the Customer, eCOUNT embedded shall be exclusively entitled to exploit the rights derivable therefrom, in particular patents.
(1) The Customer shall comply with all statutory provisions and official requirements as well as all other applicable laws and, in particular, export provisions and the laws of the country in which the Customer conducts business. The Customer shall obtain in good time all necessary authorisations and licences as well as all other necessary permissions required for the use or export of the Contractual Goods under all such applicable laws.
(2) eCOUNT embedded shall be entitled to withhold delivery of the Contractual Goods vis-à-vis the Customer if the Customer would violate such applicable laws or if not all authorisations are in place and this is not attributable to the fault or responsibility of eCOUNT embedded.
(3) eCOUNT embedded endeavours to keep all Contractual Goods manufactured by eCOUNT embedded free of conflict minerals within the meaning of the Dodd-Frank Act as amended from time to time (tantalum, tin, gold and tungsten from the DR Congo or its neighbouring countries). It is therefore the aim of eCOUNT embedded to also oblige the suppliers of eCOUNT embedded to ensure that the goods procured from the suppliers of eCOUNT embedded do not contain any of the aforementioned conflict materials. However, the assumption of any warranty obligation and of any liability of eCOUNT embedded for the materials used by suppliers of eCOUNT embedded or their sub-suppliers is hereby excluded to the extent permissible.
(1) The Customer shall not sell, export or re-export, directly or indirectly, to the Russian Federation or to Belarus, nor sell, export or re-export for use in the Russian Federation or in Belarus, any goods or technology forming part of the contractual performance (the “Contractual Goods”, within the meaning of Section 1 (2) of these Terms) which are listed in Annexes XI, XX, XXXV or XL to Council Regulation (EU) No 833/2014 (Russia Sanctions Regulation), in Annexes XVI, XVII, XXVIII or XXX to Council Regulation (EC) No 765/2006 (Belarus Sanctions Regulation), or in Annex I to Regulation (EU) No 258/2012, each as amended from time to time. This shall likewise apply to products into which such Contractual Goods have been incorporated, with which they have been combined or from which they have been manufactured, to the extent covered by the aforementioned regulations. Sentences 1 and 2 shall apply mutatis mutandis to intellectual property rights, trade secrets and other protected information which eCOUNT embedded provides to the Customer or licenses for use in connection with Contractual Goods within the meaning of sentence 1, in particular to standard software and firmware provided under Section 2 paragraph (4) and to documents within the meaning of Section 11 paragraph (1); the Customer shall likewise prohibit any sublicensees from any use for the purposes referred to in sentence 1. Section 12 remains unaffected.
(2) The Customer shall undertake its best efforts to ensure that the purpose of paragraph (1) is not frustrated by any third parties further down the commercial chain, including by possible resellers. Where the Customer resells the Contractual Goods, it shall impose corresponding obligations under paragraph (1) on its customer and shall require that customer to pass on the same obligation to any subsequent purchaser; this applies irrespective of whether the resale takes place under Section 7 paragraph (4).
(3) To the extent the Customer purchases Contractual Goods within the meaning of paragraph (1), the Customer shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of paragraph (1).
(4) A violation of paragraph (1) shall constitute a material breach of an essential element of the respective contract. In such event eCOUNT embedded shall be entitled to apply appropriate remedies, in particular to (i) withhold performance not yet rendered, (ii) terminate the affected contract as well as any further contracts with the Customer for cause with immediate effect, or withdraw from such contracts, and (iii) claim damages in accordance with the applicable statutory provisions. In the event of a violation of paragraph (2) or paragraph (3), eCOUNT embedded shall be entitled to these remedies if the Customer fails to cure the violation within a reasonable period set by eCOUNT embedded. Sections 8 and 9 govern exclusively the liability of eCOUNT embedded towards the Customer; they do not limit claims of eCOUNT embedded under this paragraph (4).
(5) The Customer shall inform eCOUNT embedded without undue delay of any problems in applying paragraphs (1) to (3), including any relevant activities by third parties that could frustrate the purpose of paragraph (1). The Customer shall make available to eCOUNT embedded information concerning compliance with the obligations under paragraphs (1) to (3) within two weeks of a corresponding request.
(6) To the extent eCOUNT embedded is under a statutory obligation to do so, eCOUNT embedded will report to the competent authority any violation by the Customer of the obligations under paragraph (1) that comes to its knowledge. The Customer is expressly notified of this.
(7) The obligations under paragraphs (1), (2), (3) and (5) shall survive the termination of the respective contract, in particular in the event of termination or withdrawal pursuant to paragraph (4).
(8) Paragraphs (2), (3) and (5) shall apply only to Customers who are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law or special funds under public law.
(1) If the Customer is a merchant, the place of business of eCOUNT embedded shall be the place of jurisdiction; however, eCOUNT embedded shall also be entitled to sue the Customer at the Customer’s place of jurisdiction.
(2) Unless otherwise stated in the order confirmation, the place of business of eCOUNT embedded shall be the place of performance.
(3) The law of the Federal Republic of Germany shall apply. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
(4) The Customer is advised that, when dispatching the products procured from eCOUNT embedded (onward dispatch to third parties or return to eCOUNT embedded), the Customer shall observe the ICAO/IATA regulations applicable from time to time.
