General Terms and Conditions of Elementar Analysensysteme GmbH for the Elementar Customer Portal

 

I. Scope of application

1. These General Terms and Conditions for the Elementar Customer Portal ("GTC-CP") 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") 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 take precedence over the General Terms and Conditions of Elementar Analysensysteme GmbH (GTC). Deviating or supplementary general terms and conditions of the Customer shall only apply if and to the extent that we have expressly agreed to their validity in advance, at least in text form. This shall also apply if we have unconditionally accepted the Customer’s order, with knowledge of the general terms and conditions of the Customer.
   
   

2. The GTC-CP take precedence over the General Terms and Conditions of Elementar Analysensysteme GmbH (GTC). Deviating or supplementary general terms and conditions of the Customer shall only apply if and to the extent that we have expressly agreed to their validity in advance, at least in text form. This shall also apply if we have unconditionally accepted the Customer’s order, with knowledge of the general terms and conditions of the Customer.
   
   

3. Individual agreements shall have priority over these GTC-CP. The agreements are to be recorded in writing as evidence.
   
   

4. Unless directly amended or expressly excluded in these GTC-CP, the statutory provisions shall apply.
   
   

5. The GTC-CP that are valid at the time of the order via the Customer Portal shall apply.
   
   

6. Customer can only be who is 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

1. Condition for an order via our Customer Portal is that the Customer has registered first and logged into his customer account. The Customer can then select products from our range and add them to his order by using the button “Add to Cart”. The Customer can collect several products in the electronic shopping cart. If available for individual products, the Customer has various specification options (such as colour or quantity). The Customer can 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”). Only with acceptance of the GTC-CP by activating the corresponding checkbox and clicking the button “Place Order”, the Customer makes a binding offer to purchase the products in the shopping cart. Before submitting the order, the Customer has the opportunity to view and change the data.
   
   

2. We will send an automatic confirmation of receipt to the Customer by email. This merely documents the receipt of the order and does not constitute an acceptance of the Customer’s offer.
   
   

3. If the Customer has opted for payment by means of

• credit card, the contract is concluded either with receipt of the order confirmation by email or - depending on which occurs earlier - with a credit note request to the credit company. The order confirmation also contains the wording of this contract.

• bank transfer (“invoice”), the contract is concluded upon receipt of the order confirmation.
  
  

4. Irrespective of the method of payment, the contract is concluded at the latest when the delivery item is dispatched.
   
   

III. Delivery, default of acceptance

1. Unless explicitly agreed otherwise, delivery shall be ex works from our registered office. The place of fulfilment 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 committed ourselves to this.
   
   

2. Devices shall be provided in special transport packaging at the Customer's expense.
   
   

3. We shall be entitled to make partial deliveries if a partial delivery can be used by the Customer according to the contractual intended purpose and if the delivery of the remaining parts of the delivery item is ensured. Any additional shipping costs incurred as a result shall be borne by us.
   
   

4. In case of delivery from our registered office, if the Customer does not collect the delivery item 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

1. Delivery dates shall only be binding if we have confirmed them at least in text form (e.g. in the order confirmation). Delivery times stated by us shall be calculated as follows: in the case of payment by credit card, depending on which is the later, from the time of the credit note request or from the time of conclusion of the contract; in case of bank transfer (“invoice”) from the time of conclusion of the contract. If no delivery time is specified for a product in our Customer Portal, the delivery time is usually seven (7) working days.
   
   

2. A binding delivery date is met if the product has been handed over to a transport company for delivery.
   
   

3. 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.
   
   

4. Delay in delivery requires a reminder from the Customer, at least in text form.
   
   

V. Transfer of risk

1. Risk shall be transferred to the Customer when the delivery item leaves our registered office. This shall equally apply in case of justified partial deliveries as well as in case we bear the packaging / transport / shipping and / or insurance costs.
   
   

2. In the event of default of acceptance, the risk shall pass to the Customer upon expiry of the contractually agreed delivery date or receipt of the notification that the delivery item is ready for dispatch.
   
   

VI. Prices, other costs, delay

1. Our current prices valid at the time the order is completed (including any applicable discounts) shall apply. The prices refer to the products offered in the Customer Portal.
   
   

2. Unless expressly agreed otherwise, prices do not include packaging / transport / shipping and / or insurance costs. They do not contain sales tax.
   
   

3. 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 the displayed fee.
   
   

VII. Retention of title, software, resale

1. Until our claims arising from a supply contract or an ongoing business relationship with the Customer have been completely fulfilled, we shall remain the owner of all delivery items.
   
   

2. Elementar retains all title and exclusive (copy-) rights of use to catalogues, product descriptions and information, assembly and operating instructions and quotation letters – also in electronic form – even after transfer / handing them over to the Customer. The Customer will need to obtain our prior consent to pass on / forward the aforementioned materials.
   
   

3. If the delivery item contains a computer program within the meaning of Section 69a of the German Copyright Act (UrhG), the Customer is entitled to use it for this delivery item exclusively. The use for a further or another object is prohibited. The Customer shall only be entitled to reproduce, edit or translate the program or to 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.
   
   

4. A commercial resale of delivery items requires our prior consent.
   
   

VIII. Warranty for material defects, guarantee

1. We shall be liable for material defects and defects of title in accordance with the applicable statutory provisions, in particular Sections 434 et seqq. of the German Civil Code (BGB). In case of a defect, we may, at our discretion, provide subsequent performance by remedying the defect (subsequent improvement) or by supplying a defect-free item (replacement delivery). The warranty period and the limitation period shall be twelve (12) months in each case.
   
   

2. The Customer has to give us the time and opportunity required for subsequent performance. Further, the Customer has to provide us with the delivery item complained about for testing purposes. If the request to remedy the defect turns out to be unjustified, we shall be entitled to demand reimbursement of the resulting costs from the Customer.
   
   

3. If the subsequent performance failed or has been delayed beyond a reasonable time or if we are entitled to refuse it in accordance with the statutory provisions, the purchase price may be reduced and, in the case of a significant defect, alternatively, the supply contract may be rescinded.
   
   

4. The Customer has to inspect the delivery items carefully immediately upon receipt. He has to report obvious differences in quantity, damage and errors within seven (7) working days of receipt, if they are hidden within seven (7) working days of discovery (exclusion period). Timely dispatch of the notification shall suffice to meet the deadline.
   
   

5. In general, a guarantee is not provided. We only assume a guarantee if this is explicitly stated in the order confirmation for the respective product.
   
   

6. 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.
   
   

IX. Liability

1. In the event of intent and gross negligence – irrespective of the legal basis – we shall be liable for damages in accordance with the statutory provisions.
   
   

2. In the event of simple negligence, we shall only be liable in the event that a material contractual obligation is breached, limited to compensation of the foreseeable, typically occurring damages. 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.
   
   

3. The limitation of liability as specified under clause 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, in the event of a guarantee given by us on an exceptional basis or if the Customer has claims according to the German Product Liability Act.
   
   

4. 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

1. Unless otherwise stipulated in these GTC-CP, 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 text form (e.g. email) to be effective.
   
   

2. 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.
   
   

3. 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 sell them. The proceeds from the sale shall be offset against the Customer's liabilities, minus reasonable selling costs.
   
   

4. 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 deteriorated significantly already prior to the conclusion of the contract and, despite careful examination, we only recognize this after the conclusion of the contract.
   
   

5. 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 VIII remain unaffected hereby.
   
   

6. These GTC-CP and all legal relationships between us and the Customer are subject to the law of the Federal Republic of Germany - subject to mandatory international private law provisions - to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
   
   

7. The competent courts for our registered office in Langenselbold shall have exclusive jurisdiction over all disputes arising directly or indirectly from this contractual relationship. However, we shall also be entitled to assert our claims against the Customer at the general place of jurisdiction of the Customer.
   
   

8. The contractual language is German.

 

Status: October 2020