Striegauer Str. 1
Phone: +49 (0)521 40418-0
Fax: +49 (0)521 40418-50
Commercial Register Bielefeld HRB 33008
Board of Directors: Robin Ohle, Alexander van der Lof
A. Scope of the General Terms and Conditions of Business of EFB
B. Terms and conditions of purchase and ordering
C. General terms and conditions of service
These Terms and Conditions of Business shall always and exclusively apply to the contractual relationship between EFB and its business partners.
They shall also apply to all subsequent business transactions, even if not specifically referred to in individual cases.
Terms and conditions of business of EFB's business partners shall not apply; this provision shall apply without the need for express opposition in individual cases.
The place of jurisdiction and performance shall be Bielefeld. German law exclusively applies under exclusion of UN Purchase Law and any other unified standard laws.
The following terms shall apply in addition to the statutory provisions to all orders placed by EFB with a supplier.
Contracts with suppliers, including their rescission, amendment and termination, as well as call-offs, must be in writing or at least in text form to be effective. Corresponding oral declarations of intent must be confirmed in this form to become effective.
Cost estimates and planning in the period before a contract shall be binding.
Cost estimates and planning made in the period before a contract shall be free of charge.
Solely the order of EFB shall be decisive for the specification of the goods.
The Supplier shall be obliged also to supply all accessory parts, instructions and data sheets required for the proper use of the goods.
The Supplier shall be obliged also to supply operating instructions, warning information and documentation of the goods in all the languages of the EU.
Working plans and design drawings must also be supplied.
The Supplier shall be obliged also to supply a certificate of origin for all goods items that complies with the valid preference regime regulations of the EU at the time of delivery.
The Supplier shall guarantee that the goods comply with the provisions applicable in the EU, especially also REACH, and possess all certificates required in the EU, such as CE and all certificates common in the EU, such as TÜV/GS, EMC, VDE, LMBG. The supplier only undertakes to supply products that meet the REACH Regulation (EC) No. 1907/2006. If delivered products contain SVHC substances the supplier shall inform the buyer without delay under Article 33 (1). With the publication of the first list of candidates on 28 October 2008 and the subsequent updates, the information obligation applies immediately. Please refer always to ECHA website:
The information obligation arises as soon as the limit of 0.1% per - product has been exceeded. If SVHC above 0.1 wt% - in products delivered the supplier shall provide the following details without delay:
The supplier is obliged to observe the substance restrictions listed in Annex XVII of the REACH Regulation. If new restrictions are adopted, supplier shall inform without delay about the substances in delivered products and thus the marketing ability are limited.
The supplier informed EFB immediately if changes take effect:
Changes may relate to the substances
If the contractual destination country of the goods is outside of the EU, the goods must comply with the regulations of the destination country.
The Supplier shall provide EFB or - on the request of EFB a third party named by EFB - with a sufficient number of samples of the goods for test purposes before the first contractually due delivery. The Supplier shall bear the costs, including freight, etc. The samples shall become the property of EFB upon delivery. The obligations of the Supplier pursuant to sections B.4.01 to B.4.06 shall also apply to the samples.
The following shall apply to the samples released by EFB: the Supplier shall guarantee that the corresponding goods correspond to the released sample.
The following shall apply to samples not released by EFB: pursuant to B.4.07, the Supplier must provide new samples.
The packaging used by the Supplier must be environmentally friendly and comply with the requirements for safe transport taking the specific circumstances into account.
In the event of a breach of the provisions pursuant to B.4.04 to B.4.06, the Supplier shall owe lump sum damages of € 5,000.00 for each individual case. In addition, the Supplier shall owe compensation for any test costs, fines and such like incurred on account of the breach and compensation for each additional loss.
The Supplier shall ensure, through labelling of the goods or other suitable measures, that batch tracing is possible and inform EFB upon enquiry of the nature and use of the labels.
The Supplier must obtain any export and import permits at its own expense and on its own responsibility and other permits and carry out the customs clearance of the goods.
The price mentioned in the order of EFB, which always includes packaging and excludes VAT shall alone be decisive and binding.
The price shall always be DDP destination ICC Incoterms® 2010.
Should payment of the packaging by EFB have been agreed, this shall only be due if the packaging price is shown separately in the invoice.Moreover, the agreed packaging price due shall always only be the cost price of the Supplier.
Should EFB owe payment of the packaging pursuant to section B.5.03, EFB shall be entitled to return the packaging to the Supplier against reimbursement of two-thirds of packaging price shown in the invoice. In this regard EXW destination of the goods delivery ICC Incoterms® 2010 shall apply.
The Supplier must issue its invoice after arrival of the consignment at the destination, including statement of the EFB order number and in harmony with the order and these terms and conditions of purchase.
The following must be included with each invoice: certificate of delivery or bill of lading, a certificate of completeness and an inspection report confirming the proper condition of the goods corresponding to the requirements of EFB pursuant to the quality assurance guidelines of EFB.
Invoices shall not be deemed payable unless the conditions pursuant to B.6.01 and B.6.02 have been met.
Where the other party's goods are delivered earlier than agreed, the invoice value date shall be deemed the delivery date contractually agreed with EFB. The value date shall be regarded in this case as the effective date of invoice receipt.
Where goods or services are defective or the other party supplies part-deliveries not agreed by contract, the invoice value date shall be deemed the date on which goods become free of defects/the date of complete delivery. The value date shall be regarded in this case as the effective date of invoice receipt.
EFB shall pay invoices up to the last day of the month following the month in which the invoice falls due taking advantage of 3% discount or net within 90 days of the due date.
All payments shall be made subject to invoice auditing and reclamation.
The delivery deadlines and -periods mentioned in the order shall be binding. Delivery periods shall run from the order date.
Partial deliveries shall require the approval of EFB at least in text form.
Complete performance of the service at the destination shall be decisive for compliance with the delivery period.
The Supplier must inform EFB immediately in text form of circumstances threatening compliance with the delivery period including an estimate of the imminent delay and the probability of its occurrence. The Supplier shall be obliged to notify EFB in corresponding form immediately of any change in the circumstances mentioned above.
Unconditional acceptance of belated performance by EFB shall not constitute any waiver of claims on account of delayed performance.
The Supplier shall owe EFB in the event of delayed delivery flat rate default damages amounting to 0.8 % of the order value per working day, however, not more than 10 % of the order value. EFB shall reserve the right to additional legal claims. The Supplier shall retain the right to demonstrate that lower or no default losses occurred.
Transition of risk before acceptance of the goods by EFB shall be ruled out unless EFB is in default with acceptance.
In place of an incoming goods inspection by EFB there shall be an outgoing goods inspection by the Supplier.
EFB must lodge a complaint regarding defects in the goods delivered within seven days. A complaint period of seven days from discovery of the particular defect shall apply to concealed defects.
An entire batch of the goods delivered shall be regarded as defective if the number of individual items complained of as defective exceeds 1% of the particular batch (so-called widespread defects or epidemic failure).
The Supplier discharges EFB from all third party claims, resulting from product liability, breach of industrial and intellectual property rights or any other cause in law.
The Supplier shall owe EFB compensation for all costs arising for EFB from claims pursuant to B.9.01 and from defending itself against such claims. In this regard it shall be immaterial whether the Supplier knew or should have known the rights of the third parties or whether it knew or should have known the regulations applicable in the destination country.
The Supplier shall also be liable for the costs of warning or recall actions on account of defects delivered by the Supplier.
The Supplier shall have a right of retention only if it has claims against EFB, which have been acknowledged by EFB or have been determined to be legally binding.
The supplier shall provide warranty and damages to the statutory extent and for the statutory duration.
In the event of material defects, EFB shall be entitled to choose whether the Supplier provides a substitute or eliminates the defect.
If the Supplier does not acknowledge the defects after being called on to do so by EFB within an appropriate period and provide a guarantee, EFB shall be entitled to mitigation of its loss, to eliminate the defects itself at the expense of the Supplier or procure a substitute for the defective goods.
EFB shall be entitled to off-setting and retention on account of its own claims against the Supplier without restrictions.
The Supplier is obliged to keep secret all information it has received from EFB during the business relationship and not to release such information to any third party without the express permission of EFB. The Supplier will also oblige its own suppliers, employees, fulfilment staff and assistants to uphold the same secrecy.
Products manufactured according to documents designed by EFB, such as drawings, models and such like, or according to information from EFB or with tools from EFB or copied tools, may neither be used by the Supplier itself, nor offered to third parties or otherwise distributed. This shall apply analogously to printing jobs of EFB.
EFB may terminate any framework agreement with the Supplier if there has been a deterioration in its financial circumstances in the meaning of § 321 BGB or the Supplier does not meet its obligations despite being warned for more than 21 days.
The written order confirmation by EFB, where applicable in combination with the specifications sheet drawn up by EFB, shall determine the content of an individual contract. Oral agreements in the context of contract conclusions made with EFB employees who do not have authority to represent shall require written confirmation by EFB in order to be valid.
Statements on characteristics concerning the products and services of EFB shall only be attributed to EFB if these statements
•were issued by or made at the express instruction of EFB, or
•are expressly authorised by EFB, or
•are public statements and EFB was aware or had a duty to be aware of the statements for a period of four weeks and did not dissociated itself from them.
Assistants of EFB in terms of Art. 434 (1) of the German Civil Code (BGB) shall not include authorised dealers and customers of EFB who act as resellers. Adequate correction of statements on characteristics in terms of Art. 434 (1) BGB may in all cases be issued on the EFB website at EFB-elektronik.de [gt]www.EFB-elektronik.de.
Statements on characteristics attributable to EFB which contain measurable values shall be subject to an allowance of ± 3%. Exceeding the margin of ± 3% shall not automatically lead to assumption of a defect.
Due to the significant handling costs associated with each individual order, EFB charges an additional charge for small quantities of € 15.00 (net) for all orders under € 80.00 (net).
The drafts, models, layout plans, general arrangement and other drawings, text templates etc. created by EFB shall remain the intellectual property of EFB, including where the client has paid for the work. The right to exploit these items and the intellectual achievements embodied by them is exclusively reserved to EFB.
EFB may attach its own company and brand labels. The client is not permitted to remove such labels attached by EFB.
The client shall be responsible to EFB for ensuring that the templates, drafts, plans, texts, trademarks etc. provided by him may be lawfully used and exploited.
Where EFB holds the sole copyright in control and other software delivered with equipment, the client shall merely be granted a non-exclusive licence to the software, specifically a licence to use the software exclusively for the purpose of operating the individual piece of equipment specified by contract.
The client is not permitted to duplicate the software or to use it in any other way.
The software may not be decompiled. To the extent that the client requires interface information, EFB will disclose the software interfaces upon request. The client shall only be permitted to decompile the software for interface analysis if EFB does not meet this request within a reasonable period of time; only the software parts necessary for this purpose shall be decompiled. A period of two weeks is deemed reasonable.
The method of shipping shall be at EFB’s discretion, unless a particular method is expressly specified.
Where the goods leave the EFB plant or warehouse, the client shall assume all risk. The shipment shall only be insured if expressly requested by the client, and if so shall be insured at the client's cost.
The risk shall transfer to the client upon handover of the goods to the shipping company, notification of readiness to dispatch, or making available by the agreed delivery date.
Any agreed delivery terms apply ex works, unless expressly agreed otherwise. Such delivery terms shall commence at the time specified in the order confirmation, at the earliest, however, once the documents, permits, release orders and delivery addresses to be provided by the client have been received, all details concerning the order have been clarified and the client has provided the agreed advance payments and/or securities.
Where a delivery term has been agreed, this shall be extended as appropriate if the client is in arrears with providing the documents, permits, delivery address notifications, advance payments or securities due.
Where a delivery date has been agreed, this shall be deferred as appropriate if the client is in arrears with providing the documents, permits, delivery address notifications, advance payments or securities due.
Delivery dates shall also be deferred and delivery terms be extended accordingly where the preconditions for the services to be rendered by EFB, to be created by the client himself or by a third party, are not given in due time.
Where permissions to be provided by EFB, which are a precondition for a lawful delivery, are delayed or fail to be granted at all for reasons for which EFB does not bear responsibility, EFB shall not be liable in this respect.
Where the client requests amendments to the order after order confirmation, the delivery term shall only commence upon confirmation of the amendment by EFB. Any agreed delivery dates shall be deferred accordingly.
The deadline for performance shall be extended as appropriate where unforeseen obstacles occur which EFB, despite all reasonable care, is unable to prevent due to the circumstances of the case, e.g. a complete or partial loss of subcontractors for which EFB is not responsible.
In cases where standard components cannot be used for repairs, warranty work, subsequent delivery or similar because the equipment in question is, as per agreement, a custom-made item, or because special components were installed, the period of performance to be granted to EFB shall be extended by the time necessary to procure the components in question, assuming timely ordering.
All claims for damages in place of delivery or for damages for delay shall be excluded in the cases described in Section C.4.04 if EFB has informed the client without delay of the obstacles to performance.
The same shall apply to transactions for delivery by a fixed date.
Any liability of EFB to pay damages due to default shall be limited to damage caused by at least gross negligence and to foreseeable damage typical of the type of contract.
EFB shall be entitled to deliver up to 10% additional or reduced quantity of uncountable goods without this constituting a breach of duty. Part-deliveries shall also be permitted to an extent which may reasonably be expected to be acceptable to the client.
Where EFB makes use of the right to supply part-deliveries or additional or reduced quantities, payments by the client may not be withheld for this reason.
Unless otherwise agreed, prices are quoted ex works or ex warehouse, exclusive of packaging.
Where packaging is necessary, EFB shall pack in accordance with the existing laws and proceed in accordance with Art. 4 of the German Regulation on Packaging (VerpackV).
Prices are quoted exclusive of the applicable VAT; the same applies to costs.
Where cost factors change after order confirmation, in particular the prices of raw and auxiliary materials and wage and transport costs, EFB may adjust prices accordingly if there is a period of over four months between order confirmation and delivery.
Where an installation, launch, maintenance operation, repair or other service is delayed for reasons which are not within the sphere of influence of EFB the client shall carry all resulting costs, in particular waiting costs and any additional travel costs and expenses incurred through the delay by employees and subcontractors engaged by EFB . C.6.06 The legal consequences mentioned in Section C.6.05 shall also apply where the client is responsible for the reasons for the delay.
The provisions of the German Turnover Tax Law (Umsatzsteuergesetz) shall apply to advance payments. C.7.02 Unless otherwise agreed, payments are due immediately.
At the latest, payments to be made to EFB are due 10 days from invoice date. Failure to pay by this date shall render the liable party in default of payment.
In cases of the client’s default, EFB may charge default interest at 10 percentage points above base rate. The right to prove and claim additional damages shall be unaffected.
Place of performance for payments is the registered seat of EFB.
The client shall only be entitled to offset against claims which are undisputed or have been finally determined by a court of law.
Excepting cases pursuant to C.7.06, the client shall have no right of retention. Moreover, the rights pursuant to Art. 320 BGB are retained for as long as and to the extent that EFB has not fulfilled its warranty duties.
Where EFB accepts payment in cheques this shall always be on account of performance.
Payment by bill of exchange is excluded; EFB does not accept bills of exchange as payment. Where EFB accepts bills of exchange due to a special agreement to the contrary this shall always be on account of performance.
Where, after contract conclusion – or, in cases where a declaration of intent by the client is still required for contract conclusion, after the last declaration of intent by EFB with regard to the contract conclusion – the client experiences a significant deterioration in his financial situation, e.g. where bills of exchange or cheques are disputed, EFB may, at its discretion, request advance payment or securities for all outstanding services and deliveries from contracts under the same legal relationship (Art. 273 BGB). Where the client does not comply with the request, EFB may rescind said contracts or, after setting a period of grace, claim damages in lieu of performance, specifically 25% of the non-executed order sum without the need for special proof, unless the client proves a lesser extent of damage.
EFB may request payment of damages exceeding the flat-fee amount only in individual cases where there is, exceptionally, an unusually high amount of damages.
Deliveries by EFB, including drawings, implementation plans, planning suggestions etc. must be checked by the client for usability and compliance immediately upon handover.
Obvious defects must be notified to EFB immediately in writing, but at the latest within six days of arrival at the place of destination, stating exact details of the specific complaints.
Where goods are delivered directly to third parties the period of notification shall be extended to 14 days. C.8.04 The client must notify hidden defects in writing immediately after detection, but at the latest within 30 days of receipt of the goods.
Where the client fails to observe the duties under Sections C.8.01 to C.8.04 all warranty claims shall be excluded. This shall not apply to cases of damages arising from death or injury to body or health due to an intentional or negligent breach of duty by EFB or a statutory representative or vicarious agent of EFB. Likewise, the exclusion does not apply to any other damage arising from intent or gross negligence.
The warranty period is 12 months.
All liability and warranty is excluded in cases of insignificant defects and insignificant breaches of duty. In cases where the client may claim a right to subsequent performance EFB shall decide whether to render subsequent performance by rectifying the defect or delivering an object free from defects.
Work on the goods supplied by EFB or other services rendered by EFB shall only be deemed work to remove or rectify defects
In the absence of these conditions, such work shall be regarded as additional services.
In all other regards also, remedial work or substitute deliveries by EFB shall be performed as additional services unless they are performed under express acknowledgment of a legal duty.
Where the warranty period is impeded or interrupted by work or substitute deliveries by EFB this impediment or interruption shall only extend to the functional unit affected by the substitute delivery or remedial work.
The client shall grant EFB the necessary time and opportunity to carry out the remedial work and substitute deliveries due under the warranty. The client shall only have the right to rectify a defect himself or through third parties and claim compensation for the required costs from EFB where EFB is in arrears with regard to rectification of a defect, and in urgent cases of risk to operational safety and to prevent disproportionately high damages, in which case EFB must be notified immediately.
Where subsequent performance to be carried out at EFB's discretion does not lead to a rectification of the defect after a reasonable number of attempts, with reasonableness to be assessed according to the individual case, the client shall be entitled to rescind the contract. At least three attempts at subsequent performance shall be deemed reasonable. The number of reasonable attempts at subsequent performance after which the client shall have a right to rescind shall depend on the particular functional unit of the object under the contract. Regardless of whether it is the same functional unit of the contractual object which is affected, the client shall have a right to rescind if the number of individual defects renders adherence to the contract unacceptable to the client.
Where EFB has rejected subsequent performance despite the client's right to subsequent performance in the case in question, the client shall have an immediate right to rescind.
The same shall apply where EFB does not carry out a subsequent performance to which the client is entitled within a reasonable period to be set by the client.
The client's right to reduce the price (reduction) is subject to EFB's consent.
EFB do not accept liability for damages for which EFB is not responsible. This includes, for example, damage incurred for the following reasons: Unsuitable or inappropriate use, incorrect installation or commissioning by the client or a third party, natural wear-and-tear, incorrect or negligent treatment, unsuitable operating materials or substitute materials, defective building work, unsuitable foundation, chemical, electromagnetic, electrochemical or electrical impacts, unless attributable to a fault on the part of EFB.
EFB does not provide any warranty for components provided by the client. The client alone shall be responsible for the suitability and quality of such components, unless expressly agreed otherwise.
The client's failure to observe the operating and maintenance instructions shall, where they cause damage, lead to EFB's release from all warranty obligations and liability.
Where the client fails to observe the operating and maintenance instructions it shall be assumed that any damage incurred is due to this omission. In this case, the burden of establishing the facts and the burden of proof of the contrary shall be on the client.
Where equipment supplied by EFB is installed or operated outside the client's principal place of business, despite the relevant contract having been concluded with a branch or head office of the client located in Germany, the client shall bear the additional costs incurred as a result of any warranty measures to be performed by EFB involving transport costs, travel expenses and other costs of working outside the German borders.
The limitations of liability set down in these Terms and Conditions shall not apply to damages arising from death or injury to body or health, nor to damages caused with intent or by gross negligence by EFB, a statutory representative or vicarious agent. Furthermore, the limitations of liability set down in these Terms and Conditions shall not apply to so-called cardinal obligations; they shall only apply to violations of those duties that are not designed to enable the very implementation of the contract in proper form and on which the client does and may not rely for this reason.
Should EFB be liable to pay damages in other cases, EFB shall be liable only for direct damage to the supplied object itself, in accordance with the following provisions.
Liability for consequential damage arising from a breach of duty, including as part of a duty to render subsequent performance, is excluded. C.10.03 The same shall apply to damages arising from tortious acts.
Extending the provisions above, EFB shall only be liable for damages exceeding the damage incurred by the supplied object itself in cases of intent or gross negligence and within the scope of the German Product Liability Law (Produkthaftungsgesetz), and in cases of absence of expressly assured properties if the very aim of the assurance in question was to protect the client from damages which were not incurred by the supplied object itself.
EFB shall only be liable for reasonably foreseeable damage typical of the type of contract, except in cases of intent or gross negligence.
Where make-and-hold orders are not claimed within four weeks of expiry of the agreed claiming period, EFB shall be entitled to request payment.
The same shall apply to make-and-hold orders without a specially agreed claiming period if the order has not been claimed four months after receipt of the notification of readiness for dispatch by EFB.
Where, exceptionally, temporary storage at EFB of ready goods has been expressly agreed, or storage becomes necessary due to a delay in acceptance, EFB shall not be liable for damages incurred despite reasonable care having been taken.
EFB shall not be obliged to insure the stored goods.
In cases of delay in acceptance, EFB may store the goods in a commercial warehouse at the client's risk and expense.
EFB may invoice storage at EFB at 0.5% of the invoice amount per month; at least, however, at € 30 and an additional € 25 upwards of every other full cubic metre of goods per month. C.12.05 The two items above shall also apply where, at the client’s request, dispatch is delayed more than two weeks beyond the notified readiness for dispatch.
If the client does not accept the ordered goods despite a time limit having been set, EFB shall, irrespective of proof of actual damage, be entitled to claim 25% of the agreed price as a flat fee, unless the client proves that the actual amount of damage was less.
All deliveries by EFB shall be subject to retention of title.
This retention of title and its extension below shall apply until all claims from the commercial relationship with the client are settled and until complete release from all contingent liabilities which EFB has entered into in the interest of the client and which are associated with the delivery has taken place.
Supplied objects may not be pledged.
EFB may request surrender of its reserved goods for good cause, in particular in case of delayed payment, against crediting of the proceeds of sale. This request to surrender shall not constitute a revocation of contract.
If and to the extent that the returned goods may be sold by EFB as new in the ordinary course of business the client shall, without further proof, be liable to pay 10% of the goods' invoice value as return costs. Where sale as new is not possible in the ordinary course of business the client shall, without further proof, be liable to pay a further 30% of the goods’ invoice value to compensate for loss of value. The client shall in each case have the right to prove a lower percentage.
EFB reserves the right to claim for other damage exceeding the above.
Handling and processing of the goods supplied by EFB are always carried out on behalf of EFB, so that the goods remain the property of EFB in all handled and processed conditions, including as the finished product, to the exclusion of the consequences of Art. 950 BGB. Where reserved goods are processed with other objects also supplied subject to the exclusion of the legal consequences pursuant to Art. 950 BGB, EFB shall at least acquire co-ownership of the new thing proportionate to the invoice value of the EFB goods to the invoice value of the other processed objects.
The client herewith assigns in advance all claims from the resale (including claims to be assigned/acquired in the course of factoring), processing, installation and any other use of our goods to EFB. Where the products sold, processed or installed by the client include items which are not the property of the client and which are also subject to an agreement of retention of title with a disposal clause and advance assignment with other suppliers, that amount of co-ownership of EFB which is equivalent to the fraction of the claim shall be assigned; otherwise the full amount shall be assigned.
The direct debit authorisation remaining for the client despite the assignment shall be cancelled by revocation, permissible at any time.
Where the value of the securities to which EFB is entitled exceeds EFB's claim against the client by 50% in case of supply of goods and by 20% in case of any other services EFB shall be obliged, at the client's request, to release the securities to the appropriate extent, chosen at EFB’s discretion.
Place of performance for services to be rendered by EFB is always the EFB plant.
Place of performance for deliveries is the plant or the warehouse of EFB, including, in particular, where EFB undertakes transport itself.
All titles in the Terms and Conditions of Business of EFB merely serve to enhance readability and shall have no impact on the meaning and interpretation of the individual provisions.
All declarations made in text form (e.g. by fax or email) shall be deemed written declarations of intent and knowledge within the meaning of the EFB Terms and Conditions of Business.
Delivery dates designate a point in time, be it a particular day, a calendar week or similar, on or in which the delivery is due.
Delivery terms designate a period within which the delivery is due.
Delivery times is the generic term for delivery dates and delivery terms.