The company EVOC Sports GmbH, hereinafter referred to as EVOC, and the purchaser, hereinafter referred to as the Buyer, agree that these General Terms and Conditions (hereinafter referred to as Terms and Conditions) shall apply in the version valid at the time of the order. By acknowledging these Terms and Conditions, the contractual partner agrees to their inclusion in the contract to be concluded with EVOC. These Terms and Conditions further apply to all future transactions with the contractual partner, even if they are not expressly agreed again.
Deviating conditions of whatsoever kind which the Buyer seeks to impose shall be null and void, unless EVOC expressly agrees to such deviations.
Terms and conditions of the contractual partner do not become part of the agreement between the parties, even if EVOC does not expressly reject to their inclusion.
2. FORMATION OF AGREEMENTS
The Terms and Conditions shall be deemed to be accepted upon acceptance of the products by the Buyer, in particular for telephone orders. Any amendments hereto shall only be effective if made in writing and signed by both the Buyer and EVOC. Unless otherwise agreed in writing, our quotations are always subject to change with regard to design, quantity, price, delivery time and delivery options. The offer documents remain our property. Our business partners waive all rights of retention and ownership with regard to the offer documents.
A binding agreement shall be formed upon EVOC’s written acknowledgment of a written order from the Buyer or upon delivery. Any additional oral agreements and amendments, including, but not limited to, agreements and amendments over the phone, shall require EVOC’s separate written consent. Silence on EVOC’s part regarding supplementary modifications and/or amendments shall be deemed to be a refusal. Representatives are neither authorized to confirm orders nor to collect payments. Drawings, illustrations, measures and weights, colours or any other performance figures shall only be binding if expressly agreed upon in writing by EVOC.
3. PRICES
The prices for EVOC’s products shall be without cash discount or any other deduction and without value added tax, ex works EVOC’s warehouse or ex works EVOC’s manufacturer’s premises. Additional services, e.g. delivery, shall be charged separately. The prices valid on the day of delivery shall apply.
4. CHANGES IN DESIGN AND MODELS
EVOC reserves the right to carry out changes in design and models at any time without the Buyer being entitled to rescind the agreement for this reason or to claim damages from EVOC. EVOC, however, shall not be obliged to make such changes to products already delivered.
5. DELIVERY
Unless otherwise agreed upon in writing, the dates and deadlines given by EVOC shall not be binding. EVOC shall not be responsible, even in case of binding deadlines and periods of time agreed upon, for any delay in delivery and/or performance owing to force majeure and/ or events that hinder or prevent EVOC from delivering, including but not limited to, subsequent materials purchasing difficulties, plant interruptions, strikes, lockout, shortage of labour or means of transportation and orders by governmental authorities, whether such events affect EVOC or EVOC’s suppliers or their respective subcontractors. Under these circumstances EVOC shall be entitled to either postpone the delivery or performance for the duration of the delay plus a reasonable start-up period or to rescind the agreement in whole or in part with regard to the part of agreement not yet performed. The Buyer may demand that EVOC declare if EVOC rescinds the agreement or is willing to deliver within a reasonable period of time. Should EVOC make no statement, the Buyer may only rescind the agreement and shall not be entitled to assert any claim for damages. Claims for damages by the buyer are excluded.
In case EVOC is unable to deliver or delivery is delayed due to any action or inaction on the part of EVOC’s suppliers, EVOC shall have the right to rescind the agreement in whole or in part and the Buyer shall not be entitled to bring any claim for damages resulting from such rescission of the agreement. If delivery is delayed due to EVOC’s gross negligence, the Buyer shall be entitled to a penalty amounting to 0.5% for each week of delay. Any such penalty shall not exceed 5% of the value of the whole delivery affected by delay and the Buyer shall not be entitled to bring any claims for damages or other claims as a result of such delay. At all times, EVOC shall have the right to perform an agreement in part or to deliver in part the products subject to an agreement.
6. PASSAGE OF RISK
The risk of damage to or loss of the products shall pass to the Buyer ex works EVOC’s warehouse or manufacture’s premises, as applicable, even if delivery has been agreed upon. If shipment is impossible for reasons for which EVOC is not at fault, the risk shall pass to the Buyer upon being notified of the readiness for shipment of the products or upon availability of the products at EVOC’s warehouse or manufacturer’s premises, as applicable. Should EVOC be entitled to claim damages from the transport contractor, any such claims shall be assigned to the Buyer. Unless otherwise expressly agreed upon in writing, the transport expenses shall be borne by the Buyer.
7. RETENTION OF TITLE AND COLLECTION OF ACCOUNTS RECEIVABLE
EVOC reserves legal title to the products delivered pending payment in full of the purchase price. The Buyer may resell the products subject to such reservation of title by EVOC, and the Buyer shall promptly assign to EVOC any claim against its buyers arising out of or in connection with the resale of the products up to a maximum of the outstanding amount of the purchase price. Should the Buyer receive payment from its buyer, it shall immediately forward the payment received to EVOC for the amount of the Seller’s claim, plus value added tax. The Buyer agrees to notify EVOC forthwith of any compulsory execution and shall assist EVOC in asserting its legal title.
If the Buyer misuses or puts the products to improper use or if after delivery EVOC learns about an economic setback of the Buyer (including, but not limited to, suspension of payments, deferral of debt payments, insolvency and inadequate information), EVOC shall be entitled to immediately revoke the Buyer’s right to resell the conditional products pending payment in full and to demand security. Should the Buyer fail to pay within a grace period of 14 days despite revocation of the right to resell and/or demand for security and payment, EVOC shall be entitled to rescind the agreement. In such case, the Buyer shall be obliged to hand over to EVOC the products subject to EVOC’s reservation of title without setting up a defense of whatsoever kind.
8. PAYMENTS
Unless otherwise agreed between EVOC and the Buyer, 100% of the order value is due at the time order. Otherwise, the terms of payment agreed between EVOC and the Buyer shall apply. In case of delay in payment or in case EVOC learns about a deterioration of the Buyer’s economic position, in particular deferral of debt payments or insolvency, EVOC shall be entitled to assert forthwith all debt claims not yet due arising out of these business relations. The Buyer shall not be entitled to withhold any payments if claim and counterclaim do not correspond to the same contractual relationship. A setting-off of counterclaims by the Buyer shall not be permitted unless these counterclaims are indisputable or legally enforceable.
9. WARRANTY
If EVOC has not manufactured the products delivered to the Buyer, but purchased the same from third parties, EVOC shall assign to the Buyer any warranty claims EVOC may have against such third parties. The Buyer shall accept such assignment in settlement of all claims it might have against EVOC. EVOC warrants that the products are free of any defect in workmanship and material. The warranty period for all products shall be 24 months and begins on the date of delivery.
The Buyer shall be obliged to inspect the products immediately after their arrival at the point of destination. Delivery shall be deemed accepted if EVOC does not receive a written notice of defect within 6 working days, or in case of hidden defects, within 3 months, after the arrival of the products at the point of destination.
The Buyer shall notify EVOC forthwith and in writing of any defects discovered and, in any case, no later than 6 working days after delivery or notification by the end user. In case the operating and assembly instructions given by EVOC are not complied with, the products are changed or altered, parts thereof are replaced or materials are used which do not meet the original specifications, any warranty claims shall be forfeited. The warranty shall not cover any parts subject to normal wear and tear. Should the notice of defect be legitimate, EVOC may, at its option, demand: a) that the products be returned freight prepaid to EVOC for repair with the costs of return shipment to the Buyer being borne by EVOC; or b) that the Buyer keep the products ready for repair by a representative of EVOC.
If the defect cannot be remedied, the Buyer may, at its option, demand a reduction of the purchase price or rescind the agreement. The rejected products shall be returned to EVOC, with a copy of the delivery note or the receipt from the end consumer. The above provisions shall be the exclusive warranty given by EVOC for its products. Except with respect to the foregoing warranty, no other warranty claims may be brought against EVOC.
The delivery of special items or clearance goods, insofar as a discount is granted compared to the list price, is always subject to the exclusion of exchange or withdrawal rights as well as claims for defects due to known or obvious defects.
10. LIABILITY
EVOC shall be liable only for its own culpability and for the culpability of our vicarious agents, irrespective of the legal grounds, in particular for culpability in contract negotiations, positive breach of contract, tort, product liability, etc., only in cases of intent or gross negligence. Claims for reimbursement by the Buyer asserted against EVOC owing to the defective condition of the products shall be limited to intentional misconduct and gross negligence. Liability for property damage due to a defective product incurred by the Buyer as an entrepreneur shall be excluded. The Buyer shall be obliged to pass on this limitation-of-liability clause to its customers, in EVOC’s favour and in the same wording. The limitation of product liability shall apply to products as well as packing materials.
11. PRIVACY POLICY
EVOC saves the Contractual Partner's personal data for order processing and may pass it on to third parties for this purpose. All personal data shall be treated confidentially. EVOC exchanges data with other service providers for marketing purposes. The contractual partner hereby expressly consents to this use.
12. GOVERNING LAW – JURISDICTION – SEVERABILITY
The Terms and Conditions and all legal relations between the Buyer and EVOC shall be governed by and construed in accordance with the laws of the Federal Republic of Germany. The provisions of United Nations Convention on the International Sale of Goods shall not apply. Any disputes relating to an agreement or the Terms and Conditions which cannot be settled by the Buyer and EVOC shall be finally settled by binding arbitration before the ‘Schiedsgericht’ (commercial arbitration panel) in Munich, Germany. However, EVOC is entitled to bring legal disputes before any other competent court. The place of execution is Munich.
Should any provision of the Terms and Conditions or any other provision contained in any agreement be or become invalid, this shall not affect the validity of any of the other provisions or agreements. The invalid provision shall be replaced by a provision that comes closest to the intended economic purpose.