(Status: 09.02.2024)

1. Scope, form

1.1 The following terms of sale apply in the currently valid version for all contracts concluded between the buyer and ekolive Germany GmbH and/or ekolive s.r.o. (both in the following called ekolive) for the sale – also for resale – and the delivery of goods, including consulting services, unless otherwise agreed. These terms of sale also apply to all future transactions with the buyer, insofar as legal transactions of a related nature are involved.

1.2 We only recognize conflicting or deviating terms and conditions of the buyer if we expressly agree to their validity in writing. The following conditions also apply if ekolive executes the buyer’s orders without reservation in the knowledge of conflicting or deviating conditions of the buyer.

1.3 Individual agreements made with the buyer in individual cases (including ancillary agreements, additions and changes) always take precedence over these terms of sale. Subject to proof to the contrary, a written contract or our written confirmation is decisive for the content of such agreements.

1.4 Legally relevant declarations and notifications by the buyer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, i. H. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and other evidence, especially in the case of doubts about the legitimacy of the declarant, remain unaffected.

1.5 In order to be able to purchase our products as a reseller, the buyer must first register as a reseller with ekolive and conclude a corresponding framework agreement.

2. Offers and conclusion of contract

2.1 Our offers are subject to change and non-binding, unless ekolive has expressly designated them as binding.

2.2 Packaging prices, shipping and freight costs are shown in our offer based on offers received on a daily basis and are purely indicative. When invoicing, the current prices actually incurred upon delivery will be invoiced. Any costs incurred that are higher than those shown in the indicative offer do not justify the buyer’s right of withdrawal.

2.3 The ordering of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer through our written order confirmation or through the execution of the order either in writing (e.g. through an order confirmation) or by delivering the goods to the buyer.

2.4 Oral and telephone agreements are only binding for us if they are confirmed by us in writing.

3. Shipping, Freight and Prices

3.1 Our published prices are in euros, ex works, without packaging and without shipping or freight costs, unless otherwise specified in the order confirmation or in our currently valid price lists. The statutory VAT is not included in the prices of ekolive. This will be shown separately in the invoice at the statutory rate on the day of invoicing. For deliveries to other fiscal countries, the rules of the reverse charge apply, according to which the place of performance is the place where the recipient of the service has his place of business. (Art.44 Value Added Tax Directive 2006/112EG.)

3.2 Loading, transport and shipping are uninsured and at the risk of the buyer. The risk passes to the buyer as soon as the goods have been handed over to the transport company, carrier or other third party responsible for carrying out the shipment or have left our factory or warehouse. This also applies if partial deliveries are made or ekolive has taken on other services (e.g. shipping). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. However, ekolive will endeavour to take into account the wishes and interests of the buyer with regard to the type and route of shipment; any additional costs caused by this – even with agreed freight, free delivery – shall be borne by the buyer. A liability of ekolive for the selection and actions of the logistician as well as the loading is excluded and is basically the responsibility of the buyer.

3.3 Our products are only delivered in the original packaging specified in the applicable price list. For larger quantities, other packaging and transport options are also possible by individual agreement. Resale by filling in containers other than those originally supplied is prohibited; such a resale transaction requires a corresponding agreement with ekolive.

3.4 Will the shipment or transport is delayed at the request of or through the fault of the buyer, ekolive will store the goods at the expense and risk of the buyer. In this case, the notification of readiness for dispatch in dispatch is the same.

3.5 At the request and expense of the buyer, ekolive will secure the delivery with transport insurance.

3.6 Goods and packaging may only be returned with the prior written consent of ekolive, otherwise returns will be refused. If the returned goods are in new condition and in their original packaging, the buyer will receive a corresponding credit note.

3.7 Complaints about shipping or transport damage must be asserted by the buyer directly against the shipping or transport company within the special deadlines provided for this purpose.

4. Delivery times

4.1 Delivery times are generally non-binding. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the buyer of this and at the same time communicate the expected new delivery deadline. If the service is also not available within the new period, we are entitled to withdraw from the contract in whole or in part. A case of non-availability of the service in this sense is, in particular, failure to receive delivery from our suppliers if we have concluded a congruent hedging transaction and neither we nor our suppliers are at fault or we are not obliged to procure in individual cases.

4.2. ekolive is entitled to partial delivery and partial performance at any time, insofar as this is reasonable for the buyer.

4.3 If the buyer is in default of acceptance, ekolive is entitled to demand compensation for the damage incurred and any additional expenses. The same applies if the buyer culpably violates the obligation to cooperate. The risk of accidental deterioration and accidental loss passes to the buyer when the acceptance or debtor default occurs.

5. Payment and Terms of Payment

5.1 In the absence of a different payment agreement, payment must be made net (without deductions) within 15 days of the invoice date without deductions, unless the order confirmation specifies a different payment term. A payment is only deemed to have been made when ekolive can dispose of the amount.

5.2 A payment is deemed to have been made on time if the invoice amount is credited to the account specified on the invoice on the due date.

5.3 With the expiry of the above payment period, the buyer is in default. Interest is to be paid on the purchase price during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by delay. Our claim to the commercial maturity interest (§ 353 HGB) remains unaffected in relation to merchants.

5.4 If the buyer is in default of payment with a claim, all other claims against the buyer can be made due.

6. Advice, information and legal regulations

We provide all advice and information to the best of our knowledge based on our research work and experience. All details and information about the suitability and use of our goods are non-binding, and in particular they do not represent any guarantees within the meaning of Section 443 of the German Civil Code. They do not release the buyer from carrying out their own tests.

7. Claims for Defects

7.1 The buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent upon delivery, inspection or at any later point in time, we must be notified of this in writing without delay. In any case, obvious defects must be reported in writing within 8 working days of delivery and defects that cannot be identified during the inspection must be reported in writing within the same period of time from discovery. If the buyer fails to carry out the proper inspection and/or notification of defects, our liability for the defect that is not reported or not reported in a timely manner or not properly is excluded in accordance with the statutory provisions.

7.2 If the delivered goods are defective, we can initially choose whether to provide supplementary performance by eliminating the defect (repair) or by delivering goods free of defects (replacement delivery). Our right to refuse supplementary performance under the statutory requirements remains unaffected.

7.3 We are entitled to make the supplementary performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to retain a part of the purchase price that is reasonable in relation to the defect.

7.4 The buyer must give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the buyer has to return the defective goods to us in accordance with the statutory provisions.

7.5 Claims by the buyer for damages or reimbursement of wasted expenses exist only in accordance with Section 8, even in the case of defects, and are otherwise excluded.

8. Liability

8.1 All our products are continuously monitored and checked by ekolive as the manufacturer and supplier and, if necessary, by our suppliers, for the last time immediately before the goods are handed over to the transport company, carrier or other third party responsible for carrying out the shipment or leave our factory or warehouse.

8.2 Unless otherwise stated in these General Terms and Conditions of Sale, including the following provisions, we are liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

8.3 We are liable for damages – for whatever legal reason – within the framework of culpable liability in the event of intent and gross negligence. In the case of simple negligence, we are only liable subject to a milder standard of liability according to statutory provisions (e.g. for care in our own affairs).

8.3.1 for damage resulting from injury to life, limb or health,

8.3.2 for damages resulting from the not inconsiderable breach of an essential contractual obligation (obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

8.4 The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or in favour of persons whose fault we are responsible for according to statutory provisions. They do not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims by the buyer under the Product Liability Act.

8.5 Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the buyer is excluded. Otherwise, the statutory requirements and legal consequences apply.

9. Warranty

9.1 Claims for defects by the buyer only exist if the buyer has duly fulfilled his obligations to examine and give notice of defects according to § 377 HGB. The goods are deemed approved if ekolive does not submit a written notice of defects with regard to obvious defects that were recognizable during an immediate, careful inspection within 7 working days after delivery of the delivery item or otherwise within 7 days after discovery of the defect or any earlier point in time in which the defect was recognizable to the buyer during normal use of the delivery item without closer examination. At the request of ekolive, the delivery item complained about must be returned to ekolive freight paid. In the case of a justified notice of defects, ekolive will reimburse the costs of the cheapest shipping route; This does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.

9.2 In the case of warranty claims, we will first deliver missing quantities, deliver replacements or rectify the defect, at our discretion. If rectification or replacement delivery is not possible or has finally failed or if it is unreasonably delayed, the buyer can demand a price reduction. The buyer can demand the rescission of the contract if the contracting parties cannot reach an agreement on the reduction.

9.3 The warranty claims of the buyer expire within 6 months from the contractual provision of the goods to the buyer or his vicarious agents or logisticians, unless ekolive has fraudulently concealed the defect. In this case, the statutory provisions apply.

9.4 There are no further rights that go beyond the statutory warranty rights.

10. Statute of Limitations

10.1 Contrary to Section 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If acceptance has been agreed, the limitation period begins with acceptance.

10.2 Claims based on special statutory regulations on the statute of limitations (in particular pursuant to Section 438 Paragraph 1 No. 1, Paragraph 3 BGB; Sections 444, 479 BGB), claims for damages by the Buyer pursuant to Section 8.3 Sentence 1 and Section 8.3.1 and claims under the Product Liability Act.

11. Force Majeure

All events and circumstances that are beyond our control to prevent, such as B. Natural events, pandemics, war, labor disputes, raw material and energy shortages, unavoidable traffic and operational disruptions, fire and explosion protection Damages, orders from higher authorities and all other cases of force majeure release us from our contractual obligations for the duration of the disruption and to the extent of its effects. This also applies if the events and circumstances make it uneconomical to carry out the transaction concerned for the foreseeable future or are present at our sub-suppliers. If these events last longer than 3 months, we are entitled to withdraw from the contract.

12. Offsetting, rights to refuse performance and rights of retention, securities

12.1 The buyer is only entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the counterclaims of the buyer, in particular in accordance with Section 7.3. S. 2 of these general terms and conditions of sale are unaffected.

12.2 In the event of justified doubts as to the solvency of the buyer, in particular in the event of payment arrears, we can, subject to further claims for further deliveries, demand advance payments or securities and revoke granted payment terms.

13. Retention of Title

13.1 The delivered goods remain the property of ekolive until all claims from the business relationship have been settled, regardless of the legal reason.

13.2 The buyer must treat the goods subject to retention of title with care and insure them adequately at replacement value against fire, water and theft at his own expense.

13.3 The buyer is entitled to sell and/or use the reserved goods properly in business transactions as long as he is not in default of payment. Pledges or collateral assignments are inadmissible. The buyer assigns the claims arising from the resale or any other legal reason regarding the reserved goods (including all current account balance claims) to ekolive in full as a precaution. ekolive hereby accepts this assignment. ekolive revocably authorizes the buyer to collect the claims assigned to ekolive for his account in his own name. The direct debit authorization can be revoked at any time if the buyer does not properly meet his payment obligations.

13.4 If the buyer is in default of payment, we are entitled to demand the temporary return of the goods owned by us at the buyer’s expense, even without exercising our right of withdrawal and without setting a grace period. This also applies if we become aware of circumstances that jeopardize punctual payment. For this purpose, the buyer already now allows us unhindered access to the goods for the purpose of removal.

13.5 If the value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.

13.6 If our goods are processed by the buyer, ekolive is considered the manufacturer within the meaning of § 950 BGB and acquires ownership of the newly created goods. There is no obligation on the part of ekolive. If the processing takes place together with other materials, ekolive acquires co-ownership in the ratio of the invoice value of our goods to that of the other materials. If our goods are combined or mixed with goods from the buyer, this is to be regarded as the main item, co-ownership of the item in the ratio of the invoice value of our goods to the invoice value or – in the absence of such – to the market value of the main item is transferred to us. In these cases, the buyer is deemed to be the custodian; safekeeping is free of charge.

13.7 The buyer is entitled to dispose of the goods owned by us in the ordinary course of business as long as he meets his obligations from the business relationship with us in good time. All claims from the sale of goods to which we have property rights are already assigned to us by the buyer as security in proportion to our ownership share in the goods sold. The buyer hereby assigns recognized balance claims from current account agreements to us in the amount of our outstanding claims.

13.8 At our request, the buyer must provide all necessary information about the inventory of the goods owned by us and about the claims assigned to us in accordance with 13.3 and inform its customers of the assignment.

13.9 In the event of access by third parties to the goods subject to retention of title, in particular seizures, the buyer will point out ekolive’s ownership and notify ekolive immediately so that ekolive can enforce its property rights. Insofar as the third party is not able to reimburse ekolive for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable for these.

14. Incoterms

The version of the Incoterms valid at the time of conclusion of the contract applies to the interpretation of commercial clauses.

15. Data Collection, Storage, Disclosure

We are entitled to collect, store, process and use information and data about the buyer and to pass them on to third parties, in particular for the purpose of collecting receivables or outsourced debtor management for storage, processing and use.

16. Place of Performance, Place of Jurisdiction, Applicable Law

16.1 For these General Terms and Conditions of Sale and the contractual relationship between us and the buyer, the law of the Federal Republic of Germany applies to ekolive Germany GmbH, to ekolive s.r.o. the law of the Republic of Slovakia, in each case excluding uniform international law, in particular the UN Sales Convention.

16.2 The exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our offices in Paderborn/Germany (ekolive Germany GmbH) and Košice/Slovakia (ekolive s.r.o.). In all cases, however, we are also entitled to file suit at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a prior individual agreement or at the buyer’s general place of jurisdiction. Overriding legal regulations, in particular regarding exclusive responsibilities, remain unaffected.

16.3 Should individual provisions of these conditions be or become invalid or unenforceable, the validity of the remaining conditions shall remain unaffected. The unenforceable or ineffective provision should be replaced by an effective or enforceable provision whose effects come closest to the economic objective that the contracting parties pursued with the ineffective or unenforceable provision. The above provisions apply accordingly in the event that the conditions turn out to be incomplete.

16.4. Contract language is German, English or Slovakian. In the case of questions of interpretation, the German version alone applies.