General Terms and Conditions of Elementar Australia Pty Ltd for the Elementar Customer Portal
I. Scope of application
- Subject to clauses 2 and 3, these General Terms and Conditions for the Elementar Customer Portal ("GTC-CP-AUS") apply to all business relations between us, Elementar Australia Pty Ltd (ACN 169 384 883) (hereinafter also referred to as "we", "us") and our customer (the "Customer") that are initiated or processed via the Elementar Customer Portal (“Customer Portal”), in particular for all orders placed via the Customer Portal. The GTC-CP-AUS take precedence over the General Terms and Conditions of Elementar Australia (GTC-AUS).
- Inconsistent or supplementary Customer terms and conditions only apply if and to the extent that we have expressly agreed to this in writing or if we have unconditionally accepted the Customer’s order, with prior knowledge of the Customer's terms and conditions applicable to that order.
- These GTC-CP-AUS will not apply to any other agreements between us and the Customer except to the extent set out in any such agreement.
- We may update these GTC-CP-AUS terms from time to time and the GTC-CP-AUS that are current at the time we confirm acceptance of the order via email ("order confirmation") shall apply to that order.
- These terms apply only to orders placed by the Customer with Elementar Australia Pty Ltd and do not apply to any orders placed by the Customer with Elementar Analysensysteme GmbH.
II. Order, conclusion of contract
- Prior to placing an order via our Customer Portal, the Customer must register and log into its customer account. The Customer may then select products from our range as are shown in the Customer Portal and add them to its order by using the button “Add to Cart”. If available for individual products, the Customer may choose from various specification options (such as colour or quantity). The Customer may complete the order via the button “Proceed to Checkout”. The Customer then has the option of selecting a payment method (credit card - Visa or Mastercard, or “invoice”).
- By activating the corresponding checkbox and clicking the button “Place Order”, the Customer accepts these GTC-CP-AUS and makes a binding offer to purchase the products in the electronic shopping cart at that time. Before submitting such an order, the Customer will have the opportunity to view and change its order.
- We will send an automatic confirmation of receipt to the Customer to the email provided by the Customer during the registration process. This merely documents the receipt of the order and does not constitute an acceptance of the Customer’s offer. Acceptance of the Customer's offer will only occur upon us sending an order confirmation. The order confirmation will contain the GTC-CP_AUS terms that will apply to that order.
- If the Customer has opted for payment by means of:
- credit card, the contract for supply of the relevant products is agreed between the parties upon the earlier of us sending the order confirmation to the Customer or the submission by us of a credit note request to the relevant credit company.
- bank transfer (“invoice”), the contract for the supply of the relevant products is agreed between the parties upon us sending the order confirmation to the Customer.
III. Delivery, default of acceptance
- Unless explicitly agreed otherwise (including where we have agreed to commissioning at the premises of the Customer), delivery shall be ex works from our Australian warehouse in Sydney, NSW ("Australian Warehouse") and the Customer will be responsible for arranging the collection of the products.
- If the Customer requests, products can be provided in special transport packaging at the Customer's expense.
- We may fulfil the Customer's order on a progressive basis. If this results in a partial delivery, any additional shipping costs incurred by Customer as a result shall be borne by us.
- In case of delivery from our Australian Warehouse, if the Customer fails to collect the product on the delivery date immediately after receipt of notification by us that the product is ready for dispatch (or such other date agreed with us in writing), the Customer will be liable for any additional expenses (e.g. storage costs) we incur as a result. The Customer must promptly notify us of any such anticipated delay.
IV. Delivery dates, product availability
- Delivery dates will be as set out in the order confirmation or as otherwise communicated to the Customer in writing. Delivery times will be calculated by us from the time of agreement of the contract set out in clause 4 of Part II of these GTC-AUS-CP. If no delivery time is specified for a product in our Customer Portal, the delivery time is usually seven (7) working days.
- The delivery date is the date that the product has been made available for collection (if the Customer is collecting it from the Australian Warehouse) or where the Customer has arranged for delivery by a third party, the date on which the product is handed over to that transport company for delivery to the Customer.
- We will inform the Customer as soon as is reasonably practicable after becoming aware that a product is not available or will not be delivered on the delivery date previously notified to the Customer. If delivery is delayed by an event of force majeure or any other event beyond our reasonable control, the delivery date shall be automatically extended by the duration of that event. If a product is not available for the foreseeable future, we will notify the Customer as soon as reasonably practicable and we will refund any payments made by the Customer for that product without delay. The same shall apply if the product is unavailable because of any failures to supply by our suppliers or if any required import permit pertaining to that product has not been issued.
V. Transfer of title and risk
- Risk shall be transferred to the Customer when the product leaves our Australian Warehouse. This shall equally apply in case of partial deliveries.
- If the Customer fails to collect a product on its delivery date the risk shall nonetheless pass to the Customer on that delivery date.
- Notwithstanding the above, title in the products do not pass to the Customer until payment for the product has been received.
VI. Prices, other costs, delay
- Customer shall pay the price for the ordered products that is set out in the Customer Portal at the time the order is completed (including any applicable discounts). The Customer shall have no right of set-off, deduction, restriction or condition whatsoever unless expressly agreed by us.
- Unless expressly agreed otherwise, prices do not include packaging, transport, shipping or insurance costs and are stated exclusive of GST.
- Insofar as separate packaging, shipping, transport or insurance options are available, they will be displayed to the Customer when ordering on the Customer Portal. The Customer is free to make use of these in return for paying the displayed fee.
VII. Intellectual Property and Confidentiality
- Unless otherwise expressly agreed by the parties, the ownership of all intellectual property rights (including the intellectual property rights in any catalogues, product descriptions and information, assembly and operating instructions and quotation letters transferred or handed over to the Customer) of either party is neither assigned nor otherwise transferred to the other party.
- Except where the relevant order confirmation provides otherwise and subject to the Customer's compliance with the terms of an order including these GTC-CP-AUS, we grant the Customer an irrevocable, non-exclusive, non-transferable, royalty-free license to use our intellectual property rights in all materials or other information which has been supplied or otherwise been made available by the Customer pursuant to that order as is necessary for, and solely for the purposes of, the Customer exercising its rights and performing its obligations pursuant to that order.
- For the avoidance of doubt, a commercial resale of products acquired by the Customer under this agreement requires our prior consent.
- Any information which is disclosed or made accessible by or on behalf of us to the Customer during or in connection with the negotiation or performance of an order that is (i) expressly stated to be or marked confidential; or (ii) could reasonably be expected to be confidential in nature and for the avoidance of doubt includes our intellectual property rights, but will exclude information which is in (iii) the public domain; (iv) was already in the Customer's possession prior to disclosure by us; or (v) has been received from a third party, other than due to a breach of confidentially, is our confidential information.
- You must keep our confidential information secure and not disclose it to any third party unless you are required to by law.
- To the extent permitted by law, we make no warranties in respect of our products except as otherwise stipulated in these GTC-AUS-CP or an order confirmation.
- The Customer must inspect the products carefully immediately upon receipt. The Customer must report obvious differences in quantity, damage and errors as soon as reasonably possible and in any event, within seven (7) working days of becoming aware of the defect. If notice of defects are not given during this timeframe, then we shall have no liability in respect of the affected product.
- The colours and dimensions of our products may deviate from the descriptions and illustrations in the Customer Portal. This depends on the representation on your monitor as well as on production fluctuations. Minor deviations do not constitute a material defect. We reserve the right to make quality improvements.
- To the maximum extent permitted by law any condition or warranty which would otherwise be implied into these GTC-CP-AUS is hereby excluded. If legislation, including the Australian Consumer Law, implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability for any such defect will be limited for a breach of that condition or warranty to, at our option, remedying the defect (subsequent improvement) or by supplying a defect-free product (replacement delivery). The warranty period and the limitation period shall be twelve (12) months in each case. If we are not able to exercise either of these options, we may terminate that order and reimburse the Customer for the cost of the lessor of replacing the product or of acquiring an equivalent product.
- To the maximum extent permitted by law, we shall, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, and whatever the cause (i) not be liable for any indirect loss or consequential loss and (ii) shall only be liable in the event of breach of a material contractual obligation. A material contractual obligation is an obligation, the fulfilment of which is necessary to achieve the purpose of the contract and on the fulfilment of which the Customer may regularly rely.
- The limitation of liability as specified under clause 1 and 2 shall not apply to damages resulting from injury to life, body or health, fraud or fraudulent misrepresentation, or any other liability that cannot be lawfully excluded.
- Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives, and vicarious agents.
X. Final provisions
- Unless otherwise stipulated in these GTC-CP-AUS, any notice required to be given under a contract (e.g. reminders, setting of deadlines, notifications of defects, declarations of withdrawal) must be given in writing to be effective.
- The Customer must not transfer, assign or otherwise delegate any of its rights or obligations under a contract to any third party without our prior written consent.
- In case of a breach of contract by the Customer, in particular payment default, we shall be entitled to withdraw from the contract and demand the return of the products or demand the assignment of any claims the Customer may have against third parties. After taking back the products, we shall be entitled to sell them. The proceeds from the sale shall be offset against the Customer's liabilities, minus reasonable selling costs.
- We shall have the right to terminate a contract if:
- the Customer commits a material breach of that contract; or
- we consider that the Customer is at risk of becoming insolvent.
- These GTC-CP-AUS and all legal relationships between us and the Customer are subject to the laws of New South Wales, Australia.
- The competent courts for New South Wales, Australia shall have exclusive jurisdiction over all disputes arising directly or indirectly from this contractual relationship.
- The contractual language is English.
Status: July 2021