1. Our General Terms and Conditions shall apply solely and exclusively. Third-party or Buyer’s terms and conditions of business which are in deviation from, contrary to or supplementary to our Terms and Conditions shall not apply, even if we have not expressly objected to their application in specific instances, unless we have expressly agreed in writing to their application. The requirement to obtain our approval shall apply in each and every case, including, but not limited to, cases in which we have delivered the merchandise to the Buyer without reservations although we are aware of his terms and conditions of business. Nor shall our reference to any correspondence containing or referring to third-party or the Buyer’s terms and conditions of business be construed as our agreement with the application of said terms and conditions of business.
2. We reserve the title of ownership and copyrights to drawings, documentation and similar information; these materials may not be disclosed to third parties without our prior written consent. They shall be returned immediately upon Eloma GmbH’s request.
3. The Buyer’s signature on an order shall create an irrevocable offer to buy to which he shall be bound for a term of 4 weeks; this offer shall be subject to Eloma GmbH’s acceptance. Acceptance shall be declared in the form of an order confirmation. Eloma GmbH expressly reserves the right to make technical improvements to the appliances.
4. In the case of release orders, whether with or without specification of time periods, the Buyer shall be obliged to notify Eloma GmbH in writing of the desired delivery date at least 8 weeks in advance. Prices shall be determined by the price lists applicable at the time of the delivery.
5. Oral agreements, subsequent amendments to the contract, warranted properties of the goods and delivery dates or periods shall be binding only if and when they have been confirmed in writing.
6. Eloma GmbH, 82216 Maisach, shall be solely and exclusively responsible for the order confirmation, the acceptance of complaints due to defects and the execution of the contract.
7. Place of performance for any and all obligations arising from the contractual relationship and place of jurisdiction for any and all legal disputes arising from the business relationship shall be Maisach. The above provision shall also apply if and when the Customer does not have a place of general jurisdiction in Germany. All contracts concluded between us and the Buyer shall be subject to the Law of the Federal Republic of Germany, excluding the UN-Convention on Contract for the International Sale of Goods (CISG).
8. The Buyer shall be obliged to accept the purchased merchandise. If the Buyer does not accept the merchandise owing to reasons for which he is accountable, he shall pay storage costs in the amount of 0.1% of the net order value per day, plus the applicable value-added tax, as of the date of delivery. The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; the lump-sum rate shall, however, be offset against further monetary claims. The Buyer shall be at liberty to prove that a damage or depreciation either has not taken place at all or is substantially lower than the lump sum claimed. The Buyer may not refuse to accept the consignment on the grounds of minor defects and deviations in quantity.
9. Delivery dates are shown solely as approximations. If Eloma GmbH does not comply with the delivery date designated as approximate, the Buyer shall declare in writing that Eloma GmbH is in default of delivery, while the delivery period to be set by the Buyer shall be no less than 6 weeks. Claims for damages for this period shall be excluded.
10. The delivery period shall be extended by a reasonable time if and when the production or delivery of the merchandise is verifiably a consequence of force majeure, industrial action or other events over which we have no influence.
A delayed self-supply of Eloma GmbH shall also be deemed as not being in the sphere of influence of Eloma GmbH.
IV. Shipping, Transfer of Risk and Installation
11. Unless otherwise agreed and subject to Clause 13, merchandise will be shipped at the Buyer’s risk ex works or from a shipping point to be selected by Eloma GmbH for the account of and at the risk of the Buyer.
12. The Buyer shall bear the costs of any transport insurance; Eloma GmbH shall be entitled, but not obliged, to conclude such insurance. The Buyer shall bear any expenses for loading, customs duties and similar charges.
13. If and when a formal acceptance must be conducted, the acceptance shall be authoritative for the transfer of risk. If and when the Buyer has assumed responsibility for the transport of the merchandise from the place of manufacture to the place of use, the Buyer shall bear the risk for the duration of the transport.
14. Unless otherwise provided, placement, connection and installation of the merchandise shall be the Buyer’s responsibility; he shall, at his own expense and risk, contract Eloma GmbH’s authorized customer service or cooperate with the service to carry out this work, taking into account any applicable official requirements.
V. Liability for Material Defects and Complaints
15. Claims based on material defects shall be subject to a limitation period of 2 years after surrender of the merchandise. Eloma GmbH does not assume any liability for material defects in pre-owned merchandise.
16. We will, at our discretion, make new delivery for or subsequently improve any and all rendered services.
17. We reserve title to any and all parts which have been replaced.
18. In particular, no warranty will be assumed for damage or loss resulting from the following causes, but for which we are not accountable:
Natural wear and tear, intervention or repair work improperly performed by the Buyer or third parties, unsuitable or incorrect use, incorrect operation, installation, commissioning, incorrect or negligent handling, improper maintenance, use of unsuitable operating materials and cleaning agents, chemical, electrochemical or electrical factors, any modifications of the merchandise performed without our consent.
19. The Buyer shall allow Eloma GmbH the necessary time and opportunity to perform any subsequent improvement or substitute delivery which we regard, in our reasonable judgment, to be necessary.
20. In the event of legitimate complaints, Eloma GmbH shall bear the immediate costs of the subsequent improvement or substitute delivery. The total costs which we must bear shall be limited to the value of the order in the event that the places of delivery are outside the territory of Germany..
21. In cases in which the Buyer shares accountability for causing the defect, in particular in the event of breach of the obligation to prevent and reduce loss or damage, Eloma GmbH reserves the right to assert a corresponding damage compensation claim.
22. The Buyer shall, at his discretion, have the right to cancel the contract if and when – taking into account the statutory exceptions – a period which has been set for us for subsequent improvement or substitute delivery due to material defects has lapsed in vain.
23. The Buyer’s rights arising from the liability for material defects may not be assigned without Eloma GmbH’s consent.
24. Prices are shown ex dispatching works or other dispatching position, at Eloma GmbH’s discretion, plus the VAT which is effective at the time of the delivery.
25. Payment shall be effected to Eloma GmbH, Maisach, pursuant to the terms of the payment agreement. Eloma GmbH shall determine the claims to which received payments will be attributed. The Buyer shall bear any and all expenses and/or fees arising from the payment. If payment is made by check or bill of exchange, the claims shall not be deemed paid until the redemption of the document. If a check or bill of exchange or direct debit is not redeemed, the balance of the claim shall be due and payable immediately, and the Seller shall be entitled immediately to cancel the contract or to request damage compensation. Any and all deliveries abroad will be carried out solely against a letter of credit.
26. Default interest shall be charged by us pursuant to the legally applicable provisions (Sections 247, 288 BGB (German Civil Code)) in any and all cases of payment later than the agreed payment deadline.
27. The balance of a receivable shall become due and payable immediately, regardless of the agreed payment date, if and when:
a) The Buyer is in default, in whole or in part, with two successive partial payments;
b) The Buyer suspends payment, composition or bankruptcy proceedings are petitioned or initiated against his assets, or he seeks a moratorium on payments from his creditors or seeks composition proceedings.
28. Eloma GmbH is entitled to bill partial deliveries separately if and when the partial deliveries are in themselves fully functional.
29. Buyer’s payments will first be attributed to any expenses, then to interest and finally to the due purchase price claims.
30. We will be liable, even in cases of loss or damage resulting from breach of obligations during contractual negotiations, regardless of the legal reason (in particular for compensation of damage or loss which has not occurred to the merchandise itself), only in the event of willful intent, of culpable breach of major contractual obligations, of gross negligence on the part of officers or directors or executive employees and of culpable injury to life, body and health.
31. Compensation for purely pecuniary losses shall be limited by the general principles of good faith, e.g., in cases of unreasonable discrepancy between the amount of the order and the amount of the loss or damage.
32. Any further liability for any legal reason whatsoever, in particular for compensation of loss or damage which does not occur to the merchandise itself, is excluded.
VIII. Return of Appliances
33. Returned appliances will be accepted in payment only in accordance with Eloma GmbH’s currently applicable terms and conditions. Commercial agents and other representatives as well as customer service employees are entitled to accept returns only if and when they can show a written authorization issued by Eloma GmbH. The Buyer shall bear any costs of return, dismantling, transport, work expenditures, etc.
34. The Buyer is obligated to dispose of the appliances at his own expense when utilization of the appliances provided by Eloma GmbH is discontinued. He shall comply with legal requirements when disposing of the appliances.
The Buyer hereby releases Eloma GmbH from any and all obligations pursuant to Section 10, Subsection 2 ElektroG (German Electrical and Electronic Equipment Act), in particular from the manufacturer’s obligation to accept return of the appliance and from any and from all third-party claims related thereto.
If and when supplied appliances are passed on to third parties, the Buyer is obligated to obligate contractually the third parties to dispose of the appliances in compliance with legal provisions upon discontinuation of the utilization. If and when the appliances are passed on further, the third parties shall be obliged contractually to require a corresponding further obligation from the recipients of the appliances. If third parties are not obligated bindingly, the Buyer shall take back and dispose of the appliances in accordance with the legal provisions. Eloma GmbH shall be indemnified and held harmless from and against any third-party claims.
Any deviating agreements regarding the return and disposal of the electrical appliances by Eloma GmbH shall not be binding unless in writing.
IX. Retention of Spare Parts
35. Returned spare parts shall be accepted only in accordance with Eloma GmbH’s currently applicable terms and conditions. In general, returned parts shall be accepted only if they are in the original packaging and after prior consultation with Eloma GmbH. There shall be no returns on electronic parts and opened control components (circuit boards).
A fee in the amount of 12% of the list price shall be charged for replacing the returned parts in storage; however, there is a minimum fee of €25.00 per consignment. These fees shall not be charged if Eloma was responsible for erroneous delivery although the customer had submitted a written order.
X. Retention of Title
36. Eloma GmbH shall retain title of ownership to any and all supplied merchandise and the revenues from further sales until any and all of Eloma GmbH’s claims against the Buyer have been paid in full. The Buyer hereby transfers his claims arising from the further sale of the merchandise to Eloma GmbH until any and all claims from the purchase contract have been fulfilled.
37. If and when the validity of the retention of title in the destination country is linked to special conditions or special formal provisions, the Buyer shall be responsible for fulfilling said conditions or provisions.
38. The Buyer may neither pledge nor assign as security the merchandise. The Buyer shall notify us immediately in the event of attachments or confiscation or other disposals by third parties.
39. We shall be entitled to demand return of the merchandise after issue of a warning in the event of the Buyer’s breach of contract, in particular in the event of default of payment. The Buyer shall be obliged to surrender the merchandise. Neither our assertion of the retention of title nor our pledging of the merchandise shall be deemed cancellation of the contract.
40. The submission of a petition to initiate bankruptcy proceedings against the Buyer’s assets shall entitle us to cancel the contract and to demand immediate return of the merchandise.
41. If and when the contract is rescinded due to reasons for which the Buyer is accountable, Eloma GmbH shall be entitled to request compensation for loss of value resulting from the utilization of the merchandise.
XI. Lump-sum Damage Compensation Claims
42. If and when Eloma GmbH shall be entitled to request damage compensation, Eloma GmbH may assert damage or loss in the amount of 25% of the purchase price without providing evidence. The Buyer shall be free to proof that a damage has not occurred or that it is substantially lower than the agreed lump-sum. Eloma GmbH reserves the right to assert a claim for higher damage or loss which actually occurs.
43. If and when one of the above provisions should be invalid, the validity of the remaining provisions shall not be affected.
XIII. Notification Pursuant to Section 33 BDSG (German Data Protection Act)
44. We electronically save your data which are related to the order. (7/2011)