I. Scope of application
- These General Terms and Conditions ("GTC") shall apply for all business relations between us, Elementar Americas, Inc., 119 Comac Street, Ronkonkoma, NY 11779 (hereinafter also referred to as "we", "us") and our customer (the "Customer").
- The EAI apply exclusively, unless expressly deviated from by our terms and conditions of business (e.g. through General Terms and Conditions of Elementar Americas, Inc. GTC). 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 advance, at least in text form. This shall also apply if we have accepted the Customer’s order without reservations, knowing the General Terms and Conditions of the Customer.
- Individual agreements shall have priority over these GTC. The agreements are to be recorded in writing as proof.
- Unless directly amended or excluded in these GTC, the statutory provisions shall apply.
- The GTC in their respective versions shall also apply to future contracts with the same customer, without us referring to them in each individual case.
- A customer may only be an entrepreneur (Section 14 German Civil Code, BGB), a legal entity under public law or a special fund under public law.
II. Order, conclusion of contract
- We shall be bound for three (3) weeks by information on the delivery item in our offer letters. In all other respects our offer letters are subject to change and non-binding. They are not an offer in the legal sense.
- The customer’s order is binding and therefore an offer in the legal sense. We can accept the customer’s order within ten (10) working days of receipt. Acceptance shall be effected by sending an order confirmation or, in the case of consumables, alternatively by sending the delivery item.
III. Delivery, default of acceptance
- Unless explicitly agreed otherwise, delivery shall be ex works from our registered office. The place of fulfillment for all obligations arising from this contractual relationship shall be our registered office. This excludes the commissioning at the premises of the Customer if we have agreed to this.
- Devices shall be provided in special transport packaging at the customer's expense.
- We shall be entitled to make partial deliveries if partial delivery can be used by the Customer according to the contractual intended purpose and if the delivery of the remaining parts of the deliverable is guaranteed. We are responsible for any additional shipping costs incurred as a result.
- In case of delivery from our registered office, if the Customer does not collect the deliverable 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.
IV. Delivery dates, product availability
- Delivery dates shall only be binding if we have confirmed them at least in text form (e.g. in the order confirmation). For the rest, the delivery time is regularly seven (7) working days from dispatch of the order confirmation. If a down payment has been agreed, the delivery period begins with the bank’s notification of receipt of payment.
- A binding delivery date is met if the Customer has been notified in advance that the goods are ready for dispatch and the delivery item is ready for collection at our registered office on the delivery date.
- We will inform the Customer immediately if the product is not deliverable or not deliverable in time. In case of force majeure or other events beyond our control, the delivery period shall automatically be extended accordingly. If the product is not available for the foreseeable future, we are entitled to withdraw from the contract. In case of a withdrawal, we will refund any payments made by the Customer without delay. The same shall apply if the delivery item is unavailable because a congruent (partial) hedging transaction concluded by us has not been fulfilled by our supplier or a required import permit has not been issued. The above provision shall not affect statutory rights of the Customer due to delay in delivery.
- Delay in delivery requires a reminder from the Customer, at least in text form.
V. Transfer of risk
- Risk shall be transferred to the Customer when the deliverable leaves our registered office. This shall equally apply for entitled partial deliveries as well as for the acceptance of packaging / transport / shipping and / or insurance costs by us.
- In the event of default of acceptance, risk shall be transferred to the Customer upon the expiry of the contractually agreed delivery date / receipt of the notification that the deliverable is ready for dispatch.
VI. Prices, other costs, terms of payment
- Our current prices at the time the order is completed (including any applicable discounts) shall apply. The prices refer to the products offered in the catalogue.
- Unless expressly agreed otherwise, prices shall not include packaging / transport / shipping and / or insurance costs. They shall not contain sales tax.
- Payments are to be made within 30 days of the invoice date without deduction to our account. Thereafter, default occurs without reminder. During period of default, we shall be entitled to pay interest on the outstanding amount at the statutory default interest rate. We reserve the right to assert further damages caused by delay.
VII. Retention of title, software, resale
- Until our claims arising from a delivery contract or an ongoing business relationship with the Customer have been met in full, we shall remain the owner of all delivery items.
- 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 are entitled to the exclusive (copy-)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 the aforementioned information / documents.
- 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. The use for a further or another object is prohibited. The Customer shall only be entitled to reproduce, edit and translate the program or carry out actions relevant to its copyright in accordance with Sections 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.
- A commercial resale of delivery items requires our prior consent.