§1 Preface – Fields of Application
Our General Terms and Conditions shall be applicable for all current and future business connections. These shall also be applicable for all future offers, sales, deliveries and services, even if not expressly agreed again. Our General Terms and Conditions shall be deemed as accepted with our first delivery, at the latest with the receipt of our delivery and services.
These General Terms and Conditions shall apply exclusively. Any amendments of our General Terms and Conditions must be expressly agreed in writing by us for its effectiveness. Silence to any deferring conditions of purchaser or customer shall not be deemed as acceptance or approval. Deferring or contrary terms shall not apply, except as expressly agreed in writing. Our General Terns and Conditions shall also apply if we perform delivery despite our knowledge of deferring or contrary terms of customer.
Our General Terms and Conditions shall apply for consumers as well as for businessmen unless otherwise set forth in the particular provision.
§ 2 Offers, Prices, Conclusion of Agreement
All offers, price lists and other promotion documentation are subject to change and without obligation. Prices conform with the respectively applicable price list, which can be amended any time. Prices shall be deemed, unless otherwise stated, plus VAT applicable at the time of delivery, plus packing charges, costs for delivery, insurance, installation or other extras.
Deliveries and services not included in the offer shall be charged separately
Oral supplementary agreements or confirmations of our employees need our written approval to become effective. Our sales representatives or consultants are only entitled to deliver the customer’s and purchaser’s declarations to us. They are not entitled to enter into contracts.
If the prices of our suppliers, the monetary parity, customs duties or other costs that affect our deliveries directly or indirectly change between the conclusion of contract and the delivery, we will be entitled to adapt our prices accordingly provided that more than four months have been passed between the conclusion of the contract and the agreed time of delivery.
Technical changes or changes due to form, colour and/or weight shall be possible to the extent reasonable.
The order of customer shall be deemed as binding offer to purchase the product.
We are entitled to accept the order within two weeks after receipt. The acceptance can be confirmed in writing or through delivery of the product to customer.
The contract shall only be deemed as concluded by our written confirmation. If delivery shall be conducted without prior written confirmation to customer, contract will be deemed as concluded through the acceptance of delivery according to these General Terms and Conditions.
The contract shall be concluded under reservation of proper and timely delivery by our supplier. This shall only be applicable if the non-delivery is not caused by us, in particular upon conclusion of a congruent covering transaction with our supplier.
Customer will be informed about unavailability without delay. Any consideration that has already been paid will be reimbursed without delay.
§ 3 Retention of Title
In case of contracts with consumers we expressly retain title to the goods until full payment of purchase price.
In case of contracts with businessmen we retain title to the goods until receipt of all payments arising from the business relationship.
Customer is obliged to handle the goods with due care. If maintenance or inspections are necessary, customer will regularly conduct those on its own costs and verify those to us without request.
Customer is obliged to inform us immediately about any rights of a third person in the goods under retention of title, e.g. in case of distress, as well as to inform us about any damage or destruction of the goods. Customer is also obliged to inform us immediately about any change of possession of the product as well as about any change of its address.
In case customer acts contrary to the contract as well as in case of a delay in payment or in case of a breach of the duties under fig. 3 and 4 of this provision, we shall be entitled to cancel the contract and to demand the product from customer on its costs.
In case of cessation of payment, applying for or opening of insolvency proceedings, in case juridical or extra juridical insolvency proceedings, the right of customer to use the product, shall expire.
Customer is obliged to give information in order to claim our rights and to provide us with the necessary documents to claim our rights.
Upon request of the customer securities will be released insofar as its value exceeds the secured claim by more than 10%.
Purchaser shall not be entitled to treat or work on or to resell the product under retention of title.
§ 4 Cancellation Instruction for Consumers
Consumer may cancel the order within two weeks notice upon receipt of the product. The cancellation notice could be given without reasons in textual form (e.g. by letter, facsimile, e-mail) or by reshipment of the product; to comply with the cancellation period it is sufficient to send the cancellation declaration or to resend the product in time. The cancellation has to be addressed to:
Oberurseler Str. 70
In case of cancellation the services received on both sides have to be returned and if so, drawn fruits of the product (e.g. interests) have to be returned. If consumer is not able to return the received product completely or partly or if the return is only possible in a deteriorate condition, consumer has to pay compensation. This does not apply if the deterioration is solely caused by the inspection of the product (which must not exceed the necessary inspection in a shop). Besides, consumer can avoid any duty of compensation if consumer does not handle the product as its property and restrains from any measure which could affect physical quality of the product.
Products transportable by parcel have to be returned on our risk. Consumer shall bear the costs of redelivery if the delivered product does correspond with the order and if the price of the redelivered product does not exceed EUR 40.00 or if customer – in case of a higher price of the product – has not yet paid consideration or the contractual agreed partial payment at the time of cancellation. Otherwise the redelivery will be cost free for consumer.
Obligations for reimbursement of payments have to be fulfilled within 30 days. For consumer the reimbursement period commences with sending of the cancellation declaration or resending of the product, for us with its receipt.
End of cancellation instruction.
§ 5 Payment, Default of Payment, Offset
Prices are net prices plus the respective statutory VAT, plus packaging costs, costs of delivery, insurance, installation and other extras.
Any term of credit needs to be in writing; special agreements on payment with customer need to be in writing.
Customer is obliged to pay the purchase price together with the costs for packaging, delivery, insurance etc. within 14 days after receipt of the product and the invoice. If customer is a businessman, it will be in default of payment after expiring date without further reminder.
If customer is a consumer it will be – according to § 286 BGB – in default of payment 30 days after due date and receipt of the invoice or equal payment schedule at the latest without further reminder.
From due date interest in the amount of 8% above the respective base interest rate shall accrue for businessmen. We reserve all rights to claim further damages for delay.
For consumers interest in the amount of 5% above the respective base interest rate shall accrue.
Customer shall be entitled to offset only insofar as its counterclaim is acknowledged, undisputed or assessed in a legally binding judgement.
Customer is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
If the conditions of payment will not be observed or if we become knowledge of circumstances that shall – upon our dutiful commercial discretion -, be deemed to reduce the creditworthiness of customer then all payment obligations arising out of the business relationship will become due and payable immediately. In this case we will also be entitled – irrespective of further statutory rights – to demand advance payment or securities for outstanding deliveries.
Furthermore, we shall be entitled to cancel contracts not yet performed with a deadline of payment of two weeks connected with treat of cancellation.
§ 6 Passing of Risk, Place of Fulfilment
Place of fulfilment is Oberursel/Ts.
If purchaser is a businessman the risk of loss or damage to the product passes to purchaser upon dispatch to carrier.
If purchaser is a consumer the risk of loss or damage to the product passes to purchaser at the time of receipt by purchaser even in case of shipment of the goods to customer.
The default of acceptance shall be deemed as receipt by purchaser.
§ 7 Warranty
If purchaser is a businessman we will grant supplementary performance or delivery of a product free from defects upon our discretion. This applies for defects of the hardware and the software.
If purchaser is a consumer we will grant warranty according to the statutory regulations as far as not otherwise stipulated in the following.
In case of improper use of the product and damage through non-observance of the manual as well as other actions by customer or other not authorised persons any warranties are excluded. Furthermore, we do not give warranty for wearing parts or expendable items, such as, in particular for all kinds of Electrodes
If supplementary performance is unsuccessful customer will be entitled upon its discretion to reduce the purchase price or to terminate the contract.
If customer is a businessman it is obliged to notify us in writing in case of obvious defects within two weeks upon receipt of the product; otherwise any warranty claims will be excluded. To comply with the time limit it is sufficient to send the notification in time. The burden of proof for the basis of claim, in particular the defect itself, the time of detection of the defect and for the notification of defect in due time, lies with businessman.
If customer is a consumer it will be obliged to notify us in writing in case of an obvious defect within two weeks upon detection of the defect. To comply with the time limit it is sufficient to send the notification in time. If consumer refrains from notification all warranty claims will be excluded. This will not be applicable in case of fraudulent intent of seller. The burden of proof for the time of the detection of the defect lies with the consumer. If consumer bought the product because of inappropriate manufacturer information the burden of proof for its purchase decision lies with it. For second hand products the burden of proof for the defect of the product lies with consumer.
If customer chooses compensation after unsuccessful supplementary performance the product remains with customer if reasonable. Compensation is limited to the difference between purchase price and value of the defect product. This does not apply if the breach of contract has fraudulently been caused by us.
The warranty period for businessmen is one year upon delivery of the product. The warranty period for consumers is two years upon delivery of the product.
For second hand products the warranty period is one year upon delivery of the product. This shall not be applicable if consumer does not notify the defect in due time (fig. 4)
If customer is a businessman, only the product description of manufacturer shall be deemed as quality of the product. Public statements, promotions or advertisement of manufacturer will not be deemed as contractual quality description of the product.
8.If customer will be provided with an incomplete instruction sheet we will only be obliged to provide it with a complete instruction sheet and only if the incompleteness of the instruction sheet leads to improper installation.
Customer will not be granted with any legal guarantee. A guarantee of quality or durability was not granted. Manufacturer guarantees or manufacturer declarations remain unaffected thereof.
We will not grant any warranty to software which packaging has been opened by customer. Also replacement shall be excluded.
§ 8 Limitation of Liability
In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of a breach of fundamental contract obligations. In case of slight negligence our liability shall be limited to typically predictable direct average damage. This shall also be applicable in case of slight negligence by our agents or assistants in performance.
In case of businessmen we are not liable for slightly negligent breach of marginal contractual obligations.
The aforementioned limitation of liability shall not be applicable for customer claims due to product liability. Furthermore, our liability for culpable damage to life, body or health shall remain unaffected.
We shall not be liable for indirect damage or subsequent damage, in particular lost benefits, claims of third parties or for the loss of data.
§ 9 Severability Clause
This General Terms and Conditions shall be governed by the laws of Germany. The provision of the Convention on Contracts for the International Sale of Goods shall be excluded
For businessmen, legal persons of public law or other public entities, exclusive place of jurisdiction for all disputes arising of or in connection with this agreement shall be Frankfurt am Main. The same applies if customer does not have a general place of jurisdiction in Germany or does not have a German address or if its normal residence is not known at the time of taking action.
Besides, as far as applicable, according to § 38 Civil Process Order, exclusive place of jurisdiction for all disputes arising of or in connection with this agreement shall be the district of the Lower Court Frankfurt am Main.
If any provisions of the contract with customer including these General Terms and Conditions completely or partly be or become invalid. this shall not affect the validity of the other provisions. The completely or partly invalid provisions shall be replaced by a provision which reflects the purpose of the agreement and the intention of the parties hereto.
In case of discrepancies the German version of these General Terms and Conditions shall prevail.