E.I.C. Group Enamel Industrial Coatings GmbH - General Terms and Conditions

1.     Scope of Application

TheE.I.C. Group Enamel Industrial Coatings GmbH General Terms and Conditions shall govern all transactions and interactions between E.I.C. and the customer (the two parties). Any terms and conditions of the customer shall only be valid if we accept them in writing. These Terms and Conditions shall be deemed accepted upon the receipt of our goods and/or services at the latest.


1.1 IP Rights


1.2 [BUYER] acknowledges that all intellectual property rights with respect to the [FLOODING DEVICE] and with respect to the methods used within the [FLOODING DEVICE] are in the sole ownership of [E.I.C.]. Several patents and/or utility rights haven been applied for by [E.I.C.] and/or granted in China and other countries of the world. Any existing knowledge and existing intellectual property rights of [E.I.C.], including but not limited to patent rights, utility rights, trademark rights, copy rights, trade secrets and know-how, whether registered or not, protectable or not (hereinafter “[E.I.C.]’s IP-Rights”), shall all remain in the sole ownership of [E.I.C.]. 


1.3 No licence or right, express or implied, to any [E.I.C.]’s IP-Rights or any other right to use any [E.I.C.]’s IP-Rights is granted under this Agreement except the extent necessary to use the [FLOODING DEVICE] under the terms set forth herein. [BUYER] shall not use any disclosed information concerning [E.I.C.]’s IP-Rights, including but not limited to any technical information, data, technical drawings, software codes, specifications or other information, for other purposes than to use [and repair] the [FLOODING DEVICE] delivered by [E.I.C.].


1.4 [BUYER] undertakes not apply for registration of [E.I.C.]’s IP-Rights in any country of the world. Furthermore, [E.I.C.] is entitled to terminate this Agreement for cause (“wichtiger Grund”) if [BUYER] challenges [E.I.C.]’s IP-Rights.


1.5 [BUYER] will notify [E.I.C.] promptly if it has knowledge of any infringement or suspected infringement of any of [E.I.C.]’s IP-Rights or any unauthorised application of registration of any intellectual property right related to [E.I.C.]’s IP-Rights by a third party.


1.6 Without written permission of [E.I.C.], [BUYER] shall not analyze the composition and/or productions methods of the [FLOODING DEVICE] or any product sample or any material sample furnished by [E.I.C.]. [BUYER] shall not use techniques of reverse-engineering to gather more information about the functionality, composition, production methods or other characteristics of the [FLOODING DEVICE] or of any other product delivered by [E.I.C.].


1.7 [BUYER] shall not copy, re-build, imitate, decompile or in any other way reproduce the [FLOODING DEVICE] or parts thereof.

2.     Offers and validity of contracts

Our offers are without commitment and subject to change without notice. All agreements shall only be binding if expressly confirmed in writing, subject to prior sale.
Our brochures, drawings, advertisements etc. and data contained therein, e.g. weights, analyses and properties shall in no case be a guarantee as stipulated in § 443 of the German Civil Code and shall only be valid if we have expressly confirmed them as binding in writing.

3.     Terms of Payment

Our prices are ex works or ex warehouse, plus freights and statutory VAT, unless otherwise agreed. Payment shall be effected immediately upon receipt of goods. Bills of exchange and cheques shall only be accepted if previously so agreed and only in account of payment – subject to their being discountable. They shall be regarded as payment once they have been credited to our account. Any fees shall be borne by the customer.

Unless otherwise agreed, the weights, quantities and qualities stated in the documentation provided by us or our suppliers shall be binding for invoices and settlement.

In case freights, fiscal charges and other fees should be introduced or increased after conclusion of the contract, we shall have the right – even for shipments with freights and customs duties prepaid – to amend the price accordingly. Canal and handling fees, surcharges for low and/or high tide, demurrage, etc. shall be borne by the customer. The customer shall not be entitled to withhold or set off payments due to counterclaims, including warranty claims, unless we have given our express written consent to such counter claims or such counterclaims have become res judicata.

We shall have the right to terminate any and all contracts with the customer or withdraw from the contracts wholly or partially – irrespective of other rights or claims – if the customer fails to comply with his payment obligations or if insolvency proceedings have been initiated with regard to the customer or if facts become known which give reason to doubt the solvency or credit standing of the customer.
We shall have the right, at our discretion, to postpone the fulfilment of such contracts, to make our performance subject to advance payment or to the granting of security by the customer or to declare all of our claims against the customer immediately due and payable.

The customer shall be in default if he has not paid the full amount within the terms stated in the invoice or 7 calendar days after receipt of invoice or goods (whichever is earlier). In case of default in payment the customer shall pay interest from the date of maturity in the amount of 8% above the respective base rate published by Deutsche Bundesbank (§ 288 of the German Civil Code) plus VAT; we reserve the right to assert additional damages.
Unless otherwise agreed, the place of payment shall be the registered office of the seller. It shall be considered as terms of contract that the customer shall pay in the currency as stipulated in the invoice (“contractually agreed currency”). The obligation of the customer to pay in the contractually agreed currency shall not be fulfilled by the fact that the seller receives payments in other currencies than the contractually agreed currency from payments by the customer resulting from a sentence or enforcement procedure, unless payment in such currency results in the receipt of the amount payable in the contractually agreed currency.

4.     Terms of Delivery

We exclusively deliver in packaging units. Delivery terms and dates shall only be approximate, unless we have expressly confirmed them in writing as binding. Should we be in default the customer shall grant us an adequate additional time limit. With this time limit having passed the customer shall have the right to cancel the contract for the quantity that has not been supplied within the additional time limit.
Unless otherwise agreed, all deliveries shall be subject to the Incoterms (latest version).
Place of performance shall be the place of delivery as per Incoterms. All transports shall be at the risk of the customer, even if we supply with our vehicles.
The immediate and appropriate unloading shall be at the sole responsibility of the customer/consignee. Waiting times shall be invoiced.
Before we start delivery the customer shall provide from the respective authorities any and all permits and licences that are required or seem appropriate for import or the performance of other contractual obligations, to keep these permits or licences valid and prove this to us at our discretion.

5.     Force Majeure

We shall not be liable for any delays in delivery as a result of force majeure or of events out of our control. If such events or force majeure render the transport or delivery impossible for us or our suppliers, we shall be released from our obligation to deliver without further obligations. Force majeure in the defined sense shall also include such events that cause us unacceptable costs and also governmental actions, subsequent difficulties in the procurement of material, operations breakdowns, strikes, lock-outs, shortage of staff or means of transport etc. We shall not be liable if any such events of force majeure occur with our suppliers or their subcontractors. Once terminated such events the seller may supply the respective outstanding quantities to the customer, unless the parties decide otherwise. If the customer claims force majeure for such quantities for which we have already booked transport or storage facilities, the customer shall be obliged to pay the costs incurred by us, such as cancellation fees or dead freight.

6.     Extended retention of title

Pending the satisfaction of all claims that we may have against the customer now and in the future on any legal grounds whatsoever, the title to the goods and the respective documents (“conditional goods”) shall remain with us. Until the goods have been fully paid for, the customer shall be obliged to store the conditional goods as such, store them separately and mark them as our property.

The customer may sell, utilize or consume the conditional goods in the ordinary course of business. The customer shall not have the right of disposition of the conditional goods; any pledging or assignment as security is not admissible. The customer hereby assigns to us by way of security any and all claims arising from the resale or any other legal grounds in respect of the conditional goods. The customer is authorized to collect the assigned claims only in the course of ordinary business. Such authorization may be revoked by us any time. In case of transformation, mixing, processing of the conditional goods by the customer or the combination with other goods, the co-ownership of the uniform new goods shall pass to us in the proportion of the invoice value of the conditional goods to the value of the other goods.

The customer’s right of disposition of the conditional goods such as combination, mixing, processing or transformation, and to collect assigned claims shall automatically cease if the customer does not fulfull the obligation to pay, in case of unauthorized dispositions and if insolvency proceedings have been initiated or filed against the customer or if a major deterioration of the customer’s financial situation arises or becomes known to us.
In such case we shall have the right to immediately take possession of the conditional goods, to enter the facilities of the customer to this purpose, to claim appropriate information on the conditional goods and potential claims arising from their sale, as well as to inspect the books of the customer in so far as to secure our rights. Taking back the goods shall not mean withdrawal from the contract.
We reserve the right to duly realize the goods and to credit the realization value, less realization costs, to the purchase price still owed to us. If the value of the security given to us exceeds the value of the claims by more than 20%, we are obliged to release the excess security if the customer so demands.

If and in as far as the applicable law does not stipulate the retention of title or does not stipulate it as described above, the customer shall on our first demand provide other security that may deem appropriate, such as collaterals or attachments.
If the retention of title or any other security or attachments require the registration and/or fulfilment of other requirements, the customer shall on our first demand take all necessary measures at his expense so as to enable the retention of title or security alternatives. The customer herewith irrevocably authorizes us to take all measures deemed necessary to establish retention of title on the goods or other security or attachments.

7.     Duty to examine and limitation of liability

The customer shall immediately inspect the goods, even in cases of gross defects in quantity and kind. Any defects that cannot be detected immediately shall be notified immediately following their discovery. The customer shall notify us of any defects without undue delay in writing, enclosing the respective proofs. 12 months after delivery we shall not be held liable for any hidden defects. If the customer fails to provide proof of the goods in question immediately at our discretion, we shall not be held liable. Irrespective of an earlier time-bar, claims for defective goods shall be time-barred 4 weeks after refusal of the claim.

Should the delivered goods be defective or in any other way not correspond to the contractual agreements, we shall at our discretion remediate the defect free of charge or deliver a replacement free of charge against return of the defective goods. If we do not comply with such obligation or do not within an adequate period of time , the customer shall be entitled to set an additional time limit in writing. This additional time limit having passed or in case of unsuccesful later fulfilment, the customer shall have the right to claim a reduction in price or to withdraw from the contract. All other rights or claims of the customer are excluded. This includes possible rights of the customer as per § 478 of the German Civil Code. We shall not be liable for minor material defects which affect the value or utilization only to a minor degree.

The limitation period for warranty claims is 12 months from the time of the transfer of risk. This is not applicable if the statutory limitation periods for warranty are longer. We do not give warranties or assurances regarding the marketability of the goods or their being appropriate for a specific purpose or any other warranty neither expressly in writing nor passive manifestation of will. In case of late or defective deliveries by our suppliers or their subcontractors we are entitled to either postpone or cancel the respective contract or obligation to supply. Damages for liability in tort or for damages other than to the contractual goods are excluded, unless the customer proves that the seller has caused them in a wilful or grossly negligent manner. The seller (including his organs, authorized officers and employees) shall not be liable for any reasons whatsoever for consequential damages, or unforeseeable damages or loss of profit. The above limitations shall also apply for extra contractual claims, but not for damage to life, limb and health.

We shall not be liable for accidents during unloading of the transport vehicles. We shall not be liable either for damages caused by third vehicles transporting goods. The customer shall, however, have the right to request the cession of third party claims resulting from such damage. The customer shall discard products and packaging material at his own expenses, unless the seller or governmental regulations expressly stipulate otherwise.

8.     Transfer of risk, place of performance, place of jurisdiction,
    applicable law

The risk shall transfer to the customer once the consignment has left our factory or warehouse for shipment.

Place of performance for our deliveries shall be the production facility in case of ex works delivery, and the warehouse in case of delivery ex warehouse.

Exclusive place of jurisdiction shall be Frankfurt am Main.

All contracts between E.I.C. and the customer (including conclusion and validity of contracts, as well as scope of application of these Terms and Conditions) shall be subject to the laws of the Federal Republic of Germany, as applicable between local parties. The UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.

9.     Miscellaneous

Should any of the provisions of the contract or of these Terms and Conditions be or become ineffective or may not be asserted, the validity of all other provisions shall not be affected. The parties together shall replace the respective provision by a provision that comes closest.

Correspondence and notifications with regard to the contract may be provided by telefax or e-mail. Changes of or amendments to the contract shall be made in writing and shall be duly signed by both parties.

None of the parties shall have the right to transfer rights and/or obligations stipulated in the contract wholly or partially to a third party without the prior written consent of the other party. We shall be entitled to give such assignments to the customer by written notification if the assignee is a group company.

If we do not exert a right or authorization or do not do so in time this shall in no case mean that we waive such right or authorization, correspondingly the one-time or partial exertion does not mean the waiving of such right or authorization either.

The headlines of these Terms and Conditions are only for structuring purposes and shall not have any meaning for the interpretation of these Terms and Conditions.

Dietzenbach, October 15, 2008.