The following terms of delivery apply exclusively to all contracts, deliveries and other services, including consulting services, unless they are modified or excluded with the express written consent of the seller. These General Terms and Conditions of Delivery and Payment also apply to all contracts that the customer concludes with Telemeter Electronic GmbH via the Internet or other means of telecommunication. The customer expressly acknowledges this with his order. The buyer's conditions shall not be binding even if the seller does not expressly contradict them again. Any terms and conditions of the Purchaser to the contrary shall only be valid if expressly accepted by the Supplier in writing.
2. Offer and completion
Offers are always subject to change without notice and are subject to the timely delivery and availability of the goods, contracts and other agreements only become binding upon written confirmation by the seller. Orders placed by the customer in writing, by telephone, internet or email are offers to which the customer is generally bound for one week. The contract is concluded by confirmation of order or by sending or handing over the goods. As far as sales employees or sales representatives make verbal side agreements or give assurances which go beyond the written purchase contract, these always require the written confirmation of the seller. The documents belonging to the offer such as illustrations, drawings, weights and dimensions are only approximate. If, after conclusion of the contract, the Seller becomes aware of facts which cast doubt on the creditworthiness of the Buyer, the Seller shall be entitled to demand advance payment or corresponding securities and, in the event of refusal, to withdraw from the contract. Company change or change in the person of the buyer entitle the seller to withdraw.
3. Plans and technical documentation
Brochures and catalogues are not binding unless otherwise agreed. Information in technical documents is only binding if expressly warranted. The supplier may deviate from illustrations, weights and dimension tables if this proves to be expedient in the execution of the order. Each contracting party reserves all rights to plans and technical documents which it has handed over to the other. The receiving contracting party acknowledges these rights and will not make the documents available to third parties in whole or in part without the prior written consent of the other contracting party or use them for purposes other than those for which they were handed over to it. Upon request, all plans and technical documents or copies and extracts thereof, in whatever form, shall be surrendered.
4. Right of withdrawal (only for private consumers)
You have the right to revoke this contract within fourteen days without giving reasons.
The withdrawal period shall be fourteen days from the date on which you or a third party other than the carrier designated by you have taken possession of the goods. In order to exercise your right of withdrawal, you must inform us (Telemeter Electronic GmbH, Joseph-Gänsler-Str. 10, 86609 Donauwörth, Tel. : 0906 70693-0, Fax: 0906 70693-50, E-Mail: info@telemeter. de) of your decision to withdraw from this contract by means of a clear declaration (e. g. a letter, fax or e-mail sent by post). You can use the attached model withdrawal form, which is not mandatory. In order to comply with the revocation period, it is sufficient that you send the notification of the exercise of the right of revocation before the expiry of the revocation period.
4.1. Consequences of revocation
If you revoke this Agreement, we will refund to you all payments we have received from you in connection with this Agreement, including delivery charges (other than additional charges arising from your choice of a method of delivery other than the cheapest standard delivery offered by us), promptly and no later than fourteen days from the date we receive notice of your revocation of this Agreement.
For this refund we will use the same payment method that you used for the original transaction, unless expressly agreed otherwise with you; we will not charge you for this refund. However, we may refuse repayment until we have received the goods back in full and in their original condition.
You must return or hand over the goods to us immediately and in any case within fourteen days of the day on which you notify us of the revocation of this contract at the latest. This period shall be deemed to have been observed if you dispatch the goods before the expiry of the fourteen-day period. You shall bear the direct costs of returning the goods.
You are only liable for any depreciation of the goods if such depreciation is due to handling of the goods which is not necessary to examine their nature, properties and operation, or if you have used, damaged or broken the guarantee seal on the goods.
5. Delivery periods and delay
Delivery periods and dates shall only be regarded as approximately agreed, unless the seller has expressly given a written promise as binding. Partial deliveries are permissible. The delivery period shall be reasonably extended - even within a delay - in the event of force majeure and all unforeseen hindrances beyond the control of the seller, insofar as such hindrances demonstrably have a considerable influence on the delivery of the object sold. This shall also apply if these circumstances occur at the seller's suppliers and their sub-suppliers. In important cases, the seller shall inform the buyer of the beginning and end of such obstacles as soon as possible. Delivery periods shall be extended by the period in which the purchaser defaults on his contractual obligations - also from other contracts. The purchaser's right to withdraw from the contract after the fruitless expiry of a grace period granted to the seller remains unaffected. If possible, delivery shall take place within the agreed period. For late deliveries all claims for damages of the customer are excluded.
6. Shipping and transfer of risk
The dispatch takes place after best discretion of the salesman, however without guarantee for cheapest Verfrachtung. All shipments, including any returns, are at the expense and risk of the buyer. Insurance shall be taken out at his request and expense. Unless otherwise agreed, the route and means of shipment shall be at the discretion of the seller. If dispatch is delayed through no fault of the seller, the goods shall be stored at the expense and risk of the buyer. In this case, notification of readiness for dispatch shall be deemed equivalent to dispatch. Otherwise, the risk shall pass to the buyer when the goods are handed over to a forwarding agent or carrier, but at the latest when the goods leave the warehouse or are confiscated.
Packaging will be charged separately. Light packaging such as cartons etc. will not be taken back. The conditions of the manufacturer's works, the cable drum company or the seller shall apply to means of transport returned late.
8. Prices and payment
The prices are always quoted exclusive of value added tax at the applicable statutory rate. Unless expressly agreed otherwise, payment must be made within 30 days of the invoice date without deduction, so that the amount agreed for the invoice settlement is available to the seller at the latest on the due date. Credit notes for cheques shall be made subject to receipt minus expenses with value date of the day on which the seller can dispose of the equivalent value. In the event of default in payment, interest shall be payable in the amount of the respective bank rates for overdrafts, but at least 3% above the discount rate of the Deutsche Bundesbank, plus value added tax in each case. Discounts shall not be granted if the Buyer is in arrears with payment for earlier deliveries. For each invoice issued by the seller, starting at the earliest 2 weeks after default of payment, reminder fees in the amount of Euro/CHF 5,- will be charged. Offsetting against any counterclaims of the buyer disputed by the seller is not permitted unless the claim has been legally established. If a notice of defects is asserted, payments by the buyer may be withheld to an extent that is in reasonable proportion to the defects that have occurred. However, if the contract is part of the business of his commercial enterprise, the buyer may withhold payments only if a notice of defects is asserted, the justification of which cannot be doubted. We reserve the right to compensation for further damage.
9. Reservation of ownership
a) The seller retains title to the goods until all claims of the seller against the buyer arising from the business relationship, including future claims arising from contracts concluded simultaneously or later, have been settled. This shall also apply if individual or all claims of the Seller have been included in a current account and the balance has been struck and acknowledged. In the event of breach of contract by the buyer, in particular default in payment, the seller is entitled to take back the goods after issuing a reminder and the buyer is obliged to surrender them. The taking back and attachment of the object by the seller shall only constitute a withdrawal from the contract if the seller expressly declares this in writing. In the event of seizure or other interventions by third parties, the buyer must inform the seller immediately in writing of the identity of the seized object by sending a seizure report and an affidavit.
b) The buyer is entitled to resell the goods in the ordinary course of business provided that the claims from the resale are transferred to the seller as follows: The buyer hereby assigns to the seller all claims, including all ancillary rights, arising from the resale against the buyer or against third parties, regardless of whether the reserved goods are resold without or after processing. The purchaser is authorised to collect these claims even after the assignment. The authority of the seller to collect the claims himself remains unaffected by this, but the seller undertakes not to collect the claims as long as the buyer duly meets his payment obligations.The seller can demand that the buyer informs him of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors of the assignment. If the goods are resold together with other goods which do not belong to the seller, the buyer's claim against the buyer shall be deemed assigned in the amount of the delivery price agreed between the seller and the buyer.
c) Processing and treatment of the reserved goods shall be carried out for the seller as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating him. The processed goods shall be regarded as reserved goods within the meaning of these terms and conditions. If the reserved goods are processed or inseparably mixed with other objects not belonging to the Seller, the Seller shall acquire co-ownership of the new object in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used at the time of processing or mixing. The co-ownership rights thus created shall be regarded as reserved goods within the meaning of these terms and conditions. If the seller's goods are combined or inseparably mixed with other movable objects to form a uniform object and if the other object is to be regarded as the main object, it shall be deemed agreed that the buyer shall transfer co-ownership to the seller on a pro rata basis insofar as the main object belongs to him. For the rest, the same shall apply to the object resulting from the processing and combination as well as mixing as to the reserved goods, as well as § 951 BGB.
d) The seller undertakes to release the securities to which he is entitled to the extent that their value exceeds the claims to be secured by more than 25%, insofar as these have not yet been settled.
e) The Company may inspect or demand the return of the reserved goods at any time if its payment claim appears to be at risk. In this respect, the customer irrevocably permits the company to enter his premises and to take away the goods without this constituting a prohibited power of ownership. The customer shall maintain the delivered items in good condition at his own expense for the duration of the retention of title and insure them for the benefit of the supplier against theft, breakage, fire, water and other risks. He shall also take all measures to ensure that the Supplier's title is neither impaired nor revoked.
10. Notice of defects and warranty
The Seller shall be liable as follows for defects, which also include the absence of warranted characteristics:
a) The buyer has to examine the received commodity immediately after arrival for quantity and condition. Obvious defects must be reported to the seller in writing immediately, at the latest within one week.
b) In the case of justified complaints, the seller may choose to repair defective goods, deliver a replacement, take back the goods and credit or credit the reduced value of the goods.
c) The Buyer shall grant the Seller the time and opportunity required at the Seller's reasonable discretion to remedy the defect, in particular to make the object complained of or samples thereof available. If he refuses this, the seller is released from liability for defects.
d) The delivery note (packing slip) must be returned for all returns. If the return of goods for the purpose of the complaint proves that the complaint was unjustified, the seller shall be entitled to charge not only the costs for shipment but also an appropriate remuneration for the inspection of the goods.
e) The liability for the consequences arising from improper modifications and repair work carried out by the purchaser or third parties shall be cancelled.
f) Further claims of the buyer against the seller and his vicarious agents are excluded, in particular a claim for compensation for damages that have not occurred to the delivery item itself. This shall not apply if liability is mandatory in cases of intent, gross negligence or the absence of warranted characteristics. The warranty shall expire prematurely if the Purchaser or third parties carry out modifications or repairs, do not comply with the operating conditions or if the Purchaser, if a defect has occurred, does not immediately take all suitable measures to minimise the damage and gives the Supplier the opportunity to remedy the defect.
11. General limitation of liability
The Seller's liability shall be governed exclusively by the agreements made in the preceding section. Claims for damages on the part of the purchaser for culpa in contrahendo, breach of secondary contractual obligations and tort are excluded, unless they are based on intent, gross negligence on the part of the seller or one of his vicarious agents. These claims expire six months after receipt of the goods by the buyer. Compensation may not, however, exceed the loss and loss of profit which the party who has breached the contract should have foreseen at the time of conclusion of the contract, taking into account the circumstances which it knew or should have known, as a possible consequence of the breach of contract. The supplier shall not be liable for circumstances which have occurred through no fault of his own, such as non-supply by suppliers, total or partial closure of the works of suppliers, mobilisation, outbreak of war, strike, fire or other, in particular also terrorist disturbances, the entry into force of import bans or the considerable increase in import duties. All cases of breaches of contract and their legal consequences as well as all claims of the purchaser, irrespective of the legal grounds on which they are based, are conclusively regulated in these terms and conditions. In particular, all claims for damages, reduction, cancellation of the contract or withdrawal from the contract not expressly mentioned are excluded. Under no circumstances shall the Purchaser be entitled to compensation for damage not caused to the delivery item itself, such as loss of production, loss of use, loss of orders, loss of profit or other direct or indirect damage.
If a cost estimate is requested before repairs are carried out, this must be expressly stated. The costs for the estimate are to be reimbursed. Repairs are carried out without guarantee if there is no defect report. Whether a repair is carried out in the seller's own workshop or in another workshop is at the discretion of the seller. Costs for dispatch and packaging are to be borne by the buyer. Reference is made to Clauses 4 and 5 of the Conditions. Repair devices will only be delivered against immediate payment.
If a product or object is to be assembled by the Supplier, the Purchaser shall, at its own expense, ensure that all necessary preparatory work is carried out and that assembly can begin and be carried out without hindrance. All environmental work, such as bricklaying, carpentry and painting work, the delivery of any necessary scaffolding and the hiring out of unskilled workers shall be at his expense. The statutory liability for accidents during all delivery and assembly work to be carried out by the Supplier, including samples, shall be borne by the Purchaser with reference to the personnel of the Purchaser and third parties authorised by the Purchaser. The Purchaser shall be exclusively liable for damage to property unless he can prove gross negligence on the part of the Supplier's personnel. Authorities and other approvals required for the execution of plants must be obtained by the customer, and necessary insurance policies must be taken out.
14. Sale maintenance
AbsatzbindungIn the case of the purchase of products for which a marketing commitment exists, the special conditions of the manufacturer concerned shall apply in addition to these delivery conditions. The buyer is obliged to obtain knowledge of the content of these conditions. He cannot invoke ignorance of these conditions.
15. Place of performance, place of jurisdiction, applicable law
For Telemeter Electronic GmbH, Donauwörth, Germany:
Place of performance and exclusive place of jurisdiction for deliveries and payments (including cheque actions), as well as for all disputes arising between the parties, insofar as the buyer is a fully qualified merchant, a legal entity under public law or a special fund under public law, is the head office of the seller. The relations between the contracting parties shall be governed exclusively by the domestic German law applicable in the Federal Republic of Germany.
For Telemeter Electronic GmbH, Gossau, Switzerland:
Place of jurisdiction for the customer and the supplier is CH-9200 Gossau. However, the Supplier shall be entitled to sue the Purchaser at the Purchaser's place of business. The legal relationship is subject to Swiss substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.