Terms and Conditions
GENERAL TERMS AND CONDITIONS
e-mobiTech Batteriesystemtechnik GmbH
1. GENERAL INFORMATION
The General Terms and Conditions herein (“General Conditions”) shall be valid for all agreement (“Agreement” or “Contracts”) which made between e-mobiTech Batteriesystemtechnik GmbH (referred to as “e-mobiTech”) and its customers (“Customers”) or suppliers (“Suppliers”) regarding products and projects (“Product / Project”). “or” Products”). These General Conditions will be an addendum and inseperable part of the agreements to which e-mobiTech is a party.
2.1. The Offers will be valid for 30 days from the date they are presented to the Customer. Until the Agreement is signed, the Offers can be changed or revoked by e-mobiTech, including the basic validity conditions.
2.2. e-mobiTech has the authority to change the price list and the project proposal and content, if necessary, until the agreement is signed.
2.3. The product and process descriptions (especially those on the technical features and performances of the product) included in the drawings, catalogs or technical solution files are binding only as long as they are clearly stated in the offers.
3.1. Without prejudice to other agreements to be made between the parties, the prices in the Agreement are given as EXW (INCOTERMS 2020), excluding the packaging price, and the delivery will be made at the factory of e-mobiTech. In case the expense is not clearly agreed in the Agreement, the prices in the expense list of e-mobiTech will be valid. Maintenance costs that will arise after the installation, operation and warranty period and other possible additional costs are not included in the prices. Prices do not include VAT and taxes. Therefore, VAT or other significant tax costs should be added to the prices.
4. INVOICE AND PAYMENT
4.1 Unless the otherwise stated in the Agreement, a single invoice will be issued following the shipment.
4.2. Payments will be made in accordance with the currency, terms and conditions specified in the Agreement. In case the buyer cannot make the payment on the stipulated date, e-mobiTech will have the right to charge interest starting from the stipulated payment day. The interest rate will be applied as agreed between the parties. In case of a delay in payment, e-mobiTech may suspend the implementation obligation in the Agreement, after informing the Customer in writing, until the payment is made. In this regard, e-mobiTech reserves the right to demand compensation for any damage and loss due to the delay.
4.3. e-mobiTech reserves the right to make changes in the design and in the technical specifications of the equipment and products it has previously promised to supply, without prior notice. These modifications cannot give the Customer the right to make any claims, including terminating the Agreement or claiming a discount on the price. These modifications requests made by the Customer after the Agreement will be evaluated within the scope of “Change Management” in case they are not within the scope of the project. At the beginning of the project, “CM” price lists should be agreed upon by negotiating with the sales and / or project department.
5. DELIVERY TIME– ARREARAGE
5.1. Delivery conditions and program specified in the Agreement will be binding in case all technical documents and information required for the realization of the supply are provided to e-mobiTech by the Customer or the Customer has fulfilled all obligations such as loan or prepayment arising from the Agreement.
5.2. In the event of a delay in the production or delivery of the products due to the reasons under the control of the Customer and / or caused by the Customer, e-mobiTech has the right to unilaterally terminate the Agreement by a written notice 10 days in advance, without prejudice to the regulations in the article 4.2.
6. DESIGN AND SYSTEM APPROVALS
6.1. In case the Products are subject to design and system approvals, the Customer has to assign authorized teams to give approval on the dates specified by e-mobiTech in the project plan and ensure that they are present at the specified location.
6.2. Without prejudice to other agreements between the parties, the design approval will be made at e-mobiTech facilities during working hours and by the usual methods of e-mobiTech. In case the Customer does not attend the approval meeting, although e-mobiTech has notified the approval date and conditions in advance, it will be deemed to have been approved by the Customer.
6.3. In case a defect that is not related to the product or the system is detected during the system approval, the Products are deemed to be accepted. In such a case, system approvals will not be required again, without prejudice to e-mobiTech’s obligation to make the necessary repairs and changes to fix the failures in question.
7.1. Without prejudice to other special agreements made between the parties, the delivery of the Products will be carried out under EXW conditions at the e-mobiTech facilities specified in the Agreement (INCOTERMS 2020). In cases where the Customer does not give a different instruction, the packaging will be carried out in line with the standards that e-mobiTech applies to similar products.
7.2. The term “Delivery” in e-mobiTech’s Offer, Contract and General Conditions refers to the moment when the Products are given to the disposal of the Customer at e-mobiTech facilities.
7.3. In order for the Customer to receive the Products, e-mobiTech will notify the Customer of the anticipated delivery date as soon as possible. e-mobiTech will insure the cargo against breakage, transportation, fire and water damage at the customer’s expense upon the written request of the customer. If the Customer still has not received the Products within 7 days after the delivery date, e-mobiTech will have the right to store the Products in its own or others’ warehouses. In the event that the shipment is delayed due to conditions that cannot be attributed to e-mobiTech, the risk of damage to the products from the day the products are ready for shipment will belong to the customer. Upon written request of the customer, the products to be delivered will be insured by e-mobiTech at the customer’s expense. e-mobiTech reserves the right to compensate for losses incurred during this transaction. In the event that the Customer still does not receive the Products within 60 days after the delivery date, e-mobiTech will have the right to terminate the Agreement unilaterally.
7.4. In any case, without prejudice to the other agreed points between the Parties specified in the Agreement, the risk of possible loss of the Products belongs to the Customer from the moment the Products are defined at the e-mobiTech facility specified in the Agreement and are at the disposal of the Customer.
7.5. INCOTERMS 2020 will enter, although any other condition for delivery is specified in the Agreement.
8. RETENTION OF TITLE
8.1. The ownership of the Products will remain with e-mobiTech until the Customer pays all of its debts arising from the Agreement against e-mobiTech.
8.2. e-mobiTech will have the right to terminate the Agreement by taking back the delivered products in accordance with the terms and conditions agreed upon the Article 8.1.
8.3. In case of the termination of the Agreement, e-mobiTech has the right to retain the amount received as compensation, not exceeding 50% of the total price of the Products. Amounts above this amount will be refunded to the Customer upon return of the Products in the same order in which they were delivered.
8.4. The Customer undertakes to notify e-mobiTech at least 15 (fifteen) days in advance of the place where the Products will be installed and the possible Product transfers that may occur until they pay all their debts arising from the Agreement.
9. MATERIALS, DRAWINGS, PLANS, KNOW-HOW
9.1. The ownership of the materials, drawings, plans, know-how and all kinds of information and documents provided to the supplier will remain in e-mobiTech. In addition; the plan, drawing, technical information and, without limitation, all kinds of information revealed by the supplier during or as a result of the realization of the purpose specified in the Agreement made by e-mobiTech with the supplier will belong to e-mobiTech. The Supplier shall use the plans, drawings, commercial or technical documents, software, other technical information or other documents provided to them during the Agreement period for their purpose and will return any information, document and material provided to them during the termination of the Agreement and emerged during the Agreement.
9.2. The supplier is obliged to insure all materials supplied by e-mobiTech. In case the materials provided by e-mobiTech are lost, destroyed or damaged, the damage will be covered by the supplier.
10.1. Upon the payment of the project fee in full, e-mobiTech transfers the license of non-exclusive, time-limited and non-transferable Products and important documents related to the products to the Customer.
10.2. All patent ownerships and property rights stipulated in the relevant legislation will remain with e-mobiTech. Accordingly, the Customer does not have the right to reproduce the Product in any way, or to use such a product for any other purpose, or to allow the use of the product by third parties without a written agreement with e-mobiTech.
Customer especially, for example,
a) cannot reproduce or copy, send or display to an unauthorized party for the use of the aforementioned for purposes not intended by law or by e-mobiTech in relation to the use of the Products.
b) cannot disclose any data about the product until it is available to third parties.
c) cannot use the product to improve its own or third-party data unless permitted by law or approved by e-mobiTech,
d) cannot lease, distribute, use with third parties, sell products and data through interactive systems or remote services, or generally use it differently from the intended use on the Products.
f) does not allow the product design to be reverse engineered, disassembled or modified by third parties for a purpose other than the one permitted by law or explicitly approved by e-mobiTech in a way that would result in infringement of e-mobiTech’s intellectual property rights and cannot assign someone for these jobs.
10.3. In the event of resale of products by the Customer, the Customer shall inform the third-party customers of the existence of their intellectual property rights and ensure that these persons comply with the same restrictions.
11. TECHNICAL DOCUMENTS – PRIVACY
11.1. e-mobiTech Products will be presented with standard technical documents prepared in English. The submission of a non-standard document by e-mobiTech requires the Parties to agree on this matter in writing beforehand.
11.2. e-mobiTech will continue to be the sole owner of the projects, drawings and generally all kinds of technical documents related to the Products. The Customer may only use these documents for the installation, assembly and maintenance of the Products.
Therefore, the Customer does not have the right to use these documents for purposes other than those stated above or to copy, send or forward them to third parties without the written consent of e-mobiTech. In case otherwise agreed by the parties, technical documents such as drawings, plans (excluding the prior intellectual and industrial rights belonging to e-mobiTech) emerging within the scope of the execution of the Agreement will be delivered to the customer after the Agreement price is paid. Technical documents provided by the customer will be returned to the customer after the execution of the Agreement.
11.3. The parties should treat any information arising as a result of negotiations and being a party to this Agreement as confidential information. Any technical, production, commercial, financial, operational, administrative, marketing or economic information, document, design, patent, material, product sample and know-how (“Confidential Information”) belonging to the party disclosing the information will be kept confidential.
Each of the parties,
- i) takes all kinds of measures to properly and securely store all written, pictorial or magnetic Confidential Information of the other Party.
- ii) strictly limits the number of employees / consultants who will have access to the Confidential Information of the other Party as employees / consultants directly related to this Agreement. In addition, it ensures that its employees / consultants who will have access to Confidential Information are informed about the confidentiality of this information and comply with the provisions of this Agreement.
- iii) does not copy, duplicate, reproduce or record the Confidential Information of the other Party, except for the purpose of distribution to employees and consultants mentioned in the previous article.
- iv) ensures that such Confidential Information is always updated and for this purpose will have the right to confirm such information when notified.
12.1. The services to be provided by e-mobiTech should comply with the Agreement. In case the service provided by e-mobiTech does not meet these criteria, the customer should be informed.
12.2. e-mobiTech will base its planning on written instructions and suggestions made by the customer.
12.3. e-mobiTech can only be held liable to pay compensation to the customer in case it has violated its contractual obligations by acting deliberately or by grossly flawed. e-mobiTech’s compensation liability is limited to the contract price. e-mobiTech is not liable for consequential damages, lost profits etc. of the customer. In case the customer does not claim the direct damage within 12 months from the delivery of the product, in case the product has not been delivered, the right to claim expires.
12.4. The customer should cooperate with e-mobiTech for the execution of the Agreement and provide the technical documents and information requested by e-mobiTech on time. The decisions taken regarding the project content should be notified to e-mobiTech immediately. The change proposal sent by e-mobiTech in writing must be checked and answered without delay. e-mobiTech has the right to suspend the project if the customer does not cooperate.
12.5. In case the official permissions are required for the implementation of the project, these permissions will be obtained by the customer and e-mobiTech will be informed.
13.1. As long as they do not cause a change in the basic features or security features of the Products, e-mobiTech reserves the right to change the properties of the Products, if it deems necessary, during the term of the Agreement.
13.2. The realization of any technical changes to be proposed by the Customer after the signing of the Agreement requires a written Agreement to be made between the Parties. In case necessary, adjustments can be made to pricing and timing or other conditions can be changed. In such cases, article 4.3 will apply.
14.1. The warranty specified in this article covers malfunctions in Products (such as faulty production, use of defective parts) arising from events before delivery. Since such malfunctions are not easily noticed by the Customer, malfunctions arising from events after the delivery of the Products or easily noticed by the Customer are not covered by the warranty.
Defective parts are under the warranty of e-mobiTech in the following cases:
- Serial batteries that break down within 36 months from the time they are delivered to the customer, will be replaced or repaired, depending on e-mobiTech’s preference. The customer must inform e-mobiTech in writing as soon as the failure is detected.
- Other components and accessories that break down within 12 months after delivery to the customer will be replaced with new ones or repaired, at e-mobiTech’s preference. The customer must inform e-mobiTech in writing as soon as the failure is detected.
- Samples and prototypes are not guaranteed.
14.2. Damages caused by the following situations are not covered by warranty;
- Improper and wrong use
- Faulty assembly or commissioning by the customer or third parties
- Incorrect transportation of the delivered product in violation of the operating instructions.
- Excessive pressure
- Use of unsuitable operating materials
14.3. e-mobiTech will request all costs (product cost, shipping, insurance, all taxes, etc.) and service-related costs (working hours, travel expenses, food, accommodation, etc.) with the service offer to be presented to the customer.
14.4. With the verification of the reported malfunctions by e-mobiTech, e-mobiTech will bear all costs and expenses arising from the repair / part replacement, provided that e-mobiTech has the right to completely replace the defective Product. Delivery of the replaced products to the Customer will take place in e-mobiTech’s factory under EXW conditions. In case the transportation costs of the material are necessary, the travel and per diem expenses of the technician of e-mobiTech will be covered by the Customer.
14.5. e-mobiTech’s warranty liability is terminated in the event of any change or maintenance work performed by the customer or third parties inappropriately and without prior consent.
14.6. The warranty period for repaired or replaced parts cannot exceed the original warranty period.
14.7. The liability of e-mobiTech against the failure or non-functioning of the Products is limited to the repair / replacement of the defective parts of the said Products in accordance with the regulations stated in Article 13. Without prejudice to the above regulations, any extra liability or action such as malfunction or failure compensation or replacement of defective products are excluded from e-mobiTech’s liabilities. In line with what is stated in this article, in case e-mobiTech fulfills its obligations arising from its warranty obligation, the Customer will not be entitled to terminate the Agreement.
15. THE MAINTENANCE
15.1. Unless otherwise agreed, e-mobiTech is obliged to provide maintenance service to the product that it sells to its customers. The dates on which the care service will be provided will be decided separately by the parties.
15.2. The charges for the following maintenance services will be invoiced to the customer, even if previously agreed otherwise between the parties;
- Spare parts are not procured,
- The customer missed the maintenance date with neglect,
- Termination of the Agreement within the time at which business operates
15.3. The costs incurred by e-mobiTech for the elimination of the defects of those who are not suitable according to generally accepted engineering practices and the Agreement between the parties will be borne by the customer provided that they are documented.
15.4. In any case possible and upon request, e-mobiTech provides the customer a cost estimate for maintenance in written, but these estimates are not binding. The charge for maintenance works is invoiced to the customer according to the expenses incurred by e-mobiTech.
15.5. Payment for care services is paid within 14 days from the receipt of the invoice.
15.6. The cost of bringing the product to be serviced to e-mobiTech’s factory and receiving it from the factory and the transfer risks during the delivery and delivery of the product subject to maintenance service belong to the customer. If the maintenance service is carried out in an establishment belonging to the customer other than e-mobiTech’s factory, the road and accommodation costs to be made by e-mobiTech belong to the customer, the customer should also provide all kinds of support to the e-mobiTech team and provide the necessary information and take security measures.
15.7. The product subject to the maintenance service carried out in accordance with the agreement must be checked as soon as the customer is notified that the maintenance has been completed, and in case there are no defects that can be incurred responsability to e-mobiTech, it must be accepted and received. Products subject to maintenance that are not received within 5 working days despite the notification are deemed to have been accepted by the customer.
15.8. e-mobiTech has the right to retain the product, spare parts, accessories and other components subject to maintenance service until the maintenance service fee is paid.
15.9. e-mobiTech will repair or replace these products in case the products subject to maintenance are damaged on the basis of maintenance service. The liability of e-mobiTech for the incurred damage is limited to the amount of the contract price.
16. RESCISSION OF AGREEMENT:
16.1. In case the service to be provided by e-mobiTech becomes impossible, the customer may withdraw from the Agreement.
16.2. In the event of a delay in delivery, the customer grants e-mobiTech a reasonable deadline for once, and in case the products are not delivered within the specified period, the customer may withdraw from the Agreement.
17. FORCE MAJEURE
17.1. According to this article, force majeure means all kinds of events that e-mobiTech could not reasonably foresee on the date the Agreement is signed. These include natural disasters, circumstances arising from the authorities, strikes (including strikes in the field of transport) and the bankruptcy of the supplier, but force majeure is not limited to these.
17.2. The contractual obligations of E-MobiTech are postponed until the force majeure condition disappears. In case of the force majeure event continues for more than 3 months, the parties have the right to terminate the Agreement.
18. APPLICABLE LAW AND AUTHORIZED COURT
18.1. The contract between E-MobiTech and the customer shall be governed exclusively by the law of the Federal Republic of Germany.
18.2. The exclusive jurisdiction for all disputes arising from or in connection with the Agreement is the registered office of e-mobiTech.
19.1. Modifications to the contract must be in writing for them to be valid.
19.2. If any provision in this Agreement becomes invalid or unenforceable in whole or in part, this will not affect the validity of the remainder of the contract.
19.3 The failure of either party to exercise or delay any right under this Agreement shall not constitute a waiver of any right or any other right under this Agreement.