§ 1 Validity of the Terms and Conditions
- The following terms and conditions are valid for all contracts closed between the buyer and us for delivery of goods. They also apply to all future business relationships, even if they are not once again explicitly agreed to. Deviating conditions of the buyer that are not explicitly recognized by us are not binding for us, even if we do not explicitly contradict them. The following conditions are also valid if we carry out the order from the buyer without reservation with knowledge of the opposing or deviating terms and conditions of the buyer.
- All agreements made between the buyer and us for carrying out the sales contract are written down in the contracts.
§ 2 Offer and Conclusion of the Contract
- We can accept an order from the buyer, which is to be qualified as an offer to close a sales contract within two weeks by sending a contract confirmation or sending the ordered products within the same period of time.
- Our offers are subject to change and non-binding unless we explicitly designate the offer as binding.
- We retain ownership, copyright, and other industrial property rights of all pictures, calculations, drawings and other documents. The buyer may not transfer these to third parties without our written agreement, regardless of whether or not these are marked as confidential.
§ 3 Conditions for Payment
- Our prices are valid ex works without packaging if nothing else is in the order confirmation. The statutory value added tax is not included in our prices. This will be listed separately on the bill in the amount valid on the day the bill is issued.
- A discount deduction is only allowed with special written agreement between us and the buyer. The purchase price is net (without deductions) and due with the receipt of the bill by the buyer as long as no other date is given in the order confirmation. Payment is considered made when we have the amount at our disposal. In the case of payment by check, the payment is considered made when the check has been cashed.
- If the buyer is in arrears, the legal regulations apply.
- The buyer only has a right of retention if his counterclaim applies to the same contractual relationship.
§ 4 Delivery Time and Performance Time
- Delivery times or terms that are not explicitly agreed-upon as binding are only non-binding statements. The delivery time that we indicate beings only when all technical questions have been completely clarified. In the same way, the buyer is to fulfil all obligations incumbent on him in a timely and orderly way.
- If the sales contract serving as a basis concerns short selling in the sense of Sec. 286 paragraph 2 no. 4 German Civil Code or Sect. 376 German Commercial Code, we are liable according to the legal regulations. The same applies if the buyer, resulting from a delivery delay for which we are responsible, is entitled to asserting discontinuance of his interest in the further fulfilment of the contract. In this case, our liability is limited to the foreseeable, typically arising damages if the delivery delay does not involve a deliberate breach of contract for which we are responsible, in which case blame is to be assigned to our representative or agent. Likewise, we are liable to the buyer in the case of delivery delays according to the legal regulations if this involves breach of contract which is our responsibility and deliberate or grossly negligent. Our liability is limited to foreseeable, typically occurring damages if the delivery delay does not relate to a deliberate breach of contract for which we are responsible.
- In the case that a delivery delay for which we are responsible involves the culpable breach of a significant contractual duty for which the blame can be assigned to our representative or agent, we are liable according to legal regulations provided that the liability for damages is limited in this case to the foreseeable, typically occurring damages.
- Otherwise, in the case of a delivery delay for which we are responsible, the buyer can, for each full week of delay, claim a lump sum payment for compensation in the amount of 3% of the value to be delivered, at the most 15% of the value of the value of the delivery.
- Further liability for delivery delay for which we are responsible is excluded. Further legal claims and rights of the buyer to which he is entitled in addition to payment for damages because of the delivery delay for which we are responsible, remain unaffected.
- We are entitled to partial deliveries and services at any time as long as this is reasonable for the customer.
- Should there be in a delay in the acceptance by the buyer, we are entitled to claiming compensation for the resulting damages and possible increased effort. The same applies if the buyer breaches possible obligations to cooperate. With the beginning of arrears for acceptance or payment, the risk of spoilage or damage transfers to the buyer.
§ 5 Passing of Risk – Delivery/Packaging
- Loading and delivery occur without insurance at the risk of the buyer. We will try to take the wishes and interests of the buyer into account regarding the type of delivery and dispatch; additional costs resulting from this – also in the case of agreed-upon carriage-paid delivery – are to be borne by the buyer.
- We do not take back transport packaging or any other packaging according to the regulations of the German Packaging Ordinance except for palettes. The buyer is to take care of the disposal of the packaging and bear the related costs.
- If the delivery is delayed by the desire of the buyer or his fault, we will store the wares; the cost and risk is to be borne by the buyer. In this case, the notice of readiness for dispatch is the same as delivery.
- If the buyer so desires and pays, we will secure the delivery with transport insurance.
§ 6 Warranty/Liability
- Warranty claims of the buyer only exist if the buyer fulfils his inspection and damage claim obligations according to Sect. 377 of the German Commercial Code according to the rules and the wares have been used as intended (see the operator’s manual).
- If there is a defect in the wares for which we are responsible, we are obligated to supplementary performance with exclusion of the rights of the buyer to cancel the contract or make deductions from the purchase price, unless we are entitled by law to refusing supplementary performance. The buyer is to guarantee us a reasonable period of time for supplementary performance. The supplementary performance can, according to the choice of the buyer, occur by eliminating the defect (rectify the defect), or deliver new wares. In the case of rectification of defects, we shall bear the necessary costs as long as these are not increased because the object of the contract is in a different place than the contractual place of fulfilment. Should the supplementary performance fail, the buyer can, according to his choice, claim a reduction the purchase price (deduction) or declare withdrawal from the contract. The rectification of defects is considered failed after the second unsuccessful attempt, if further attempts at rectification are not appropriate and reasonable for the customer on the basis of the subject of the contract. Claims for compensation for damages regarding the following conditions can only be made by the buyer if the supplementary performance has failed. The right of the buyer to claim further claims for damages for the following conditions remains unaffected by this.
- The buyer’s warranty claim comes become time barred 18 months after delivery of the wares to the buyer, unless we have fraudulently hidden the defects; in this case, the legal regulations apply. Different warranty conditions apply to those components subjected to a constant mechanical stress like probes incl. thermocouples, pump bodies, printers and rechargeable batteries. Pure consumables like filters, printer paper, non-rechargeable batteries, etc. are excluded from any warranty.
- According to the legal regulations, we are liable without limitation for damages for death, bodily injury, or health problems which relate to our deliberate or grossly negligent breach of duty or that of our legal representatives and agents, as well as damages that are encompassed by German Product Liability Law. For damages that are not included in sentence 1 and that concern deliberate or grossly negligent breaches of contract as well as fraudulent intent by us, our representatives, or out agents, we are liable according to the legal regulations. In this case, though, the liability for claims of damages is limited to the foreseeable, typically arising damages as long as we, our legal representatives, or our agents have not acted wilfully. We also are liable in the scope of this guarantee in the extent to which we have given a warranty on product properties or longevity. For damages relating to the lack of the guaranteed properties or longevity that do not occur directly on the wares, we are only liable if the risk of such a damage is obviously included in the warranty on properties and longevity.
- We are also liable for damages caused by simple negligence as long as the negligence concerns the breach of contractual duties, the compliance with which is of particular importance (cardinal obligations) for attaining the goals of the contract. We are only liable, however, insofar as the damages are typically and foreseeably connected to the contract.
- Further liability is excluded without consideration for the legal nature of the lodged claims. This applies in particular to tortious claims or claims for replacement of futile costs instead of the performance; our liability according to §4 no. 2 – 5 of this contract remains unaffected by this. Insofar as our liability is excluded or limited, this also applies to the personal liability of our salaried employees, employees, associates, representatives, and agents.
- Claims for compensation for damages by the buyer on account of defects become time barred one year after handover of the wares. This does not apply in the case of damages to life, the body, or health for which we, our legal representatives, or our agents are responsible, or when we, our legal representatives, or agent, or if we or our legal representatives, have acted intentionally or grossly negligently, or if our simple agents have acted intentionally.
§ 7 Reservation of Proprietary Rights
- Until the fulfilment of all claims, including all payment balance requests from current accounts, which are entitled to us from the buyer now or in the future, the delivered wares (goods subject to retention of title) remain our property. In the case of breach of contract by the buyer, e.g. arrears, we have, after the prior setting of an appropriate term, the right to taking back the goods subject to retention of title. If we take the goods subject to retention of title back, this represents a withdrawal from the contract. We are entitled to disposing of the goods subject to retention of title after the withdrawal. After deduction of an appropriate amount for the disposing costs, the proceeds of the disposal are to be offset against the amounts owed to us by the buyer.
- The buyer is to handle the goods subject to retention of title with care and insure them adequately at his own expense against fire, water, and theft damages at replacement value. Maintenance and inspection work that becomes necessary is to be carried out in a timely matter at the buyer’s expense.
- The buyer is entitled to selling the goods subject to retention of title in an orderly way in business dealings and/or using them as long as he is not in arrears. Pledging and transfer by way of security are not allowed. Amounts receivable resulting from resale or for another legal reason (insurance, unauthorized actions) regarding the goods subject to retention of title (including all payment balance requests from current accounts) are hereby conveyed in their full amount by way of security to us; we hereby accept this conveyance. We authorize the buyer, subject to revocation, to collect the amounts receivable conveyed to us for his bill in his own name. This collection authorisation can be revoked at any time if the buyer does not comply with his obligations to pay in an orderly manner. The buyer is also not allowed to convey this amount receivable in order for collection of assigned debts by means of factoring, unless the obligations of the factor are established at the same time, the return service in the amount of the amount receivable goes directly to us, and the amounts receivable from us towards the buyer persist.
- Processing or alteration of the goods subject to retention of title by the buyer is undertaken for us in any case. If the goods subject to retention of title are processed with other objects not belonging to us, we receive co-ownership of the new objects in relationship to the value of the goods subject to retention of title (billing amount including value added tax) and the other processed goods in the new object at the time of processing. For the new object created by the processing, the same applies as to the goods subject to retention of title. In the case that the goods subject to retention of title have been mixed in an inseparable way with the other goods not belonging to us, we receive co-ownership of the new object in the relationship to the value of the goods subject to retention of title (billing amount including value added tax) to the other wares at the time of the mixture. If the buyer’s object is to be seen as essential as a result of the mixture, the buyer and we are in agreement that the buyer transfer a proportional share of ownership of the object to us; we hereby accept the transfer. The buyer is to coffer our whole or partial co-ownership of this object for us.
- In the case of access to the goods subject to retention of title by third parties, in particular in the case of distraints, the buyer will allude to our ownership and inform us without delay so that we can assert our ownership rights. If the third party is not in the position to refund legal or extra-legal costs arising in this case, the buyer is liable for them.
- We are obligated to float the securities entitled to us insofar as the realisable value of our securities exceeds the amounts receivable to be secured by more than 10%, in which case selection of the securities to be floated is incumbent upon us.
§ 8 Place of Fulfilment, Jurisdiction, Applicable Law
- The place of fulfilment and jurisdiction for deliveries and payments (including actions on checks and bills) as well as all conflicts between us and the buyer resulting from the contract closed between us and him is our company domicile. However, we are also entitled to suing the buyer at his residential or business domicile.
- The relationships between the contracting parties are regulated solely according to the valid law in the Federal Republic of Germany. The use of the Unified Law on the International Sale of Goods as well as the Uniform Law on the Formation of Contracts for the International Sale of Goods is excluded.
§ 9 Data protection
- We collect, process and store personal data (e.g. title, name, address, email address) exclusively in accordance with applicable laws, in particular the Federal Data Protection Act (BDSG) and the General Data Protection Regulation (GDPR) as well as the Telemedia Act (TMG).
- (2) As part of our data protection declaration we provide on https://www.ecom.de/en/privacy-policy-2/ with additional information about data protection as well as on the type, scope and purpose of the collection and use of personal data on our side.