General Terms and Conditions of Delivery and Payment

1  Inclusion, Validity, and Protective Clause, General

1.1    Our General Terms and Conditions of Delivery and Payment shall exlusively apply to the relevant contract. Any agreements deviating therefrom always require our written approval to become effective.

1.2    General terms and conditions contradictory to our General Terms and Conditions of Delivery and Payment are not acknowledged. We expressly contradict to their validitiy. Our silence after communication of general terms and conditions of the Buyer should not be regarded as consent to incorporate said general terms and conditions of the Buyer.

1.3   Our General Terms and Conditions of Delivery and Payment in the respectively authorized version shall also become an integral part of all future contracts in a current business relationship without giving a particular reference in the individual case even if other agreements are made for some individual business.

1.4   All our quotations are without engagement. Orders placed are binding on us only upon our confirmation or delivery of goods and verbal agreements only upon our written approval. 

 2  Delivery

2.1  As far as we provide our own packaging materials and transportation means, our special packaging conditions shall apply, in default of them, the general stipulations thereto.

In case of delayed return (i.e. upon excess of usual unloading time) of loading facilities (e.g. wire box pallets, material supply boxes), we reserve the right to invoice the Buyer for expenses and leases incurrred to us.

2.2  Our duty to deliver shall suspend as long as the Buyer is in default of the duties incumbent on him.

2.3  Upon negligent excess of an agreed delivery time, default of delivery is given only after granting of a reasonable period af grace.

2.4  Indication of delivery times is principally non-committal unless an express agreement on a fixed date has been made in writing. The indication of  mere fix clauses in the Buyer´s order, such as "fixed", "without period of grace" and the like will not suffice.

3  Invoicing

3.1  Notwithstanding other agreements, our prices are understood "ex works" packaging excluded. Packaging and freight costs will be billed for separately.

3.2 Prices valid on the date of delivery are always taken as a basis for invoicing. If said prices are higher than those valid upon conclusion of  contract, the Customer shall have the right to terminate the contract within 14 days as from the notification of price increase with regard to the quantity not yet accepted.

3.3  The prices are understood VAT excluded. The VAT will be stated separately in the invoice to the legal extent valid on the date of invoicing.

4  Force Majeure

Events of Force Majeure - including but not limited to such circumstances and events which cannot be precluded with due care and diligence of proper business management - will suspend the contractual obligatons of the parties for the period of disturbances and to the extent of their effectiveness. If delays and defaults resulting therefrom exceed a period of six weeks, both contracting parties shall be entitled to terminate the contract as regards the scope of supplies affected thereby. Ongoing  claims will be excluded.

5  Payment

5.1  Our invoices become due without any deduction thirty days after the date of invoice and payable net cash. Deduction of any discount is subject to a special written approval.

5.2  The presentation of bills is subject to our express consent. Charges and expenses thereof as well as the ristk of timely presentation and notice of protest shall be fully borne by the Buyer.

5.3  Upon excess of the term of payment, interests to the extent of usual banking debit interest rates will be invoiced, at least 4 percentage points over the basic interest rate pursuant to German Civil Code, subject to claiming other damages.

5.4  Upon default of payment and reasonbable scruples about the financial solvency and creditworthiness of the Buyer we shall have the right - without prejudice to our other rights - to demand securities or down payments for outstanding shipments and call all claims arising from the business relationship immediately due.

5.5  Uncontested or legally asserted claims only authorize the Buyer to set-off or withhold payments.

6  Shipment

6.1 Loading and shipment take place "ex works" uninsured at the consignee's risk. As far as requested by the Buyer in writing, we will have the consignment covered by a transport insurance company. Expenses incurred insofar shall be borne by the Buyer.

6.2  We will endeavor to consider requests and interests of the Buyer with regard to kind and route of shipment. Extra cost incurred in this respect – even in case of delivery freight prepaid – shall be borne by the Buyer.

7  Claims for Defects

7.1  The Buyer cannot derive any rights from the fact that we deal with a complaint, investigate the goods or correspond with him or any third party for the settlement of complaint.

7.2  Upon receipt, the Buyer shall instantly inspect the goods for flawless condition, completeness and compliance with the contract. The Buyer shall perform a trial run to a reasonable extent. Any claims for defects raised by the Buyer suppose that he has properly fulfilled his duties to investigate and to raise a complaint set forth in § 377 Commercial Code. If the Buyer's company has been certified according to DIN ISO 9000 and follow-up regulations, the extent of due care and diligence to be exerted by the Buyer in fulfillment of his duties to investigate and raise a complaint pursuant to § 377 Commercial Code even with regard to us shall depend on the content of his quality assurance regulations unless higher demands must be made in compliance with general commercial principles.

7.3  In the event of justified complaints, we shall have the right either to remedy the defect or to perform a substitute delivery at our discretion. Upon remedy of defect, we covenant to bear any and all cost and expenses required for the purpose of remedy of the defect and substitute delivery, in particular, transportation, labor and material cost to the extent that they will not increase due to the fact that the commodities were shipped to a place other than the place of delivery. Any other right of the Buyer for remedy is excluded unless we have maliciously concealed any defect or assumed a warranty.

7.4  If remedy or substitute delivery have turned out to be without success and if the complaints are not settled within another period of grace of two weeks to be notified in writing, the Buyer shall have the right either to demand reduction of the purchase price (abatement) or to terminate the contract at his own discretion. Ongoing claims, in particular, for compensation of damages in lieu of the performance are excluded unless they can be attributed to intent or gross negligence on our part or on the part of our subcontractors. The extent of liability will, at any rate, be limited to the damage foreseeable in terms of the normal course of affairs.

8  Compensation for Damages

As far as permitted by law, our duty to compensate for damages, for a legal reason whatsoever, is limited to the invoice value of the quantity of goods directly involved in the event causing the damage. This does not apply as far as we are held liable without any restriction pursuant to mandatory and statutory law for intent or gross negligence.

9  Retention of Title

9.1  The commodities sold remain our property up to complete payment of our claims from the business relationship established with the Buyer. The Buyer shall have the right to use the purchased commodities in the normal course of business.

9.2  Retention of title also applies to the products manufactured by processing, mixing or integrating of our commodities to their full value whereby we are identified as manufacturers. If the title of ownership of third parties is retained upon processing, mixing and  integrating commodities delivered by them, we acquire co-ownership relative to the invoice values of such commodities processed.

9.3  Claims arising from the resale against third parties shall be assigned by the Buyer to us even for the time being either as a whole or to the extent of our probable share in any co-ownership to provide security (see Clause 9.2). The Buyer shall have the right to recover such claims on our account until further notice or for cease of his payments to us. The Buyer shall not be authorized to  assign such claims even not for the purpose of recovery of claims by way of factoring, unless there is a justified duty of the factor to effect considerations directly to us to the extent of our claim share as long as there are still claims raised by us against the Buyer.

9.4  Any access of third parties to commodities and claims belonging to us shall be notified instantly by the Buyer via registered mail  to enable us to file a lawsuit pursuant to § 771 Civil Practice Code. As far as said third party is not able to reimburse us for judicial and extra-judicial expenses of a lawsuit pursuant to § 771 Civil Practice Code, the Buyer shall be held liable for the deficit incurred to us.

9.5  Any exercise of the retention of title does not mean termination of contract unless we expressly declare this.

9.6 The commodities and claims superseding them should neither be mortgaged to third parties nor assigned and pledged as security prior to complete payment of our claims.

9.7  If the value of securities surpasses our claims by more than 20%, we will insofar release securities at our discretion on the Buyer's demand.

10  Place of Performance and Venue

The place of performance for shipment shall be the respective place of departure of the commodities for payment Chemnitz. If the Buyer is a registered trader, the place of venue shall be Chemnitz or, at our discretion, the general place of his venue.

11  Choice of Law, Place of Performance and Venue, Safeguarding Clause

11.1  The present General Terms and Conditions shall also apply to any and all transactions and sales to abroad. German law excluding private international law shall apply exclusively to the contractual relationship. Application of international law, for instance, UN Sales Law is excluded.

11.2 As far as reference is made to general rules or the "ex works" clause and unless otherwise agreed in the sales contract and in the present Terms and Conditions, the "ex works (EXW) Chemnitz" clause shall apply in compliance with INCOTERMS 2010.

11.3  As far as we have to initiate judicial or foreclosure proceedings abroad, the Buyer undertakes to bear all judicial and extra-judicial expenses including cost for lawyers' assistance to the extent our claims have been justified.

11.4  The place of performance for all claims arising from the contractual relationship established between us and the Buyer shall be Chemnitz. If the Buyer is a registered trader, the place of venue shall be Chemnitz. We shall have the right to file a lawsuit against the Buyer at his legal place of venue. This shall also apply to contracts concluded with contracting partners abroad.

11.5  If some issues of the present General Terms and Conditions of Delivery and Payment are or will become ineffective, the validity of other regulations shall remain unaffected thereby.  

12 Information on treatment and processing of personal data according to the requirement for transparency, Article 12 et seq. DSGVO (Basic Privacy Regulation)

12.1 Intended purpose
Our company treats and processes personal data for the purpose of establishing and implementing order-related business relationships. Affected thereby are all data categories used to fulfil pre-contractual and contractual obligations. Any transfer of personal data to third persons shall take place only if this is necessary for fulfilment of the business purpose. Any transfer of personal data to third parties even in third countries with unclear data protection level (normally, countries outside the EU) not involved in the business purpose will not take place or only if the person concerned has given his consent.

Collection, processing and utilisation of personal data shall take place here to the extent permitted by law pursuant to Articles 5 and 6 DSGVO. If personal data is collected directly from the data subject, the latter shall have the right of transparent information pursuant to Article 12 et seq. DSGVO and in accordance with § 32 (Federal Data Protection Act). Principally, only such information will be processed and used which is required for operational performance of duties and is in direct connection with the purpose of processing. In this context, the special preconditions relative to collection, processing and utilisation of particular categories of personal data are respected pursuant to Article 9 DSGVO and § 22 et seq. BDSG. Treatment and processing of sensitive data shall be permitted pursuant to DSGVO exclusively under the principle of the right of permission or on presentation of a statutory basis.

The right of data subjects
Pursuant to Article 15 et seq. DSGVO, data subjets shall have the right to access, to rectify, delete, restrict and object to the treatment and processing of their data.

Moreover, data subjects shall have the right to withdraw from the consent given for treatment and processing of personal data in the future pursuant to Article 13 Section 2 Para c DSGVO if said processing is based on Article 6 Section 1a or Article 9 Section 2a DSGVO. However, the lawfulness of processing carried out due to the consent up to withdrawal thereof will not be affected thereby.
Any revocation as well as non-availability of required data, however, has normally the consequence that the purpose for which data has been or has to be collected cannot be met. The rights in this respect shall be claimed in written form. Please contact us per email at datenschutz.eska[@]eska.net

12.2 Deletion of personal data
Personal data will be deleted if the purpose to save it ceases to exist and retention of data is not prescribed by any legal rule (for instance, with regard to the legal retention period). The provisions of Article 17 DSGVO shall apply in conjunction with § 35 BDSG. As far as said deletion is not possible due to legally, contractually, commercially and/or fiscally required reasons, data processing can be restricted on the data subject´s request. The rights in this respect shall be claimed in written form.

12.3 The data subject´s right of data portability
The company assures the right of data portability pursuant to Article 20 DSGVO. Every data subject shall have the right to receive a copy of his personal data in a usual machine-readable file format.

12.4 Responsible within the meaning of DSGVO and BDSG

ESKA Automotive GmbH; email address: datenschutz.eska[@]eska.net

12.5 Data Protection Commissioner of the company
Hermann J. Janz, c/o Janz Consulting,
Schevenstrasse 18, 01326 Dresden

12.6 Right of appeal
Each data subject shall have the right to file an appeal pursuant to Article 77 DSGVO with the state supervisory authority. The State Data Protection Commissioner can be contacted at e-mail: saechsdsb@slt.sachsen.de