Version 08 November 2015,
1.1 These General Terms and Conditions are valid for all contracts and for the entire business relationship between ELFIN and the customer, unless agreed otherwise in a separate contract.
1.2 General Terms and Conditions belonging to the customer are not valid.
2. Quotations and orders
2.1 Orders that the customer submits to ELFIN are only accepted after being confirmed in writing by ELFIN.
2.2 If the order is being executed immediately, the written acceptance is replaced by the invoice.
2.3 ELFIN has no obligation to accept an order.
2.4 Quotations from ELFIN are non-binding and subject to change, unless specified other-wise in writing. ELFIN is only bound by quotations for a period of five working days. Brochures, lists, circulars, etc. do not constitute quotations.
2.5 These provisions are a component of every quotation from ELFIN.
2.6 Assurances about product characteristics are only a component of the contract if expressly made in writing. Details in brochures are not classed as assurances of characteristics, unless expressly agreed in writing.
2.7 Warranty claims can only be asserted if ELFIN has expressly offered a warranty in writing.
3.1 Prices are quoted in EURO (EUR) excluding packaging, for delivery from Cologne, plus VAT at the rate that applies on the day of invoicing, plus any other statutory shipping charges.
3.2 The latest version of the ELFIN price list applies in each instance.
4. Shipping and transfer of risk
4.1 Goods are shipped at the customer's own risk and expense. Transport insurance to the delivery location specified by the customer is arranged and charged by ELFIN, unless waived in writing by the customer; the level of coverage is equal to the purchase price.
4.2 ELFIN is entitled to make partial deliveries.
5. Payment terms
5.1 Payments are due 14 days after delivery, without any deductions. After the first reminder, the interest rate will increase to 1% above the applicable Lombard rate of the Bundesbank, provided that this rate is higher than the statutory interest rate; in such case, the customer is entitled to provide counter-evidence of lesser damages.
5.2 Payments are used to settle the oldest debt plus any corresponding default interest and legal expenses first, then as payment against the purchase price, unless the customer has expressly specified a different method of apportionment.
5.3 Bills of exchange and pre-dated cheques are only accepted if separately agreed in writing beforehand and only on account of payment. Bill of exchange taxes, as well as bank, discount and collection charges, are borne by the customer.
5.4 If several bills of exchange are provided as payment, they will all become due if the next one due is not redeemed on time.
5.5 If the customer fails to meet its payment obligations and/or other obligations from the General Terms and Conditions without proper justification, or if it ceases its payments, or if insolvency proceedings are initiated over its assets or those of its legal representatives, then the entire legal debt will become payable immediately. In such case, ELFIN is entitled to declare its withdrawal from all contracts, to take back any delivered goods under retention of title, and to demand reimbursement of all costs caused by the withdrawal (e.g. return transportation, loss of value, etc.).
5.6 For a receivable that does not relate to the contract in question, the customer may only assert a right of retention if the claim is undisputed or has been legally determined. Payment against the purchase price can only be offset against claims that are undisputed or legally determined, provided that the customer is not asserting warranty claims from the contract in question.
5.7 ELFIN may refuse delivery of the goods for as long as the customer is in arrears with previous goods or services provided by ELFIN.
5.8 For paid repair work or other orders for which the payment to ELFIN would only become due after acceptance, the due date of the payment is brought forward to the time of handover/delivery. In such case, ELFIN can demand that the payment is made concurrently with the delivery/handover.
6. Retention of title, pledging, assignment
6.1 Until all receivables (including all claims relating to running account balances) that are due to ELFIN from the customer, either now or in the future and on any legal groun whatsoever, have been settled in full, ELFIN shall be provided with the following security: The goods remain the property of ELFIN. The goods are always processed or altered on behalf of ELFIN as the manufacturer, but without obligation for ELFIN. If ELFIN’s (co-)ownership lapses due to goods being combined, it is hereby agreed that the customer's (co-)ownership of the combined item will transfer to ELFIN ad valorem (invoice value). Goods to which ELFIN is entitled to (co-)ownership are referred to as "retained goods" in the following.
6.2 The customer may process or sell the retained goods in the normal course of business, provided that the customer is not in arrears with its payments to ELFIN. The retained goods may not be pledged or assigned as security.
6.3 The receivables (including all claims relating to running account balances) for the retained goods which are due from their resale or on other legal grounds (insurance, prohibited usage) are hereby assigned in full to ELFIN by the customer by way of security. ELFIN irrevocably authorises the customer to collect the receivables assigned to ELFIN in its own name for ELFIN account. This collection authorisation can only be revoked if the customer fails to properly meet its payment obligations.
6.4 If third parties gain access to the retained goods, the customer shall make them aware of ELFIN ownership and inform ELFIN immediately. In the event of a breach of contract by the customer, especially a payment default, ELFIN may take back the retained goods or demand that the customer assigns its handover rights vis-à-vis third parties. Provided that consumer credit law does not apply, any repossession or seizure of the retained goods by ELFIN will not constitute withdrawal from the contract. Should the value of the security that ELFIN is entitled to under these General Terms and Conditions exceed the value of its receivables due from the customer by more than 20%, ELFIN will release security of its choosing at the customer's request.
7. Delivery times
7.1 As ELFIN is not the actual manufacturer of the components that it processes or the products that it offers, binding delivery dates can only be provided for goods that are held in stock. If the delivery dates are not expressly described as binding in the quotation/contract, they shall merely be considered estimate with no obligation to deliver on specific calendar dates. However, ELFIN is obliged to inform the customer immediately of any expected delays.
7.2 If an expected delivery date is delayed to an unacceptable extent for the customer, and for reasons attributable to ELFIN, then the customer shall grant ELFIN a reasonable extension of at least two weeks.
7.3 The expected delivery dates will be extended accordingly in the case of force majeure, such as unavoidable operational disruptions, strikes, lock-outs, non-delivery by upstream suppliers, and other incidents that ELFIN has no control over.
8. Delivery cancellation
8.1 If the customer cancels orders either partially or in full and is unable to meet its purchase obligation through no fault whatsoever of ELFIN, then ELFIN is entitled to claim lumpsum compensation for the incurred damages in accordance with the following rules. 8.2 The purchase price of the delivery items that have already been produced by the point of withdrawing from the contract must be paid in full.
8.3 For goods that have not yet been produced, 60% of the net purchase price is payable if there are no more than 30 days between the event under item 8.1 and the agreed delivery date.
8.4 In all other cases, lump-sum compensation amounting to 40% of the net purchase price is payable.
8.5 The customer reserves the right to prove lesser damages on the part of ELFIN.
8.6 This shall not affect ELFIN’s right to demand compensation for non-fulfilment if the customer does not pay for partial deliveries in accordance with the contract and ELFIN therefore refuses to make the remaining deliveries.
9. Warranty and withdrawal
9.1 The warranty period comprises 12 months from delivery of the goods to the customer, provided that ELFIN has not deliberately concealed the defect.
9.2 Transit damage and incorrect quantities must be reported in writing within eight days of receiving the delivery. The customer is obliged to inspect the goods immediately upon being delivered by ELFIN and to inform ELFIN immediately in writing of any discovered defects or other deviations and to return the faulty goods together with an exact description of the alleged problem. If the customer fails to notify ELFIN, the goods shall be deemed as accepted, except in cases where the defect could not be detected during a precise inspection. Such a defect must be reported immediately upon discovery, otherwise the goods will be deemed as accepted even in consideration of this defect.
9.3 In the case of justified complaints, the customer has the statutory warranty rights with the following limitations: ELFIN may decide at its own discretion whether to respond to the customer‘s request for remedial action by repairing the goods or by providing a faultless replacement of the purchased item. In principle, the customer shall grant ELFIN at least three attempts at remedial action, unless the nature of the purchased item or defect or any other circumstances require otherwise. The customer shall grant ELFIN at least 14 days for each attempt at remedial action, unless the nature of the purchased item or defect or any other circustances require otherwise. In the case of slight negligence on the part of ELFIN, the customer may not demand compensation for non-fulfilment in place of fulfilment. In such case, the customer is also entitled to a reduction in price, to withdraw from the contract, or to demand fulfilment of the contract. For the remainder, item 10 applies. In the case of slight negligence on the part of ELFIN, any compensation claim by the customer is limited to the purchase price, whereby the objective value of the defective purchase item shall be offset in addition to fulfilment. For the remainder, item 10 applies. 9.4 By removing the original technical markings or by manipulating or changing the purchased item (provided that the item is not intended for this purpose), any obligation for ELFIN to prove the existence of a defect will reverse.
9.5 No warranty whatsoever is provided for the sale of used hardware, unless a defect has been fraudulently concealed or certain characteristics have been assured.
9.6 The customer may not withdraw from the contract due to ELFIN being in breach of an obligation, unless ELFIN is at fault or a right of withdrawal exists due to the purchased item being defective.
10.1 If certain characteristics have been assured, then ELFIN’s liability for consequential damage is limited to those assurances that are expressly intended to protect against the occurrence of such consequential damage.
10.2 ELFIN assumes no liability for slight negligence, unless essential contractual obligations (cardinal obligations) have been breached.
10.3 In the event of lost data, ELFIN is only liable for the extent of damage that would have occurred if the data was backed up on a daily basis.
10.4 Irrespective of the aforementioned provisions, ELFIN is liable for a maximum of EUR 250,000.00 per year and per breach of obligation.
10.5 The limitations of liability do not apply to liability under product liability law, or for damages resulting from death, bodily injury or impairment of health.
10.6 he possibility of liability insurance shall not give rise to liability beyond that mentioned above and governed in item 9.3.
10.7 The general limitation period under Art. 195 BGB (German Civil Code) is reduced to 12 months.
11. Export and re-export
11.1 All deliveries of ELFIN are subject to an export licence pursuant to German foreign trade legislation, which the customer must make itself aware of.
12. Place of jurisdiction
12.1 The place of jurisdiction for all disputes arising from or in relation to this contract is Cologne/Germany.
12.2 The legal relationships between the parties are subject exclusively to the laws of the Federal Republic of Germany, under exclusion of international codifications such as the UN Convention on Contracts for the International Sale of Goods.
13.1 All agreements between the parties, including changes thereto, must be made in writing.
13.2 If the customer fails to fulfil its obligations under the purchase contract, ELFIN may refuse further deliveries without prejudice to its other rights.
13.3 Should a provision of these General Terms and Conditions be declared legally invalid, it shall be deemed to have been replaced with a provision that most closely corresponds to the economic sense and purpose of the invalid one and which takes into account the interests of the involved parties.
13.4 The customer is not permitted to assign its rights to third parties without the prior written consent of ELFIN.
13.5 If a customer falls under the data protection law‘s personal scope of protection, it hereby agrees to its data being processed to the extent required to execute the contract.
13.6 ELFIN GmbH and its affiliated companies have the right to nominate the customer as a reference customer for advertising purposes and competitions, also using the customer's company logo.
13.7 Copyrights, patent rights and other usage and exploitation rights relating to the sold product shall remain with ELFIN irrespective of the sale of the product, unless stipulated otherwise in the contract. The product may be resold or passed on in the specific form that it was delivered in. Individual components or systems of ELFIN or the product may only be reproduced with the written permission of ELFIN.
13.8 The customer is only permitted to reproduce ELFIN software and make backup copies for in-house use, provided that this does not give rise to any other usage possibilities.
13.9 ELFIN products or components thereof may not be used in life-support, medical or military systems without the permission of ELFIN. ELFIN assumes no liability for damages arising from a breach of this obligation.
13.10 The source codes of ELFIN products as well as the rights of use remain with ELFIN GmbH also in the case of customer or project specific enhancements and are neither published nor made available unless explicitly agreed otherwise for an order.
13.11 Items 13.7 and 13.10 do not include open source components of the ELFIN software. These may be used under the conditions of the open source licences that apply in each case. More information about these open source components is provided together with the respective ELFIN products.