T&Cs

GENERAL TERMS AND CONDITIONS OF ECOM ELECTRONIC COMPONENTS TRADING GMBH

1. Applicability

1. The offers, deliveries and other services of ECOM Electronic Components Trading GmbH (hereinafter also "ECOM", "Seller", "we", "us") to our customers (hereinafter "Buyer", "you") are carried out exclusively on the basis of the following General Terms and Conditions (hereinafter "GTC"). The GTC apply only if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law, or a public special fund within the meaning of Section 310 para.1 BGB. Our GTC apply exclusively. Differing, conflicting or additional terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent applies in all cases, for example, even if we unreservedly carry out the delivery to the Buyer having regard to its general terms and conditions. These GTC shall apply to all future business relations between ECOM and the Buyer, in particular to follow-up transactions associated with the fulfilment of the order, such as in particular replacement deliveries, as well as to the further business relationship. This applies even if their validity is not expressly agreed upon again.

2. Individual agreements made with the Buyer in individual cases (including ancillary agreements, addenda and amendments) shall always take precedence over these GTC. The content of such agreements shall be determined by an agreement or confirmation in text form. Legally relevant declarations and notifications which are to be delivered by the Buyer to us after the conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or retention) shall be made in text form to take effect.

3. References to the application of statutory provisions are solely for the avoidance of doubt. Hence, even without such clarification, the statutory provisions apply, unless they are directly modified or expressly excluded in these GTC.

2. Conclusion of Contract

1. Our offers are non-binding and subject to change unless the offer is expressly marked as binding or contains a specific acceptance period. An order from the Buyer is considered a binding contractual offer. The Buyer is bound to its offer or order for 14 days from its receipt by ECOM, unless the order was placed by telephone. Acceptance of the order takes place on the basis of these GTC by executing the order or by sending an order confirmation, the content of which is decisive for our contractual obligations, unless otherwise agreed in writing.

2. If ECOM has submitted a cost proposal to the Buyer, this does not constitute an offer. The Buyer can make an offer on that basis.

3. The documents and information provided by ECOM, such as illustrations, drawings, weight and dimensions, are only binding if ECOM expressly lists them as part of the contract in the order confirmation or in the binding offer or expressly refers to them.

3. Prices

The agreed net prices apply, payable in euros, plus statutory value-added tax, as well as customs duties, levies and other taxes EXW ECOM in Dachau (Incoterms 2020). In particular, costs for special packaging requested by the Buyer or packaging becoming necessary as a consequence of Buyer's wishes are not included in the net price, unless otherwise agreed.

4. Delivery, Performance of the Agreement

1. Unless otherwise stated in the order confirmation, delivery is EXW at the ECOM distribution warehouse in Dachau (Incoterms 2020).

2. We are entitled to execute orders in partial deliveries and partial services. However, the Buyer is entitled to reject partial deliveries or partial services if these are unreasonable for it; the Buyer shall provide evidence of the unreasonableness.

3. Delivery times or performance dates specified by us are agreed based on the expected performance capacity and are to be understood as approximate and non-binding unless they are expressly agreed in writing as a binding fixed date. A delivery period begins with the conclusion of the contract, unless otherwise individually agreed.

4. Regarding circumstances of force majeure, such as natural events or other extraordinary, unavoidable and unforeseeable events for which we are not responsible (such as war or warlike conditions, official measures, epidemics, pandemics, embargoes, or similar circumstances beyond our control) that prevent us from executing the order in accordance with the contract or make it completely or partially impossible, the statutory provisions on the impossibility of performance shall apply. If the impediment to performance is not eliminated in a timely manner, agreed delivery times shall be extended appropriately, but at least by the duration of the disruption that has occurred. If the delay exceeds a period of 3 weeks, each party shall be entitled to withdraw from the contract; in the event of final impossibility or inability to perform for the reasons stated above, we will be released from the obligation to perform. In this case, we will refund any consideration already paid by the Buyer.

5. An agreed or set deadline is complied with if we make the goods in question available for collection within the deadline, make them ready for dispatch in the case of an agreed mail order transaction, or offer the other services to be provided by us in accordance with the contract.

6. ECOM shall not be liable for delays for which it is not responsible. ECOM will promptly give notice of any delays that become apparent. If we are in default with a primary performance obligation, the Buyer can only withdraw from the contract after the fruitless expiry of a reasonable additional period of time set in writing (grace period) to the extent that we have not fulfilled it by the expiry of the grace period, or claim damages in accordance with the following provisions. Sections 281 para. 1 sentence 2, para. 2, para. 3, and Section 323 paras. 2 to 5 BGB remain unaffected. Such rights shall be exercised in text form.

7. If the Buyer defaults on acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to exercise the existing statutory rights, in particular to demand compensation for the additional expenses incurred as a result and to withdraw from the contract after setting a reasonable remedy period and the fruitless expiry thereof. ECOM also reserves the right, after setting a reasonable period of time for acceptance of the delivery or service and the fruitless expiry thereof, to otherwise dispose of the goods and to deliver or provide the service to the Buyer within a reasonably extended period of time. If the Buyer defaults on acceptance, the risk of accidental loss or accidental deterioration of the goods shall pass to the Buyer at the time at which the Buyer defaults on acceptance.

5. Payment Terms

1. Unless otherwise agreed, payments shall become due within 7 days after receipt of the invoice without any deductions. Payments shall be made by bank transfer to the account specified in the invoice. The purchase price shall bear interest during the default at the respectively applicable statutory default interest rate. We reserve the right to claim further default damages. Vis-à-vis merchants, the claim to the commercial default interest (Section 353 of the German Commercial Code (HGB)) remains unaffected. In other respects, the statutory provisions shall apply. Our employees and sales representatives shall not be authorised to receive payments on our behalf unless they present a written authorisation to collect payments.

2. From the time of default in payment, we are entitled to invoice the lump sum permitted by law (Section 288 para. 5 BGB).

3. Payment for partial deliveries and services shall become due upon completion of the respective partial delivery or service and the corresponding invoice being issued.

4. If the Buyer fails to meet its payment obligations, we are entitled to demand immediate payment of all outstanding receivables, regardless of agreed payment dates, and to demand advance payment or security for all other contracts, as well as to postpone any deliveries or services still to be carried out until all outstanding invoices have been settled.

5. If, after the conclusion of the contract, the Buyer's financial situation deteriorates significantly, jeopardising ECOM's right to payment, ECOM may make performance dependent on advance payment by the Buyer or the provision of security. The Buyer shall be free to provide evidence that ECOM knew or should have known this before the conclusion of the contract.

6. ECOM shall be entitled to offset payments against older debts of the Buyer. If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs, then against the interest and finally against the main performance. The Buyer shall be informed accordingly.

7. The Buyer shall only be entitled to set-off or retention rights insofar as its claim is legally established or is undisputed.

6. Reservation of Title

1. The goods shall remain the property of the Seller until all claims arising from the ongoing business relationship have been paid in full. This shall also apply to future claims that ECOM acquires from the ongoing business relationship with the Buyer.

2. The Buyer shall be obliged to treat the reserved goods carefully. If maintenance and inspection work is required, the Buyer shall carry these out regularly at its own expense.

3. If the Buyer processes the reserved goods into a new movable item, the processing is carried out for the Seller without this giving rise to any obligations for it. The new item becomes the property of the Seller. In the case of processing, mixing or blending with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the proportion of the value of its reserved goods to the overall value.

4. The Buyer shall be revocably entitled to resell, further process or install the reserved goods in the ordinary course of business, but only in accordance with the following provisions and only on the condition that the claims are effectively transferred to the Seller in accordance with section 6.

5. The Buyer's authority to sell, process or install reserved goods in the ordinary course of business ends upon revocation by the Seller as a result of a significant deterioration in the Buyer's financial situation or if such deterioration threatens to occur and the fulfilment of the obligations is thereby endangered, but at the latest with the Seller's cessation of payments.

6. a) The Buyer hereby assigns the claim with all ancillary rights from the resale of the reserved goods to the Seller; the Seller accepts this assignment.

b) If the goods have been processed, mixed or blended and the Seller has acquired co-ownership of them in the amount of its invoice value, it shall be entitled to the purchase price claim in proportion to the value of its rights to the goods.

c) If the Buyer installs reserved goods in a property, the Buyer hereby assigns the resulting claim for compensation in the amount of the value of the reserved goods with all ancillary rights, including the right to the granting of a security mortgage with priority over the rest. If the Buyer has sold the receivable as part of genuine factoring (echtes Factoring), the Seller's claim shall become immediately due and the Buyer shall assign the claim against the factor to the Seller and forward its sales proceeds to the Seller without undue delay. The Seller accepts this assignment.

7. The Buyer is authorised to collect the assigned claims as long as it meets its payment obligations in accordance with the contract. The collection authorisation expires upon revocation, but at the latest if the Buyer defaults on payment or if the Buyer's financial situation deteriorates significantly and if the fulfilment of the obligations is thereby jeopardised. In these cases, the Seller may issue a warning to the Buyer regarding debt collection through itself or through commissioned third parties. After expiry of the deadline, the Seller shall be authorised by the Buyer to inform the customers of the assignment and to collect the claims itself. The Buyer is obliged to provide the Seller, upon request, with a precise list of the claims to which the Seller is entitled, including the names and addresses of the customers, the amount of each claim, the invoice date, etc., and to provide the Seller with all information necessary for the assertion of the assigned claims and to allow the verification of this information.

8. If the invoice value of the security existing for the Seller exceeds all of its claims including ancillary claims (e.g. interest, costs) by more than 10%, the Seller shall be obliged, at the request of the Buyer or a third party adversely affected by the Seller's over-collateralisation, to release securities to such extent at the Seller's discretion.

9. The Buyer shall be obliged to inform ECOM without undue delay of any third-party access to the reserved goods, e.g. by seizure, as well as any damage or destruction. Furthermore, the Buyer shall notify us without undue delay of any change in ownership of the reserved goods. Pledging or transfer of ownership of the reserved goods or the assigned claims as security is not permitted. The Seller shall be notified immediately of any seizures, stating the name of the lienholder. The reserved goods shall be clearly marked as the property of ECOM.

10. The Buyer shall store the reserved goods for the Seller free of charge. It shall insure them against the customary risks such as fire, theft and water to a reasonable extent. The Buyer hereby assigns to the Seller its claims for compensation against insurance companies or other liable parties for damages of the type mentioned above, in the amount of the invoice value of the goods. The Seller accepts the assignment.

7. Warranty

1. The statutory provisions shall apply to the Buyer's rights in the event of defects in material and title (including incorrect and short deliveries as well as improper assembly or defective assembly instructions), unless otherwise specified below. The warranty period shall be twelve (12) months for newly manufactured items and six (6) months for used items from delivery of the goods. Our warranty obligation does not constitute a guarantee in the legal sense. Guarantees issued in individual cases by other third parties, e.g. the manufacturer, are binding only on these third parties.

2. The warranty claims of the Buyer require that it has observed its statutory inspection and notification obligations (Sections 377, 381 HGB). In this context, not only the external integrity of the outer packaging and the delivered goods themselves but also their technical functionality shall be verified amongst others within the framework of a representative sample, where applicable from different delivery batches. Complaints about a delivery do not entitle the customer to reject further deliveries under the same or another contract.

3. As far as the specifications have not been agreed upon, it shall be assessed on the basis of the statutory provisions whether a defect is present.

4. We provide warranty performance primarily through subsequent performance at our discretion, either through repair or replacement delivery. Any deadline set by the Buyer for subsequent performance shall be reasonable and shall be set in text form. The subsequent performance shall only be deemed to have failed if three attempts have been unsuccessful. ECOM may refuse subsequent performance if it is only possible at disproportionate costs. Replaced parts become our property. If ECOM is not willing or able to render subsequent performance or if subsequent performance fails, the Buyer shall be entitled, within the framework of the statutory provisions, to demand a reduction in the purchase price (reduction) or reversal of the contract (rescission); the request shall be made in text form. The right of self-remedy is excluded.

5. If ECOM is not willing or able to render subsequent performance, in particular if this is delayed beyond reasonable periods for reasons for which ECOM is at fault, or if subsequent performance fails in any other way, the Buyer shall have a right of rescission within the framework of the statutory provisions. This shall not apply in the case of insignificant defects. Such an insignificant defect exists if the cost of remedying the defect does not exceed 5 percent of the order value. In this case, the Buyer is only entitled to a reduction in the contract price. Claims for damages are governed by section ‎11.

6. In order to assert warranty claims (notification of defects), the Buyer must, after consultation with ECOM, deliver the item with the reported defect to us together with a precise description of the defect and RMA number as well as the model and serial number and a copy of the delivery note or invoice with which the goods were delivered, unless otherwise agreed in individual cases. The risk of accidental loss and accidental deterioration shall only pass to ECOM upon delivery to ECOM at its place of business. ECOM shall bear the necessary expenditures for the purposes of inspection and subsequent performance, including but not limited to transport and material costs, provided there is in fact a defect. If there is actually no defect, these costs shall be borne by the Buyer. Our subsequent performance does not restart the warranty period.

7. We reserve the right to demand reimbursement of the costs incurred for the inspection of the purportedly defective goods if the goods turn out to be free of defects.

8. In the event of changes to the goods made by the Buyer itself or by a third party without our prior consent, the warranty shall expire, unless the Buyer proves that there is no causal connection between the change made and the defect that has occurred. The same applies to defects that are due to a customer specification.

9. Furthermore, there are no warranty claims for defects caused by unsuitable or improper use, incorrect commissioning, natural wear and tear, incorrect or negligent handling, excessive use and improper maintenance of the goods as well as by modifications to the goods by the Buyer or on its behalf by third parties without our express consent.

8. Dealer Recourse

The Buyer's recourse claims against us arising from Section 478 BGB shall be excluded. Instead, we undertake to grant the Buyer an equivalent compensation of our choice, such as in particular in the form of a price discount on another delivery, a discount in kind, a compensatory delivery of other goods required by the Buyer or other compensation, in particular by means of a credit note.

9. Assignment Prohibition

The assignment of existing claims against ECOM, in particular warranty or other claims of the Buyer, requires the prior written consent of ECOM, with the exception of payment claims.

10. Copyrights

1. If software is included in the scope of delivery, this is made available to the Buyer solely for one-time resale, i.e. it may not copy it or allow it to be used by others. A multiple right of use requires a special written agreement.

2. To the extent that delivered goods were manufactured according to the Buyer's instructions, the Buyer shall indemnify the Seller against all claims asserted by third parties due to the infringement of industrial property rights and/or copyrights, insofar as the Buyer is at fault.

3. In all other respects, the provisions of section 8 shall apply accordingly with regard to defects in title.

11. Liability

1. Unless otherwise provided in these GTC, including the following provisions, ECOM and the Buyer shall each be liable for any breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

2. For damages we are liable - for whatever legal reason - for intent and gross negligence.

3. In the case of simple negligence, we are only liable

a) for damages resulting from injury to life, limb or health,

b) for damages resulting from the breach of a material contractual obligation (an obligation the fulfilment of which enables the proper implementation of this contract in the first place, and upon the fulfilment of which the Buyer regularly relies and may rely); in this case, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

4. The limitations of liability resulting from section 11.3 do not apply if we have fraudulently concealed a defect or have provided a guarantee for the quality of the goods. The same shall apply to the Buyer's claims under the German Product Liability Act.

5. Insofar as the liability of ECOM is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives and vicarious agents.

12. Export Control

1. Goods delivered by us are intended to be used and to remain in the contractually agreed delivery country.

2. The Buyer shall fulfil and comply with all legal obligations incumbent upon it in connection with the export, transit or import of goods, technologies or other services, including the obligation, under its own responsibility, to independently obtain the necessary permits in advance and to provide or obtain the relevant export, transit or import documents.

3. The Buyer shall not use any goods, technologies or other services for use in nuclear, chemical or biological weapons or make them available to a third party for such purposes.

4. If the Buyer or recipient of goods or technology pursuant to Article 12g of Regulation (EU) No 833/2014 is not located in the European Union, the USA, Japan, the United Kingdom, South Korea, Australia, Canada, New Zealand, Norway or Switzerland, the Buyer or recipient is prohibited, or shall prohibit its buyers or recipients, from re-exporting the goods or technology to Russia or for use in Russia.

5. If the Buyer is in breach of this section 12, the Buyer shall notify ECOM without undue delay and provide ECOM with appropriate documentation to enable ECOM to understand the breaches. In addition, the Buyer shall take remedial action without undue delay in relation to any violations. In the event of a breach of this section 12, ECOM shall have the right to extraordinary termination of the contract and shall have the right to claim damages.

13. Miscellaneous

1. The place of performance is ECOM's registered office in Dachau.

2. The exclusive venue for all disputes arising under these GTC shall be Dachau.

3. The law of the Federal Republic of Germany shall apply exclusively. The contract language is German. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

4. The Seller and the Buyer shall cooperate in good faith in tax matters relating to the delivery or performance of the contract between the Seller and the Buyer. If the Buyer has the location from which the Buyer operates its business (e.g. headquarters, management or permanent establishment) outside the Federal Republic of Germany or moves it there, it is obliged to comply with the provisions regarding value-added tax and comparable provisions of foreign legal systems of the European Union and third countries. If and to the extent that the Seller requires information, documents or evidence from the Buyer in relation to the delivery or performance of the contract for tax purposes (including, but not limited to, the Buyer's VAT identification number issued by the Federal Central Tax Office or another Member State of the European Union, documentary evidence, export certificates, exit notes, export confirmations, consignment notes, delivery notes, certificates from the commissioned freight forwarder, Master Reference Numbers (MRN), confirmations of arrival, transport documents and dispatch documents), the Buyer shall ensure that this information, documents and evidence are made available to the Seller without undue delay upon the Seller's request. The Buyer shall, upon request by the Seller, provide the Seller with the necessary information without undue delay regarding its status as an entrepreneur within the meaning of VAT law, regarding the use and transport of the delivered goods and regarding the statistical reporting obligation.

05/2024