Terms and conditions

GENERAL TRADE CONDITIONS AND TERMS

 

• These general trade terms and conditions, herein referred to as General Conditions, represent the legal base of transactions between S.C. EBERSPAECHER RO S.R.L. and our client. The general conditions are integral part of all sale-purchase and service contracts concluded with S.C. EBERSPAECHER RO S.R.L.. In the commercial and legal relations between S.C. EBERSPAECHER RO S.R.L. and our clients, the general commercial conditions of our clients are not and will not be enforceable, not even when expressed the express disagreement related to such general trade conditions. Any reference to other trade conditions than these included in the General Conditions need our express written consent.
• Terms and definitions. In these General Conditions, the terms and expressions below, will have the following signification and interpretation, and are completed by the disposals of the special conditions and terms of contract to which they are integral part, as follows:

2.1 S.C. EBERSPAECHER RO S.R.L. – S.C. EBERSPAECHER RO S.R.L. with the seat at Luna de Sus 99G/1, Florești Commune, County Cluj, registered at trade register under no. J12/58/2015, tax code RO 27349976;

2.2 Client – natural or legal person party in the contract concluded with S.C. EBERSPAECHER RO S.R.L., respectively the buyer of sale purchase contracts and the beneficiary of service contracts.

• Offers and orders. The offers of S.C. EBERSPAECHER RO S.R.L. may be amended in principle. We reserve the right to reject orders. The acceptance of orders is materialised either by our confirmation, or by factual honouring the order. Up to this date, the order is firm for the Client, exception being the situation when it requires a written confirmation of order and S.C. EBERSPAECHER RO S.R.L. fails to meet this requisite within the term agreed in writing, of minimum 8 days. The date of communication of order confirmations dispatched by post, even without acknowledgement of receipt, is the date of receiving post office. If until the date of delivery, the raw materials purchased register rate increases or the wages increase according to collective employment contracts, S.C. EBERSPAECHER RO S.R.L. is entitled to amend the price.
• Consumer protection. As for the trade transactions with the consumers, defined according to Consumer Code, the restrictive legal disposals of legal norms in force are enforced.
• Rate of products. Except for the cases when stipulated in the Contract otherwise, the rates communicated by S.C. EBERSPAECHER RO S.R.L. are ex-works rates on S.C. EBERSPAECHER RO S.R.L. warehouse without customs fees, packing, insurance and installation. The rates communicated by S.C. EBERSPAECHER RO S.R.L. are added the value added tax according to the legal rules in force as of the date of issue of invoice. All documents afferent to the orders such as sketches, drawings, specifications of weights and dimensions are relevant only approximately, as long as they are not expressly stipulated in Contract as obligatory. The client will accept the technical deviations from the prospect parameters and technical specifications or execution of installation or service works not claimed or determined expressly and with obligatory observance of Contract. If the rates of products has been erroneously determined by S.C. EBERSPAECHER RO S.R.L., and the material error is clearly identifiable and visible, the rates agreed and determined by correct calculations prevail.
• Means of payment.

6.1 Except for the cases when the Contract stipulates otherwise, the invoices issued by S.C. EBERSPAECHER RO S.R.L. are fully integral due on the date of issue. The determination of other due date than the date of issue of invoice may be done by Contract, on the date of concluding it, or subsequent to concluding the contract based on written agreement of parties.

6.2 In principle, any payment made by the Client will be done by bank transfer to the account of S.C. EBERSPAECHER RO S.R.L., the place of payment being Miercurea Ciuc. The payments will be done by Client using payment tools such as cheques, drafts and promissory notes or by mortgage of commercial effects, only with prior express acceptance of such means of payment by S.C. EBERSPAECHER RO S.R.L.. Such payment instruments will be accepted only if the Client provides guarantee accepted by S.C. EBERSPAECHER RO S.R.L. by which it secures the performance of the payments ordered by payment tools or supplies a bank guarantee related to the existence of the funds necessary to cover the payments ordered (certified cheques or promissory notes guaranteed by the bank of client).

6.3 The failure to pay on due date by the client entails default penalties of 0.25% per day of delay of the value of outstanding pay as of the due date of payment obligation until full and effective payment of outstanding debt. The client is put as of right into default as of the due date of outstanding payment obligation. The amount of default penalties may exceed the quantum of payment obligation to which they have been applied.

6.4 In case of delayed payment, the client has the obligation to incur and pay any/all costs of notification and collection of outstanding debts. In such situations and if S.C. EBERSPAECHER RO S.R.L. has a negative experience with a certain Client related to the payment obligations incumbent upon the client according to the contract/s concluded with us, S.C. EBERSPAECHER RO S.R.L. reserves the right to claim full payment in advance of the products ordered by Client, before launching the order of client with negative background related to payments.

6.5 The client cannot waive the order formulated and submitted to S.C. EBERSPAECHER RO S.R.L.. If the client registers delays in the payment of due financial obligations incumbent upon the client according to any contract concluded with S.C. EBERSPAECHER RO S.R.L., we are entitled to suspend or stop the delivery of all/any products subject to all/any contracts concluded with the Client. In case of suspension or stop of products’ delivery pursuant to the failure of client to honour the payment obligations, the delivery terms are extended with a period equal to the period between the due date of payment obligation and full payment of all/any financial obligations incumbent upon the client based on any/all contracts concluded with S.C. EBERSPAECHER RO S.R.L..

6.6 The payments made by Client cover the debts in chronological order, the payment covering first the default penalties and other accessories, if any, and subsequently the basic financial obligation.

6.7 The client is not entitled to compensate the due financial obligations with other future or uncertain, non-liquid and non-due obligations which it may have towards S.C. EBERSPAECHER RO S.R.L..

• Reservation of ownership and risk of accidental loss of products.

7.1 The products delivered, even after invoicing, remain the property of S.C. EBERSPAECHER RO S.R.L., until full payment of it although such products have been resold to third parties by the Client. The reservation of ownership until full payment of contractual rate will be opposable to any third  party even to the sub-acquirers with onerous title of products.

7.2 The risk of accidental loss of the products delivered and not paid, will be incurred in all situations by Client. The risk of accidental loss of products delivered is not impaired by the clause of reservation of ownership in case of enforcement of clause, the risk of loss will be completely incurred by Client based on the principle res perit debitori.

7.3 The client has the obligation to store, to assure and organise the guard of products subject to this clause of reservation of ownership and has the obligation to delimit and mark such products so as such products may be identified any time as property of S.C. EBERSPAECHER RO S.R.L..

7.4 If the products property of S.C. EBERSPAECHER RO S.R.L. and in the possession of client are impaired by a movable security, mortgage, seizure or will be subject to a dispossession of any kind, the client has the obligation to notify the reservation of our ownership to any interested third parties and to notify this situation immediately and without delay S.C. EBERSPAECHER RO S.R.L. and to supply all information held related to such cases.

7.5 If the client registers delays in the payment of any financial obligations towards S.C. EBERSPAECHER RO S.R.L., we are entitled to require on any moment the return of products property of S.C. EBERSPAECHER RO S.R.L., even when the contract concluded with the Client is not and will not be terminated. The client accepts without reserves by these General Conditions the return of the products delivered and  not paid, and consequently impaired by the clause of reserve of ownership and property of S.C. EBERSPAECHER RO S.R.L., on simple and unilateral demand of S.C. EBERSPAECHER RO S.R.L.. The client undertakes that pursuant to receiving a demand in this respect from S.C. EBERSPAECHER RO S.R.L., to return the products the property od S.C. EBERSPAECHER RO S.R.L. immediately and without any condition from the client.

• Delivery terms.

8.1 The delivery terms confirmed by S.C. EBERSPAECHER RO S.R.L. will be observed as much as possible. The delivery terms are obligatory to be observed by S.C. EBERSPAECHER RO S.R.L. only if stipulated in Contract and defined expressly as obligatory.

8.2 The delivery terms start and are calculated starting with the following moments, depending on the last appeared:

1. As of the date of confirmation of client’s order
2. As of the date of accomplishment of all technical, commercial and financial obligations of client
3. As of the date of cashing by S.C. EBERSPAECHER RO S.R.L. the advance contractual rate, respectively the entire contractual rate, if any, or as of the date of opening a letter of credit in the benefit of S.C. EBERSPAECHER RO S.R.L. for the payment of contractual obligations.

8.3 S.C. EBERSPAECHER RO S.R.L. may cumulate partial payment of client for full deliveries of products ordered and may also perform partial deliveries depending on partial payments made by Client, partial or full means of delivery, being exclusively on discretion of S.C. EBERSPAECHER RO S.R.L..

8.4 In case of force majeure such as war, strikes, lockouts, fires or floods or events beyond the control of S.C. EBERSPAECHER RO S.R.L., such as the penury of materials or fail to accomplish the obligations by our suppliers or default of our production equipment due to reasons beyond our control, the delivery terms will be properly extended. In such situations, if delivery becomes impossible, S.C. EBERSPAECHER RO S.R.L. may  terminate unilaterally the contract without any obligation to pay damages interests or reparatory or compensatory payments to the Client.

8.5 The deliveries will be performed in conformity to INCOTERMS 2010 ex-works at the warehouse of S.C. EBERSPAECHER RO S.R.L. situated in Luna de Sus 99G/1, Commune Floresti, County Cluj., Romania

• Dispatch, transport and insurance of products.

9.1 Except for the cases when stipulated otherwise in Contract, the products are dispatched by S.C. EBERSPAECHER RO S.R.L., the transport being assured by railway or road transport of merchandise. All costs of packing, dispatch and transport of products are incumbent upon the client and invoiced separately by S.C. EBERSPAECHER RO S.R.L.. All risks appeared during the transport, including but not limited to the risk of total or partial loss of products as well as the risk of damage of products, pass to the client as of the date of dispatching the products from the warehouse of S.C. EBERSPAECHER RO S.R.L. from Luna de Sus 99G/1, Commune Floresti, county Cluj, Romania. Except for the cases when stipulated otherwise in Contract the decision related to the means of transport belongs to S.C. EBERSPAECHER RO S.R.L..

9.2 S.C. EBERSPAECHER RO S.R.L. has the right but not the obligation, to insure the products dispatched during the transport. On express demand of client, recorded in the Contract, S.C. EBERSPAECHER RO S.R.L. has the obligation to insure the products on expense of client. In all situations, regardless if the insurance of products is the result of decision of S.C. EBERSPAECHER RO S.R.L. or the insurance of products has been required in the Contract by Client, all costs related to the insurance of products are incumbent upon the client and will be included in the invoice with the costs afferent to packing, dispatch and transport of products.

9.3 If the client wants to return some products delivered by S.C. EBERSPAECHER RO S.R.L., the client will submit an express written demand in this respect with the data of products proposed to be returned, the quantity of products proposed to be returned and the reason for requiring the return of products. The client will not start the return procedure or dispatch any product to S.C. EBERSPAECHER RO S.R.L., without the written approval by S.C. EBERSPAECHER RO S.R.L. of the return demand. The return demand submitted by Client is analysed by S.C. EBERSPAECHER RO S.R.L. and it is approved or rejected within 5 days as of the date of receiving the petition of return of products by S.C. EBERSPAECHER RO S.R.L.. All costs afferent to packing, dispatch and transport of products approved for return by S.C. EBERSPAECHER RO S.R.L. will be incurred by client and are invoiced by S.C. EBERSPAECHER RO S.R.L. within 3 days as of receiving the products returned. For the products returned, S.C. EBERSPAECHER RO S.R.L. will issue a cancellation invoice within 3 days as of receiving the return of products, however S.C. EBERSPAECHER RO S.R.L.. is entitled to reduce the value of cancellation invoice with the amount of damages interests necessary to cover the profit loss caused by the return of products. The value of damages interests will be determined based on exclusive appreciation and discretion of S.C. EBERSPAECHER RO S.R.L., however these damages interests will not overcome 50% of the value invoiced by S.C. EBERSPAECHER RO S.R.L.. or products

• Technology of construction. The information related to the technology of construction of products as well as the means of execution, materials used, dimensions of products etc. will be accurate, but not obligatory to be supplied by C. EBERSPAECHER RO S.R.L.. The samples, tools and tools projects and any technical documentations drafted by S.C. EBERSPAECHER RO S.R.L.. remain our property even under the conditions of payment by Client the expenses of design, elaboration of technical documentation and execution. S.C. EBERSPAECHER RO S.R.L. reserves the exclusive right to use in any manner such tools, tools projects and technical documentations. S.C. EBERSPAECHER RO S.R.L. is the exclusive owner of copyright of technical documentation, including, but not limited to any written parts, drawings, projects, technical records etc., being forbidden to provide it or parts of it to the disposal of third parties, without written consent of S.C. EBERSPAECHER RO S.R.L.. The client is liable for and undertakes to use the confidential information and technical documentations in the spirit and in conformity to the legal disposals in force. If the technical documentation is not subject to the contract concluded between Client and S.C. EBERSPAECHER RO S.R.L., such documents will be returned to S.C. EBERSPAECHER RO S.R.L., as exclusive property of S.C. EBERSPAECHER RO S.R.L..
• Installation and instructions of use.

The installation of products and product’s equipments will be performed and controlled exclusively by a service shop authorised by S.C. EBERSPAECHER RO S.R.L.. The installation works will be in conformity to the instructions and indications of installation in force attached to the products and will meet the conditions included in the certificate of homologation of the model. In all cases, the owner of vehicle has the obligation to ask for the registration of the installation of products in the certificate of conformity and/or the documents of vehicle. The manual of operation attached to the  products and products’ equipments is the normative based on which it is commissioned and used correctly the products. The breach of installation or operation instructions may cause material damages and bodily injuries. S.C. EBERSPAECHER RO S.R.L.. undertakes no responsibility for material damages and bodily injuries caused pursuant to improper installation or operation of products.

12.1 S.C. EBERSPAECHER RO S.R.L. assures and provides warranty for the absence and remedy of defaults impairing the proper operation of products, securing the conformity operation of it on the date of delivery to the technical specifications of products and equipments of products. S.C. EBERSPAECHER RO S.R.L. does not provide warranty or proceed to the remedy of defaults appeared pursuant to normal wear and tear in time of products and undertakes no responsibility of any kind for the damages or defaults resulted from incorrect exploitation of products, commissioning of products with the breach of technical specifications or overuse of products. S.C. EBERSPAECHER RO S.R.L. does not offer or undertake any guarantee obligation or any other responsibility for the defaults caused by the following reasons:

1. Mounting and adjustment of products was not performed or supervised by a service shop authorized by C. EBERSPAECHER RO S.R.L.;
2. The product was mounted, on demand of client, with the breach of the specifications of manufacturer and contrary to the indications of manufacturer;
3. The product delivered was stored or handled incorrectly or the product was overused with the breach of the instructions of storage, handling or operation;
4. The product delivered was subject to modifications without the written consent of manufacturer related to the performance of modifications;
5. Due to special constructive characteristics determined and required by Client or due to selection by Client of an improper material for the product;

12.2 The warranty starts on the date of taking over by Client of the products subject to contract. The warranty term is offered according to the specifications of manufacturer.

12.3 The validity of the warranty obligation afferent to products subject to contract and mounted on vehicles is conditioned by immediate return, after installation, of warranty certificate filled in.

12.4 The client has the obligation to inspect the products upon acceptance and claim by written notice any inadvertency or improper operation noticed upon acceptance of products. The claim will be drafted exclusively in written form within maximum 15 days as of the date of receiving the products.

12.5 If the product is not functional the client has the obligation to turn to a service shop authorized by S.C. EBERSPAECHER RO S.R.L. to determine the default and such shop to communicate in writing the default noticed directly to S.C. EBERSPAECHER RO S.R.L.. The validity of the warranty offered and provided by S.C. EBERSPAECHER RO S.R.L is conditioned by the report of control, certifying the verification of correct installation by a representative authorized by S.C. EBERSPAECHER RO S.R.L., and a copy of the invoice related to the installation made by a service shop authorized by S.C. EBERSPAECHER RO S.R.L..

12.6 The client will always turn to the closest authorised representative respectively the closest service shop authorized. If the dispatch or transport of products subject to contract, to the closest service shop authorized entails exaggerated costs (for instance when there are products used for construction equipments), the client will notify the closest service shop authorized and will provide the products and equipments allowing the inspection of it. The costs afferent to demounting and remounting the products assembled on vehicles or fixed equipments will be incurred by S.C. EBERSPAECHER RO S.R.L., provided that the demounting and remounting are performed by S.C. EBERSPAECHER RO S.R.L. or in a service shop authorised by S.C. EBERSPAECHER RO S.R.L.. On demand S.C. EBERSPAECHER RO S.R.L., the client will have the obligation to accept that the demounting and mounting of products are performed in a service shop authorised by S.C. EBERSPAECHER RO S.R.L.. In case of special conditions of demounting and mounting (due for instance to the particularities of such vehicle), S.C. EBERSPAECHER RO S.R.L. will incur only the costs appeared in the absence of such special conditions. On demand of S.C. EBERSPAECHER RO S.R.L. the client has the obligation to assure the dispatch to S.C. EBERSPAECHER RO S.R.L. of defective parts or equipments. The costs of such dispatch are incurred by S.C. EBERSPAECHER RO S.R.L. provided the claim of client is justified. If the reparation, replacement or intervention on products takes place at the seat/domicile of client, the client will incur all trip costs.

12.7 In case of effective irremediable defaults, the client is entitled to the change or reduction of purchase rate, not to the return of merchandise. S.C. EBERSPAECHER RO S.R.L. is entitled to proceed to the replacement of product during the warranty period of product. If the default is remediable, S.C. EBERSPAECHER RO S.R.L. undertakes either to remedy the default within an acceptable term and in conformity to the technical requisites, or to proceed to the replacement of defective product. In this respect, the client undertakes to make available the product immediately to S.C. EBERSPAECHER RO S.R.L. The products replaced and the parts of the products replaced pass in the property of S.C. EBERSPAECHER RO S.R.L. and will be delivered by Client to the service shop authorised by S.C. EBERSPAECHER RO S.R.L., with the demand of warranty.

12.8 The warranty granted by S.C. EBERSPAECHER RO S.R.L. or our suppliers includes the legal warranty, without extension of the warranty obligation set forth by law.

12.9 As soon as the client receives and accepts the products delivered and does not formulate any claim in terms of these General Conditions, the acceptance cannot be recalled subsequently. For the products delivered and accepted upon delivery, the client cannot formulate a subsequent objection, claim of any kind related to the products delivered and accepted being rejected as inadmissible.

13.1 S.C. EBERSPAECHER RO S.R.L. will be liable for the damages of any kind caused to the client only in case of serious neglect or premeditated actions of the employed staff of S.C. EBERSPAECHER RO S.R.L.. The liability of S.C. EBERSPAECHER RO S.R.L. for collateral or subsequent damages is excluded. S.C. EBERSPAECHER RO S.R.L. is not liable if the damages are determined by the breach of legal disposals concerning the installation of products, installation instructions or indications stated in the certificate of conformity or if the damages result pursuant to defective management of products.

13.2 If S.C. EBERSPAECHER RO S.R.L. is liable for the damages caused to the client by the products delivered, the claims of liability for all products purchased by Client from S.C. EBERSPAECHER RO S.R.L. will be submitted to the manufacturer of products. S.C. EBERSPAECHER RO S.R.L. is liable for such products within the limits and conditions under which the manufacturer of products is liable for such products towards S.C. EBERSPAECHER RO S.R.L.

• Processing personal data.

14.1. According to law no. 677/2001 for protection of individuals related to personal data processing and free circulation of such data, amended and completed, S.C. EBERSPAECHER RO S.R.L. has the obligation to manage under safety conditions and only for the scopes mentioned the personal data submitted by client. The scope of collecting data is to provide to the clients services under safety conditions and on high qualitative and professional level, as well as marketing, advertising and publicity services. The personal data provided by Client is exclusively used by S.C. EBERSPAECHER RO S.R.L. with a view to perform the contractual obligations stipulated in Contract. S.C. EBERSPAECHER RO S.R.L. will process electronically the following data, necessary to perform and keep own accounting: name or denomination of Client, address, phone number, order number, contract and number of invoices, delivery and payment conditions, turnover. S.C. EBERSPAECHER RO S.R.L. will use such information in conformity and observing the legal disposals. The employees of S.C. EBERSPAECHER RO S.R.L. have the obligation to keep the confidentiality of data. Such data may be submitted only in case of obligation stipulated by law, for monetary and bank operations with special consent of the persons involved.

14.2. According to law no. 677/2001, the client has right of information, right of access to data, right to change the data, right of opposition, right of not being subject to an individual decision and the right to turn to court. The client is entitled to oppose to and may ask for the removal of data, in terms of law. In order to exercise such rights, the client must submit a written petition, dated and signed, to the registered seat of S.C. EBERSPAECHER RO S.R.L.. If some of client’s data is incorrect or no longer valid, it will ask the amendment or updating of such data.

14.3 The personal data declared by Client will be submitted and made available to the competent legal bodies if S.C. EBERSPAECHER RO S.R.L. has the legal obligation, in terms of law and/or based on court judgement, to reveal such information

• Governing jurisdiction and settlement of disputes.

15.1 The contract and General Conditions are governed by Romanian legislation. The language of contract and of General Conditions is Romanian, therefore, in case of any discrepancy between Romanian and any foreign language, the Romanian version prevails.

15.2 The disputes resulted from Contract or these General Conditions will be solved amiably.

15.3 If amiable settlement of conflict is not possible, the disputes generated by or related to the contract concluded by parties and these General Conditions, including related to the validity, interpretation execution or removal of it, will be submitted for judgement to the Court of Commercial Arbitrage attached to the Chamber of Commerce and Industry Cluj in conformity to the Rules of arbitral procedure of this Chamber. The arbitral judgement is final and obligatory.

• Final clauses.

16.1 The debts of clients towards S.C. EBERSPAECHER RO S.R.L. in particular and any other rights resulted from the contract concluded between the Client and S.C. EBERSPAECHER RO S.R.L. in general cannot be assigned to third parties without express consent of S.C. EBERSPAECHER RO S.R.L., expressed in writing.

16.2 If one or several contractual disposals or of these General Conditions become null, annullable, are invalidated or abolished directly or indirectly, the validity of clauses and disposals not affected is maintained, the parties undertaking to take all measures necessary to replace or amend the invalid contractual clauses.

16.3 In case of differences or discrepancies between the disposals of contract concluded between the parties and these general trade conditions and terms, the disposals of contract shall prevail.