GENERAL TERMS OF DELIVERY OF ELMERO GmbH & CO.KG

(hereinafter referred to as "supplier")

 

 1 SCOPE

(1) Our terms of delivery apply to all legal relationships with our customers to the exclusion of any other terms and conditions of the customer. Any deviation from this can only be made by written confirmation from the supplier.

 

(2) The customer expressly waives with his offer and / or the order and / or the order confirmation on the use of his terms and conditions, in particular on the inclusion of his terms of purchase, no matter what kind they are designated. Any formulated exclusions of our terms of delivery in framework conditions, framework contracts, delivery contracts or the like, which would lead to the inapplicability of our terms of delivery, are hereby mutually excluded by mutual agreement between the parties. Deliveries by Supplier shall not, at any time and under no circumstances, constitute acceptance of Buyer's terms. The customer expressly declares that its terms and conditions, no matter what they are, will never become part of the contract.

 

2 OFFER / ACCEPTANCE

(1) Advertising, cover letters, offers, advertisements, online offers, other offers and / or catalogs and the like on our part are merely requests for the submission of a contract offer to our customers in the legal sense.

 

(2) With the order or the request by the customer, the customer declares to the supplier a binding offer to the customer with a binding period of 4 weeks. The acceptance on our part takes place by written order confirmation of our house and / or by sending the ordered commodity within the period.

 

 

 

3 PRICES

(1) All our prices are ex supplier, even if a delivery is agreed by the supplier. The transfer of risk to the customer is always ex works or ex warehouse of the supplier. The assumption of the costs of the delivery by us does not change the regulation of the transfer of risk.

(2) Upon delivery by the supplier, the customer must take all necessary measures, devices and / or safety precautions that the delivery can be made as agreed by the supplier.

(3) Unless otherwise expressly agreed, our prices are exclusive of freight, postage, packaging, transfer fees of any kind, and the like.

(4) Our customer must pay the invoice within 30 days of receipt of the same without deduction. Proof of access shall be deemed to have been provided on our part upon proof of dispatch by the supplier, with the addition of two working days. After expiry of the 30 days, the supplier is entitled to demand default interest in the amount of 12% above the current base interest rate. Further claims due to late payment by the customer remain reserved to the supplier.

(5) The supplier is expressly entitled to make advance invoices and / or installment invoices to the customer. Insofar as the customer is in default with the settlement of the advance and / or deduction invoice, the supplier shall be released from all contractual obligations, both in terms of time and content, from this contract as well as from other contracts with the customer for the duration of the customer's default. Further claims of the supplier vis-à-vis the customer remain expressly unaffected.

(6) A fulfillment of the customer obligation by checks and / or alternative entries is excluded between the supplier and the customer. Insofar as the supplier exceptionally accepts a check receipt, this will only be deemed to have been paid after the supplier has been irrevocably redeemed.

(7) Within the scope of contractual agreements which cover several individual deliveries, the Supplier shall be entitled to pass on demonstrable currency fluctuations, product price and / or labor cost increases pro rata to the goods, based on a corresponding price adjustment, to the Customer after conclusion of the contract. The customer already hereby expressly agrees to this.

 

 

 

4 PURCHASE ON SAMPLE

(1) Trial deliveries of the supplier are to be checked within 30 days after delivery and returned free of charge within this period if they are not satisfied.

(2) Trial deliveries are only those which are expressly designated by the supplier as a trial delivery.

(3) If the deadline is exceeded by 30 days, the goods shall be deemed to have been accepted as firm at the purchase price customary for the goods in accordance with the prices of the supplier.

 

5 RETURNS

Returns of the customer take place, as far as no agreement with the supplier was made, expressly on danger of the customer. In this case, the supplier is not obliged to accept the returns.

 

6 PRICE CHANGES

(1) If a fixed remuneration has been agreed between the customer and the supplier, the supplier shall be entitled to make an appropriate adjustment if development costs, production costs or prices of the suppliers of the supplier change. The same applies to a change in wages and / or material prices and / or raw material prices after conclusion of the contract. If the price increase is more than 20%, the customer has the right to withdraw within one week from the receipt of the notification of the increase in remuneration. The receipt of the notification shall be deemed proven upon proof of the despatch with the addition of two working days by the supplier.

(2) It is expressly agreed that in the case of contracts that contain divisible deliveries, the customer has the right of termination in the case of the above-mentioned price increase of more than 20% only with respect to the part of the contract affected.

(3) Explicitly excluded from this termination right are proven currency fluctuations or currency conversion. The changes can be passed on or remunerated to the customer in a corresponding price adjustment. The customer already hereby expressly agrees to this.

 

7 PACKING CHARGES

The supplier is entitled to charge the customer on the basis of the packaging ordinance in the currently applicable version. A calculation of these fees shall not apply unless the customer proves that he fulfills the conditions for the elimination of these fees from the supplier.

 

8th DELIVERY

(1) Delivery dates of our house are generally agreed as non-binding with the customer. Insofar as exceptionally in writing, additional binding delivery periods have been agreed in writing, these shall commence upon receipt of the order confirmation from the supplier to the customer, but not before the customer has obtained any documents, approvals, clearances and any other necessary documents as well as the receipt of any Advance and / or advance invoice still outstanding by the supplier.

(2) A possibly binding delivery period shall be considered fulfilled if the goods are made ready for despatch to the supplier and the dispatch notice is received by the customer. The proof of dispatch of the shipping notice is provided with the proof of dispatch at the supplier.

(3) In cases of force majeure, as well as in the event of industrial disputes, unforeseen events and delivery delays and / or delivery shortfalls of subcontractors of the supplier, the obligation of the supplier to timely delivery and a possibly agreed delivery deadline shall be extended accordingly. In addition, the supplier is entitled to withdraw from the contract for a period of 1 month if the above-mentioned impediments to delivery arise. In case of such a resignation it is agreed that no breach of duty of the supplier exists.

(4) The supplier is expressly permitted to make partial deliveries and also to make advance and / or deduction invoices in this regard.

 

9 CONTENT OF DELIVERY

The supplier is entitled to make changes to the delivery item, as far as the delivery item is not changed significantly and the changes are reasonable for the customer.

 

10 MODEL RELEASE

As soon as the customer releases samples and / or trial deliveries to the supplier, all deliveries / services of the supplier which fulfill the specification of the sample and / or the trial delivery are approved by the customer as being faultless.

 

11 COLOR RESISTANCE

A material defect liability of the supplier for the color stability of the delivered goods is expressly excluded between supplier and customer.

 

12 PRODUCT TEXTURE

Deviations of the products which are insignificant from the usual condition up to 20% for the products of the customer also count as contractual product quality. Furthermore, the product quality agreed is a deviation of up to 20% above the industry-standard tolerances in the Western European area. The agreement of the product condition also includes production and / or material-related phenomena, since these are technically unavoidable. The product complies with the contract even if there is a deviation of up to 20% in size and / or content and / or thickness and / or weight and / or color of the goods.

 

13 USE PURPOSE AGREEMENT

The purpose of use between the customer and the supplier is the use confirmed in the order confirmation of the supplier, insofar as such is indicated.

 

14 DEFECTS LIABILITY

(1) The material defect liability of the supplier is limited to 6 months from the transfer of risk of the goods. Within these 6 months, the customer is entitled to the elimination of any defects in the form of repair and / or redelivery after selection of the supplier within a reasonable period.

(2) The customer is obliged to immediately inspect the goods for all deliveries, including partial deliveries. All defects, including quantity deviations and / or incorrect deliveries, must be reported in writing no later than within one week, but in any case prior to processing or installation, insofar as these are identifiable during a proper inspection. The legal obligations according to § 377 HGB remain hereby expressly unaffected and are considered to be effective between customer and supplier.

(3) Claims of the customer due to the expenses required for the purpose of subsequent performance are excluded to the extent that the expenses increase because the object of the delivery was subsequently moved to another location or the object of the delivery was incorporated in other materials. This exclusion does not apply if the connection corresponds to the use that was communicated in writing from the beginning. In this case, in the case of a proper examination and assessment, unrecognizable deficiencies are stipulated by the statutory provisions.

 

15 OWNERSHIP

(1) The supplier retains ownership of all delivered delivery items until receipt of all payments from all terms and conditions with the customer.

 

(2) Processing or transformation of the delivery item by the customer is always carried out for the supplier as long as the retention of title is effective. If the delivery item is mixed and / or processed with other items not belonging to the supplier, the supplier acquires joint ownership of the new item in proportion of the value of the supplier's delivery item to the other mixed items at the time of mixing and / or processing. If the then manufactured object from the mixing and / or processing of the customer is to be regarded as the main thing in the legal sense, the customer already now transfers to the supplier the pro rata co-ownership shares. The supplier expressly accepts this transfer.

(3) Insofar as resale of delivered goods owned or co-owned by the supplier is carried out by the customer, the customer assigns his claims for compensation to the third party to the supplier as long as the retention of title exists. The supplier already expressly accepts this assignment. The customer is entitled to collect the assigned claims. However, this authorization may be revoked at any time by the supplier if there are grounds which, from the supplier's point of view, give cause for doubt as to the creditworthiness and / or insolvency and / or contractual compliance of the contractual partner, in particular if due invoices, of whatever nature, are not paid within the payment periods.

(4) The customer is obliged to inform the supplier upon request at any time without restriction about the following facts:

  1. a) addresses of its full address customers;
  2. b) Current open receivables of its customers to the customer, as far as deliveries are made to its customers, the goods that are owned or co-owned by the supplier.

(5) The supplier expressly undertakes to release all securities due to him at the customer's request if the value of the securities exceeds the claims to be secured by more than 20% (market value). In this case, the supplier will release securities at the request of the customer until the value of the securities exceeds the claims to be secured by no more than 20% (market value).

 

16 ACCEPTANCE COMMITMENT

(1) If the customer with the acceptance of the goods for more than 10 days after the provision by the supplier in arrears, the supplier is entitled to set a grace period of another 10 days to withdraw from the contract and / or claim for damages for non-performance and / or to claim lost profits and / or delay claims, in particular storage costs, against the customer. It is not necessary to set the period of grace if the customer is unable to accept it within a period of grace and / or the customer refuses to accept it.

(2) In the event of default by the customer, the customer must reimburse the supplier for storage and delivery costs. Further claims for damages of the supplier remain unaffected.

 

 

 

17 DAMAGES

The supplier shall be liable to the customer only insofar as he, his employees and / or vicarious agents are guilty of intent, gross negligence and / or injury to life, limb or health in the event of fulfillment of the contractual obligations of the supplier. Irrespective of this, no-fault liability remains under the Product Liability Act. This does not affect the liability for the culpable violation of essential contractual obligations.

 

18 RIGHTS

(1) The customer guarantees that all templates and / or materials and / or tools provided to the supplier as well as the products of the supplier made to customer's request do not infringe the rights of third parties and are free of third party rights. The customer indemnifies the supplier internally from any legal claims of third parties in this regard.

(2) The Supplier shall have the exclusive rights of protection, patent, name, copyrights and other rights to all products supplied and / or developed by him and the corresponding product documentation, product information, product names, product software and the like, insofar as these rights not already legally effective third party, such as be entitled to the supplier of the supplier.

 

19 EXPORT

(1) The customer is obliged to comply with the relevant foreign trade regulations and other laws of the country in which he imports the products and to ensure that the products he imports do not infringe the laws in this country represent.

(2) The customer must obtain the required import and export licenses completely independently.

 

20 STATUTE OF LIMITATIONS

Claims for material defects by the supplier become statute-barred six months after the transfer of risk. Any legally binding rights that are not mandatory shall remain unaffected. Insofar as these are mandatory rights which stipulate a claim of the customer by his customers, in this case the supplier shall be obliged to fulfill the claims which the customer must fulfill vis-à-vis his customers in accordance with the legal provisions taking into account all objections and / or or objections and / or exclusions of the customer to his customers.

 

 

 

21 PENALTIES

Insofar as our customer has agreed with his customers contractual penalties of any kind, it is expressly agreed that the liability of the customer for contractual penalties can not be invoiced to the supplier even if the supplier is at fault, unless the supplier has not agreed between the customer and the customer prior to the conclusion of the contract Supplier and customer has been informed in writing about the agreed contractual penalty.

 

22 LIMITATION OF LIABILITY

The liability of the supplier - for whatever legal reason - to the customer is limited to a maximum amount of 5% of the scope of delivery of the contract, resulting from the damage, per year and per case of damage, unless there is a further liability from legally binding, not mandatory right consists.

 

 23 ASSIGNMENT

(1) The supplier is expressly permitted to surrender and transfer his rights and obligations under the contracts with the customer to third parties.

(2) The customer requires the assignment and / or transfer of rights and obligations under the contracts with the supplier to third parties with the express prior written consent of the supplier.

 

24 DATA PROTECTION

(1) The supplier is entitled to store the personal data of the customer obtained in the context of the business relationship in accordance with the provisions of the Federal Data Protection Act.

(2) In addition, the supplier is entitled to pass on information and data about the customer to third parties, in particular for the purpose of debt collection or outsourced debtor management for storage, processing and / or use.

 

25 MISCELLANEOUS

(1) Place of performance is the registered office of the supplier.

(2) Jurisdiction is the competent court for the location of the supplier.

 

(3) It shall apply exclusively formal and substantive German law, excluding the provisions of international private law which would lead to the application of foreign legal norms, as well as under the Committee of Bilateral and Multinational Provisions (UN Sales Convention, CISG).

(4) Side agreements in addition to these terms and conditions have not been made and can only be made in writing. A deviation from the written form requirement can in turn only be agreed in writing. An implied departure between the parties is expressly excluded.

(5) The General Terms of Delivery apply as long as the contractual relationship between the supplier and customer application as long as not explicitly by the supplier, a different provision was made in writing in his order confirmation.

 

26 RIGHT OF WITHDRAWAL AND REVOCATION

Withdrawal

You have the right to withdraw from this contract within fourteen days without giving any reason. The cancellation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, has or has taken possession of the last goods.

In order to exercise your right of withdrawal, you must inform us by means of a clear statement (eg a letter sent by post, fax or e-mail) of your decision to withdraw from this contract. In order to maintain the cancellation period, it is sufficient that you send the notice of the exercise of the right of withdrawal before the expiry of the withdrawal period.

 

Consequences of the cancellation

If you withdraw from this Agreement, we have selected all payments we have received from you, including delivery charges (except for the additional costs arising from your choosing a different delivery method than the most favorable standard delivery we offer have to repay immediately and at the latest within fourteen days from the date on which the notification of your revocation of this contract has reached us. For this repayment, we use the same means of payment that you used in the original transaction, unless otherwise agreed with you; In no case will you be charged for this repayment fees.

You bear the immediate costs of returning the goods. You only have to pay for a possible loss in value of the goods, if this loss of value is due to a handling that is not necessary for the examination of the nature, characteristics and functionality of the goods.

 

Exceptions to the right of withdrawal

The right of revocation, unless the parties have agreed otherwise, not in the following contracts:

Contracts for the supply of goods which are not prefabricated and for the manufacture of which an individual selection or provision by the consumer is authoritative or which are clearly tailored to the personal needs of the consumer,

Contracts for the delivery of goods that can spoil quickly or whose expiration date would quickly be exceeded,

Contracts for the delivery of sealed goods that are not suitable for return for reasons of health or hygiene, if their seal has been removed after delivery,

Contracts for the supply of goods, if, due to their nature, they were inseparably mixed with other goods after delivery,

Contracts for the supply of alcoholic beverages, the price of which was agreed at the time of conclusion of the contract, but which can be delivered 30 days after the conclusion of the contract at the earliest and whose actual value depends on fluctuations in the market over which the entrepreneur has no influence.

Contracts for the supply of sound or video recordings or computer software in a sealed package, when the seal has been removed after delivery,

Contracts for the delivery of newspapers, periodicals or magazines other than subscription contracts.,

Contracts especially for all fans of the manufacturer M-Fan and the thermal grease (all container sizes), as these are on-demand manufactured and not in stock.

 

Reference to §306 BGB:

If general terms and conditions have not become part of the contract or are ineffective, the rest of the contract remains valid.

Insofar as the provisions have not become part of the contract or are ineffective, the content of the contract shall be governed by the statutory provisions.

The contract shall be invalid if adhering to it, including the change provided for in paragraph 2, would constitute an unreasonable hardship for one of the contracting parties.

 

AGB, Version of 11.04.2018