Conditions
General Terms and Conditions of E-Stream GmbH & Co. KGaA,
Feldstrasse 8, 47198 Duisburg
I. General; scope
1. These general terms and conditions apply to all current and future business relationships between E-Stream GmbH & Co. KGaA (hereinafter referred to as "E-Stream") and a merchant, a legal entity under public law or a special fund under public law (hereinafter " Supplier "means) about the provision of services for or the delivery of goods to E-Stream. 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 either their commercial or their independent professional activities.
2. These terms and conditions apply exclusively. Conflicting or deviating general terms and conditions or deviating general terms and conditions of sale of the supplier will not be recognized and will not become part of the contract unless their validity is approved in writing by E-Stream when the contract is concluded; in this case, as well as in the event of a separate agreement of special conditions for certain orders, these general purchasing conditions apply subordinate and in addition. This also applies to terms and conditions that are mentioned in offers or (order) confirmations from the supplier. These general terms and conditions also apply if E-Stream accepts services and goods or the delivery of goods from the supplier without reservation and in the knowledge of conflicting, deviating or supplementary terms and conditions. The acceptance of a delivery or performance or service from the supplier by E-Stream does not imply approval of the general terms and conditions or the general terms and conditions of sale of the supplier. Even silence on an order confirmation from the supplier with contradicting declarations by the supplier does not constitute approval.
II. Offer; Conclusion of contract
1. Offers made by the supplier to E-Stream must be submitted free of charge. Any deviations from E-Stream's inquiries must be expressly pointed out in the offer, and appropriate drawings must be enclosed if necessary.
2. A contract is only considered concluded when E-Stream issues a written declaration of acceptance after receiving an offer from the supplier.
3. If an order confirmation from the supplier contains deviations from the E-Stream order, the order confirmation does not result in a contract. If there is a permanent business relationship and the supplier would like to reject the order, he must inform E-Stream immediately, but no later than within 5 (five) days, otherwise the order is deemed to have been accepted. In other cases, E-Stream reserves the right to withdraw orders if they have not been confirmed in writing in due time.
4. In the case of obvious errors, typing or calculation errors in the order, E-Stream is not liable.
5. The written order from E-Stream in conjunction with these general terms and conditions is decisive for the content of the contract with the supplier. Any agreement made between the parties is only legally effective if it is agreed in writing. Changes and additions to the content of the contract require written confirmation from E-Stream. Oral side agreements are not part of the contract.
III. Scope of services
1. The service content results from the respective individual order. Documents, reports, ideas, drafts, models, samples and all other results resulting from the provision of the service are part of the contract performance.
2. The supplier provides his services with the utmost 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 gained during the commissioned work. He guarantees compliance with legal regulations, the agreed technical specifications and other requirements.
3. Unless otherwise expressly agreed in advance, partial services are not permitted. In this respect, E-Stream is entitled to cancel the remaining quantity.
4. The execution of the ordered deliveries and services by third parties requires the prior written consent of E-Stream.
5. The supplier will create drawings, data and other documentation in accordance with E-Stream requirements, regulations and guidelines. If anything is unclear, the supplier is obliged to obtain all the necessary information before starting work. The EDP systems and programs used for documentation are determined by the E-Stream. The supplier is obliged to obtain appropriate information before the start or execution of the contract.
6. At the request of E-Stream, the supplier will provide information on the composition of the delivery item, insofar as this is necessary for the fulfillment of official requirements in Germany and abroad.
7. As long as the supplier has not yet fully fulfilled its obligations, E-Stream is entitled, within reason, to request changes to the order with regard to construction, design, quantity and delivery time. The effects (e.g. additional or reduced costs, delivery dates, etc.) are to be regulated by mutual agreement. E-Stream can request changes to the delivery item even after the contract has been concluded, provided this is objectively reasonable for the supplier. In the case of this change to the contract, the effects of both parties, in particular with regard to the additional or reduced costs and the delivery dates, must be mutually agreed.
8. The supplier is obliged to notify E-Stream immediately in writing of any concerns he has about the manner in which the performance / delivery is desired by E-Stream and to suggest changes to E-Stream that he deems necessary to meet agreed specifications or legal requirements.
9. The supplier is obliged to deliver spare parts for the period of normal technical use, but at least 10 years after the last delivery under reasonable conditions.
10. If the supplier intends to cease delivery of the spare parts after the deadline specified in Section 9 has expired, or if the delivery item is to be discontinued during this period, E-Stream must be informed of this and given the opportunity to place a final order before the cessation.
IV. Prices; Terms of payment and delivery
1. The prices shown in the order are fixed prices. The price includes, in particular, the cost of “free delivery” freight, 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 another place of performance has been agreed in writing in the contract, deliveries must be made at the E-Stream place of business (obligation to deliver) and must be insured by the supplier against transport damage, incorrect loading or unloading and theft at the supplier's expense.
3. Goods are to be packed in such a way that damage during transport and loading is avoided. Packaging materials are only to be used to the extent necessary to achieve the purpose. The supplier's take-back obligations, also with regard to the transport and product packaging, are based on the statutory provisions. The supplier guarantees that all packaging is legally licensed and registered with an appropriate system provider and that the fees for it are paid in full and properly.
4. Remuneration for performances, presentations, negotiations and / or for the preparation of offers and projects are not owed, unless this has been previously agreed in writing.
5. Invoices are to be issued no earlier than the date of dispatch of the delivery. Each order is to be billed separately. In addition to the statutory mandatory information, the invoice must clearly highlight the order number shown in the E-Stream order, the customer, the supplier number and the E-Stream material number, insofar as this has been specified.
6. Unless otherwise agreed, E-Stream will pay the purchase price up to the 25th of the month following acceptance of the complete delivery including all associated documents and receipt of a verifiable invoice with a 3% discount or within 60 days without deduction.
7. Payments do not mean recognition of the services as being in accordance with the contract.
8. Defective goods are returned with the invoice amount being charged back or a (sales tax) invoice refund issued at the expense and risk of the supplier. Replacement deliveries must be invoiced again with the number of our return and debit advice.
9. If the invoice is received before the goods are received, the latter is decisive.
10. The supplier is not entitled to assign his claims against E-Stream or to dispose of them in any other way without the prior written consent of E-Stream. Confiscation by third parties is excluded. Section 354a of the German Commercial Code remains unaffected.
11. The supplier is not entitled, without the prior written consent of E-Stream, to fully or partially leave the fulfillment of its contractual obligations to a subcontractor. If E-Stream has agreed to the subcontracting, copies of the subcontracts must be submitted to the department responsible for purchasing and specified on this order by the supplier on request immediately after they have been issued, if and insofar as this is necessary to check the production, the conditions of the order the goods to be delivered and / or is required by legal or official requirements. The liability of the supplier for the fulfillment of his contractual obligations by the subcontractor remains unaffected.
12. E-Stream is entitled to set-off and retention rights to the extent permitted by law. E-Stream is entitled to offset the supplier's claims by means of a debit note (e.g. in the case of partial services / deliveries, (partial) returns of defective goods or forfeited contractual penalties) or a (sales tax) invoice refund. E-Stream reserves the right to issue corresponding invoices and carry out corresponding direct debits.
13. The supplier can only offset his own claims against E-Stream if his counterclaims have been legally established, are undisputed or have been recognized by E-Stream. He is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
14. E-Stream is entitled to reduce the supplier's invoice amounts by the value of returned goods as well as any expenses and claims for damages.
V. delivery dates; Due date, default, compensation, 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 if the service is not performed on time, a delay occurs after 10 days at the latest. E-Stream reserves the right to set shorter deadlines by sending a reminder.
3. If the supplier is in default, he is obliged to comply with E-Stream's request for express delivery (express or urgent goods, courier, express parcel, air freight, etc.) at his own expense.
4. In the event of default on the part of the supplier, E-Stream is entitled to withdraw from the contract and to demand compensation after the unsuccessful expiry of a reasonable grace period. A grace period does not need to be set if the delivery date is "fixed", i.e. E-Stream has expressed in the respective order that your interest in performance depends on timely delivery, or if the supplier declares that it will not deliver within the grace period can. In the case of urgency, a grace period of 2 (two) working days is sufficient.
5. If the supplier is culpably in default, E-Stream can - in addition to further legal claims - lump-sum compensation for damage caused by default i. H. v. Request 0.5% of the net price per working day, but not more than 5% of the net price of the order amount incurred up to the time of delay. E-Stream reserves the right to prove that the E-Stream suffered greater damage. The contractor reserves the right to prove that E-Stream suffered no damage at all or only significantly less damage.
6. If the supplier is in default, E-Stream is entitled to make covering purchases if and insofar as this is necessary in order to avert impending consequential damage caused by the delay. The supplier shall bear any additional costs that may arise as a result. The supplier is obliged to assume all damage caused by his delay, including any consequential damage.
7. E-Stream is not obliged to accept a premature delivery or service that takes place without express prior consent.
8. The supplier is obliged to inform E-Stream immediately in writing of any delivery delays and the reasons for them. Any knowledge of E-Stream of the reasons for the delay does not replace written notification by the supplier. The supplier is liable for all damage resulting from failure to notify or late notification. Irrespective of this, the supplier must also compensate for any damage caused by a delivery delay for which he is responsible.
9. The risk is only transferred at the receiving point with acceptance by E-Stream or, if the goods are installed or assembled by the supplier, with commissioning by E-Stream.
10. The acceptance of a delayed delivery does not constitute a waiver of claims for compensation.
VI. Requirements for the delivery item; documentation
1. The supplier is obliged to state the exact E-Stream order number and E-Stream article number on all documents, shipping documents and delivery notes, insofar as these have been communicated to him. Separate documents are required for each order. Insofar as damage results 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 goods delivered. This declaration must be sent to E-Stream without delay.
3. The delivery item is to be carried out in a customary manner in accordance with the written order from E-Stream, the relevant DIN regulations and the relevant European standards in the currently valid version.
VII. Inspection for defects; Warranty, guarantees
1. The obligation to inspect and notify pursuant to Section 377 of the German Commercial Code (HGB) is excluded for hidden defects, provided that E-Stream has carried out a minimum check based on the delivery note and for transport damage.
2. E-Stream fulfills the notification obligation of Section 377 of the German Commercial Code (HGB), provided that the notification is made within a period of 2 weeks from discovery. An oral complaint is sufficient.
3. E-Stream's warranty claims 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 case of supplementary performance, the limitation period for each delivery item begins anew upon delivery.
4. Defective deliveries are to be replaced immediately by defective deliveries and defective services to be repeated without defects. E-Stream is entitled, after prior information and expiry of a period of grace that is reasonably short for the situation, to remedy the defect itself at the supplier's expense or to arrange for a replacement delivery if there is imminent danger or special urgency. This also applies if the supplier delivers or performs deficiently or late, and E-Stream must act immediately to avoid its own delivery delay.
5. All costs incurred to fulfill the warranty obligation, in particular for dismantling, assembly, travel, freight, packaging, insurance, customs duties and other public charges, tests and technical acceptances are to be borne by the supplier. If E-Stream sends back defective goods, E-Stream is entitled to re-debit the invoice amount plus a one-off processing fee of € 50.00 to the supplier. The right to prove higher expenses is reserved. The supplier reserves the right to provide evidence of lower or no expenditure. In the case of return deliveries, the supplier bears the risk of loss and / or damage to the delivery item.
6. E-Stream reserves the right to claim further damages or reimbursement of expenses.
7. The information on the delivery item contained in the order from E-Stream and the associated documents (including images and drawings), such as quantities, dimensions, weights, specifications, performance, construction and form represent the agreed quality and are provided by the supplier as a guaranteed quality of the goods.
8. The supplier guarantees that the delivery item has the warranted properties, complies with the recognized rules of technology, has all the test marks and approvals required for its use or operation, and is free from defects that affect the value or suitability cancel or reduce for the intended use. As far as for the manufacture or operation of the
Delivery item requires an EU declaration of conformity with CE marking, EU manufacturer's declaration or certification, the supplier undertakes to hand over the underlying documentation in German to E-Stream. The supplier bears all costs associated with these approvals.
9. The supplier guarantees that the goods and deliveries comply with the applicable statutory regulations, in particular the requirements of the applicable packaging ordinance, the RoHS directive 2011/65 / EU and 2015/863, the battery ordinance and the EU chemicals ordinance REACH No. 1907 / 2006 are complied with and implemented.
10. The supplier assures that all goods delivered to E-Stream are in its full ownership and that no other rights of third parties (such as liens, other creditor positions from the assignment of claims or other credit collateral, sale of receivables, etc.) pertaining to the sale and transfer of ownership of the goods Oppose e-stream.
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 contractual partners are obliged to provide the necessary information immediately within the framework of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
2. E-Stream 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 E-Stream due to the delay caused by the force majeure.
3. E-Stream is entitled to withdraw from the contract if the supplier applies for insolvency proceedings to be opened, insolvency proceedings are opened or the opening is refused due to insufficient assets and in the event of the supplier's liquidation or dissolution.
4. E-Stream also has a right of withdrawal in the event of over-indebtedness and suspension of payments by the supplier and if individual enforcement measures are carried out against the supplier.
5. E-Stream can also withdraw from the contract if the supplier promises, offers or grants benefits of any kind to an E-Stream employee or agent involved in the preparation, conclusion or implementation of the contract or in their interest to a third party .
6. The statutory withdrawal regulations remain unaffected.
IX. Product liability; Exemption; Liability insurance coverage
1. The supplier is responsible for ensuring that the delivery item does not result in a product defect in accordance with the Product Liability Act or producer liability.
2. The supplier is responsible for ensuring that his products are free of defects within the meaning of the Product Liability Act. The supplier will indemnify and hold harmless E-Stream for all claims based on a defect or faultiness of the delivered product, unless he can prove that he is not at fault.
3. The supplier is obliged to exempt E-Stream from any liability towards third parties or from third-party claims arising from the manufacture, delivery, storage or intended use of the goods / services provided. The obligation to indemnify does not apply if the claim is based on gross negligence or willful breach of duty by E-Stream.
4. If E-Stream is obliged to carry out a recall campaign due to a defect in goods delivered by the supplier, the supplier bears all costs associated with the recall campaign. This claim exists regardless of whether the supplier is at fault.
5. Insofar as the supplier is responsible for product damage, he is obliged to exempt E-Stream from claims for damages by third parties upon first request, provided that the cause is within his sphere of control and organization. The suppliers of the supplier are considered to be his vicarious agents within the meaning of § 278 BGB.
6. As part of the obligation to indemnify due to product defects, the supplier is also obliged to reimburse E-Stream for any expenses in accordance with §§ 683, 670 BGB that result from or in connection with a recall campaign carried out by E-Stream. E-Stream will inform the supplier immediately - as far as possible and reasonable - of 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 proceedings.
7. If the supplier does not release E-Stream within 14 days after receipt of the written request, E-Stream is entitled to recognize the claim, to fulfill it or to make a comparison and to make advance payment of the necessary costs by the supplier request, provided that E-Stream has informed the customer of this consequence in the request. If the amount of the claim asserted by the third party is not fixed, E-Stream can demand security from the supplier, the amount of which is at the discretion of E-Stream.
8. The supplier undertakes to maintain product liability insurance with a coverage of € 10 million per personal injury / property damage - lump sum - which must be proven upon request.
9. Further claims for damages by E-Stream against the supplier remain unaffected.
X. Property Rights
1. E-Stream is exclusively entitled to work results arising in connection with the provision of the services and all industrial property rights to these. The supplier grants E-Stream an exclusive, irrevocable, temporally, spatially and content-wise unlimited right of use to these results. Insofar as already existing results or existing commercial property rights are used in the context of the provision of the services, the supplier grants E-Stream a simple, irrevocable right of use that is unrestricted in terms of time, space and content. E-Stream becomes the owner of all items handed over to it as part of the provision of the services.
2. E-Stream reserves all property rights and copyrights to all samples, models, tools, drawings, images, calculations and other documents made available to the supplier by E-Stream; they may not be made accessible to third parties or reproduced without the express written consent of E-Stream. They may only be used for the execution of the contract and must be returned to E-Stream unsolicited after it has been processed.
3. The supplier guarantees that no property rights of third parties are violated in connection with his performance and that the work results delivered by him can be used worldwide without infringing property rights of third parties.
4. The supplier is obliged to indemnify E-Stream from all claims made by third parties against E-Stream in connection with its performance due to the infringement of industrial property rights, and to reimburse E-Stream for all necessary expenses in connection with this claim. This claim exists regardless of whether the supplier is at fault. The supplier is obliged to reimburse E-Stream for the costs of any legal prosecution and defense against damage.
5. Without the prior written consent of E-Stream, which can be freely revoked at any time, the supplier is not entitled to use the brands, logos and / or other marks owned by E-Stream in order to use E-Stream as a reference.
XI. confidentiality
1. The supplier is obliged to treat all business and trade secrets or information and documents marked or recognizable as confidential, not to pass them on to third parties, as confidential, and to not pass them on to third parties to be used only to execute the contract. These obligations continue to exist for 5 years after termination of the contract.
2. The aforementioned obligations do not apply to information that is generally known or that the supplier has gained knowledge of through a third party without breaching a confidentiality obligation.
3. The supplier must oblige the persons he uses to fulfill his contractual obligations in accordance with the aforementioned obligations and ensure that this obligation is complied with.
4. At the request of E-Stream at any time, the supplier must immediately surrender to E-Stream or destroy any documents it has obtained from E-Stream and which are subject to the aforementioned obligations and confirm the destruction in writing to E-Stream. The supplier's rights of retention to these documents are excluded.
5. The supplier is also not entitled to use E-Stream as a reference without the prior written consent of E-Stream, which can be freely revoked at any time.
XII. European Chemicals Regulation (REACH-VO (EG) No. 1907/2006, RoHS 2011/65 / EU, RoHS EU 2015/863
1. The supplier assures that he and the E- will comply with all obligations which the regulation for the registration, evaluation, authorization and restriction of chemical substances - in the currently valid version - ("REACH-VO (EG) No. 1907/2006") Stream imposed to meet the requirements of REACHVO (EG) No. 1907/2006 at its own expense.
2. As far as the REACH-VO (EG) Nr. 1907/2006 precludes a transfer of the obligations from E-Stream to the supplier, the supplier will inform E-Stream immediately and E-Stream in full when it fulfills its obligations and support them free of charge.
3. If the supplier is based outside the European Union, he has to appoint a representative based in the European Union at his own expense, who fulfills the obligations according to REACH-VO (EG) No. 1907/2006, and the E -Stream to inform about this accordingly.
4. The supplier must ensure that the goods to be delivered by him fully comply with the requirements of Directive 2011/65 / EU and 2015/863 (“RoHS”) as amended.
XIII. Conflict minerals
1. The supplier is obliged to comply with the provisions on conflict minerals set out in REGULATION (EU) 2017/821 and in Section 1502 of the “Wall Street Reform and Consumer Protection Act” (“Dodd-Frank Act”).
2. If conflict minerals are required in the course of production or for the function of the goods delivered by the supplier, their origin must be disclosed.
3. Upon request, the supplier must provide E-Stream with the documentation required under REGULATION (EU) 2017/821 and the Dodd-Frank Act on the use and origin of conflict minerals in full and immediately.
XIV. Severability clause, place of performance, place of jurisdiction, applicable law
1. Should individual parts of these conditions be or become ineffective, this shall not affect the effectiveness of the remaining provisions. In place of ineffective regulations come regulations which, at reasonable discretion, come closest to what is economically intended.
2. Unless the order for the E-Stream or the order confirmation indicates a different location, Duisburg is the place of performance.
3. Exclusive place of jurisdiction for disputes arising from or in connection with the contractual relationship between E-Stream 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 their general place of jurisdiction.
4. The law of the Federal Republic of Germany applies to these general terms and conditions and all legal relationships between the supplier and E-Stream, excluding the applicability of the provisions of the Vienna UN Convention on Contracts for International Commercial Sales (CISG).
E-Stream GmbH & Co KGaA,
Postal address: Feldstrasse 8, 47198 Duisburg
Email: info@estream-internatinal.com
Headquarters: Duisburg
Register entry: Duisburg District Court HRA 32525
Personally liable partner:
E-Stream Management GmbH
Postal address: Feldstrasse 8, 47198 Duisburg
Headquarters: Duisburg
Register entry: District court Duisburg HRB 17730
Managing Director: Thomas Krämer, Dirk Köster
Download terms and conditions
Feldstrasse 8, 47198 Duisburg
I. General; scope
1. These general terms and conditions apply to all current and future business relationships between E-Stream GmbH & Co. KGaA (hereinafter referred to as "E-Stream") and a merchant, a legal entity under public law or a special fund under public law (hereinafter " Supplier "means) about the provision of services for or the delivery of goods to E-Stream. 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 either their commercial or their independent professional activities.
2. These terms and conditions apply exclusively. Conflicting or deviating general terms and conditions or deviating general terms and conditions of sale of the supplier will not be recognized and will not become part of the contract unless their validity is approved in writing by E-Stream when the contract is concluded; in this case, as well as in the event of a separate agreement of special conditions for certain orders, these general purchasing conditions apply subordinate and in addition. This also applies to terms and conditions that are mentioned in offers or (order) confirmations from the supplier. These general terms and conditions also apply if E-Stream accepts services and goods or the delivery of goods from the supplier without reservation and in the knowledge of conflicting, deviating or supplementary terms and conditions. The acceptance of a delivery or performance or service from the supplier by E-Stream does not imply approval of the general terms and conditions or the general terms and conditions of sale of the supplier. Even silence on an order confirmation from the supplier with contradicting declarations by the supplier does not constitute approval.
II. Offer; Conclusion of contract
1. Offers made by the supplier to E-Stream must be submitted free of charge. Any deviations from E-Stream's inquiries must be expressly pointed out in the offer, and appropriate drawings must be enclosed if necessary.
2. A contract is only considered concluded when E-Stream issues a written declaration of acceptance after receiving an offer from the supplier.
3. If an order confirmation from the supplier contains deviations from the E-Stream order, the order confirmation does not result in a contract. If there is a permanent business relationship and the supplier would like to reject the order, he must inform E-Stream immediately, but no later than within 5 (five) days, otherwise the order is deemed to have been accepted. In other cases, E-Stream reserves the right to withdraw orders if they have not been confirmed in writing in due time.
4. In the case of obvious errors, typing or calculation errors in the order, E-Stream is not liable.
5. The written order from E-Stream in conjunction with these general terms and conditions is decisive for the content of the contract with the supplier. Any agreement made between the parties is only legally effective if it is agreed in writing. Changes and additions to the content of the contract require written confirmation from E-Stream. Oral side agreements are not part of the contract.
III. Scope of services
1. The service content results from the respective individual order. Documents, reports, ideas, drafts, models, samples and all other results resulting from the provision of the service are part of the contract performance.
2. The supplier provides his services with the utmost 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 gained during the commissioned work. He guarantees compliance with legal regulations, the agreed technical specifications and other requirements.
3. Unless otherwise expressly agreed in advance, partial services are not permitted. In this respect, E-Stream is entitled to cancel the remaining quantity.
4. The execution of the ordered deliveries and services by third parties requires the prior written consent of E-Stream.
5. The supplier will create drawings, data and other documentation in accordance with E-Stream requirements, regulations and guidelines. If anything is unclear, the supplier is obliged to obtain all the necessary information before starting work. The EDP systems and programs used for documentation are determined by the E-Stream. The supplier is obliged to obtain appropriate information before the start or execution of the contract.
6. At the request of E-Stream, the supplier will provide information on the composition of the delivery item, insofar as this is necessary for the fulfillment of official requirements in Germany and abroad.
7. As long as the supplier has not yet fully fulfilled its obligations, E-Stream is entitled, within reason, to request changes to the order with regard to construction, design, quantity and delivery time. The effects (e.g. additional or reduced costs, delivery dates, etc.) are to be regulated by mutual agreement. E-Stream can request changes to the delivery item even after the contract has been concluded, provided this is objectively reasonable for the supplier. In the case of this change to the contract, the effects of both parties, in particular with regard to the additional or reduced costs and the delivery dates, must be mutually agreed.
8. The supplier is obliged to notify E-Stream immediately in writing of any concerns he has about the manner in which the performance / delivery is desired by E-Stream and to suggest changes to E-Stream that he deems necessary to meet agreed specifications or legal requirements.
9. The supplier is obliged to deliver spare parts for the period of normal technical use, but at least 10 years after the last delivery under reasonable conditions.
10. If the supplier intends to cease delivery of the spare parts after the deadline specified in Section 9 has expired, or if the delivery item is to be discontinued during this period, E-Stream must be informed of this and given the opportunity to place a final order before the cessation.
IV. Prices; Terms of payment and delivery
1. The prices shown in the order are fixed prices. The price includes, in particular, the cost of “free delivery” freight, 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 another place of performance has been agreed in writing in the contract, deliveries must be made at the E-Stream place of business (obligation to deliver) and must be insured by the supplier against transport damage, incorrect loading or unloading and theft at the supplier's expense.
3. Goods are to be packed in such a way that damage during transport and loading is avoided. Packaging materials are only to be used to the extent necessary to achieve the purpose. The supplier's take-back obligations, also with regard to the transport and product packaging, are based on the statutory provisions. The supplier guarantees that all packaging is legally licensed and registered with an appropriate system provider and that the fees for it are paid in full and properly.
4. Remuneration for performances, presentations, negotiations and / or for the preparation of offers and projects are not owed, unless this has been previously agreed in writing.
5. Invoices are to be issued no earlier than the date of dispatch of the delivery. Each order is to be billed separately. In addition to the statutory mandatory information, the invoice must clearly highlight the order number shown in the E-Stream order, the customer, the supplier number and the E-Stream material number, insofar as this has been specified.
6. Unless otherwise agreed, E-Stream will pay the purchase price up to the 25th of the month following acceptance of the complete delivery including all associated documents and receipt of a verifiable invoice with a 3% discount or within 60 days without deduction.
7. Payments do not mean recognition of the services as being in accordance with the contract.
8. Defective goods are returned with the invoice amount being charged back or a (sales tax) invoice refund issued at the expense and risk of the supplier. Replacement deliveries must be invoiced again with the number of our return and debit advice.
9. If the invoice is received before the goods are received, the latter is decisive.
10. The supplier is not entitled to assign his claims against E-Stream or to dispose of them in any other way without the prior written consent of E-Stream. Confiscation by third parties is excluded. Section 354a of the German Commercial Code remains unaffected.
11. The supplier is not entitled, without the prior written consent of E-Stream, to fully or partially leave the fulfillment of its contractual obligations to a subcontractor. If E-Stream has agreed to the subcontracting, copies of the subcontracts must be submitted to the department responsible for purchasing and specified on this order by the supplier on request immediately after they have been issued, if and insofar as this is necessary to check the production, the conditions of the order the goods to be delivered and / or is required by legal or official requirements. The liability of the supplier for the fulfillment of his contractual obligations by the subcontractor remains unaffected.
12. E-Stream is entitled to set-off and retention rights to the extent permitted by law. E-Stream is entitled to offset the supplier's claims by means of a debit note (e.g. in the case of partial services / deliveries, (partial) returns of defective goods or forfeited contractual penalties) or a (sales tax) invoice refund. E-Stream reserves the right to issue corresponding invoices and carry out corresponding direct debits.
13. The supplier can only offset his own claims against E-Stream if his counterclaims have been legally established, are undisputed or have been recognized by E-Stream. He is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
14. E-Stream is entitled to reduce the supplier's invoice amounts by the value of returned goods as well as any expenses and claims for damages.
V. delivery dates; Due date, default, compensation, 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 if the service is not performed on time, a delay occurs after 10 days at the latest. E-Stream reserves the right to set shorter deadlines by sending a reminder.
3. If the supplier is in default, he is obliged to comply with E-Stream's request for express delivery (express or urgent goods, courier, express parcel, air freight, etc.) at his own expense.
4. In the event of default on the part of the supplier, E-Stream is entitled to withdraw from the contract and to demand compensation after the unsuccessful expiry of a reasonable grace period. A grace period does not need to be set if the delivery date is "fixed", i.e. E-Stream has expressed in the respective order that your interest in performance depends on timely delivery, or if the supplier declares that it will not deliver within the grace period can. In the case of urgency, a grace period of 2 (two) working days is sufficient.
5. If the supplier is culpably in default, E-Stream can - in addition to further legal claims - lump-sum compensation for damage caused by default i. H. v. Request 0.5% of the net price per working day, but not more than 5% of the net price of the order amount incurred up to the time of delay. E-Stream reserves the right to prove that the E-Stream suffered greater damage. The contractor reserves the right to prove that E-Stream suffered no damage at all or only significantly less damage.
6. If the supplier is in default, E-Stream is entitled to make covering purchases if and insofar as this is necessary in order to avert impending consequential damage caused by the delay. The supplier shall bear any additional costs that may arise as a result. The supplier is obliged to assume all damage caused by his delay, including any consequential damage.
7. E-Stream is not obliged to accept a premature delivery or service that takes place without express prior consent.
8. The supplier is obliged to inform E-Stream immediately in writing of any delivery delays and the reasons for them. Any knowledge of E-Stream of the reasons for the delay does not replace written notification by the supplier. The supplier is liable for all damage resulting from failure to notify or late notification. Irrespective of this, the supplier must also compensate for any damage caused by a delivery delay for which he is responsible.
9. The risk is only transferred at the receiving point with acceptance by E-Stream or, if the goods are installed or assembled by the supplier, with commissioning by E-Stream.
10. The acceptance of a delayed delivery does not constitute a waiver of claims for compensation.
VI. Requirements for the delivery item; documentation
1. The supplier is obliged to state the exact E-Stream order number and E-Stream article number on all documents, shipping documents and delivery notes, insofar as these have been communicated to him. Separate documents are required for each order. Insofar as damage results 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 goods delivered. This declaration must be sent to E-Stream without delay.
3. The delivery item is to be carried out in a customary manner in accordance with the written order from E-Stream, the relevant DIN regulations and the relevant European standards in the currently valid version.
VII. Inspection for defects; Warranty, guarantees
1. The obligation to inspect and notify pursuant to Section 377 of the German Commercial Code (HGB) is excluded for hidden defects, provided that E-Stream has carried out a minimum check based on the delivery note and for transport damage.
2. E-Stream fulfills the notification obligation of Section 377 of the German Commercial Code (HGB), provided that the notification is made within a period of 2 weeks from discovery. An oral complaint is sufficient.
3. E-Stream's warranty claims 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 case of supplementary performance, the limitation period for each delivery item begins anew upon delivery.
4. Defective deliveries are to be replaced immediately by defective deliveries and defective services to be repeated without defects. E-Stream is entitled, after prior information and expiry of a period of grace that is reasonably short for the situation, to remedy the defect itself at the supplier's expense or to arrange for a replacement delivery if there is imminent danger or special urgency. This also applies if the supplier delivers or performs deficiently or late, and E-Stream must act immediately to avoid its own delivery delay.
5. All costs incurred to fulfill the warranty obligation, in particular for dismantling, assembly, travel, freight, packaging, insurance, customs duties and other public charges, tests and technical acceptances are to be borne by the supplier. If E-Stream sends back defective goods, E-Stream is entitled to re-debit the invoice amount plus a one-off processing fee of € 50.00 to the supplier. The right to prove higher expenses is reserved. The supplier reserves the right to provide evidence of lower or no expenditure. In the case of return deliveries, the supplier bears the risk of loss and / or damage to the delivery item.
6. E-Stream reserves the right to claim further damages or reimbursement of expenses.
7. The information on the delivery item contained in the order from E-Stream and the associated documents (including images and drawings), such as quantities, dimensions, weights, specifications, performance, construction and form represent the agreed quality and are provided by the supplier as a guaranteed quality of the goods.
8. The supplier guarantees that the delivery item has the warranted properties, complies with the recognized rules of technology, has all the test marks and approvals required for its use or operation, and is free from defects that affect the value or suitability cancel or reduce for the intended use. As far as for the manufacture or operation of the
Delivery item requires an EU declaration of conformity with CE marking, EU manufacturer's declaration or certification, the supplier undertakes to hand over the underlying documentation in German to E-Stream. The supplier bears all costs associated with these approvals.
9. The supplier guarantees that the goods and deliveries comply with the applicable statutory regulations, in particular the requirements of the applicable packaging ordinance, the RoHS directive 2011/65 / EU and 2015/863, the battery ordinance and the EU chemicals ordinance REACH No. 1907 / 2006 are complied with and implemented.
10. The supplier assures that all goods delivered to E-Stream are in its full ownership and that no other rights of third parties (such as liens, other creditor positions from the assignment of claims or other credit collateral, sale of receivables, etc.) pertaining to the sale and transfer of ownership of the goods Oppose e-stream.
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 contractual partners are obliged to provide the necessary information immediately within the framework of what is reasonable and to adapt their obligations to the changed circumstances in good faith.
2. E-Stream 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 E-Stream due to the delay caused by the force majeure.
3. E-Stream is entitled to withdraw from the contract if the supplier applies for insolvency proceedings to be opened, insolvency proceedings are opened or the opening is refused due to insufficient assets and in the event of the supplier's liquidation or dissolution.
4. E-Stream also has a right of withdrawal in the event of over-indebtedness and suspension of payments by the supplier and if individual enforcement measures are carried out against the supplier.
5. E-Stream can also withdraw from the contract if the supplier promises, offers or grants benefits of any kind to an E-Stream employee or agent involved in the preparation, conclusion or implementation of the contract or in their interest to a third party .
6. The statutory withdrawal regulations remain unaffected.
IX. Product liability; Exemption; Liability insurance coverage
1. The supplier is responsible for ensuring that the delivery item does not result in a product defect in accordance with the Product Liability Act or producer liability.
2. The supplier is responsible for ensuring that his products are free of defects within the meaning of the Product Liability Act. The supplier will indemnify and hold harmless E-Stream for all claims based on a defect or faultiness of the delivered product, unless he can prove that he is not at fault.
3. The supplier is obliged to exempt E-Stream from any liability towards third parties or from third-party claims arising from the manufacture, delivery, storage or intended use of the goods / services provided. The obligation to indemnify does not apply if the claim is based on gross negligence or willful breach of duty by E-Stream.
4. If E-Stream is obliged to carry out a recall campaign due to a defect in goods delivered by the supplier, the supplier bears all costs associated with the recall campaign. This claim exists regardless of whether the supplier is at fault.
5. Insofar as the supplier is responsible for product damage, he is obliged to exempt E-Stream from claims for damages by third parties upon first request, provided that the cause is within his sphere of control and organization. The suppliers of the supplier are considered to be his vicarious agents within the meaning of § 278 BGB.
6. As part of the obligation to indemnify due to product defects, the supplier is also obliged to reimburse E-Stream for any expenses in accordance with §§ 683, 670 BGB that result from or in connection with a recall campaign carried out by E-Stream. E-Stream will inform the supplier immediately - as far as possible and reasonable - of 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 proceedings.
7. If the supplier does not release E-Stream within 14 days after receipt of the written request, E-Stream is entitled to recognize the claim, to fulfill it or to make a comparison and to make advance payment of the necessary costs by the supplier request, provided that E-Stream has informed the customer of this consequence in the request. If the amount of the claim asserted by the third party is not fixed, E-Stream can demand security from the supplier, the amount of which is at the discretion of E-Stream.
8. The supplier undertakes to maintain product liability insurance with a coverage of € 10 million per personal injury / property damage - lump sum - which must be proven upon request.
9. Further claims for damages by E-Stream against the supplier remain unaffected.
X. Property Rights
1. E-Stream is exclusively entitled to work results arising in connection with the provision of the services and all industrial property rights to these. The supplier grants E-Stream an exclusive, irrevocable, temporally, spatially and content-wise unlimited right of use to these results. Insofar as already existing results or existing commercial property rights are used in the context of the provision of the services, the supplier grants E-Stream a simple, irrevocable right of use that is unrestricted in terms of time, space and content. E-Stream becomes the owner of all items handed over to it as part of the provision of the services.
2. E-Stream reserves all property rights and copyrights to all samples, models, tools, drawings, images, calculations and other documents made available to the supplier by E-Stream; they may not be made accessible to third parties or reproduced without the express written consent of E-Stream. They may only be used for the execution of the contract and must be returned to E-Stream unsolicited after it has been processed.
3. The supplier guarantees that no property rights of third parties are violated in connection with his performance and that the work results delivered by him can be used worldwide without infringing property rights of third parties.
4. The supplier is obliged to indemnify E-Stream from all claims made by third parties against E-Stream in connection with its performance due to the infringement of industrial property rights, and to reimburse E-Stream for all necessary expenses in connection with this claim. This claim exists regardless of whether the supplier is at fault. The supplier is obliged to reimburse E-Stream for the costs of any legal prosecution and defense against damage.
5. Without the prior written consent of E-Stream, which can be freely revoked at any time, the supplier is not entitled to use the brands, logos and / or other marks owned by E-Stream in order to use E-Stream as a reference.
XI. confidentiality
1. The supplier is obliged to treat all business and trade secrets or information and documents marked or recognizable as confidential, not to pass them on to third parties, as confidential, and to not pass them on to third parties to be used only to execute the contract. These obligations continue to exist for 5 years after termination of the contract.
2. The aforementioned obligations do not apply to information that is generally known or that the supplier has gained knowledge of through a third party without breaching a confidentiality obligation.
3. The supplier must oblige the persons he uses to fulfill his contractual obligations in accordance with the aforementioned obligations and ensure that this obligation is complied with.
4. At the request of E-Stream at any time, the supplier must immediately surrender to E-Stream or destroy any documents it has obtained from E-Stream and which are subject to the aforementioned obligations and confirm the destruction in writing to E-Stream. The supplier's rights of retention to these documents are excluded.
5. The supplier is also not entitled to use E-Stream as a reference without the prior written consent of E-Stream, which can be freely revoked at any time.
XII. European Chemicals Regulation (REACH-VO (EG) No. 1907/2006, RoHS 2011/65 / EU, RoHS EU 2015/863
1. The supplier assures that he and the E- will comply with all obligations which the regulation for the registration, evaluation, authorization and restriction of chemical substances - in the currently valid version - ("REACH-VO (EG) No. 1907/2006") Stream imposed to meet the requirements of REACHVO (EG) No. 1907/2006 at its own expense.
2. As far as the REACH-VO (EG) Nr. 1907/2006 precludes a transfer of the obligations from E-Stream to the supplier, the supplier will inform E-Stream immediately and E-Stream in full when it fulfills its obligations and support them free of charge.
3. If the supplier is based outside the European Union, he has to appoint a representative based in the European Union at his own expense, who fulfills the obligations according to REACH-VO (EG) No. 1907/2006, and the E -Stream to inform about this accordingly.
4. The supplier must ensure that the goods to be delivered by him fully comply with the requirements of Directive 2011/65 / EU and 2015/863 (“RoHS”) as amended.
XIII. Conflict minerals
1. The supplier is obliged to comply with the provisions on conflict minerals set out in REGULATION (EU) 2017/821 and in Section 1502 of the “Wall Street Reform and Consumer Protection Act” (“Dodd-Frank Act”).
2. If conflict minerals are required in the course of production or for the function of the goods delivered by the supplier, their origin must be disclosed.
3. Upon request, the supplier must provide E-Stream with the documentation required under REGULATION (EU) 2017/821 and the Dodd-Frank Act on the use and origin of conflict minerals in full and immediately.
XIV. Severability clause, place of performance, place of jurisdiction, applicable law
1. Should individual parts of these conditions be or become ineffective, this shall not affect the effectiveness of the remaining provisions. In place of ineffective regulations come regulations which, at reasonable discretion, come closest to what is economically intended.
2. Unless the order for the E-Stream or the order confirmation indicates a different location, Duisburg is the place of performance.
3. Exclusive place of jurisdiction for disputes arising from or in connection with the contractual relationship between E-Stream 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 their general place of jurisdiction.
4. The law of the Federal Republic of Germany applies to these general terms and conditions and all legal relationships between the supplier and E-Stream, excluding the applicability of the provisions of the Vienna UN Convention on Contracts for International Commercial Sales (CISG).
E-Stream GmbH & Co KGaA,
Postal address: Feldstrasse 8, 47198 Duisburg
Email: info@estream-internatinal.com
Headquarters: Duisburg
Register entry: Duisburg District Court HRA 32525
Personally liable partner:
E-Stream Management GmbH
Postal address: Feldstrasse 8, 47198 Duisburg
Headquarters: Duisburg
Register entry: District court Duisburg HRB 17730
Managing Director: Thomas Krämer, Dirk Köster
