General Terms and Conditions of EIZO GmbH

    1. General Terms
    1. Area of Applicability
    1. The following General Terms and Conditions (hereinafter referred to as "GTCs”) shall apply to all contractual relations of EIZO GmbH, which has its headquarters in Karlsruhe, Germany, with entrepreneurs, legal persons under public law or special funds under public law (hereinafter all referred to jointly as “Customers”), in the meaning of section 310 para. 1 German Civil Code.
    1. These GTCs shall also apply, without having to be announced again, to all future contractual relationships between EIZO GmbH and the Customer.
    1. Any terms of the Customer which are in conflict with or differ from these GTCs shall only be recognised if they are expressly agreed in writing.
    1. Conclusion of the Agreement
    1. Any advertising or bids related to services or works or other performance by EIZO GmbH, especially in advertisements, brochures, on internet sites or in other advertising material, shall be non-binding and therefore shall solely be understood as an invitation to submit offers, not however as offers themselves or as quality specifications. This shall in particular apply in the event that the non-binding nature is expressly or implicitly evident from the respective document.
    1. If EIZO GmbH submits an offer, the text of the offer shall indicate the binding nature of said offer. Offers can only be accepted within the deadline stated therein. The acceptance is to be made in text form. If the Customer accepts the offer after the deadline specified in the offer text expires, this shall be deemed a new offer.
    1. If an order is to be considered as an offer pursuant to section 145 German Civil Code, said order can be accepted by EIZO GmbH within 4 weeks. In this case the agreement comes into being through a written order confirmation by EIZO GmbH or fulfilment by EIZO GmbH.
    1. EIZO GmbH shall reserve any ownership rights and copyrights to all documents entrusted to the Customer in connection with the initiation of the agreement, such as offers, drafts, illustrations, calculations and any other documents. These documents may not be made accessible to third parties, unless written authorisation is expressly granted. If an agreement does not come to fruition, on request the documents shall be returned to EIZO GmbH and any copies thereof must be destroyed.
    1. Object of the Agreement
    1. The object of the agreement can be multi-facetted and for example consist of the sale of goods or other objects from EIZO GmbH (hereinafter referred to as “Products”), contractual work performance, services, the provision of software or a combination of these. The object shall be evident from the offers, order confirmations, other appertaining documents, performance specifications or other documents, as far as those serve to determine the object of the agreement in terms of their content and purpose.
    1. Regarding specifications made by EIZO GmbH for its Products and services (e.g. weight, dimensions, output data, technical data, etc.) and depictions (e.g. drafts and illustrations, etc.), common industry-standard deviations shall remain reserved, in so far as they do not impediment the use intended according by the agreement.
    1. Any product descriptions, advertising or other public statements published by EIZO GmbH or third persons regarding product qualities shall not constitute an agreed quality.
    1. General Terms of Payment
    1. The prices stated by EIZO GmbH are net prices. These do not include VAT, customs duties, fees, levies, public fees, packaging costs, transport costs and any insurance costs as well as any clearance certificates such as CE certificates, and these extras shall be charged in addition to the net prices.
    1. The invoice amounts are due immediately, unless otherwise expressly stated, and to be paid to the account specified on the invoice.
    1. A discount shall be granted on condition that the invoice amount is irrevocably credited to the account indicated in full before the expiry of the payment deadline specified.
    1. The Customer shall not be entitled to set off with claims against EIZO GmbH, unless the claims of the Customer against EIZO GmbH are uncontested or have been declared res judicata.
    1. The assertion of rights of retention which the Customer is entitled to from other contractual or other legal relationships with EIZO GmbH is excluded.
    1. If EIZO GmbH has agreed a continuing obligation with the Customer, the contractual relationship can be extraordinarily terminated by EIZO GmbH if the Customer is in arrears with a part payment. If instalment payments have been agreed the overall sum shall become due if the Customer is in arrears with an instalment payment.
    1. EIZO GmbH shall be entitled to only provide or supply deliveries or performance which have not yet been supplied or provided, matching performance with counter performance or against provision of security, if according to the circumstances indications exist that the  Customer will not pay or not pay punctually.
    1. On request, the Customer undertakes to disclose to EIZO GmbH its financial data which is required to establish the creditworthiness of the Customer. The Customer assures that at the time of placing the order it has sufficient funds to pay. Any economic or financial problems which arise afterwards must be reported without delay.

    In such a case EIZO GmbH shall be entitled before the fulfilment of the agreement to demand that the Customer provides a bank guaranty from a major European bank or to demand another suitable security measure. EIZO GmbH may, even after an order confirmation has been sent, make the delivery to the Customer dependent on a bank guaranty or another suitable security measure being provided.

    1. General Liability Limitations
    1. EIZO GmbH shall not be held liable for events of Force Majeure, which considerably hamper the execution of the agreement or make it impossible. Force Majeure shall be deemed as an event, such as natural catastrophes, war, reactor accidents, terrorist attacks, civil unrest, strike, lock out or mobilisation, which is caused by external influences and which cannot be controlled by extreme due diligence which is reasonably expected.
    1. EIZO GmbH shall be liable for damages in the event of intent and gross negligence. EIZO GmbH shall not be liable for simple negligence unless this concerns a breach of obligations essential for the execution of the agreement. These include such breaches of obligations which must be fulfilled for the agreement to be duly executed at all, the breach of which risks the object of the agreement not being attained and which the Customer regularly trusts and is justified in doing so that these obligations will be upheld.
    1. The liability exclusions of this figure V shall not apply to liability due to injury to life, body and health or to an infringement of the Product Liability Act or in other cases in which an unrestricted liability is legally stipulated.
    1. If EIZO GmbH creates special Products on behalf of the Customer, through which any property rights of third parties are infringed or any other rights of third parties are compromised, the Customer shall release EIZO GmbH from all claims asserted by third parties against EIZO GmbH, especially claims for damages, legal costs, (including court and lawyer’s fees according to the standard remuneration but also in excess of the standard fee table of the Lawyers Compensation Act).
    1. Cooperation Duties of the Customer
    1. If individual services of EIZO GmbH can only be provided fully or partially with the co-operation of the Customer, the Customer undertakes to take all necessary measures or action required to ensure an unimpeded provision of services by EIZO GmbH.
    1. For agreements involving the delivery or installation of software, the Customer undertakes to take all measures to secure the data. It must take appropriate precautions for the event that the software does not operate correctly. Furthermore, the Customer shall be responsible for ensuring that the software operating environment is working correctly.
    1. The Customer must observe all the import and export regulations of its home country, the EU and the USA which affect it.
    1. EIZO GmbH shall not be held liable for any delays or other damage caused by the Customer not upholding its above mentioned co-operation duties at all or not punctually. Figure V.3. of this section shall apply accordingly.
    1. Authorisations and Approvals
    1. Unless something else results in individual cases, EIZO GmbH shall ensure that the Products or other services of EIZO GmbH meet the respective basic preconditions if under German law they are subject to specific approvals, authorisations or other permissions by the authorities.
    1. This shall not apply to private approval, authorisation or other permission provisos nor to those which result from foreign law or are based on the corresponding Products being used outside of Germany or used alternatively or services are provided or accessed outside of Germany.
    1. Special Conditions for Services under a Sales Agreement
    1. Delivery Terms
    1. Unless otherwise agreed between EIZO GmbH and the Customer, all deliveries are ex works, and thus this is the place of performance.
    1. The delivery dates specified by EIZO GmbH shall be non-binding unless they have been expressly been specified as binding in writing. If it is in arrears with delivery, EIZO GmbH shall endeavour to meet its obligations as promptly as possible.
    1. For EIZO GmbH to uphold the delivery dates specified it is required that the Customer duly and punctually fulfils its obligations. Unless otherwise agreed in the individual case, the Customer in particular undertakes to create the technical and other prerequisites to incorporate the EIZO GmbH Products.
    1. In the event of Force Majeure, EIZO GmbH shall be entitled to extend the performance period to a suitable period based on the duration of the hindrance. The Customer shall be informed without delay of the start and the end of the hindrance.
    1. At the Customer’s request, the Product can be sent to a different place than the place of performance. The Customer shall bear the costs for this. Unless otherwise agreed by the parties to the agreement, EIZO GmbH shall be entitled to determine the packaging and shipping method.
       
    2. If the Product is sent to the Customer at its request, the risk of accidental loss or accidental deterioration of the Product passes to the Customer when the Product is handed over to the forwarding agent. A transport insurance policy is only taken out at the express request of the Customer. The Customer shall bear the costs incurred for said insurance.
    1. Reservation of Ownership
    1. EIZO GmbH reserves the ownership to the Products delivered until the purchase price has been paid in full including any interest which may be due or any other secondary claims.
    1. The Customer undertakes to treat the Products with due care, as long as the ownership has not passed to it. In particular it undertakes, at the request of EIZO GmbH, to insure them at its own cost against theft, damage from fire and water. If maintenance and inspection work has to be carried out, the Customer must do this in good time on its own account.
    1. The Customer shall be entitled to resell the Product in the ordinary course of business. EIZO GmbH can revoke this entitlement if the Customer does not fulfil its payment obligations towards EIZO GmbH, is in default, if an application to open bankruptcy proceedings has been lodged or payment has stopped.
    1. The Customer already now assigns to EIZO GmbH its accounts receivable from the resale of the Products to its client to the amount of the final invoice amount (including VAT) agreed on with EIZO GmbH. This assignment shall apply irrelevant of whether the Products were sold without being further processed or after having been processed. Even after the assignment, the Customer shall remain empowered to collect its accounts receivable. The authority of EIZO GmbH to collect the account receivable itself shall remain unaffected herefrom. EIZO GmbH shall however not collect the account receivable, as long as the Customer meets its payment obligations, is not in default and in particular has not applied for bankruptcy proceedings to be opened or there has been no stoppage of payments.
    1. If a Product has been processed with other objects which do not belong to EIZO GmbH, EIZO GmbH shall assume sole or co-ownership in the new object to the ratio of the objective value of the purchased object to the other objects processed at the time of processing. The same shall apply in the event of a mixing. If mixing occurs whereby the Customer’s object is to be considered the main part, it shall be agreed that the Customer shall transfer sole or proportionate co-ownership to EIZO GmbH and preserves for EIZO GmbH the sole or co-ownership created in this way. If this is not possible due to legal or factual reasons, the Customer undertakes to indemnify EIZO GmbH with regard to its loss of ownership of the Products, in so far as such indemnification has not already been calculated in the purchase price of the Products.
    1. EIZO GmbH undertakes, at the demand of the Customer, to release the security is entitled to, in other words the above mentioned specified assignments and reservations, if their value exceeds the accounts receivable to be secured by more than 20%.
    1. Warranty
    1. The Customer must fulfil its statutory obligation to inspect and lodge complaints (§§ 377, 391 Commercial Code). The Customer must examine the Products carefully after they have been delivered. The Customer must, without delay, at the latest however within one week after the delivery of the Products, report to EIZO GmbH in text form any obvious faults or faults which would have been recognisable in the event of an immediate careful examination. If a fault only becomes evident later, the Customer must notify EIZO GmbH about this fault in text form without delay, at the latest however one week after the discovery of the fault. If the Customer does not lodge a complaint within this deadline the Products shall be deemed accepted.
    1. Whether a fault is present shall be based on the statutory provisions. In the process the argument is to be based on agreed quality, whereby once again the statements in section A figure III. are to be observed.
    1. If the Product delivered has a fault which was already present at the passage of risk and if said fault was duly punctually reported, EIZO GmbH undertakes and shall be entitled to either repair the fault or provide a replacement as it sees fit. EIZO GmbH shall always be given an opportunity for subsequent improvement within a reasonable deadline.
    1. If the subsequent improvement fails, the Customer can, notwithstanding any claims for damages, revoke the agreement or reduce the purchase price.
    1. Claims based on defects shall not exist if there is only a slight deviation from the quality agreed on, or if the usability is only slightly impaired, in the case of natural wear and tear as well as damage caused by incorrect or negligent handling or excessive strain after the passage of risk. If the Customer or a third party carries out unprofessional repair or maintenance work or makes any changes to the Product no complaints of faults can be lodged for these and the resulting consequences.
    1. Any claims based on defects shall become statute barred in one year after the start of the statutory period of limitation. The statutory period of limitation shall apply to damages based on liability for intent and gross negligence as well as injury to life, body and health which are due to an intentional or negligent breach of obligations by EIZO GmbH.
    1. If EIZO GmbH supplies the Customer with used Products, this is done under exclusion of any warranty.
    1. Special Conditions for Services under a Contract For Work and Services
    1. Object of the Agreement
    1. In addition to selling hardware and software, EIZO GmbH offers assembly and commissioning as well as service and repair work.
    1. Unless otherwise agreed by the parties to the agreement, these services shall apply separately in addition to the services under a purchase agreement.
    1. Performance
    1. The place of performance for services under a contract for work and services shall be evident from the agreement of the contractual parties. Unless the parties have agreed otherwise, the place of performance shall be the headquarters of EIZO GmbH. If the Customer wishes that the performance is executed at a different location, or due to the type of performance this is only possible at a different location, the Customer shall bear the costs incurred as a result (travel costs etc.). The above mentioned shall not affect any rights which the Customer is entitled to due to poor performance by EIZO GmbH. 
       
    2. The performance period shall be agreed separately by the parties to the agreement. The upholding of the performance period requires that the Customer has fulfilled its obligations punctually and correctly. In particular the persons providing the performance, in other words bodies or employees of EIZO GmbH or third parties, who are active on behalf of EIZO GmbH, shall be granted access of the place of performance, as well as if required shall be assisted by an employee of the Customer, who is sufficiently familiar with the local circumstances as well as with the Customer’s technical equipment. The persons providing the performance must additionally be provided with all the necessary data and other information, which they need for the correct execution of the performance.
    1. EIZO GmbH shall provide the services under a contract for work and services as it sees fit through a service provider of its choice. In particular EIZO GmbH shall be entitled to exchange the service provider for a different service provider with the same qualification.
    1. A report which is to be signed by both parties shall be made of the acceptance of the performance.
    1. Warranty
    1. Figure III.2. of section B shall apply accordingly in order to assess if a fault is present.
    1. With regard to the limitation of statute the statements in section B under figure III.6 shall apply.
    1. In all other cases the statutory provisions shall apply in addition to the general terms under section A.
    1. Special Conditions for Agreements to Provide Services
    1. Object of the Agreement
    1. In addition to the services listed above, EIZO GmbH also provides consultancy services, especially with regard to the possible use of its Products and the design of customised solutions using these Products.
    1. Unless otherwise agreed by the parties to the agreement a specific success shall not be due.
    1. Performance
    1. The place of performance is the headquarters of EIZO GmbH. If the Customer wishes that the performance is executed at a different location, or if due to the type of performance this is only possible at a different location, the Customer shall bear the costs incurred as a result (travel costs etc.).
    1. The performance period shall be agreed separately by the parties to the agreement. The upholding of the performance period assumes that the Customer has fulfilled its obligations punctually and correctly. In particular, the persons providing the performance must be provided with access to the place of performance as well all the necessary data and other information which they need for the correct execution of the performance.
    1. With regard to an exchange of the service provider figure II.3. of section C shall apply accordingly.
    1. Warranty
    1. The statutory provisions shall apply in addition to the general terms under section A.
    1. With regard to the limitation of statute the statements in section B under figure III.6 shall apply accordingly.
    1. Special Conditions for the Provision of Software
    1. Software
    1. Software in the meaning of these GTCs shall refer to all computer software and firmware, including data, source codes as well as object codes, generated or provided by EIZO GmbH. The term shall also cover all appertaining media, printed matter as well as all online or electronic documentation.
    1. The software can be licensed by EIZO GmbH or be provided for use in a different way, for example through a purchase. Unless otherwise agreed by the parties to the agreement, the software shall be licensed in accordance with the following provisions. All ownership rights and copyrights shall be in the possession of and remain with EIZO GmbH or the respective owners or copyright holders (listed below under figure II.).
    1. Licensing
    1. Unless otherwise expressly agreed by the parties to the agreement, EIZO GmbH shall grant the Customer a non-exclusive right of use to utilise the software on a limited number of end devices, on condition that the Customer remains responsible for ensuring that these licensing terms and conditions are upheld by each user. EIZO GmbH reserves the all rights which are not expressly granted in the content of this agreement.
    1. As part of the licensing, the Customer shall be granted the right to make and keep a copy of the software for backup or archiving purposes. No additional copies may be made.
    1. Without the prior written authorisation (permission) of EIZO GmbH, the Customer shall not be entitled to transfer the software in excess of the license it has been granted, to issue a sublicense or to make it available to third parties in any other way.
    1. Without written authorisation from EIZO GmbH, the Customer shall furthermore not be entitled to reverse engineer the software, to decompile it or to process it in any way or to create its own software on the basis of the licensed software.
    1. After termination of the licensing agreement, the Customer undertakes, at the request of EIZO GmbH, without delay to return the software provided as well as all the appertaining backup copies or to permanently delete or destroy them. The right under figure 2 above shall remain unaffected herefrom.
    1. Warranty
    1. The Customer must report any faults along with a precise description of said fault to EIZO GmbH.
    1. EIZO GmbH shall not be held liable if the fault stems from the fact that the Customer or a third party is in breach of figure II.4. of this section, thus especially if the Customer processes the software or manipulates it in any way.
    1. EIZO GmbH shall additionally not be held liable for any damage caused by incorrect incorporation of the software in the information technology networks of the Customer. The Customer undertakes to always make current backups of its data according to the operational requirements. In the event of a loss of data at the Customer’s, which is caused by EIZO GmbH’s software, the liability shall be limited to the expense and effort of reloading a data backup.
    1. In the event that the software is delivered on a data carrier, EIZO GmbH shall guarantee that the data carrier is free of any faults.
    1. With regard to the statute of limitation the provisions of figure III.6. of section B shall apply accordingly.
    1. Final Provisions
    1. Place of Jurisdiction

    The sole place of jurisdiction for all claims from this agreement and any claims related to it shall be the headquarters of EIZO GmbH.

    1. Choice of Law

    This agreement and the legal relationships between EIZO GmbH and the Customer shall solely be subject to German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and under exclusion of any German standards referring to laws, in particular the Introductory Act to the German Civil Code.

    1. Ineffective Provisions

    If individual provisions of these GTCS are fully or partially ineffective, void or have gaps, the effectiveness of the remaining provisions shall remain unaffected.

    The parties to the agreement shall replace the ineffective or void provision with a provision or fill in the gap with a provision which comes as nearest to the purpose and intention of the ineffective or void provision or desired one.

     

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