GENERAL DELIVER, SERVICE AND PAYMENT TERMS AND CONDITIONS
The following terms and conditions shall exclusively apply to all of our – current and future – deliveries, services and offers, provided that deviations have not been expressly confirmed by us in writing. Other contractual terms and conditions, particularly GTC or purchasing conditions of the purchaser, shall also not become contents of the contract through acceptance of an order. Our service terms and conditions shall also apply if we fulfill our contractual obligations without reservation in awareness of the purchaser’s contradictory or deviating conditions. If we change these service terms and conditions, these shall become contractual contents in the notified new version if they are not objected to by the purchaser within one month.
2. CONTRACT CONCLUSION
Our offers are subject to confirmation. A contract is only formed with our written order confirmation or by sending the goods or performing the service. In the event of a discrepancy between the order and confirmation, a new purchase offer will be sent which will require the purchaser’s acceptance.
Subsequent changes to a concluded contract are only possible by mutual consent, subject to compliance with the written form or text form.
The prices stated in the order confirmation are deemed as agreed; in case of doubt, the valid prices on the day of the delivery/service shall apply. Unless agreed otherwise, the prices are stated in USD “ex works” Grand Rapids MI. The packaging, as well as other extra and special services shall be charged separately. All tax shall be stated on the invoice in the statutory amount.
Payment(s) through this Service may only be made with a Credit Card.
Before using this Service, it is recommended that the user shall make necessary enquiry about the charges or fees payable against the Credit card used from Credit Card service provider i.e. the respective Bank.
The credit card information supplied at the time of using the service is processed by the payment gateway of the service provider and is not supplied to us. It is the sole responsibility of the User of the service to ensure that the information entered in the relevant fields are correct. It is recommended that you take and retain a copy of the transaction for record keeping purposes, which might assist in resolution of any disputes that may arise out or usage of the service
The Applicant agrees, understands and confirms that his/ her personal data including without limitation details relating to debit card/ credit card/net banking transmitted over the Internet may be susceptible to misuse, hacking, theft and/ or fraud and that we or the Payment Service Provider(s) have no control over such matters.
The service is provided using a payment gateway service provider through a secure website. However, neither the payment gateway service provider nor do we give any assurance, that the information so provided online by a user is secured or may be read or intercepted by a third party. We do not accept or assume any liability in the event of such unauthorized interception, hacking or other unauthorized access to information provided by a user of the service.
We and/or the Payment Service Providers shall not be liable for any inaccuracy, error or delay in, or omission of (a) any data, information or message, or (b) the transmission or delivery of any such data, information or message; or (c) any loss or damage arising from or occasioned by any such inaccuracy, error, delay or omission, non-performance or interruption in any such data, information or message. Under no circumstances shall we and/or the Payment Service Providers, its employees, directors, and its third party agents involved in processing, delivering or managing the Services, be liable for any direct, indirect, incidental, special or consequential damages, or any damages whatsoever, including punitive or exemplary arising out of or in any way connected with the provision of or any inadequacy or deficiency in the provision of the Services or resulting from unauthorized access or alteration of transmissions of data or arising from suspension or termination of the Service.
The Applicant agrees that we or any of our employees will not be held liable By the Applicant for any loss or damages arising from your use of, or reliance upon the information contained on the Website, or any failure to comply with these Terms and Conditions where such failure is due to circumstance beyond our reasonable control. The purchaser is not permitted to assign claims that against us.
5. DELIVERY AND SERVICE PERIOD
The delivery dates shall be notified for each individual delivery and are only binding if they are explicitly agreed in writing. Other time indications are non-binding and can be exceeded to an adequate extent (approx. 4 weeks).
The delivery period has been met if the product leaves the factory by its expiration. It shall be extended appropriately in the case of force majeure, measures within the context of labor disputes and with the occurrence of other unforeseeable events that are outside of our influence. The compliance with the delivery period is also subject to correct and timely self-delivery. We shall immediately notify any indicated delays.
If the arranged or non-bindingly specified delivery period is exceeded by more than 4 weeks, the purchaser can set a grace period of at least 3 weeks and withdraw from the contract after the expiration of the grace period. For compensation claims on the basis of delivery default, Number 9 shall apply. The purchaser shall not be entitled to assert further claims over and above the flat-rate compensation.
6. TRANSFER OF RISK
The risk shall transfer to the purchaser no later than upon dispatch of the contractual items. This also applies if partial deliveries occur or we have also taken on other services, e.g. the shipping costs or delivery and setup. The same applies to possible return shipments, provided that the purchaser is not entitled to the return.
If the shipping should be delayed due to circumstances for which we are not responsible, the risk shall transfer to the customer from the date of readiness for shipment.
7. RESERVATION OF OWNERSHIP
We reserve the ownership of the contractual items until all of our claims against the purchaser from the business relationship, including the future claims, also from delivery contracts that are concluded at the same time or later, are settled (goods subject to reservation of ownership). The purchaser shall acquire the ownership for us and store the goods for us.
The reservation of ownership shall also extend to the goods created by processing, combining or connecting our goods up to their full value, whereas we shall be deemed as the manufacturer, without committing ourselves. We shall be entitled to co-ownership of the new item in the proportion of the invoice value of the goods subject to reservation of ownership to the value of the other connected or combined items.
The purchaser shall only be permitted to sell the goods resulting from connecting or combining during the ordinary course of business. As security, our purchase now already assigns the claims against his customers from the onward sale to us in the amount of our invoice, as a priority and to the full extent. The pledging and security assignment of the goods subject to reservation of ownership is inadmissible.
Insofar as the value of the security existing for us exceeds our total claims by more than 20%, we shall release security of our choice upon request by the purchaser. The purchaser undertakes to immediately notify us about pledges and other access by third parties to our goods or the claims assigned to us. Costs of an intervention shall be borne by the purchaser.
In the event of anti-contractual conduct by the purchaser – particularly with payment default – we shall be entitled to demand that the purchaser releases the goods subject to reservation of ownership, at the purchaser’s expense. For this purpose, the purchaser hereby assigns his release claims against third parties to us.
In the assertion of the reservation of ownership and a possible pledge of the contractual items by us, a withdrawal from the contract shall only exist if an appropriate time limit has expired for performance and the purchaser expressly declares the withdrawal.
The purchaser undertakes to treat the purchased item with care; he is particularly obligated to insure the item against the usual risks at his own expense.
8.1. Material defects
Our deliveries and services must immediately be inspected carefully. Physical and/or legal defects must be notified immediately by the purchaser in writing.
In the event of defective deliveries, we reserve the right to rectify the defect or deliver faultless goods, at our option. The purchaser must give us the opportunity to rectify the defect. We shall be exempt from the warranty obligation as long as he refuses to do so.
If the defect is not rectified within an adequate time limit or if the repair fails or if defective goods are delivered again, the purchase price can be reduced. Provided that the defect is not minor, the purchaser can withdraw from the contract.
The aforementioned claims shall only exist if the defects
a) result from causes prior to transfer of risk,
b) were immediately complained about in writing by the purchaser after immediate inspection of the contractual items within the context of the proper course of business – or with non-identifiable defects, after their discovery – and
c) have not yet expired.
The costs of supplemental performance shall be borne by the purchaser, provided that the supplemental performance takes place at the request or instigation of the purchaser at a location other than the delivery location.
The assignment of warranty rights against us is inadmissible without our written consent.
We shall not be held liable for defects that are based on: Non-observance of the instructions for use, poor maintenance, improper setup, interventions, change or faulty repairs to the goods by the purchaser and his customers. The purchaser is obligated to provide evidence in this regard.
The warranty shall not extend to normal wear and tear. Further claims that could arise from a defect are excluded – subject to Number 9.
With the delivery 9 of software, we guarantee its correspondence to the arranged, mentioned program specifications and only insofar as the software is installed on the equipment systems in accordance with the product specification, which we describe as being compatible and is used by the purchaser in accordance with the contract in the hardware and software environment that we have specified.
8.2. Legal defects
If the use of the contractual items results in a breach of industrial property rights or domestic copyrights, we shall basically obtain the right to further use for the purchaser or modify the contractual item in a reasonable manner for the purchaser, so that the breach of property rights no longer exists.
If this is not possible at commercially appropriate conditions or within an adequate time limit, the purchaser shall be entitled to withdraw from the contract. Under the aforementioned conditions, we shall also have a right to withdraw from the contract. Furthermore, we shall indemnify the purchaser for disputed or legally established claims of the relevant holders of property rights.
The aforementioned obligations are conclusive in the case of a breach of property rights – subject to Number 9.
They only exist if
a) the purchaser immediately notifies us about asserted property right or copyright breaches,
b) the purchaser appropriately supports us in defending the asserted claims or makes it possible for us to implement the aforementioned modification measures,
c) all defensive measures remain reserved for us, including out-of-court settlements,
d) the legal defects are not based on an instruction by the purchaser
e) the legal violation has not been caused by the purchaser autonomously modifying the delivery items or using them in a manner that is not in accordance with the contract.
We shall only be liable for damages on the contractual items themselves – regardless of the legal grounds –
a) with willful acts
b) with gross negligence by the owner / the executive bodies or the management staff,
c) with culpable injury to life, limb, health,
d) with defects maliciously concealed or the absence of which has been guaranteed,
e) with defects to the contractual items, provided that liability exists under the product liability act for personal injury or property damage to privately used items.
Insofar as we provide technical information or perform advisory functions and this information or advice does belong to the scope of service that is owed by use and contractually agreed, this shall take place free of charge and excluding any liability.
Insofar as it is legally admissible, our obligation to pay damages shall be limited to the invoice value of our quantity of goods that are directly involved in the event causing the loss. Further claims, particularly for loss of production, lost profit, lost usage possibilities or for any other consequential losses or indirect losses are excluded.
10. RIGHTS TO SOFTWARE
Insofar as software is included in the scope of delivery, the purchaser shall receive a non-exclusive right to use the software that is unlimited with regard to time and location. It shall be provided for use on the designated delivery item. If the purchaser does not use the service in accordance with the contract, but delivers it on entirely or as part of another service to a third party (end customer), only the end customer shall be entitled to the rights specified in the clause. The purchaser shall work towards a relevant commitment of the end customer.
The software may only be used to the extent arising from the contractual agreement; any use over and above the contractually agreed measure is an anti-contractual act. The purchaser may only duplicate, revise, translate or convert the object code into the source code to the legally admissible extent. The purchaser undertakes not to remove manufacturer information – particularly copyright notices – or modify them without our prior explicit consent. All other rights to the software and the documentation, including the copies, shall remain with us or with the software supplier. It is not admissible to grant sub-licenses.
All claims by the purchaser – regardless of the legal grounds – shall expire in twelve months from delivery. The statutory time limits apply to warranty claims. They also apply to structural defects or for delivery items that were used in their conventional manner for a structure and have caused its defectiveness.
12. FINAL PROVISIONS
US law applies exclusively to all legal relationships between us and the purchaser. The exclusive legal jurisdiction for all disputes arising indirectly or directly from the contractual relationship is Flensburg or, at our option, the purchaser's general legal jurisdiction. If individual provisions of these General Terms and Conditions should be fully or partially invalid, the terms and conditions shall otherwise remain fully valid.