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.
IX. Export Control
- The deliveries and services (performance of the contract) shall be subject to the condition that there are no obstacles to fulfillment on the basis of national or international regulations, in particular export control regulations as well as embargos or other restrictions. The contracting parties undertake to provide all information and documents required for the export/transfer/import. Delays due to export inspections or approval procedures shall suspend deadlines and delivery times. If required approvals are not granted, the contract shall be deemed not to have been concluded with regard to the parts concerned; claims for damages shall be excluded in this respect and due to the aforementioned exceeding of deadlines.
- The customer shall comply with the applicable provisions of national and international (re-)export control law when passing on the goods delivered by us (including hardware and/or software and/or technology as well as related documentation, irrespective of the manner in which they are made available) or the work and services provided by us (including technical support of any kind) to third parties. In any case, when transferring such goods, work and services to third parties, he shall comply with the (re-)export control regulations of the Federal Republic of Germany, the European Union and the United States of America.
- Before passing on the goods delivered by us or the work and services provided by us to third parties, the customer shall in particular check and take appropriate measures to ensure that
- it does not violate any embargo of the European Union, the United States of America, the United Kingdom and/or the United Nations - also taking into account any restrictions on domestic transactions and any prohibitions on circumvention - by such transfer to third parties, by brokering contracts for such goods, work and services or by providing other economic resources in connection with such goods, work and services;
- such goods, works and services are not intended for a prohibited or licensable armaments-related, weapons-related use, unless any required licenses have been obtained;
- the regulations of all relevant sanctions lists of the European Union, Great Britain and the United States of America concerning business transactions with companies, persons or organizations named therein are complied with.
- To the extent necessary for the performance of export control inspections by authorities or by us, the customer shall, upon request, immediately provide us with all information regarding the final recipient, the final destination and the intended use of the goods delivered by us or the work and services performed by us as well as any export control restrictions applicable in this respect.
- the customer shall fully indemnify us against all claims asserted against us by authorities or other third parties due to the customer's failure to comply with the aforementioned export control obligations and undertakes to compensate us for all damages and expenses incurred in this connection.
X. Quality, Warranty
- We shall be liable for material defects and defects of title in accordance with the applicable statutory provisions, in particular §§ 434 et seq. German Civil Code (BGB). If there is a defect, we may choose to remedy the defect (rectification) or to deliver a defect-free item (replacement). Within the scope of the distributor business, the rectification can also be carried out by us giving the distributor instructions on how to remedy the defect. In this case, we shall not bear the costs for the working time spent.
- A warranty period of 12 months from the date of technical acceptance, or for 18 months from the date of shipment, whichever occurs first, shall apply. Unless otherwise expressly agreed in writing, any liability for material defects shall be excluded - in deviation from the above provisions - in the event of the sale of used items (e.g. demonstration units or refurbished units). The rights according to § 444 German Civil Code (BGB) remain unaffected.
- The limitation period is 12 months.
- The customer shall give us the time and opportunity required for subsequent performance, in particular make the delivery item complained about available to us for inspection purposes. If the request to remedy the defect turns out to be unjustified, we may demand reimbursement of the incurred costs from the customer.
- The warranty is excluded if
- the defect was caused by operating the device with an incorrect supply voltage or by the inability to maintain a constant supply voltage, or by use contrary to the information in the installation instructions, training materials or other technical information provided by us, or by incorrect handling, neglect or by improper maintenance and/or repair work.
- other service parts/consumables are used for the devices that are not components approved by us and are not obtained directly from us or from authorized distributors.
- the defect is the result of sample impurities, carrier and/or reference gas impurities, leaks, or other problems considered to be non-compliant with GLP.
- recommended maintenance and check-ups have not been performed.
- the defect exclusively concerns third party components or has been caused by them.
- the instrument has been misused or needs to be adapted, modified or adjusted after commissioning in order to comply with the national or local technical or safety standards of a country other than the one for which the system was designed and configured.
- CONSUMABLE MATERIALS and WEAR PARTS are defined as components that are consumed or worn out and therefore have a limited service lifetime during normal operation of the device (a list of all consumables and wear parts is available separately upon request). All consumables and wear parts are excluded from the standard warranty of the device.
- SERVICE PARTS are defined as items requiring direct service and installation by qualified personnel previously trained by us (a list of all service parts is available separately upon request). All service parts that need to be replaced during the warranty period will be replaced under a direct exchange policy, with the defective components returned to us for evaluation purposes. We reserve the right to charge the full cost of defective components that are not returned to us.
- Should the electronic unit/circuit board fail and on-site repair is deemed inappropriate, we will replace the unit with an equivalent at our discretion. The warranty of the replaced electronic unit/circuit board is valid for the remaining warranty period of the unit. Warranty claims for electronic units will be voided if the claim arises as a result of the following circumstances: unacceptable environmental conditions outside of those specified in the equipment operating instructions; unauthorized repairs, whether performed correctly or not; lack of periodic maintenance where appropriate.
- If individual components of the device are under warranty for a longer period of time, the additional warranty only applies to these components and may possibly be linked to further conditions.
- We shall be entitled to make subsequent performance dependent on the customer paying the price of the delivery item. He shall be entitled to retain a reasonable part of the price in relation to the notified defect. The non-conformity of a part of the delivery does not release the customer from the obligation to pay for all goods that were not objected to.
- If the subsequent performance has failed or has been delayed beyond a reasonable period of time or can be refused by us in accordance with the statutory provisions, a reduction in the purchase price and, in the case of a not insignificant defect, withdrawal from the delivery contract shall be possible as an alternative.
- The customer shall carefully inspect the delivery items immediately upon receipt. Obvious differences in quantity, damage and defects must be reported within seven (7) working days after receipt, non-obvious ones within seven (7) working days after discovery (preclusion period). Timely dispatch of the notification shall be sufficient to comply with the deadline.
- It is the sole responsibility of the customer to arrange and organize all preventive maintenance measures.
- We shall only grant a guarantee if this is expressly stated in the order confirmation for the respective product or has otherwise been expressly agreed and only under the conditions expressly stated therein. In the event of a sale of used items, any guarantee in question must also expressly refer to used items in order to be effective for them. A prerequisite for any guarantee is that:
- The defect is not due to use of the product on any incorrect supply voltage or inability to maintain a constant supply voltage or by use contrary to the information contained within the Installation Requirements, training materials or other technical information of Elementar Analysensysteme GmbH or due to misuse, neglect or inexpert maintenance/repair.
- All service parts/consumables used on the instrument are Elementar Analysensysteme GmbH’s approved components obtained directly from Elementar Analysensysteme GmbH or an authorized distributor.
- All recommended maintenance and inspections (including the rotary pumps and all high vacuum pumps) have been carried out.
- The defect is not exclusively related to or caused by third party components.
- The defects are not a result of sample contamination, carrier and reference gas contamination, leaks or other problems which can be considered to not conform to good laboratory practices.
- Due to technical circumstances, delivery items may deviate slightly from their descriptions and/or representations in catalogs and other documents (also in electronic form), for example in color and dimensions. Minor deviations do not constitute a material defect. We reserve the right to make quality improvements.
- In the event of intent and gross negligence – on whatever legal grounds – we shall be liable for damages in accordance with the statutory provisions.
- In the event of ordinary negligence, we shall only be liable in the event that a material contractual obligation is breached, limited to reimbursement of the foreseeable, typically occurring damages. 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 regularly rely on to be fulfilled.
- The limitation of liability as specified under XI 2. shall not apply to damages resulting from injury to life, body or health. Furthermore, it shall not apply in the event of fraudulent concealment, a guarantee given by us on an exceptional basis or if the Customer has claims according to German Product Liability Act.
- If our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.
XII. Final provisions
- Unless otherwise stipulated in these GTC, declarations that have to be issued after conclusion of the contract (e.g. reminders, setting of deadlines, notifications of defects, declarations of withdrawal) require at least the text form (e.g. e-mail) to be effective.
- The Customer may only assign claims arising from the delivery contract with our prior consent and only as far as our interests are not unreasonably impaired by the assignment.
- In case of a breach of contract by the Customer, in particular payment default, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and demand the return of the delivery items or demand the assignment of any claims the Customer may have against third parties. After taking back the delivery items, we shall be entitled to dispose of them. The proceeds from the sale shall be offset against the Customer's liabilities, minus reasonable selling costs.
- We shall also be entitled to refuse performance pursuant to Section 321 of the German Civil Code (BGB) if the financial circumstances of the Customer have already deteriorated significantly prior to the conclusion of the contract and, despite careful examination; we only recognize this after the conclusion of the contract.
- The Customer shall only have the right to withhold payments or set them off against counterclaims to the extent that his counterclaims are legally established, undisputed or acknowledged by us. The Customer may only exercise a right of retention if and insofar as his counterclaim is based on the same contractual relationship. Any warranty rights according to clause X remain unaffected hereby.
- These GTC and all legal relationships between us and the Customer are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods, subject to mandatory international private law provisions.
- 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.
- The contractual language is German.
Status: August 2022