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General Terms and Conditions of EHEIM GmbH & Co. KG, Deizisau, Germany Müller & Pfleger GmbH & Co. KG, Rockenhausen, Germany Eugen Jäger GmbH, Wüstenrot, Germany Version of August 2004
1. Exclusive Application This shall not apply in cases of mandatory liability (e.g. pursuant to the Product Liability Act), of liability in the event of premeditation or gross negligence, or where there has been injury to life, body or health EHEIM shall in such cases be liable for its legal representatives and senior employees and also, in the event of premeditation or gross negligence in respect of cardinal duties, for its other employees. Such exclusion shall include damages claims on the grounds of infringement of fundamental contractual duties, provided that the losses or damage involved were not of a foreseeable kind typical for this type of contract. The distribution of the burden of proof shall remain unaffected by these regulations. Note on the EU Commission’s online platform for extrajudicial settlement:
All deliveries and other types of services shall be based exclusively on these Terms and Conditions. Conflicting Terms and Conditions on the Customer’s part shall not be recognized even if there has been no direct objection thereto. Agreements to the contrary shall only become legally effective when confirmed in writing, unless their content takes precedence over the order confirmation. The same shall apply to verbal ancillary agreements.
Offers shall be made on a non-binding basis and are subject to change. Technical information and illustrations shall not be binding unless specifically confirmed in writing. The right is reserved to make changes of design and form provided the contractual goods and services do not deviate substantially from the order and the changes are reasonable from the Customer’s point of view.
3. Conclusion of the Contract
Orders should always be placed in writing. The term “in writing” is deemed also to include communications sent by fax or email. Orders placed by telephone shall become effective for the Customer as soon as a written confirmation from EHEIM has been received.
The contract shall be formed through
a) our written order confirmation
b) or delivery of the goods
c) or receipt of the invoice.
The price list valid at the time of the order confirmation shall apply. Value added tax at the rate applicable at the time shall be added, insofar as this is legally permissible.
Except as agreed otherwise, the price shall be valid ex works exclusive of packaging. If there is a particular negative deviation for the Customer resulting from a price list published after the order has been placed, the Customer may withdraw from the contract immediately after it has been formed.
In the case of export orders, we will deliver franco German border/FOB German seaport including packaging, but exclusive of customs and insurance. We are not the party liable in respect of any customs dues advanced by the transport company.
If a period longer than four months elapses between the order confirmation and delivery, any price increases on the part of our suppliers may be passed on.
4. Payment Conditions
Our invoices must be settled 14 days after receipt of invoice subject to 2% discount or within 30 days strictly net cash. Cheques and bills of exchange shall be accepted only in lieu of payment. All costs of collection, discounting and any other currency differences shall be borne by the purchaser.
5. Credit Check
If justifiable doubts about the solvency or creditworthiness of the Customer arise after the order has been accepted, we may demand prepayment or surety. Proof of lack of creditworthiness shall be deemed to have been furnished if a national, respected credit agency affirms this. If the Customer refuses prepayment or surety, we may withdraw from the contract and demand reimbursement of the expenses necessitated (including attorneys’ fees).
6. Term for Delivery
The delivery period specified by us shall not commence until the Customer has given us all information needed to perform the contract and has fulfilled other conditions needed and stipulated in the contract.
The date on which the goods are consigned or ready for despatch shall be deemed to be the date of delivery.
Information about delivery periods is only approximate and may be exceeded by us by a period of up to four weeks unless a fixed date has been agreed.
In the event of an impediment to performance that is not attributable to us, the delivery period shall be deferred by a length of time corresponding to the period during which the impediment continues. This shall also apply if our own suppliers have suffered a non-attributable, temporary impediment to performance.
We shall be entitled to make partial deliveries.
Claims arising as a result of delayed delivery shall be determined exclusively in accordance with Article 10 c).
7. Requests for Changes
Requests for changes made after the contract has been signed may be accommodated at the discretion of EHEIM. Changes made shall not imply any recognition of a legal obligation.
8. Risk Pass
Risk shall pass to the Customer once it has been notified of the goods’ readiness for despatch, or upon despatch of the goods at the latest. If the Customer does not issue any despatch instructions, the shipment may be made at our discretion in compliance with our duty, but without recourse to the cheapest form of delivery.
9. Acceptance / Deadline concerning Notice of Defects
Acceptance shall commence with handover to the Customer, or its authorized representative, or a transport company commissioned to make the despatch. Obvious defects must be notified to us immediately by telephone, followed by written confirmation within 8 days. After expiry of this deadline, the goods shall be deemed to have been accepted according to paragraph 377 II HGB [German Commercial Code].
In the case of concealed defects, the notice of defects must be conducted as prescribed from the moment the defect is discovered. Paragraph 377 HGB [German Commercial Code] shall apply. The Customer shall not be able to bring any claims more than one year after acceptance. Notice of defects shall not be acknowledged where there has been damage, inappropriate handling, or in particular non-compliance with the operating instructions.
a) Defective goods, justifiably complained and within the deadline, shall be repaired or completely replaced by us, at our discretion, at no cost. Parts complained about must be kept for 6 months or returned to us if requested. The costs of the replacement part, including despatch, shall be borne by us.
b) If the repair fails within a reasonable period of time and if we allow a suitable grace period to expire without result, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price (price reduction).
c) The Customer shall not be entitled to claims for damages or reimbursement of expenses (hereinafter referred to as: damages claims) based on any legal grounds whatsoever, and in particular on the grounds of infringement of duties ensuing from the contractual obligation or from tortious acts.
d) Product liability claims shall be governed by the Product Liability Act. Insofar as company EHEIM is insured against product liability claims, the scope of such claims shall be determined by the scope of the insurance contract.
11. Retention of Title
We shall retain title to the goods supplied by us until such time as all claims ensuing from the business relationship existing up to that point have been settled in full.
Within the framework of ordinary business operations, the Customer shall be entitled to dispose of the goods delivered, subject to cancellation at any time. However, the Customer shall be obliged to reserve transfer of ownership in our favour (extended retention of title) until the purchase price, including costs and interest, has been completely paid. In the case of an intact business relationship, the Customer does not need to disclose such extended retention of title to its customers. In the case of an ailing business relationship, commencing after the third warning without result, the Customer shall be obliged, upon request, to provide the name and address of the customer supplied with our goods. The rights ensuing from retention of title and all claims arising from the contract of sale with the Customer’s end-customer are hereby assigned to us.
The Customer shall be entitled and obliged to collect the assigned claims unless we revoke this collection authorization. The Customer may not pledge the goods to be delivered or grant third party rights to them for as long as the retention of title continues. We shall be entitled to impound the goods that are subject to retention of title; this shall not constitute any waiver of the retention of title.
We shall be obliged to transfer the ownership of goods and of assigned claims vesting in us to the Customer at its request if the value thereof exceeds by 15% the value of the total claim in our favour, inclusive of interest and costs.
12. Data Protection
According to paragraph 33 BDSG [German Data Protection Act], the Customer is hereby notified that EHEIM will store the contractual data in machine-readable form and process it in the context of the purpose of the contractual relationship. All data will be treated confidentially.
The contracting parties hereby undertake to treat confidentially any information from the sphere of the other party disclosed to them in the course of performing this contract.
13. Intellectual Property Rights
The Customer hereby undertakes to consider the intellectual property rights in the goods delivered and in drawings (copyright, industrial design rights, patent rights, know-how) as our rights. Should the Customer become aware of any infringement of company EHEIM’s intellectual property rights in the course of reselling activities, the Customer hereby undertakes to given written notification thereof immediately.
14. Changes to the Customer’s Legal Status
The Customer shall be obliged to give us immediate written notification of the following circumstances: dissolution of the company, application for bankruptcy proceedings, fundamental changes to the legal form and ownership structure, transfer of the head office of the business, and any significant relocations to other countries. The Customer shall be responsible for any damages incurred by us as a result of failure to provide such notification.
15. Escape Clause
Should one article of these conditions be invalid, the validity of the remaining articles shall not be affected thereby.
16. Place of Performance and Place of Jurisdiction
Place of performance for payments and deliveries shall be Esslingen/Neckar, Federal Republic of Germany. All the legal relationships shall be governed exclusively by German law, subject to exclusion of the UN Convention on the International Sale of Goods (CISG). Exclusive place of jurisdiction for all disputes, particularly where summary procedure is involved, shall be the competent courts of justice for Esslingen/Neckar.
If we so choose, we may also bring an action in the place where the Customer’s head office is located.
Through the REGULATION (EU) No. 524/2013 from 21 May 2013, the EUROPEAN PARLIAMENT and the EUROPEAN COUNCIL have created an internet platform which is designed to facilitate an independent, impartial, transparent, effective, quick and fair online settlement of disputes between consumers and businesses with regard to online purchasing or service agreements. Consumers can obtain further information and access to the platform via the URL http://ec.europa.eu/consumers/odr/.
1. Exclusive Application
This shall not apply in cases of mandatory liability (e.g. pursuant to the Product Liability Act), of liability in the event of premeditation or gross negligence, or where there has been injury to life, body or health EHEIM shall in such cases be liable for its legal representatives and senior employees and also, in the event of premeditation or gross negligence in respect of cardinal duties, for its other employees. Such exclusion shall include damages claims on the grounds of infringement of fundamental contractual duties, provided that the losses or damage involved were not of a foreseeable kind typical for this type of contract.
The distribution of the burden of proof shall remain unaffected by these regulations.
Note on the EU Commission’s online platform for extrajudicial settlement: