I. Scope of application
- These General Terms and Conditions ("GTC") shall apply for all business relations between us, Elementar Analysensysteme GmbH, Elementar-Straße 1, 63505 Langenselbold, Germany (hereinafter also referred to as "we", "us") and our customer (the "Customer").
- The GTC apply exclusively, unless expressly deviated from by our terms and conditions of business (e.g. through General Terms and Conditions of Elementar Analysensysteme GmbH -GTC-CP). 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 reservation in the knowledge of the customer's GTC without objecting to the customer's GTC in the individual case.
- 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, Rights in the case of no credit insurance
- 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.
- We are entitled to refuse the performance we are obliged to render and to stop production if it appears that the order volume is not insured by our credit insurance. In this case, we will immediately notify the customer and set a reasonable deadline within which advance payment or security must be provided. After unsuccessful expiry of the deadline, we are entitled to withdraw from the contract, without prejudice to other claims.
III. Delivery, installation, 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.
- The installation of the instruments and/or their retrofits can only take place provided that all the necessary requirements have been prepared on site at the customer's premises in accordance with the installation requirements. These requirements will be sent to the customer by us before the installation phase and the customer must return a confirmation by e-mail. Should the technicians commissioned by us find installation conditions that do not comply with the requirements, we reserve the right not to continue or to interrupt the installation and to charge the corresponding expenses for the work and travel of the technicians for the entire period of the planned deployment.
- 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.
- If an action of the customer is required for the performance of the contractual service (e.g. collection of the delivery item) and the customer is in default of acceptance due to the failure to perform the action, we may, until the customer has fulfilled these obligations in accordance with the contract, demand liquidated damages in the amount of 0.2% of the net invoice amount for each day of default. The amount of the liquidated damages shall be limited to 5% of the net invoice amount. Our right to prove the actual occurrence of a higher damage incurred by us and to assert this against the customer shall remain unaffected, as shall the right of the customer to prove that no damage or a reduction in value was incurred at all or that it was significantly lower than the lump sum. Further or other rights of us remain unaffected.
- Scheduled service appointments will be charged in full if cancelled by the customer with less than 72 hours’ notice.
IV. Delivery dates, product availability
- Unless otherwise expressly agreed in writing, delivery periods, even if they are specified as precisely as possible, are given only as indicative values and are not binding. Dates for initial set-up, as well as maintenance dates, are to be arranged separately by the customer.
- 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. Agreed deadlines for our performance shall be extended appropriately if the customer delays an act of cooperation incumbent upon him or is responsible for an impediment.
- 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, such as strikes, pandemics, war, political unrest, natural disasters, machine breakdowns or unforeseeable procurement difficulties, 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
- We shall remain the owner of all delivery items until complete fulfillment of our claims arising from a delivery contract or an ongoing business relationship with the customer. This shall also apply to all future deliveries, even if we do not always expressly invoke this.
- The customer is obliged to treat the purchased item with care as long as ownership has not yet passed to him. As long as ownership has not yet passed to him, the customer must notify us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. The customer shall be liable to us for any judicial or extrajudicial costs incurred in this connection, unless the third party is in a position to reimburse us for these costs.
- The customer shall be entitled to resell the goods subject to retention of title in the normal course of business (in compliance with Section VIII 4.). The customer hereby assigns to us the claims against the purchaser arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed with us (including value added tax). This assignment shall apply regardless of whether the purchased goods have been resold without or after processing. The customer shall remain authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have not been suspended.
- The processing or transformation of the object of sale by the customer shall always be carried out in our name and on our behalf. In this case, the customer's expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. The same shall apply in the event of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis and that the sole ownership or co-ownership created in this way is held in safe custody for us. To secure our claims against the customer, the customer also assigns to us such claims against a third party as accrue to him through the combination of the reserved goods with a property; we already accept this assignment.
- We undertake to release the securities to which we are entitled at the request of the customer insofar as their value exceeds the claims to be secured by more than 20%.
VIII. Intellectual property rights, software, resale
- Patent and design or other intellectual property rights relating to goods offered or delivered shall remain our property even after handover. Copying or enabling the copying of any goods or parts delivered by us is prohibited without our prior written permission.
- We shall be entitled to the exclusive rights of use to catalogs, designs, drawings, product descriptions and information, assembly and operating instructions as well as offer letters - all of which shall also be available in electronic form - even after handover/transfer. The customer requires our prior express consent to pass on or reproduce the aforementioned materials.
- 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.