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General Terms and Conditions of ADV PAX Lutec GmbH, Dettingen
Version: January 2007
§ 1 Exclusive validity of the general terms and conditions
Only the general terms and conditions of ADV PAX Lutec GmbH (hereinafter referred to as company) are valid.
§ 2General
2.1 The following terms and conditions are valid for all sale, delivery and service operations of the company.
2.2 Deviating, contradicting or supplementary
general terms and conditions will not become part of the contract, even
if they are already known, except if they have explicitly been accepted
in writing.
2.3 The terms and conditions are only valid for entrepreneurs (hereinafter referred to as customer),
i.e. persons who complete a legal transaction for a purpose that can be
associated with their commercial or self-employed professional activity.
§
3 Proposals and contract closings
3.1 The
products and services in the online shop do not represent binding
offers by the company. They are rather an invitation for customers to
make a binding offer when they place an order.
3.2 When ordering the product, the customer makes a binding
declaration that he wants to purchase a product. Adherence to minimum
order values is required for certain product groups; otherwise a fee
for a small order has to be charged. The company will immediately
acknowledge receipt of this order to the customer. Acceptance of the
order is reserved with the acknowledgment of the receipt of the order.
3.3 The company can accept the contractual offer made with the
order within two weeks after receipt. The acceptance can be made in
writing or by delivery of the product to the customer.
3.4 The company does not accept risk of acquisition. Closing of
the contract is made with the proviso of correct and timely delivery by
the supplier. This is only valid in case the company is not responsible
for non-delivery, especially when closing a congruent hedging
transaction with the supplier. The customer will immediately be
informed about the non-availability of the service. The payment will be
repaid immediately.
3.5 Small deviations of the company's products as compared to the illustrations or descriptions are possible.
3.6 Employees of the company do not have the authority to enter
into agreements or to make promises that deviate from these general
terms and conditions. All agreements between the company and the
customer, especially side-agreements and contract changes, must always
be made in writing.
3.6 The customer is responsible for ambiguities in the orders.
§ 4 Prices, delivery and shipping cost
4.1 The prices listed in the proposals are valid until a new proposal list has been published.
4.2 The prices are net ex-factory or ex-warehouse plus applicable
value added tax. All the additional charges, such as postal charges,
shipping, packaging, etc., will be invoiced separately and must be paid
by the customer. The respective amounts will be listed separately.
4.3 The customer is responsible for insuring the product.
4.4 In case of a cross-border shipment, the customer may be
responsible for paying additional charges such as taxes (e.g. in case
of an intra-community purchase) and/or fees (e.g. customs duties).
4.5 A special shipping cost fee applies to the delivery of single
products or samples. This lump sum fee increases accordingly in the
case of cash-on-delivery shipments.
§ 5 Shipping and delivery terms
5.1 A
delivery ex-factory or ex-warehouse is automatically agreed assuming
that the order acknowledgment does not state otherwise. The delivery of
the products always uses the dispatch route. The company has the
authority to select the dispatch route and the dispatch materials.
5.2 Timely completion of the contractual obligations of the
customer is the basis for adhering to the delivery period. The delivery
period starts after verification of all details and the execution of
the order and the receipt of all documents and other information to be
provided by the customer, which are required for the completion of the
order, and after receipt of an appropriate pre-payment or down payment.
5.3 The delivery period is also met if the product leaves the
factory/the warehouse or the listed shipping station on the agreed date
or if the shipping availability has been reported to the customer but
the product could not be sent in time without fault of the company.
5.4 The delivery period is extended adequately in case of force
majeure as well as in cases of industrial disputes; especially strikes
and lockouts as well as the occurrence of unforeseen obstacles, which
are outside the control of the company, assuming that such obstacles
had a verifiable and significant impact on the delivery of the item.
This is also valid if the circumstances occur with the supplier of the
company or its sub-suppliers. The delivery period is extended by at
least the duration of such measures and obstacles. The company is also
not responsible for the unforeseen obstacles if they occur during a
delay which already exists. Start and end of such obstacles will be
reported in important cases to the customer as soon as possible.
5.5 Delivery information is always non-binding assuming it was not explicitly promised as binding.
The delay is only valid after a written reminder has been received by
the company, even if a time in accordance with the calendar has been
determined for the service or if a time can be calculated based on a
previous event. The customer must, in individual cases, establish an
adequate period of grace before he can claim damages if the company is
late with a delivery. This period must at least be two weeks.
5.6 Damage claims from the customer due to late deliveries are
excluded, except if the delay is based on intention or gross
negligence. Costs based on delays, especially warehouse costs, will be
invoiced if the delivery is delayed for reasons that the customer is
responsible for.
5.7 Partial deliveries are permitted within the delivery time
established by us, assuming that no disadvantages result from partial
deliveries.
5.8 The scope of delivery is only determined by the written order
acknowledgment of the company or by the acknowledging order in cases
where the order acknowledgment was not established. Brochures,
documents provided by the customers, sketches and lists of requirements
are non-binding assuming they were not explicitly agreed upon as part
of the contract.
5.9 The company can decline the delivery if it identifies, after
the contract has been closed, that its claim for payments is in danger
by doubts about the creditworthiness of the customer. Doubts about the
creditworthiness of the customer are especially established by the
following circumstances: application for the establishment of or the
actual establishment of bankruptcy proceedings, insolvency proceedings
or general enforcement proceedings, single foreclosure, draft or check
processes, bad checks, false information by the customer about his
creditworthiness or unfavorable information of approved credit
agencies. The decline of the service right of the company is waived if
the payment is being made or if a security for it is provided. The
company can determine an adequate period during which the customer must
either, at his choice, provide payment with physical delivery or
provide the security. The company can cancel the contract after the
period has unsuccessfully expired.
§ 6 Payment terms
6.1 Delivery is made
against pre-payments. Other payment terms can be established. However,
the customer does not have the right to alternative payment terms. The
payment must be made net within seven days if a different payment term
is established. The customer will be automatically in default if
payment is delayed.
6.2 Payment has to be made in Euro and by account transfer. Payment will always be allocated to the oldest outstanding debt.
6.3 During default, the customer must pay interest in the amount
of 8 percentage points above the current basic interest rate. The right
to prove and request higher default interest damages is reserved.
6.4 A possible established notice of defect does not give the
customer the right to retain the payment or to reduce it. If a right of
retention exists, then this can only be executed with counterclaims for
the same contract.
6.5 The customer has offset rights only if his counter claims have been legally established or are recognized by us.
§ 7 Retention of title
7.1 The company
retains ownership rights to the product until the purchase price, as
well as all other receivables of the company against the customer, have
been completely paid, including those that are due in the future.
7.2 The customer is obligated to handle the products with care;
the customer is liable for reductions in value or loss even if the
reduced value or the loss are not his fault.
7.3 The customer must neither pledge the product nor assign it as
a security. The customer must inform the company immediately about
seizures, confiscations or other decrees by third parties and he must
provide all information and documents required to retain the rights of
the company. Executing officers and third parties must be made aware of
the assets of the company.
7.4 The customer is obligated to inform the company about the
access of third parties to the products that are under retention of
title as well as about all damages or demolition of the products. The
customer must inform the company immediately about the change of
ownership of the product as well as about a residence change.
§ 8 Acceptance and transfer of risk
8.1
For ex-factory deliveries or for shipped sales, the risk of loss of the
goods or the risk of deterioration of the goods is transferred to the
customer with the transfer of the product to the freight forwarder,
carrier or other transportation person, including our own. The transfer
takes also place if the customer delays the acceptance of the product.
8.2 The transfer of risk to the customer takes place with the
announcement of the readiness for shipping if the shipment is delayed
due to events that are not the responsibility of the company. The
transfer of risk takes place with the announcement of the readiness for
shipping if an individual contract includes the pick-up by the
customer.
§ 9 Condition of the product
9.1 The information about the product is acquisition information, except if it has expressively been presented as a guarantee.
9.2 Small quality, quantity, color or design deviations do not
represent deficiencies. Excess or short deliveries by up to 10% cannot
be objected to and they are therefore viewed as approved.
9.3 Information about the qualification, usage or processing of
the product do not relieve the customer of his obligation to perform
his own tests and trials.
§ 10 Warranty
Warranty claims of the
customer assume that he has fulfilled his investigation and reproved
obligations in an orderly manner. This assumes the following:
10.1 The shipment must be checked for transport damages
immediately after receipt and the shipping company must be informed
immediately about possible transport damages and these must be
documented (as a complaint). In addition, the transport damages must be
claimed in writing within one working day after receipt of the goods
and the goods must be sent back to the company within five working days
after receipt and the package must receive adequate postage. Otherwise,
assertion of the warranty claim is not accepted.
10.2 Objection to identifiable deficiencies must be claimed in
writing within five working days after receipt of the goods. The
objections against hidden deficiencies are only timely if they are
claimed in writing within five working days after identification of the
deficiency. Otherwise, the assertion of the warranty claims is not
accepted. Timely shipping maintains the adherence to the five working
days period.
10.3 The company reserves the right to resolve the deficiency or
to make a replacement delivery assumed that a deficiency exists for
which the company is responsible. The customer is responsible for the
additional cost of a supplementary delivery if the cost was generated
because the product was shipped to a different location than the agreed
place of delivery.
10.4 The customer does not have a right to claim for damages if
the customer canceled the contract after a failed supplementary
delivery due to a title or material defect. The goods remain with the
customer - assumed this is reasonable - if the customer chooses a claim
for damages after a failed supplementary performance. The claim for
damages is limited to the difference between purchase price and the
value of the deficient matter. This is not applicable if the contract
violation was caused maliciously.
10.5 The warranty period is one year after
delivery of the goods, except if the contract subject is a building or
a matter that is normally used for a building and which has caused the
deficiency of the building. The short period of limitation is not valid
for cases covered by § 11.1. In these cases, the legal warranty period
is applicable.
10.6 The customer does not receive guarantees in a legal sense. Manufacturers’ guarantees are not affected.
10.7 Improper or incorrect use, natural wear, inadequate
warehousing and careless handling as well as especially incorrect
subsequent improvements by the customer or third parties will result in
a lapse of the warranty claims - assumed that the company is not
responsible for these circumstances.
§ 11 Liability limitations
11.1.
Liability claims against the company, for any legal reason whatsoever,
are excluded. This is not valid if the company or one of its legal
representatives or vicarious agents is guilty of intention or gross
negligence or if the company guaranteed a condition of the service or
if the company is liable in accordance with the regulations of the
Product Liability Act or for damages due to injuries to life, body and
health. The liability exclusion is also not applicable if the company
violated an important contract obligation. In case of sentence 3, the
liability is limited to those damages that were foreseeable for the
company as possible consequences of a contract violation based on the
circumstance known at contract closing.
11.2 Damage claims of the customer due to deficiencies fall under
the statute of limitations in accordance with § 10.5 of the goods,
other claims in accordance with § 14. The restrictions listed above are
applicable accordingly; these cases are covered by the legal statue of
limitations.
§ 12 Cancellation cost
Independent of the
possibility of claiming a higher actual damage, the company can request
10% of the sale price if the customer makes an unjustified cancellation
or if the company cancels a received order due to circumstances that
the customer is responsible for (especially due to delay of payment).
The purchaser has the right to provide proof that no damage or a
smaller damage was generated.
§ 13 Technical documents
13.1 The company
will retain ownership to all documents, especially cost estimates,
drafts and drawings. These may only be used when using the product.
13.2 The company explicitly retains the property rights and the
copyrights for these documents; they may not be copied or made
available to third parties without explicit approval by the company.
These documents must be returned immediately after a request by the
company.
13.3 The company establishes a liability claim against the
customer if the product is used or transferred for the purpose of an
illegal commercial usage.
§ 14 Statue of limitations
All claims of
the customer – except for § 11.2 – have a statue of limitations of 12
months. Otherwise, the legal statue of limitations applies
§ 15 Other provisions
VContractual
changes, addenda and side agreements must be confirmed in writing by
the company. Contradicting conditions by the lessee or the customer are
invalid. An explicit rejection is not required. These terms and
conditions are applicable for each individual order even if these terms
and conditions have not been explicitly agreed to assuming the
lessee/customer has a continuous business relationship with the
company. This also applies to verbal orders.
§ 16 Jurisdiction and applicable law
16.1 Only German law is applicable for the entire privity of contract with the customer.
16.2 The regulations of CISG (United Nation Convention on
Contracts for the International Sale of Goods or UN purchase law) are
not applicable.
16.3 The exclusive place of jurisdiction is Bad Urach or Tübingen.
However, the company has the right to file a suit at the general place
of jurisdiction of the customer.
§ 17 Severability clauseThe
entire terms and conditions will not become ineffective if one of the
above clauses is or becomes ineffective. The ineffective clause will be
replaced by the legal regulation.
Version: January 2007
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