General Terms and Conditions of E-Stream Beteiligungs GmbH, Neue Straße 1, 40789 Monheim a.R.
I. General; Scope of Application
(1) These General Terms and Conditions shall apply to all present and future business relations between E-Stream Beteiligungs GmbH (hereinafter referred to as “E-Stream Participation”) and a merchant, a legal entity under public law or a special fund under public law (hereinafter referred to as “Provider”) concerning the provision of services for or the delivery of goods to E-Stream Participation. The General Terms and Conditions do not apply to natural persons who conclude a legal transaction only for a purpose that cannot be attributed to their commercial or independent professional activity. 2.
These terms and conditions shall apply exclusively. Conflicting or deviating General Terms and Conditions of Business or deviating General Terms and Conditions of Sale of the supplier shall not be recognised and shall not become part of the contract, unless their validity is agreed to in writing by E-Stream Participation at the time of conclusion of the contract; in this case, as well as in the case of a separate agreement of special conditions for specific orders, these General Terms and Conditions of Purchase shall be subordinate and supplementary. This also applies to conditions mentioned in offers or (order) confirmations of the supplier. These General Terms and Conditions shall also apply if E-Stream Beteiligung accepts services or deliveries of goods of the supplier without reservation in the knowledge of conflicting, deviating or supplementary terms and conditions. The acceptance of a delivery or service of the supplier by E-Stream Beteiligung does not imply the acceptance of General Terms and Conditions or General Conditions of Sale of the supplier. Nor shall silence in response to an order confirmation by the supplier in the event of contradictory statements by the supplier constitute a corresponding acceptance.
Ii. Offer; Contract
1. offers of the provider for e-stream participation are to be made free of charge. Deviations from requests for e-stream participation shall be expressly referred to in the offer; if necessary, corresponding drawings shall be enclosed. 2.
(2) A contract shall only be concluded if E-Stream Participation issues a written declaration of acceptance after receipt of an offer from the bidder.
(3) If an order confirmation of the supplier contains deviations from the order of E-Stream Beteiligung, the order confirmation shall not constitute a contract. If a permanent business relationship exists and the provider wishes to reject the order, he must declare this to E-Stream Participation without delay, at the latest, however, within 5 (five) days, otherwise the order shall be deemed accepted. In other cases, E-Stream Participation reserves the right to revoke orders if they have not been confirmed in writing in due time. 4. (4) E-Stream Beteiligung shall not be liable for obvious errors, spelling mistakes or miscalculations in the order.
(5) The written order of the E-Stream Participation in conjunction with these General Terms and Conditions shall be decisive for the content of the contract with the Provider. All agreements made between the parties are only legally effective if they are agreed in writing. Changes and amendments to the content of the contract require written confirmation by E-Stream Participation. Verbal side agreements are not part of the contract.
Iii. Scope of services
1. the scope of services results from the respective individual order. Documents, reports, ideas, drafts, models, samples and all other results resulting from the provision of services are part of the order performance.
The contractor shall provide his services with the greatest possible care, taking into account the latest state of science and technology, the safety regulations of the authorities and professional associations as well as his own existing knowledge and experience or that gained during the performance of the contract. He shall ensure compliance with the statutory provisions, the agreed technical specifications and other requirements. 3.
3. partial performances are not permitted, unless expressly agreed otherwise in advance. In this respect, E-Stream Participation is entitled to cancel the remaining quantity.
4. the execution of the ordered deliveries and services by third parties shall require the prior written consent of E-Stream Beteiligung. 5. the supplier shall provide drawings, data and information to E-Stream Beteiligung.
5. the supplier shall prepare drawings, data and other documents in accordance with the requirements, regulations and guidelines of E-Stream Participation. In case of ambiguity, the supplier is obliged to obtain all necessary information before starting the work. The computer systems and programs used in the documentation are determined by the E-Stream Participation. The Contractor is obliged to obtain information accordingly before commencing or carrying out the contractual service.
6. At the request of the E-Stream participation, the supplier shall provide information on the composition of the delivery item, insofar as this is necessary for the fulfilment of official requirements at home and abroad.
7. The E-Stream participation is entitled, as long as the supplier has not yet fully fulfilled his obligations, to demand within the scope of reasonableness, order changes with regard to design, execution, quantity and delivery time. The effects (e.B. additional or reduced costs, delivery dates, etc.) must be regulated by mutual agreement. E-Stream Beteiligung may also demand changes to the delivery item after conclusion of the contract, insofar as this is objectively reasonable for the supplier. In the event of this amendment to the contract, the effects on both sides, in particular with regard to the additional or reduced costs as well as the delivery dates, must be regulated by mutual agreement.
8. The Supplier is obliged to immediately notify the E-Stream Participation in writing of any concerns it may have about the manner of performance of the service/delivery desired by the E-Stream Participation and to propose to the E-Stream Participation changes that it deems necessary to meet the agreed specifications or legal requirements.
9. The supplier is obliged to supply spare parts for the period of normal technical use, but at least 10 years after the last delivery on reasonable terms.
10. If the supplier intends to discontinue the delivery of the spare parts after expiry of the deadlines specified in section 9 or the delivery of the delivery item during this period, the E-Stream participation must be informed of this and given the opportunity to place a last order before hiring.
Iv. Prices; Terms of payment and delivery
1. The prices shown in the order are fixed prices. The price includes in particular costs for freight “free domicile”, insurance, customs duties, packaging and material testing procedures. Claims due to additional deliveries and/or services can only be asserted after prior written agreement and commissioning of the additional deliveries and/or services between the contracting parties. Otherwise, additional claims beyond the total fixed price are excluded.
2. Unless other place of performance has been agreed in writing in the contract, the deliveries must be made at the E-Stream Beteiligung registered office (obligation to deliver) and must be insured by the supplier at its expense against transport damage, incorrect loading or unloading as well as theft.
3. Goods must be packed in such a way that damage during transport and loading operations is avoided. Packaging materials are only to be used to the extent necessary to achieve the purpose
use. The supplier’s take-back obligations, also with regard to transport and product packaging, are governed by the statutory provisions. The supplier assures that all packaging is licensed and registered with a corresponding system provider in accordance with the law and that the duties for it are paid in full and properly.
4. Remuneration for presentations, presentations, negotiations and/or for the preparation of offers and projects is not owed unless previously agreed in writing. 5. Invoices must be issued at the earliest on the day of dispatch of the delivery. Each order must be invoiced separately. In addition to the statutory mandatory information, the invoice must clearly state the order number shown in the order of the E-Stream participation, the customer, the supplier number and the material number of the E-Stream participation, insofar as this has been specified.
6. Unless otherwise agreed, E-Stream Beteiligung shall pay the purchase price until the 25th of the month following the acceptance of the complete delivery together with all associated documents and receipt of an auditable invoice with a 3% discount or within 60 days without deduction.
7. Payments do not imply recognition of the services as being in accordance with the contract.
8. Returns of defective goods are made under chargeback of the invoice amount or issuance of a (VAT) invoice refund at the expense and risk of the supplier. Replacement deliveries are to be invoiced again stating the number of our return and debit note.
9. If the invoice is received before the goods receipt, the latter is decisive.
10. The supplier is not entitled to assign its claims against the E-Stream participation or to dispose of them in any other way without the prior written consent of the E-Stream participation. Collection by third parties is excluded. § 354a HGB remains unaffected by this.
11. The supplier is not entitled to leave the fulfilment of its contractual obligations in whole or in part to a subcontractor without the prior written consent of E-Stream Beteiligung. If the E-Stream Participation has agreed to the subcontracting, copies of the subcontracts must be submitted immediately after issuance by the supplier to the department responsible for purchasing specified on this order, if and to the extent necessary to verify the production, the conditions of the order, the goods to be delivered and/or legal or official requirements. The supplier’s liability for the fulfilment of its contractual obligations by the subcontractor remains unaffected.
12. E-Stream participation is entitled to rights of set-off and retention to the extent permitted by law. E-Stream Beteiligung is entitled to offset claims of the supplier by means of a debit note (e.B. in the case of partial services/deliveries, (partial) returns of defective goods or forfeited contractual penalties) or a (VAT) invoice refund. E-Stream Beteiligung reserves the right to issue corresponding invoices and carry out corresponding direct debits.
13. The supplier may only offset its own claims against the E-Stream participation if its counterclaims have been legally established, are undisputed or have been acknowledged by the E-Stream participation. He is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
14th. E-Stream Beteiligung is entitled to reduce invoice amounts of the supplier by the value of returned goods as well as any expenses and claims for damages.
V. Delivery dates; Due date, default, damages, transfer of risk
1. The supplier must provide the service punctually on the contractually agreed delivery dates. Delivery dates are arrival dates at the specified delivery point.
2. If the performance time is determined according to the calendar, default occurs if the delivery date is missed. If the service is not determined according to the calendar and the service is not provided on time, default occurs after 10 days at the latest. E-Stream Participation reserves the right to set shorter deadlines by issuing a reminder.
3. If the supplier is in default, he is obliged to comply with the request of E-Stream Beteiligung for express shipping (express or express goods, express courier, fast package, air freight, etc.) at his own expense.
4. In the event of default on the part of the supplier, E-Stream Beteiligung shall be entitled, after fruitless expiry of a reasonable grace period, to withdraw from the contract and claim damages. The grace period is not required if the delivery date has been agreed “fixed”, i.e. E-Stream participation has expressed in the respective order that your interest in performance depends on timely delivery, or if the supplier declares that it cannot deliver even within the grace period. In case of urgency, a grace period of 2 (two) working days is sufficient.
5. If the supplier is culpably in default, E-Stream Beteiligung may – in addition to further statutory claims – demand lump-sum compensation for the damage caused by delay in the amount of 0.5% of the net price per working day, but in total not more than 5% of the net price of the order amount incurred up to the time of default. E-Stream participation reserves the right to prove that the E-Stream participation has incurred a higher damage. The Contractor reserves the right to prove that E-Stream Beteiligung has incurred no damage at all or only a significantly lower damage.
6. If the supplier is in default, E-Stream Beteiligung is entitled to make cover purchases if and to the extent necessary to avert imminent consequential damage of the delay. Any additional costs incurred as a result shall be borne by the supplier. The supplier is obliged to assume all damages caused by his delay, including any consequential damages.
7. An early delivery or service that takes place without express prior consent is not obliged to accept E-Stream participation.
8. The supplier is obliged to inform the E-Stream participation immediately in writing of any delivery delays and the reasons for this. Any knowledge of E-Stream’s participation of the reasons for the delay does not replace the written notification by the supplier. The supplier is liable for all damages resulting from a failure or delayed notification. Irrespective of this, the supplier shall also compensate for all damages caused by a delay in delivery for which he is responsible.
9. The risk shall only pass to E-Stream participation at the receiving point upon acceptance by E-Stream participation or, in the case of installation or assembly of the delivered goods by the Supplier, upon commissioning in the case of E-Stream participation.
10. The acceptance of a delayed delivery shall not be deemed a waiver of claims for compensation.
Vi. requirements for the delivery item; Documentation
1. The supplier is obliged to indicate on all documents, shipping documents and delivery notes exactly the E-Stream participation order number and E-Stream participation article number, insofar as these have been communicated to him. Separate documents are required for each order. Insofar as damages arise from non-compliance, these shall be borne by the supplier.
2. The supplier is obliged to submit a written declaration of the customs origin of the goods for all delivered goods. This declaration must be sent to E-Stream Beteiligung without delay.
3. The delivery item must be executed in a customary manner in accordance with the written order of E-Stream Beteiligung, the relevant DIN regulations and corresponding European standards in the currently valid version.
Vii. Defect investigation; Warranty, Guarantees
1. The obligation to inspect and give notice of defects under § 377 HGB (German Commercial Code) is excluded for hidden defects insofar as E-Stream Beteiligung has carried out a minimum check on the basis of the delivery note and for transport damage.
2. E-Stream Beteiligung fulfils the obligation to give notice of defects under § 377 HGB (German Commercial Code) insofar as the complaint is made within a period of 2 weeks from discovery. An oral complaint is sufficient.
3. The warranty claims of the E-Stream participation against the supplier due to material and legal defects of the delivery item are determined in accordance with the statutory provisions. The warranty period is 2 years from delivery. In the event of subsequent performance, the limitation period for each delivery item shall commence anew upon subsequent delivery upon delivery.
4. Defective deliveries are to be replaced immediately by defect-free deliveries and defective services are to be repeated without defects. E-Stream Beteiligung is entitled, after prior information and expiry of a reasonably short grace period for the situation, to remedy the defect itself at the expense of the supplier or to arrange for a replacement delivery if there is a risk of delay or if there is a particular urgency. This also applies if the supplier delivers or performs defectively or late, and E-Stream Beteiligung must take immediate action in order to avoid its own delay in delivery.
5. All costs incurred to fulfil the warranty obligation, in particular for dismantling, assembly, travel, freight, packaging, insurance, customs duties and other public charges, tests and technical acceptances, shall be borne by the supplier. If E-Stream Beteiligung returns defective goods, E-Stream Beteiligung is entitled to charge the supplier back the invoice amount plus a one-time processing fee of € 50.00. We reserve the right to prove higher expenses. The supplier reserves the right to prove lower or no expenses. In the event of return deliveries, the supplier shall bear the risk of loss and/or damage to the delivery item.
6. The right of E-Stream participation to assert further damages or reimbursement of expenses remains reserved.
7. The information contained in the order of the E-Stream participation and the associated documents (including illustrations and drawings) on the delivery item, e.B. on quantities, dimensions, weights, specifications, performance, construction and shape represent its agreed quality and must be strictly adhered to by the supplier as a guaranteed quality of the goods.
8. The supplier warrants that the delivery item has the warranted properties, complies with the respectively recognized rules of technology, has all test marks and approvals necessary for its use or operation and is not affected by defects that cancel out or reduce the value or suitability for its intended use. Insofar as an EU declaration of conformity with CE marking, EU manufacturer’s declaration or certification is required for the manufacture or operation of the delivery item, the supplier undertakes to hand over the underlying documentation in German to E-Stream Beteiligung. The supplier shall bear all costs associated with these approvals.
9. The supplier guarantees that the goods and deliveries comply with the applicable legal regulations, in particular the requirements of the respectively valid Packaging Ordinance, the RoHS Directive 2011/65/EU and 2015/863, the Battery Regulation and the EU Chemicals Regulation REACH No. 1907/2006 are complied with and implemented.
10. The Supplier warrants that all goods delivered to E-Stream Beteiligung are in its full ownership and that no other rights of third parties (such as liens, other creditor positions from assignment of claims or other credit collateral, sale of receivables, etc.) preclude the sale and transfer of ownership of the goods to E-Stream Beteiligung.
Viii. Exemption from the obligation to perform, withdrawal from the contract
1. Force majeure releases the contractual partners from their performance obligations for the duration of the disruption and to the extent of its effect. The contracting parties are obliged to provide the necessary information immediately within the scope of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
2. E-Stream Beteiligung is released from the obligation to accept the ordered delivery in whole or in part and is entitled to withdraw from the contract if the delivery has become unusable for the E-Stream participation due to the delay caused by the force majeure.
3. E-Stream Beteiligung is entitled to withdraw from the contract if the supplier applies for the opening of insolvency proceedings, opens insolvency proceedings or rejects the opening due to lack of assets as well as in the event of liquidation or dissolution of the supplier.
4. A right of withdrawal for E-Stream participation also exists in the event of over-indebtedness and cessation of payment of the supplier and if individual enforcement measures are carried out against the supplier.
5. The E-Stream participation may also withdraw from the contract if the supplier promises, promises, offers or grants advantages of any kind to an E-Stream participation employee or agent involved in the preparation, conclusion or execution of the contract or in its interest to a third party.
6. The statutory withdrawal regulations remain unaffected in all other respects. Ix. product liability; exemption; Liability insurance cover
1. The supplier is liable for ensuring that the delivery item does not cause a product defect in accordance with the Product Liability Act or producer liability.
2. The supplier guarantees that his products are error-free within the meaning of the Product Liability Act. The supplier shall fully indemnify and hold E-Stream Beteiligung harmless for all claims based on a defectiveness or defectiveness of the delivered product, unless it proves that it is not at fault.
3. The supplier is obliged to indemnify E-Stream Beteiligung from any liability towards third parties or from claims of third parties arising from the manufacture, delivery, storage or intended use of the delivered goods/services. The indemnification obligation does not apply if the claim is based on grossly negligent or intentional breach of duty by E-Stream Beteiligung.
4. If E-Stream Beteiligung is obliged to carry out a recall campaign due to a defect in goods delivered by the supplier, the supplier shall bear all costs associated with the recall campaign. This claim exists regardless of any fault on the part of the supplier.
5. Insofar as the supplier is responsible for product damage, he is obliged to indemnify E-Stream Beteiligung against claims for damages by third parties on first request to the extent that the cause is located in his sphere of control and organization. The Supplier’s suppliers shall be deemed to be its vicarious agents within the meaning of § 278 BGB (German Civil Code).
6. Within the scope of the obligation to indemnify due to product defects, the supplier is also obliged to reimburse E-Stream Beteiligung for any expenses in accordance with §§ 683, 670 BGB that result from or in connection with a recall campaign carried out by E-Stream Beteiligung. As far as possible and reasonable, E-Stream Beteiligung will immediately inform the supplier about the content and scope of the recall measures to be carried out and give him the opportunity to comment. The supplier is also obliged to reimburse the costs of the necessary legal action.
7. If the supplier does not release the e-stream participation within 14 days of receipt of the written request, the e-stream participation is entitled to acknowledge, fulfill or compare itself about the claim and to demand advance payment of the necessary costs from the supplier, provided that the e-stream participation has informed the customer of this consequence in the request. If the amount of the claim asserted by the third party is not fixed, the E-Stream participation may demand security from the supplier, the amount of which is at the dutiful discretion of the E-Stream participation.
8. The supplier undertakes to maintain a product liability insurance with a sum insured of € 10 million per personal injury/property damage – on a flat-rate basis – which must be proven on request.
9. Further claims for damages of the E-Stream participation against the supplier remain unaffected.
X. Intellectual Property Rights
1. Work results arising in connection with the provision of the services and all industrial property rights to them are exclusively entitled to E-Stream participation. The supplier grants E-Stream participation in these results an exclusive, irrevocable, temporally, spatially and content-free right of use. Insofar as already existing results or existing industrial property rights are used in the context of the provision of the services, the supplier grants E-Stream participation in these a simple, irrevocable, temporally, spatially and content-free right of use. E-Stream Participation becomes the owner of all objects handed over to it as part of the provision of the services.
2. E-Stream beteiligung reserves all property rights and copyrights to all samples, models, tools, drawings, illustrations, calculations and other documents provided to the supplier of E-Stream participation; they may not be made accessible or duplicated to third parties without the express written consent of the E-Stream participation. They may only be used for the execution of the contract and must be returned to E-Stream’s participation unsolicited after its processing.
3. The supplier guarantees that no property rights of third parties are infringed in connection with his performance and that the work results delivered by him can be used worldwide without infringement of third-party property rights.
4. The supplier is obliged to indemnify E-Stream Beteiligung against all claims that third parties assert against E-Stream beteiligung in connection with its performance due to the infringement of industrial property rights, and to reimburse E-Stream Beteiligung for all necessary expenses in connection with this claim. This claim exists regardless of any fault on the part of the supplier. The supplier is obliged to reimburse E-Stream Beteiligung for the costs of necessary legal prosecution and damage prevention.
5. Without the prior written consent of E-Stream Beteiligung, which can be revoked at any time, the Supplier is not entitled to use the trademarks, logos and/or other marks owned by E-Stream Beteiligung to name E-Stream Beteiligung as a reference.
1. The supplier is obliged to treat as confidential all business and trade secrets obtained by e-stream participation or in connection with the service for or delivery to E-Stream participation or information and documents marked as confidential or recognizable, not to pass them on to third parties and to use them only for the execution of the contract. These obligations shall continue to exist for 5 years after termination of the contract.
2. The aforementioned obligations do not exist with regard to such information that is generally known or that comes to the attention of the supplier through a third party without breach of a confidentiality obligation.
3. The supplier must oblige the persons he uses to fulfil his contractual obligations in accordance with the aforementioned obligations and ensure that this obligation is complied with.
4. At the request of E-Stream Beteiligung at any time, the Supplier shall immediately surrender or destroy documents obtained from E-Stream Beteiligung and which are subject to the aforementioned obligations to E-Stream Beteiligung and confirm the destruction in writing to E-Stream Beteiligung. The supplier’s rights of retention on these documents are excluded.
5. In addition, the supplier is not entitled to name e-stream participation as a reference without the prior written consent of the E-Stream participation, which can be revoked at any time.
Xii. European Chemicals Regulation (REACH Regulation (EC) No. 1907/2006, RoHS 2011/65/EU, RoHS EU 2015/863
1. The supplier assures to fulfil all obligations imposed on him and the E-Stream participation in accordance with the requirements of REACHVO (EC) No. 1907/2006 at his own expense in accordance with the requirements of REACHVO (EC) No. 1907/2006.
2. Insofar as REACH Regulation (EC) No. 1907/2006 precludes a transfer of the obligations of E-Stream participation to the supplier, the supplier shall inform the E-Stream participation immediately and support E-Stream Beteiligung in the fulfilment of the obligations incumbent on it fully and free of charge.
3. If the supplier is domiciled outside the European Union, he must appoint a representative based within the European Union at his own expense who fulfils the obligations under REACH Regulation (EC) No. 1907/2006 and inform the E-Stream participation accordingly.
4. The supplier must ensure that the goods to be delivered by him fully comply with the requirements of Directives 2011/65/EU and 2015/863 (“RoHS”) as amended from time to time.
Xiii. Conflict minerals
1. Supplier shall comply with the provisions on conflict minerals set forth in REGULATION (EU) 2017/821 and Section 1502 of the Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”).
2. Should conflict minerals be necessary in the context of the production or functioning of the goods delivered by the supplier, their origin must be disclosed.
3. Upon request, the Supplier shall provide E-Stream Participation with the documentation required by REGULATION (EU) 2017/821 and the Dodd-Frank Act on the use and origin of conflict minerals in full and without delay.
Xiv. Severability clause, place of performance, place of jurisdiction, applicable law
1. Should individual parts of these terms and conditions be or become invalid, this shall not affect the validity of the remaining provisions. Ineffective provisions shall be replaced by regulations which, at our reasonable discretion, come closest to what is economically intended.
2. If no other location results from the order of the E-Stream participation or order confirmation, Duisburg is the place of performance.
3. The exclusive place of jurisdiction for disputes arising from or in connection with the contractual relationship existing between the E-Stream participation and the supplier is Duisburg/Germany, provided that the contractual partner is a merchant, a legal entity under public law or a special fund under public law. However, each party is also entitled to sue the other party at its general place of jurisdiction.
4. These General Terms and Conditions and the entire legal relationship between the Supplier and the E-Stream Participation shall be governed by the law of the Federal Republic of Germany to the exclusion of the applicability of the provisions of the Vienna UN – Convention on Contracts for the International Commercial Sale (CISG).
E-Stream Beteiligungs GmbH
Postaddress: Neue Straße 1, 40789 Monheim a.R. Email: firstname.lastname@example.org
Registered office: Monheim a.R.
Register entry: Amtsgericht Düsseldorf, HRB 90922 Managing Directors: Thomas Krämer, Dirk Köster