I. Scope of application
1. The General Terms and Conditions of Supply and Delivery (GTC) shall apply for all business relationships with our customers (hereinafter referred to as the “Customer”). They shall only apply if the Customer is a businessperson (Section 14 of the German Civil Code), a legal person under public law or a special fund under public law.
2. The respective version of the GTC shall apply, even for future contracts with the same Customer, without us having to make reference to them in each individual case.
3. The GTC shall apply exclusively. General terms and conditions of the Customer that deviate from or add to these shall only apply if and to the extent that we have expressly agreed their validity in writing. This shall also apply if we have accepted the Customer’s order without reservations, knowing the general terms and conditions of the Customer.
4. Individual agreements with the Customer (including additions and amendments) shall have priority over these GTC. A written contract or written confirmation from us shall be required as proof of the content of the individual agreements.
5. Explanations that must be given to us by the Customer after the conclusion of the contract (e.g. the setting of deadlines, notifications of defects, notices of cancellation) must be made in writing to be valid.
6. Unless directly amended or excluded in these GTC or an individual agreement in accordance with Item I.4, the statutory regulations shall apply.
II. Quotation, order, prohibition of assignment
1. We shall be bound to the information given on the deliverable in our quotation letter for 3 weeks. Otherwise, our quotation letters shall be unbinding and without obligation. They shall not be a quotation in the legal sense.
2. The order of the Customer is binding and therefore a quotation in the legal sense. We may accept the order of the Customer within 10 working days of receipt. Acceptance shall be issued by the sending of a written order confirmation; for consumables, the alternative is by sending the deliverable.
3. If false information on the deliverable or price is given accidentally, we reserve the right to dispute the contract.
4. The Customer may only assign claims arising from the delivery contract with our prior written permission and only provided that the assignment does not unreasonably impact negatively on our interests.
III. Delivery time, default in delivery
1. Delivery dates shall only be binding if we have confirmed them in writing. Furthermore, the delivery time shall be approximately 1 week from the dispatch of the order confirmation. If a deposit has been agreed, the delivery time shall begin upon notification from the bank of the receipt of payment.
2. A binding delivery date shall be considered to have been adhered to when the Customer has been informed in advance that the product is ready for dispatch and the deliverable is ready for collection on the deadline at our registered office.
3. We shall immediately inform the Customer if the delivery is delayed. In the event of force majeure or other events outside of our control, the delivery time shall automatically be extended accordingly. If the duration of such events is unreasonable for us or the Customer, either party shall be entitled to rescind from the delivery contract in part or in full; in doing so, either party both rescinds from the delivery contract and does not have to fulfill their contractual obligations.
The same shall apply if the deliverable is not available because a congruent (partial) covering transaction concluded by us was not fulfilled by our supplier or a necessary import permit was not issued.
4. Default in delivery shall require a written warning from the Customer.
IV. Delivery, default of acceptance
1. Delivery shall be ex works from our registered office (EXW). The place of fulfillment for all obligations arising from this contractual relationship shall be our registered office. The exception to this shall be the commissioning at the premises of the Customer if we are obligated to carry this out.
2. Devices shall be provided in special transport packaging.
3. We shall be entitled to make partial deliveries if partial delivery is suitable for the Customer according to the contractual intended purpose and if the delivery of the remaining parts of the deliverable is guaranteed.
4. If the Customer does not have the deliverable collected on the delivery date agreed as binding or immediately after receipt of the notification that the product is ready for dispatch (default of acceptance), we shall be entitled to demand compensation for damages or any additional expenses (e.g. storage costs) incurred as a result of this.
V. Transfer of risk
1. Risk shall be transferred to the Customer when the deliverable leaves our place of business. This shall equally apply for authorised partial deliveries as well as for the acceptance of packaging and / or transport / shipping and / or insurance costs by us.
2. In the event of default of acceptance (Item IV.4), risk shall be transferred to the Customer upon the passing of the contractually agreed delivery date / receipt of the notification that the deliverable is ready for dispatch.
VI. Prices, payment conditions, default of payment, right to withhold performance
1. The prices valid when the contract is concluded shall apply. The prices shall relate to the items described / shown in the catalogue.
2. Prices shall not include packaging, transport / shipping or insurance costs. They shall apply ex works. They shall not contain value added tax. The Customer shall always be invoiced for packaging costs separately (Item IV.2).
3. Payment must always be made in full to our account within 30 days of the invoice date. If payment is not made within this period, the Customer shall be in default without the issuing of a warning. During this period of default, we shall be entitled to charge interest on the outstanding amount at the statutory default interest rate. We reserve the right to claim for further damages incurred as a result of the default.
4. We shall also be entitled to withhold our services in accordance with Section 321 of the German Civil Code if the financial circumstances of the Customer become significantly worse before the conclusion of the contract and we only detect this after the conclusion of the contract despite careful checks.
5. The Customer shall only have the right to withhold payments or offset them with counterclaims to the extent that its counterclaims have been established by law, are uncontested and recognised by us. The Customer may only exercise its right of retention if and to the extent that its counterclaim is based on the same contractual relationship. Any rights arising from product defects in accordance with Item VIII shall not be affected by this.
VII. Ownership, confidentiality, retention of title
1. Catalogues, product descriptions and information, assembly and operating instructions and quotation letters – in electronic form too – shall remain our intellectual property even after transfer / handing over to the Customer. We shall have the exclusive copyrights and rights of use for these. The Customer shall need to obtain written consent from us in advance to set links to our Internet service, to use this in another way for its own purposes or to pass on / forward information / documents that we have identified as confidential.
2. If the deliverable contains a computer program within the meaning of Section 69a of the German Copyright Act (UrhG), the Customer shall be entitled to use this exclusively for this deliverable. Use for an additional or another object is forbidden. The Customer shall only be entitled to reproduce, edit and translate the program or carry out actions relevant to its copyright in accordance with Section 69a et seqq UrhG. All other rights to the program and its documentation and any copies that may have been supplied shall remain with us or the program supplier.
3. We shall remain the owner of all deliverables until our present and future requirements arising from a delivery contract or an ongoing business relationship with the Customer are completely fulfilled.
4. If the Customer acts in a way that is contrary to this contract, especially in the event of default of payment, in accordance with the legal regulations, we shall be entitled to rescind from the contract and reclaim the deliverable or demand the assignment of any claims of the Customer against third parties. Once the deliverables have been returned to us, we shall be entitled to liquidate them. The amount realised from liquidating the deliverables shall be credited against the debts of the Customer minus appropriate liquidation costs.
VIII. Properties, rights arising from product defects
1. Deliverables may deviate slightly from their descriptions / depictions in catalogues and other documents (in electronic form too) in terms of colours and dimensions, for example, due to technical conditions. We reserve the right to make quality improvements.
2. The Customer must carefully examine the deliverables immediately upon receipt. The Customer must notify us of obvious damage, faults and discrepancies in quantity within 7 working days of receipt in writing; non-obvious ones within 7 working days of discovery (limitation period). Sending notification of defects in a timely manner shall be sufficient for compliance with the deadline.
3. If there is a defect (at the time of the transfer of risk [Item V.], the deliverable does not meet the requirements of Section 434 of the German Civil Code [being free of material defects and defects of title]), we may choose to carry out supplementary performance by either remedying the defect (improvement) or by supplying a defect-free deliverable (replacement delivery).
4. The Customer must give us the opportunity and time necessary to carry out the supplementary performance; this shall in particular include handing the faulty deliverable over to us for testing purposes. If the demand to remedy defects turns out to be unjustified, we may demand compensation for the resulting costs from the Customer.
5. We shall be entitled to make supplementary performance dependent on the Customer paying the price of the deliverable. The Customer shall be entitled to withhold part of the price in proportion to the notified defect.
6. If supplementary performance has been unsuccessful, been delayed for an amount of time that is beyond what is reasonable or may be refused by us in accordance with the statutory regulations, the purchase price may be reduced or alternatively, in the event of a significant defect, the delivery contract may be rescinded.
7. We shall assume no guarantee for and shall not be liable for public third-party comments. The regulations on defects in Item VIII. and Item IX. shall be final.
IX. Other liability
1. In the event of malice or gross negligence – on whatever legal grounds – we shall be liable for damages.
2. In the event of ordinary negligence, we shall only be liable in the event that a material contractual obligation is breached, restricted to compensation for foreseeable damages that are typically incurred. A material contractual obligation is an obligation which must be fulfilled for the intended purpose of the concluded contract to be achieved and which the Customer may routinely rely on to be fulfilled.
3. The limitation of liability as specified under Item 2 shall not apply to damages resulting from injury to life, limb or health. Furthermore, it shall not apply in the event of fraudulent concealment, a guarantee given by us on an exceptional basis for the properties of the deliverable or if the Customer has claims according to German Product Liability Act.
4. If our limitation of liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.
Claims due to defects (Item XIII.3) shall expire 18 months after the date on which the Customer is notified that the deliverable is ready for dispatch; however, 12 months after the commissioning of the deliverable at the latest. The statutory periods of limitation shall apply for claims according to Item IX.
Commercial resale of deliverables shall require our prior written consent.
XII. Applicable law, legal venue
1. These GTC and all legal relationships between us and the Customer shall be solely subject to the law of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal rulings, especially the United Nations Convention on Contracts for the International Sale of Goods.
2. The courts with jurisdiction over our registered office in Langenselbold alone shall have jurisdiction over all disputes directly or indirectly arising from this contractual relationship. However, we shall also be entitled to make claims for damages against the Customer in the general legal venue of the Customer.
Elementar Analysensysteme GmbH
Phone.: +49 6184 9393-0
Fax.: +49 6184 9393-400