ELMAG Terms & Conditions of Sale and Delivery


1.General

1..1 Deliveries of goods to our customers shall only be made on the basis of the following Terms & Conditions, unless otherwise provided for in special terms and conditions. Deviating agreements must be made in writing. Our employees are not authorised to make verbal promises or agreements that deviate from these Terms & Conditions.

1.2. These terms and conditions shall apply in respect of both entrepreneurs and consumers; in the latter case, however, only if and to the extent that the German Consumer Protection Act does not provide for other mandatory provisions in favour of the consumer. The possible invalidity of individual provisions of these General Terms & Conditions of Sale and Delivery shall affect the remaining provisions. In place of any ineffective provision, a legally permissible provision that comes as close to it as possible is deemed to have been agreed.

1.3. These Terms & Conditions also apply analogously to services or deliveries from us, unless otherwise provided for in special terms and conditions.


2. Offers

2.1 Our offers are generally subject to change and do not obligate the customer to accept the order. We reserve the right of prior sale.

2.2. The information contained in catalogues, brochures etc. shall only apply if it is expressly referred to in the order confirmation.

2.3. Unless otherwise agreed, we are bound by the prices quoted in cost estimates for one month.


3. Order and acceptance of order

3.1 If no rejection is made by us within three working days of receipt of a verbal order, the order shall be deemed to have been accepted. We must reject a written order in writing within seven days in writing, otherwise it shall be deemed to have been accepted on the date of the order being placed.


4. Transfer of risk, complaints

4.1 Compliance with the agreed delivery period shall be subject to unforeseeable circumstances or circumstances independent of the will of the parties, such as all cases of force majeure, war, official interventions and prohibitions, delays in transport and customs clearance, transport damage or energy shortages. Such circumstances shall also entitle us to extend the delivery period if they occur at one of our suppliers.

4.2. in the event of delayed dispatch from our warehouse due to circumstances attributable to the customer, the risk shall pass to the customer on the day of readiness for dispatch.

4.3. We are entitled to carry out and charge for partial or advance deliveries.

4.4. Complaints due to allegedly incomplete delivery must be made immediately, at the latest within three days of receipt of the delivery note.

4.5. Dispatch shall take place at our reasonable discretion. We shall only be liable for disadvantages which may arise from unsuitable packaging etc. if an express agreement to this effect has not been observed.

4.6. The information contained in catalogues, brochures, illustrations, circulars, advertisements, price lists and the like is subject to design modifications.

4.7. For lost or damaged goods, claims for damages shall always be made immediately by the recipient of the goods to the responsible receiving station or carrier.

4.8. Goods that arrive damaged must be sent to us for repair after the facts have been recorded by the carrier who delivered the goods to you. They must be sent carriage paid. After repair, the customer shall be charged for the costs incurred and shall then forward his claims plus the freight costs incurred to the carrier.

4.9. In the case of lost goods, the customer can see the value of the goods from our invoice and can therefore immediately assert his claims against the carrier, be it a forwarding agent, the post office, a railway company or similar, when the facts are recorded.
 

5. Prices

5.1 If, between the conclusion of the contract and delivery, costs increase due to circumstances which are not at our discretion, such as an increase in the cost price, an increase in producer or wholesale prices, statutory increases in wage costs, regulation or collective agreement, an increase in or introduction of new taxes or due to value assurance clauses, the prices in question shall increase accordingly. If no more than two months elapse between the conclusion of the contract and the delivery to be made by us, a price increase shall only apply if an agreement to this effect has been made in the individual case.

5.2. The prices are valid ex warehouse, a charge shall be made for costs incurred for shipping. Processing is carried out by a specialist dealer near the customer who is either chosen by the customer from the dealer list or provided by us. From an order value of EUR 750.00, delivery within Austria and Germany is free of charge. If the order value is lower or for deliveries to other countries, a charge shall be made for costs incurred according to the table of shipping costs.


6. Retention of title

6.1 The delivery item shall remain our property until the recipient has paid all our claims, including those arising from later invoices, including all ancillary claims.

6.2. In the event of a resale of the goods subject to retention of title by the customer, the retention of title extends to the future proceeds or the purchase price claim from this transaction. The resale must be reported immediately and the proceeds kept separately.

6.3. The buyer may neither pledge the delivery item nor assign it as security. In the event of seizure, confiscation or other dispositions by third parties, he must inform us immediately.


7. Payment

 

7.1. On conclusion of the purchase contract, electronic invoicing shall be accepted in the form of an unsigned PDF file sent by e-mail as a minimum. Alternative shipping methods can also be offered on request (post, etc.).

 

7.2. in the absence of other agreements, payments are due promptly net on receipt of invoice. Payment shall be made abroad by cash in advance or cash on delivery.

7.3. in the event of default of payment, we are entitled, without prejudice to our other rights, to take back the goods, equipment and the like subject to our reservation of title - without this being equivalent to a withdrawal from the contract.

7.4. In the event of default of payment by the customer, we are entitled to demand interest and compound interest in the amount of 13% p.a. plus the value added tax payable, unless otherwise agreed in a specific individual case. If changes occur on the money or capital market which result in a general change in lending rates, we shall be entitled to adjust the agreed interest rate accordingly.

7.5. The defaulting customer is obliged to reimburse all procedural extra-judicial collection costs for which he is culpable, in particular the costs of a lawyer appointed by us.

7.6. Deductions on payments that have not been agreed shall not be accepted under any circumstances.

7.7. The retention of payments or offsetting against any counterclaims of the buyer are excluded.

7.8. Payments received by us shall first pay off compound interest, interest and incidental expenses, then the outstanding capital, starting with the oldest debt.


8. Warranty, guarantee

8.1 We shall be liable in respect of the buyer for ensuring that our delivery is free of material or manufacturing defects which would significantly impair the suitability of the respective delivery item and for ensuring that the guaranteed properties are present for a period of 24 months from the date of delivery.

8.2. Furthermore, we guarantee the functionality of the goods for a period of 24 months from the date of delivery. Excluded are consumables and expendable items such as accumulators/batteries for which a (non-extendable) period of 6 months from delivery applies. Customers also have the option of a free warranty extension to 36 months from the date of delivery. For this purpose, a product registration must be completed on our website www.elmag.at/3Jahre. In this case, the period increases from 24 to 36 months. Registration is possible retroactively for up to 3 months from the date of purchase. The warranty extension is possible for all ELMAG products which can be clearly identified by means of a serial number. Small devices, accessories or other products which do not have a product-specific serial number are excluded from the warranty extension. For stationary machines, the warranty extension to 3 years covers all spare parts required for the repair, but not any working hours, transport and/or travel expenses or overnight costs. Stationary machines are all machines which cannot be transported by parcel service, post or groupage freight. A reference to this restriction is displayed with the respective product during registration. The warranty extension is only effective on receipt of the confirmation which the customer receives by e-mail after checking all data.


8.3. For reported defects covered by a warranty or guarantee, we may, at our discretion
 , a) carry out a repair on site,
 b) arrange for the defective goods or the faulty parts to be returned for repair or exchange,
 c) replace the defective goods or
 d) replace the defective parts for you.
In the event of a return under the warranty/guarantee, the respective device must be packed properly by the customer for transport. In the case of shipments by carrier, the goods must be secured appropriately on a pallet and made available for collection.

8.4. Repair invoices from other companies are not recognised by us under any circumstances.

8.5. Claims for redhibitory action, price reduction or compensation for direct or indirect damages such as loss or consequential damages are excluded.

8.6. Goods or parts replaced in the course of the rectification of defects shall become our property.

8.7. Excluded from the warranty and guarantee are such defects which result from arrangement and assembly not effected by us, insufficient equipment, stressing of the parts beyond the specified performance, negligent or incorrect handling and use of unsuitable operating materials; this also applies to defects which are due to material provided by the customer. Furthermore, defects caused by improper or inadequate maintenance are excluded from the warranty or guarantee. In particular, we are not be liable for damage attributable to the actions of third parties, chemical influences or excess voltages. Parts subject to wear and tear are not covered by the warranty or guarantee.

8.8. We are not obliged to remedy defects until the buyer fulfil his payment obligations.


9. Withdrawal from the contract

9.1 If we are in default of delivery after acceptance of the contract due to intentional or negligent behaviour, the customer is entitled to withdraw from the contract after the unsuccessful expiry of a reasonable period of grace set in writing. The customer is not entitled to a right of withdrawal from the contract in the event of delay due to force majeure or minor negligence. The customer shall only be entitled to claim damages for non-performance or delay in performance in the event of a delay due to our intentional or grossly negligent conduct.

9.2. In the event of unforeseen events, we shall be entitled to withdraw from the contract in whole or in part insofar as they significantly change the economic significance or the content of the service or have a significant effect on our operations, and in the event of subsequent impossibility of performance. If we make use of the right to withdraw from the contract, we shall inform the buyer/orderer as soon as we become aware of the consequences of the event, even if an extension of the delivery period was initially agreed with the buyer.

9.3. On the other hand, if the customer is in default of payment, we shall be entitled to withdraw from the contract in whole or in part without prejudice to our other rights after granting a reasonable grace period; in the event of our withdrawal, we shall in any case be entitled to a compensation fee of up to 10% of the price of the goods in respect of which the withdrawal was effected, in addition to any claim for damages.

9.4. if one of the contracting parties ceases payments, insolvency proceedings are opened in respect of its assets, a petition for bankruptcy is dismissed for lack of cost-covering assets or its financial circumstances deteriorate, the other contracting party shall be entitled to withdraw from the contract without granting a grace period if difficulties with deadlines, delivery or insufficient funds are to be expected.

9.5. We are generally not obliged to take back goods already delivered. If the goods are taken back out of good will in individual cases, a handling fee of  10% of the invoice amount shall be charged to the customer, plus compensation for any damage to the goods taken back, which will be calculated from the replacement value - without taking into account any reduced current value. If the respective discount agreement is not reached as a result of the return of goods, the discounts originally granted shall be recalculated.


10. Liability

10.1 Our liability shall be limited to damage caused to the object of delivery itself. Claims of the customer for compensation for further damages are excluded, unless we can be accused of malicious intent or gross negligence.

10.2. An obligation to pay compensation in accordance with the German Product Liability Act, product liability claims derived arising from other legal provisions for property damage by entrepreneurs and obligations to pay compensation are excluded. The customer is obliged to agree this exclusion of liability and recourse with his other contractual partners and to impose on them the obligation to ensure that such exclusion of liability and recourse is also contractually imposed on their business partners in the future and with effect for us.

10.3. The customer shall inform us immediately of any damage of which he becomes aware as a result of an item delivered by us, in particular if he is requested by third parties under the title of product liability to compensate for damage or to disclose his suppliers, otherwise becomes aware of a product defect in our goods or suffers damage himself.

10.4. The assertion of claims for liability, information or recourse must be submitted in writing to the management with precise details of the damage and the facts giving rise to liability, including proof that the goods supplied originate from us.


11. Address

11.1 The customer shall immediately and expressly provide notification of changes of address. Otherwise, written notifications shall be deemed to have been received after the usual postal service run if they have been sent to the last address provided to us or otherwise known to us.


12. Data processing

12.1 The customer agrees to processing of address details and of data required for the business transaction for internal use within the meaning of Section 22 of the German Data Protection Act.


13. Place of jurisdiction, applicable law, place of performance

13.1 The place of jurisdiction for all disputes arising directly or indirectly from the contract is the competent court in Ried im Innkreis; Austrian law shall apply.

13.2. The place of performance for both delivery and payment is Ried im Innkreis.


14. Final provisions

14.1. These Terms & Conditions shall also apply, without specific reference, to all future business transacted with the customer, unless otherwise agreed in writing.

14.2. if no objection has been made to our Terms & Conditions of Sale and Delivery, our Terms & Conditions shall be expressly deemed to have been accepted by you.

14.3. Deviations from these Terms & Conditions are only legally effective if they are confirmed in writing by the seller. Should parts of these Terms & Conditions be invalid, the validity of the remaining provisions shall remain unaffected.


Version: 01-2019