Contractual terms for purchase contracts concluded through the
Elsner Elektronik GmbH, Sohlengrund 16, 75395 Ostelsheim, Germany
phone: +49 (0) 70 33 / 30 945-0, Fax: +49 (0) 70 33 / 30 945-20
entered in the Commercial Registry with the District Court Stuttgart under HRB 331386,
represented by Jutta and Thomas Elsner, Toni Großmann, VAT Reg. No.: DE 812 151 291
– hereafter only "Provider" –
the customer identified in section § 2 of the contract – hereafter only "Customer" –.
§ 1 Area of Application, definitions(1) The business relationship between the web shop provider (hereafter only "Provider") and the customer (hereafter only "Customer") is governed solely by the below mentioned General Business Terms, as amended by the wording current when the order is placed." No deviating terms of the ordering party are accepted unless the Provider expressly agrees with them in writing.
(2) The Customer acts as the consumer to the extent to which the aim of the ordered goods and services can be attributed to its commercial or independent occupational activities. Inversely, an entrepreneur is any natural person, legal entity or incorporated partnership, performing its commercial or independent occupational activities based upon when the contract is concluded.
§ 2 Concluding the contract(1) The Customer can choose products, particularly building automation systems, from the Provider's offerings and place them into the shopping basket by using the "Add to chart" button. By using the "Pay Order" button, the Customer places a binding purchase request for the goods placed in the shopping basket. Before sending the order, the Customer can change and check the data at any moment. The request can be placed and sent only if the Customer clicks the "I Agree with the General Business Terms" button to express its agreement with these contractual terms; After this, the Customer's request is delivered.
(2) The Provider then sends the Customer an automatic purchase request delivery confirmation e-mail in which the Customer's order is again summarised and which the Customer can print via the "Print" function. This automatic delivery confirmation only documents the fact that the Customer's order was delivered to the Provider, but it does not represent the acceptance of the purchase request. The contract is concluded only when the Provider sends an acceptance notice in a separate e-mail (order confirmation). In this e-mail or a separate e-mail, but at the latest upon delivery of the goods, the contractual test (consisting of the order, General Business Terms and order confirmation) is sent to the Customer on a permanent data medium (e-mail or paper) as contract confirmation. The contractual text is saved in a way ensuring that data protection rules are not breached.
(3) The contract is concluded in the German language.
§ 3 Delivery, goods availability(1) The delivery times we specify start from the moment of our order confirmation provided that the purchase price has been paid (except for purchases by invoice). The delivery period is five days unless a different delivery time is specified in our online shop for the respective goods.
(2) If no items among the products that the Customer has chosen are available as of the moment the order is placed, the Provider shall immediately inform the Customer in the order confirmation. If the Customer is a consumer, the Provider clearly informs the Customer of whether there are any supply limitations by the latest at the start of the order process. If the product is not available in the long term, the Provider can cancel the acceptance notice. No contract is concluded in this case.
(3) If the product identified by the Customer in the order is only temporarily unavailable, the Provider also immediately informs the Customer in the order confirmation. In the event of a delivery delay of more than two weeks, the Customer is entitled to withdraw from the contract. The Provider is also entitled to terminate the contract in this case. If this happens, the Provider will immediately return to the Customer any payments made by the Customer.
(4) The following delivery limitations exist: The Provider supplies goods only to customers whose ordinary residence (invoice address) is situated in one of the following countries and territories and provide a delivery address in the same country: Belgium, Bulgaria, Denmark, Germany, Estonia, Finland, France, Greece, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, Austria, Poland, Portugal, Romania, Sweden, Switzerland, Slovak Republic , Slovenia, Spain, Czech Republic, Hungary, United Kingdom, Cyprus.
§ 4 Reservation of TitleThe title to the goods remains with the Provider until complete payment has been made.
§ 5 Prices and shipping costs(1) All prices on the Provider's website include the applicable statutory value added tax. Registered businesses are shown a price excluding VAT. The VAT is not included in this case.
(2) Applicable shipping costs are shown to the Customer in the order form and are to be paid by the Customer unless the Customer applies its right of revocation.
(3) The goods are shipped through a parcel service. One delivery can be divided into several parcel pieces. Bulky goods (ventilation devices) are shipped separately through a forwarding agent. The Provider bears the risk arising from shipping if the Customer is a consumer.
If the weight of the goods exceeds 50 kg, the goods cannot be ordered through the web shop. In this case, the goods are shipped through a forwarding agent. The Customer sends enquiries via e-mail, e.g. through a memory list.
(4) If the order is cancelled, the Customer bears the immediate costs of shipping the goods back.
§ 6 Payment terms(1) The Customer can pay in advance, by credit card (MasterCard, Visa) or via PayPal. For PayPal payments, a fee corresponding to the amount payable, is charged. This fee amounts to 2.0% of the total amount. Registered businesses can pay by invoice, following prior credit assessment.
(2) The Customer can change the payment method chosen in its user account at any time.
(3) The purchase price is due immediately after the contract is concluded. If the invoice due date is determined by the calendar, the Customer shall be considered in delay already by missing the date. In this case the Customer is obliged to pay late interest to the Provider, amounting to 5% (8% for businesses) above the base interest rate.
(4) The payment of late interest by the Customer does not rule out the possibility for the Provider to claim further damage arising from the delay.
§ 7 Warranty for Material Defects, Warranty(1) The Provider provides a warranty under applicable statutory rules, particularly sections 434 et seq. BGB. The warranty obligation for businesses for goods supplied by the Provider is 12 months.
(2) Extended warranty for the goods supplied by the Provider is only possible if expressly specified in the order confirmation for the respective item.
§ 8 Liability(1) Customer shall make no claims of damage compensation. Exempt from this rule are damage compensation claims of the Customer arising from loss of life, bodily injury or damage to health and/or from the breach of essential contractual obligations (material obligations) as well as liability for other damage stemming from intended breach of duties or gross negligence of the Provider, its legal representatives or vicarious agents. Material contractual obligations are those whose fulfilment makes the proper execution of the contract possible in the first place and on whose observance you as a Customer may regularly rely (so-called cardinal obligation).
(2) If material contractual obligations are breached, the Provider is liable only for foreseeable damage typically occurring under this type of contract, if caused by negligence, unless the Customer claims damage compensation arising from loss of life, bodily injury or damage to health.
(3) In relation to entrepreneurs, liability for all damages, except in cases of intent, fraudulent intent, loss of life, bodily injury or damage to health and breaches of the Product Liability Act, is limited to a maximum amount of €1,000,000 per damage case.
(4) The limitations specified in par. 1 and 2 apply also for statutory representatives and vicarious agents of the Provider if claims are made directly against these.
(5) The provisions of the product liability act remain untouched.
§ 9 Revocation Instruction(1) Under distance purchase rules, consumers enjoy a general right of revocation which the Provider must inform them about in accordance with an applicable statutory template. Exemptions from the right of revocation are governed in par. (2). A revocation template form in shown in par. (3).
Right of revocationYou are entitled to withdraw from the contract within 14 days without stating the reason.
The revocation period is 14 days starting on the day on which you or a third party known to you, who is not a shipping agent, accepted the goods into its ownership.
To apply your right of revocation, you must notify us (Elsner Elektronik GmbH, Sohlengrund 16, 75395 Ostelsheim, Germany) in a clear statement (e.g. letter sent via post, fax or e-mail) about your decision to withdraw from this contract. You can, but are not obliged to use the revocation template form.
To apply your right of revocation within the required period, it is sufficient if you send the notification about the application of your right of revocation before the expiration of the revocation period.
Revocation consequencesIf you revoke this contract, we have to return all payments received from you, including delivery costs (except for additional costs arising from the fact that you chose a different delivery method than the one offered by us as the least expensive, standard delivery) immediately and at the latest within 14 days from the date on which we received your contract revocation notification. We will return the payments by the same means you used for the original transaction unless anything else was expressly agreed with you; No rewards will be calculated for you because of this return payment under any circumstances.
We can withhold the return payment until we have received the goods or until you have shown evidence that you have sent the goods back, depending on which comes earlier.
You must send or bring the goods back to us immediately and in any case within 14 days from the date on which you informed us about the contract revocation. The revocation period is still met if you send the goods before the expiration date of 14 days has passed.
You bear the immediate cost of returning the goods.
You will have to pay a possible loss in value of the goods only if the goods were unnecessary handled, evidence of which can be found based on an inspection of its condition, properties and operation.
(2) The right of revocation cannot be applied for goods delivery contracts that are not ready made and for goods for the production of which individual selection or specification by the consumer is essential or that are clearly customised to the individual needs of the consumer.
(3) The Provider informs about the revocation form template in accordance with statutory provisions as follows:
Revocation form template
If you want to revoke the contract, complete this form and send it back to us.
Elsner Elektronik GmbH
Fax +49 (0) 70 33 / 30 945-20
— I/we (*) hereby revoke the contract concluded by me/us (*) for the purchase of the following goods (*)/provision of the following services (*)
— Ordered on (*)/received on (*)
— Name of consumer(s)
— Address of consumer(s)
— Signature of consumer(s) (only when sent on paper)
(*) Cross out where inapplicable
§ 10 Data processing instructions(1) The Provider collects customer data as part of the processing of the contract. The Provider shall particularly comply with the provisions of the Federal Data Protection Act and Telemedia Act. The Provider shall collect, process and use inventory and user data of the Customer without the Customer's consent only to the extent necessary for the contractual relationship and claiming and invoicing telecommunications media.
(2) The Provider will not use Customer data for promotion, market survey and opinion surveys without Customer's consent.
(3) The Customer can check, change or delete the data stored about the Customer at any time by clicking the "Customer Account Profile" and "Directory" buttons in his/her profile. In other instances regarding Customer's consent and other information on data collection, processing and usage, reference will be made to the Data Protection Statement which the Customer can see in a printable format on the Provider's website at any time via the "Data Protection" button. Registered businesses can amend the data stored about them only following a corresponding message. For registered businesses the data will be changed by the Provider following a corresponding message.
§ 11 Online Dispute Resolution in accordance with Article 14, Section 1 ODR-VOIn accordance with the applicable law, we are obligated to inform consumers of the existence of the European Online Dispute Resolution platform (ODR Platform), which can be used for the out-of-court resolution of disputes. The European Commission is responsible for setting up the platform. The European Online Dispute Resolution platform can be found at http://ec.europa.eu/consumers/odr/.
In accordance with section 36 of the German law on consumer dispute resolution (VSBG), we would like to highlight that Elsner Elektronik GmbH is neither obligated nor prepared to participate in dispute resolution proceedings before a consumer arbitration board.
§ 12 Final Provisions(1) The law of the Federal Republic of Germany applies to the contracts concluded between the Provider and Customer and UN sales law does not apply.
(2) If the Customer is a dealer, legal entity under public law or a public legal entity or a public estate, the court of jurisdiction for all disputes arising from the contractual relationship between the Provider and Customer shall be the seat of the Provider.
(3) The remaining parts of the contract remain binding even if any of its clauses becomes legally ineffective. Statutory provisions, if available, replace the ineffective provisions. The entire contract is void if this would constitute unreasonable hardship of any of the contracting parties.
Status: 12 March 2020
General Terms of Purchase and Delivery for Businesses (B2B)
Elsner Elektronik GmbH
Phone: +49 (0) 70 33 / 30 945-0
Telefax: +49 (0) 70 33 / 30 945-20
entered in the Commercial Registry with the District Court Stuttgart under HRB 331386, represented by Jutta and Thomas Elsner, Toni Großmann, VAT Reg. No.: DE 812 151 291
– hereafter only "Provider" –
the customer identified in section 2 of the contract
– hereafter only "Customer" –.
§ 1 General(1) All offers, supplies and deliverables proceed exclusively based on these Terms and Conditions. They are part of all contracts concluded between the user and the ordering party regarding supplies or deliverables. Older terms and conditions are hereby invalid.
(2) Terms and conditions of the ordering party do not apply also when the user does not breach them separately in the specific case.
(3) These Terms and Conditions also apply to all future offers, supplies and deliverables to the ordering party, even if not agreed again on a separate basis.
§ 2 Offer and Contract Conclusion(1) Offers are provisional and non-binding. In order to become effective, all contracts regarding supplies and deliverables, including special agreements and legally important statements, must be in writing and/or confirmed by the user by fax. This also applies to supplements and changes.
(2) Information on the subject matter of a supply or deliverable (e.g. weight, dimensions and technical data), including visual form (e.g. drawings and pictures), are for informational purposes only. They are not guaranteed properties, but descriptions and identification of the supply and/or deliverable.
(3) Usual deviations and deviations based on legal regulations or representing technical improvements are permitted unless their applicability impairs the contractual aims.
(4) Orders and jobs can be accepted by the user within two weeks.
(5) The user reserves the ownership title or copyright for submitted offers, quotations and drawings, calculations, descriptions, models, tools and other materials and aids made available to the ordering party. The ordering party must not use, copy and make these objects available to and/or inform third parties without the user’s exclusive agreement. The ordering party shall return such objects to the user upon request, without keeping any copies thereof.
§ 3 Prices(1) Prices apply to the supplies and/or deliverables scope named in the order confirmation. Extra and special work shall be invoiced separately. If there are no special price agreements regarding the particular offer or the client, commissioned jobs shall be performed at the list prices applicable on the day of the job confirmation.
(2) The ordering party bears the packaging and dispatch costs. If the order value is less than €150 (excl. VAT), a share in freight costs of €30 is levied on the ordering party. With order values below €50, a small quantity surcharge of €8 can be levied by the user.
(3) The return of delivered defect-free objects is possible only if the user agreed in writing or by fax with the return before returning the objects. The agreement with the return is always on the condition that the goods are in their original packaging, free of damage and merchantable. For goods returned from orders performed free of error, the ordering party shall pay the user a processing fee of 20% of the sales price. Delivered defect-free objects sent back without the user’s agreement and objects not packed in their original packaging, damaged or in a non-merchantable condition remain sold and shall be paid for by the ordering party. The user can always return these goods at the expense of the ordering party.
§ 4 Periods, Dates, Withdrawal, Transfer of Risks(1) Delivery periods and dates, including fulfillment periods and dates, are always approximate unless a fixed period and/or deadline has been agreed. As soon as the dispatch has been agreed, the delivery periods and dates apply to the moment of the handover of the goods to the shipper, carrier or other persons and companies authorized for transportation. Otherwise, it is the timely dispatch readiness, as long as told to the ordering party, that is sufficient for meeting delivery periods and dates.
(2) The delivery and/or fulfillment period starts with the arrival of the agreed advance payment. Delivery and fulfillment periods shall be extended by the period in which the ordering party fails to meet its obligations under the Terms and Conditions. Delivery and fulfillment dates shall be postponed accordingly.
(3) The ordering party shall, upon request, provide evidence for the user that no legal barriers in user’s sphere of influence hamper the delivery. The user is entitled to retain the delivery affected by such hindrance until due evidence has been provided. Should the user fail to submit such evidence within a reasonable period of time, as agreed, the user can withdraw, in part or entirely, from the contract due to the still uncompleted part of the order.
(4) In the event of force majeure and other hampering events that could not be foreseen at the moment of contract conclusion (e.g. operating failures of all sorts, difficulties in material and/or energy purchases, transportation delays, strikes, lock-outs, labour, energy and raw material shortages, measures of authorities) beyond the user’s sphere of influence that make the delivery substantially more difficult or impossible for the user, the user is entitled to withdraw from the contract, if the duration of such hindrance is not temporary only. With hindrances of a temporary duration, the delivery periods and dates shall be extended or postponed by the duration period of the hindrance plus a reasonable start-up period. This also applies when the user has not received a delivery from other suppliers or if such delivery was incorrect or late. If the ordering party is not able to take over the delivery or deliverable due to the delay, the ordering party can withdraw from the contract with the user based on a written statement with immediate effect. Damage compensation claims are not applicable in these cases. This regulation applies accordingly in case of difficulties with authorities granting the necessary permits, e.g. import licences or permits, in spite of whether it would have been possible for the user to recognize such difficulties already by contract conclusion.
(5) Normal greater or lesser deliveries are permitted. Also practicable partial supplies are permitted. Every partial supply is considered a separate transaction.
(6) The risk passes to the ordering party with the handover of the delivery subject to the shipper, carrier and/or a person or company authorized with the transportation at the latest. This also applies for partial supplies. In the case of a delay with the handover or dispatch due to circumstances, the cause of which is attributed to the ordering party, the risk passes to the ordering party on the day of dispatch readiness.
(7) The goods are insured against damage in transport at the user’s cost.
§ 5 Warranty, Notification Duty(1) Objects delivered by the user shall be checked thoroughly and without delay for defects, compliance with the order and completeness upon delivery to the ordering party or to a third party defined by the ordering party. They are regarded as approved unless a written claim has been received by the user or sent by fax to the user without delay or within ten days of delivery of the delivery subject and/or within ten days of identifying the defect, if the defect was not obvious in an immediate, thorough check. The claimed part of the delivery subject shall be sent back to the user at the user’s request free of transportation fees. For qualified claims, the user shall reimburse the costs of the cheapest transportation method. This does not apply to costs increased because of the purchased item being used upon delivery to a different place than the place of residence or the commercial branch office of the receiver unless the usage complies with the designated use of the item.
(2) In the case of defects on supplied objects, the user can chose, within a reasonable period of time, the removal of the defect or the delivery of a defect-free item instead of withdrawal or discount.
(3) If the subsequent performance is connected with disproportionately high costs for the user who is therefore unreasonably burdened, the user can reduce the subsequent performance. If the subsequent performance is rejected, the choice of warranty rights is late or if the subsequent performance fails, the ordering party can choose between withdrawal and discount.
(4) The user must be notified in due form about every defect and malfunction in the goods.
(5) All warranty claims expire one year after delivery of the goods.
(6) The legal warranty regulations are applied for end consumers.
§ 6 Damage Compensation Liability
(1) The liability for damage compensation, if part of a liability, is ruled out or limited as laid down in the following paragraphs. This applies to each and every reason, e.g. in the case of breach of duties under §§ 280 BGB ff., impossibility, delay, defects and for non-permitted action for the liability.
(2) In the event of slight negligence on the part of bodies, legal representatives, employees or other vicarious agents, the user shall not be liable unless liability is for loss of life, bodily harm and damage to health or for typical and foreseeable damages from the breach of essential contractual obligations.
(3) In the event of gross negligence on the part of employees (with the exception of senior staff) or other ordinary vicarious agents, the User shall not be liable if a non-essential contractual obligation has been breached, except in case of loss of life, bodily harm and damage to health.
(4) Liability for all damages, except in cases of fraudulent intent, loss of life, bodily injury or damage to health and violations of the Product Liability Act, is limited to a maximum of €1,000,000 per one damage case.
(5) Liability is not excluded or limited if the user is liable deliberately.
§ 7 Reservation of Ownership(1) The user reserves the title of ownership to all supplied goods (goods subject to retention of title) until the ordering party has paid the purchase price for the goods delivered and met all existing payment obligations arising from the business relationship.
(2) In the case of action by the ordering party breaching the contract, e.g. late payment of secured claims, the user can disallow the use or consumption of such goods or withdraw the goods. The withdrawal of goods represents only a withdrawal from the contract if the user has declared so also in writing. After the withdrawal of goods, the user has the right to use the goods, with the proceeds being credited to the ordering party for its obligations (less reasonable costs of use).
(3) The ordering party now transfers the purchase price claims towards its clients arising from the re-sale of goods subject to retention of title or from another sale and/or other compensation claims, including all secondary rights, to the user. They serve as security to the same extent as the above goods. The consumer has the right and authority to resale or another sale of the above goods only under the provision that the claims within this transaction are passed on to the user. The processing or modification of delivered goods subject to retention of title is always done for the user as the manufacturer. If (co-)ownership expires through union, it is now agreed that the respective share in the (co-)ownership of the ordering party in the singular item passes to the user as security of his claims.
(4) In the case of access of third parties to the above goods, e.g. confiscation, the ordering party shall advise of the ownership of the user and inform the user without delay. If the third party is not able to pay the expenses which the user has incurred in this respect, the liability lies on the ordering party’s side. The ordering party shall preserve the above goods for the user. The ordering party must insure these goods against fire, theft and flood.
(5) The ordering party has the authority to collect the claims ceded to the user until revoked. The user is not entitled to apply this right of revokation, as long as the ordering party has duly met its payment obligations arising from the business transactions and as long as there are no circumstances that would damage substantially the credibility of the ordering party. If there are circumstances for exercising the right of revokation, the user can demand from the ordering party the stating of the claims ceded, including debtor, making all notes necessary for the collection of these claims, and the forwarding of relevant documents to the user and informing the debtor about the cession. The cession notice to the debtor can be also made by the user himself.
(6) If the realizable value of all existing collateral exceeds the secured claims by a total of 20%, the user is obliged, at the request of the ordering party, to release the collateral at user’s option.
§ 8 Payment Terms(1) Invoiced amounts shall be paid to the user within 14 days from the invoice date excluding deductions. Cheques and bills of exchange lead to a payment only upon exchange.
(2) If the ordering party is late with a payment, a 5% interest rate above the respective prime interest rate under § 247 par. 1 of BGB applies to the claim of the user for the delay period. For legal deals without the participation of any consumer the interest rate stands at 8% above the prime interest rate mentioned. The exercise or provision of evidence of higher or lower damage due to the delay is reserved.
(3) Payment withdrawal due to off-setting with counter-claims of the ordering party is only permitted when such counter-claims are unquestionable and laid down with legal effect.
(4) If, after contract conclusion, circumstances arise that limit substantially the credibility of the ordering party, the user is entitled to make outstanding supplies or fulfill deliverables only against an advance payment or security.
§ 9 Other Provisions(1) The place of fulfillment for all obligations under the contractual relation is user’s registered office.
(2) The court of jurisdiction for all disputes stemming from the business transaction is the user’s registered office if the ordering party is a dealer, a legal entity of public law or investment fund.
(3) The business transaction is subject exclusively to German law.
(4) These Terms and Condition apply if applied towards a person who, upon contract conclusion, was performing commercial activities or was self-employed (entrepreneur), if the contract belongs to the commercial trade operation, towards a trade organization, a legal entity of public law or against an investment fund and for end consumers.
(5) If the individual clauses of these Terms and Conditions are or become partially or fully ineffective, the remaining part and/or remaining clauses shall remain in force. In this case, those legally effective regulations shall apply instead of the ineffective clause and/or part thereof that are the closest to the aim of the inefficient clause.
Note:The ordering party acknowledges that the information from the business relationship will be stored under § 28 of the federal data protection law for the purpose of data processing and the user reserves the right to provide this information to the credit insurer for information needed for credit insurance.
Version: 12 March 2020