General Terms and Conditions of eila GmbH & Co. KG
I. Scope of application
1. These General Terms and Conditions (hereinafter referred to as GTC) apply to all business relations between eila GmbH & Co. KG and companies, legal entities under public law or special funds under public law according to § 14 Germen Civil Code. The General Terms and Conditions of eila GmbH & Co. KG shall also apply to all future transactions with the Customer, even if in individual cases no explicit reference is made to the GTCs. Any terms and conditions of the Customer which conflict with or deviate from these General Terms and Conditions shall not apply unless eila GmbH & Co. KG has expressly agreed to their validity in writing. These General Terms and Conditions shall also apply if eila GmbH & Co. KG executes the orders without reservation in knowledge of conflicting or deviating conditions of the Customer. Even in this case the general terms and conditions of the Customer shall not become part of the contract. The General Terms and Conditions of eila GmbH & Co. KG shall apply to all contracts and orders, no matter whether they are placed or concluded on the Internet, in writing, by telephone or in any other way. In addition, unless otherwise provided for in these General Terms and Conditions, the provisions of the German Commercial Code, the provisions of the German Civil Code including the United Nations Convention on Contracts for the International Sale of Goods, CISG and the Incoterms of the International Chamber of Commerce in Paris in the version applicable at the time of delivery or performance (2020) shall apply. By accepting the goods, the customer waives the application of his terms and conditions of business, even if these conditions claim exclusivity. Verbal agreements or assurances are invalid without our written confirmation.
2. Individual agreements made with the contractual partner in individual cases, including collateral agreements, supplements and amendments, shall take precedence over the general terms and conditions. Either a written contract or alternatively our written acknowledgment shall be authoritative for the effectiveness of such agreements. A waiver in regards to the written form shall be in written.
II. Offer and contract conclusion
1. Our offers are always subject to change without notice, unless we indicate an explicit binding. A contract with our customer is only concluded when we have expressly confirmed the customer's order in writing. Our order confirmation is decisive for the content of the contract. Oral statements are in any case nonbinding.
2. The data and information contained in the product catalogues, information sheets and price lists are only binding insofar as the contract expressly refers to them. All information about the products, in particular the illustrations, drawings, quality, quantity, weight, dimension and performance data contained in the offers are only approximate values and are not specifications of quality. We reserve the right to make necessary technical changes. Deviations customary in the industry are permissible. The condition, suitability, qualification and function as well as the intended use of our products are determined exclusively by our performance descriptions and technical qualifications. Any intended use not confirmed by us in writing or not specified in the contract is irrelevant to us. Public statements, promotions or advertising by us or third parties do not constitute a description of the quality of the goods.
3. If the customer specifies any particular requirements for us with regard to the provision of goods and services these specifications have to be laid down this in writing at the time of the placement of the order.
4. Minutes of meetings, if any, become part of the contract unless they are immediately objected by the client.
5. Offers are only valid for the country in which the requesting party is located. Any disadvantages and liabilities, caused by use of the supplied goods outside of this country are on the account of the requesting party.
6. We are authorized to either perform the work assigned to us or to contract it to third parties.
1. Our prices are – except as otherwise agreed in a particular case - ex works Incoterms 2020, without packing and are exclusive of VAT. VAT will be charged separately at the applicable rate according to the applicable tax regulations. If more than 4 months have passed between the placement of the order and delivery of goods and services we may - pursuant to § 315 BGB - require a reasonable price surcharge reflecting our cost increase until delivery.
2. Prices agreed for a specific order are not binding for reorders.
3. Upon the request of the customer we create galley proofs which are to be charged separately.
4. Subsequent changes at the request of the customer shall be charged. A repeated order placed by the customer and required due to a slight deviation from the original shall be deemed as subsequent changes.
5. Drawings, designs, marketing concepts, sample rates, sample prints, samples and similar preparatory work instigated by the customer can be charged even if the contract is not awarded.
6. The customer is neither entitled to reduce our claims by counterclaims nor to assert a right of retention unless the counterclaims or the right of retention have been acknowledged by us in writing or have been legally established. An assignment of claims of our customer against us to third parties without our written consent is not permitted.
IV. Deliveries, delivery times, delivery dates
1. Delivery times are quoted ex works and commence after the clarification of the technical issues, outstanding at the time of the conclusion of the contract, after we have received records from customers - such as drawings and approvals - and / or advance payments or production releases, subject to correct and timely delivery to us. We inform customers immediately of the unavailability of the delivery item.
2. The non-delivery, incorrect or delayed delivery by our suppliers causes delivery times to be extended accordingly. The same applies for acts of God and strikes, lockouts, disruptions, shortages where we cannot be held accountable for. Delivery of goods and services may also by delayed by the customer requiring additional or amended goods and services.
3. Delivery dates are only valid if explicitly confirmed by the contractor. If the contract is concluded in writing, the confirmation of the delivery date requires the written form.
4. The risk shall pass to the customer when the supplied goods leave our or our sub-supplier’s plant. This also applies if we or our sub-supplier assume shipping, export or formation. The goods are insured under the relevant freight forwarding conditions of the carrier.
5. Our delayed delivery is always requires a reminder of the customer with an appropriate grace period. If we are in default with the provision of our goods and services, an appropriate grace period must be granted to us. After expiry of the grace period, the customer may withdraw from the contract. In the event of a delay in delivery, the damage to be compensated for is limited to 0.5% of the value of the untimely delivery or partial delivery for each completed week, but no more than 5% of the value of the delayed (partial) delivery, unless a lower damage is incurred. The limitation does not apply in cases of intent, gross negligence and / or injury to life, body or health.
6. Pursuant to § 369 HGB and until full satisfaction of all outstanding claims from the business relationship, we have a right of retention in respect of all artwork, print data, manuscripts, raw materials and other items.
7. Partial deliveries are permitted to a reasonable extent. If the shipping is delayed due to a request by the customer or a fault of the customer, the goods shall be stored at the expense and risk of the customer, in which case the notice of goods ready for shipment shall be deemed as shipment of goods.
8. The customer shall call off the goods, including partial deliverable goods, fully within 14 days of notification of completion or 14 days after the execution of the order. Upon expiry of such a period the customer shall otherwise be deemed to be in default of acceptance.
9. Larger or smaller deliveries of up to 10% of the ordered quantity cannot be rejected. Each supplied quantity shall be charged. The percentage rises to 20% for deliveries of custom-made paper products of less than 1000 kg, and to 15% for products of less than 2000 kg.
V. Payments and delayed payments
1. Unless otherwise agreed in individual cases, payments are to be made immediately after receipt of the invoice, without deduction. The invoice is issued with the day of delivery, partial delivery or readiness to deliver. The customer is in default at latest 30 days after due date and reception of the counter-performance. From the beginning of default, interest for default amounting to 9 percent points above the basic rate of interest of the European Central Bank can be claimed. Claiming of further default damage is explicitly reserved.
2. We may charge instalment payments up to a reasonable extent.
3. If the fulfilment of a claim for payment is at risk due to deterioration of the financial condition of the customer, that occurred or become known after conclusion of the contract we may require advance payment and immediate payment of all outstanding invoices not yet due, and we may withhold goods not yet delivered and cease further processing of pending orders. We shall also be entitled to these rights if the customer does not make any payment in spite of a reminder following a default.
4. If the customer is in arrears with partial or final accounts, he loses all rights to the goods which are until then delivered under the contract. These goods are to be returned immediately in the original.
5. Bills of exchange are not accepted for payment. Cheques will be accepted on account of performance and at the customer's expense only.
VI. Retention of title
1. Until full payment of all present and future claims arising from the purchase contract and the current business relationship, we reserve title to the goods sold. This shall also apply if claims have been included in a current invoice and the balance has been struck and acknowledged. The contractual partner is obliged to handle the delivered goods with care and to insure them against the usual risks (fire, water, storm, theft).
2. The goods subject to retention of title may not be pledged to third parties nor transferred by way of security until the secured claims have been paid in full. The contractual partner must inform us immediately in writing if and to the extent that third parties access the goods belonging to us. In addition to the third party, the contractual partner shall be liable for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO. The conclusion of financing contracts (e.g. leasing), which include the transfer of our reservation rights, require our prior written consent, unless the contract obliges the financing institution to pay the share of the purchase price to which we are entitled directly to us. The contractual partner is always obliged to provide us with comprehensive information about the goods subject to retention of title upon request.
3. The contractual partner is entitled to sell or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combination with goods of third parties, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b) The contractual partner hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the contractual partner stated in para. 2 shall also apply with regard to the assigned claims.
c) The contractual partner shall remain authorised alongside us to collect the claim. We undertake not to collect the claim as long as the contractual partner fulfils his payment obligations towards us, is not in default of payment, no application has been made for the opening of insolvency proceedings and there is no other defect in his ability to pay. If this is the case, however, we may demand that the contractual partner informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the contractual partner.
4. In the event of breach of contract by the contractual partner, in particular default in payment, we are immediately entitled to withdraw from the contract and take back the goods. For the purpose of taking back the goods, the contractual partner hereby irrevocably permits us to enter his business and storage premises without hindrance and to take the goods with him.
5. Working materials (particularly negatives, models, original illustrations, etc.), that we create or cause to be created to provide the goods and services under the contract also remain our property until they are paid in full.
VII. Complaints / Liability
1. The customer is obliged to immediately inspect delivered goods and send primary and intermediate products to correct in any case. The risk of such errors passes to the customer with the declaration / statement of production, if it is not about errors that have arisen out or could be recognized from the manufacturing production process following the declaration / statement of production.
2. We warrant that our supplied goods are free of defects at the transfer of risk. Immaterial deviations from the agreed quality or non-essential restrictions in usability are irrelevant. Defects in part of the delivered goods shall not entitle to reject the entire delivery, unless the partial delivery of no interest for the customer is. The required nature, service life or use of our supplied goods is exclusively subject to the specifications agreed in writing and/ or the product description. Any requirements beyond that, including but not limited to statements during negotiations, in advertising or references to industry standards, will become part of the contract only if specifically incorporated in written form.
3. Manufacturing-specific deviations in measures, content, gauges, weights and coloration are permitted within the tolerances customary in the sector.
4. The customer must inspect the supplied goods as to quantity and defects immediately on receipt and has to notify any apparent defects without undue delay. The customer must report any transport damage to the deliverer immediately. Failure to meet these obligations excludes any and all potential claims for these defects.
5. Subsequent performance means, at our option, either elimination of the defect or delivery of goods free from defects. In the event of rejection, impossibility or failure of subsequent performance, the customer has the right to demand a reduction of the purchase price or to withdraw from the contract. Further claims by the customer for or in connection with defects or consequential damage caused by a defect are excluded. The reimbursement of expenses of the customer or buyers of the customer, which arise in the course of repair, including supply and disposal costs of the defective goods is also excluded. The customer has to bear the additional expenses to subsequent fulfilment arising from the fact that the supplied goods have been transported after delivery to a place other than the agreed place of delivery.
6. Our liability for slight negligence is limited to claims based on injury to life, body or health, to claims arising from product liability law and to claims from culpable infringement of essential contractual obligations with said infringement putting the purpose of the contract at risk. Our liability for the slightly negligent infringement of essential contractual obligations is restricted to typically occurring damage which we could have foreseen when the contract was concluded. If the contract includes refining works or further processing of printed matter, we are not liable for the impairment caused thereby to the refined or further processed product, unless the damage was caused intentionally or through gross negligence.
7. We are committed to carefully select and instruct our assistants but we are not responsible and liable for them.
8. We do not guarantee or warrant the accuracy or completeness, factual correctness made in advertising claims for the delivery products.
9. Customer claims for quality defects expire one year from delivery / delivery the contractual item to the customer. This does not include claims for damages for injury of life, body or health and / or claims for damages due to gross negligence or intentional damage caused by us. The statutory period of limitations shall apply.
10. Warranties and guarantees given by manufacturers going beyond our own warranty do not bind us.
11. Deliveries (including data carriers) from the customer or a third party instructed by him shall not be subject to any obligation of examination on our part. Claims for damages for loss of data are limited to the typical cost of restoration, if the damage would not have occurred if proper data backup, especially if regular risk corresponding backup copies would have been generated.
12. We raise the awareness and concerns of the customer about the dangers of viruses and malware. We are not liable for damage caused solely on the fact that the customer neglects appropriate and to meet state of the art precautionary measures, including the maintenance of a firewall or anti-virus program.
VIII. Obligations of the client and rules for cancelation and reduction
1. The customer will label any data carriers supplied to us for the fulfilment of orders with his name and address. Before passing it us, the customer is obliged to make backup copies.
2. Any material that the customer provides us with for the processing is to be provided free delivery.
3. Any material that is provided to us by the customer will be treated with care until the delivery date. We are only liable for damages caused by intent or gross negligence.
4. For orders involving the print reproduction of digital data or the corresponding imaging of films, the customer must provide us with an accurate colour proof in advance.
5. Unless the customer has made a separate agreement with us regarding data backup or data distribution we are - without further notice - entitled to delete data connected to an order and intended for output i.e. for conversion into a visualized form.
In the event of a full or partial cancellation by the customer or reduction in the number of participants by the customer, eila consulting GmbH & Co. KG shall receive the following percentages of the agreed remuneration:
a) In the case of "open team" bookings and VIP hospitality (catering- and loungeconsumption), in the event of cancellation more than 14 days before the booked event 0%, in the event of cancellation more than 7 days before the event 70% of the registered quantity, thereafter 100%, as in this case staff allocation, staff booking has been made and the necessary goods have been ordered.
b) For bookings hospitality exclusively (bookings of hospitality plus catering): in case of cancellation more than 6 months before the first event 30%, in case of cancellation more than 3 months before the first event 50%, in case of cancellation more than 1 month before the first event 70%, after that 100%. In all cases the Contractual Partner shall be permitted to prove that any damage has been incurred by eila consulting GmbH & Co. KG has not incurred any damage at all or only to a significantly lower extent. A further claim for damages by eila consulting GmbH & Co. KG shall remain unaffected.
c) For group bookings referring to the event-location MAX60 as well as for bookings for the EILA TASTING CENTRE the following rule shall apply: in the event of cancellation more than 14 days before the booked event 0%, in the event of cancellation more than 7 days before the event 50% of the Location price, cancellation more than 3 days before 50% of the contract, thereafter 100%, as in this case staff allocation, staff booking has been made and the necessary goods have been ordered.
IX. Copyright / Rights of use
1. The customer is responsible for ensuring that execution of the order does not violate the rights of third parties, in particular the rights of reproduction. The customer shall indemnify and hold us harmless from and against any and all claims of third parties asserted against us as a result of the execution of the customer’s order.
2. All copyrights and related rights of exploitation of sketches, drafts, originals, films, files, etc. created by us as part of the order fulfilment remain with us, provided this is permissible in law and no other agreement has been reached with the customer. In the event that rights of exploitation are transferred according to individual agreements, where we derive these rights from third parties, the rights shall be transferred only to that extent to which they have been granted to us by this same third party.
3. We reserve title to all and any industrial property rights and copyrights for our designs, samples, images, technical documentation, cost estimates or quotations, even if the customer has borne the costs for such designs etc. The customer may use the designs etc. only in the manner which was agreed with us.
4. The right of use as a condition for a particular purpose is transferred to the customer. Unless otherwise agreed, only a simple right to use is transferred. Transfer of rights of use to third parties requires a written agreement. Rights of use are only transferred after full payment of compensation.
5. The customer shall observe secrecy towards third parties as to all knowledge acquired through the business relationship with us and which is not in the public domain.
6. Even if the customer has not expressly been ordered to do so we are entitled but not obliged to store data, films, and the customer's printing plates after completion of the order. If such storage takes place voluntarily, any liability for loss or damage to the stored data, films and plates is excluded.
X. Place of Performance, Language and Applicable Law
1. Place of fulfilment and performance for any obligation arising in context with our deliveries is Bayreuth.
2. The language of contract is only German. Existing translations are only made for the purpose of information. In case of discrepancies the German version shall prevail
3. The Parties agree upon the exclusive application of the internal law of the Federal Republic of Germany, where as the applicability of the United Nations´ Convention of April 11, 1980 on contracts concerning the international sale of goods is included.
XI. Place of Jurisdiction and Arbitration
1. Exclusive jurisdiction for all disputes with a contractual partner who has his administrative headquarters or a branch within the European Union, Switzerland or the United Kingdom is Bayreuth.
2. For customers to whom XVII (1) does not apply, all disputes arising from or in connection with the business relationship, including the formation, validity or termination of the contract, shall be finally decided by the International Chamber of Commerce (ICC), excluding the ordinary courts of jurisdiction.
3. The Arbitration Tribunal shall also decide on the validity of this Arbitration Agreement. The arbitral tribunal shall consist of one arbitrator. The place of arbitration shall be Munich. The arbitration language shall be German.