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General terms and conditions of EHEIM GmbH & Co. KG

General terms and conditions of EHEIM GmbH & Co. KG exclusively for use with entrepreneurs. As of 02/2015

§ 1 - Scope

(1) These conditions of the company EHEIM GmbH & Co. KG, Deizisau, (hereinafter: „seller“) are valid for all deliveries and services of the seller towards entrepreneurs (hereinafter: „customer“) with regard to § 14 BGB (German Civil Code), therefore apply with respect to any natural person or legal entity or a partnership with legal capacity, that in concluding a legal transaction is acting in the execution of its commercial or independent business activity.

(2) The inclusion of conditions from the customer will be disregarded, unless the parties have explicitly agreed otherwise.

§ 2 – Conclusion of contract and reservation of delivery

(1) The offers of the seller are not binding offers. They are only a request to the customer to submit a binding offer to the seller. Such an offer from the customer can be submitted by fax, e-mail or to our B2B online shop as well as by phone. The acceptance of the contract by the seller shall be effected within 14 days by express declaration of acceptance or by sending the goods.

(2) The correct and timely self-delivery? on the basis of a congruent covering transaction remains reserved. The seller shall be obliged to notify the buyer immediately in case of non-availability of the contractual goods and, in the event of withdrawal, to refund the delivered consideration immediately.

(3) Design modifications as well as other modifications of technical data and performance, as long as they are conducive to the technical progress and are reasonable for the customer, remain reserved.

§ 3 - Prices

Unless otherwise stated in the order confirmation, the prices shall be valid ex works plus the German statutory value added tax, exclusive of packaging; Packaging shall be charged separately.

§ 4 – Payment conditions

Unless otherwise stated in the order confirmation, the purchase price shall be settled within 14 days after receipt of invoice subject to 2 % discount or within 30 days strictly net cash. The statutory regulations concerning the consequences of default shall apply.

§ 5 - Delivery

(1) Information regarding delivery schedules are non-binding if the delivery date has not been accepted and confirmed by the seller.

(2)  Unless not otherwise provided in the order confirmation, delivery ex works shall apply. If a delivery is agreed, the delivery will be at the customer’s risk and expense.

(3) If the seller cannot meet the agreed delivery date, he shall be obliged to inform the customer. Disturbances in the seller’s business operations or in the business operations of a sub-contractor due to causes beyond the seller’s control, especially strikes and lockouts as well as other cases of force majeure, shall prolong the delivery date according to the duration of the disruption. In such cases the customer is only then entitled to rescind the contract if he sends a reminder about the services agreed after the delivery date has expired, specifies an appropriate extension and this extension also passes without delivery. If the delivery date is defined according to calendar, the extension date specified from the customer begins with its expiration. The legal right of compensation for damages instead of performance remains unaffected.

(4) Partial deliveries shall be permissible if they are reasonable for  the customer.

§ 6 – Set-off / retention

(1) The customer can only initiate such claims that are beyond dispute or are identified as legally binding.

(2) The customer is only authorised to exercise a right of retention in so far that the counterclaim arises from the same contractual relationship.

§ 7 – Retention of title

(1) The delivered goods, including possible add-ons (discounts in kind), remain the property of the seller until all claims the seller may have in relation to the buyer and resulting from the business relationship, are fulfilled. If the customer behaves in a way contrary to the contract, the seller shall be entitled to take the retained goods back.  Taking back the goods shall not be regarded as withdrawal from the contract, unless the seller declares it explicitly.

(2) The customer shall be entitled to resell the retained goods in normal business operations. In case of sale of the retained goods, the buyer herewith assigns to us, as a precaution, any claims resulting from the resale in regards to the customer or third parties, together with all ancillary rights to the seller without the necessity for further declaration. The assignment includes possible balance claims. However, the assignment shall apply only up to the amount of the share of the seller’s invoice value of the retained goods. The buyer shall remain entitled to collect the claims after the assignment. The seller’s authority to collect the claims himself shall remain unaffected. However, the seller shall not collect the claim as long as the buyer meets its payment obligations from the collected profits, is not in default of payment or suspension of payment exists.

(3) Retained goods in process and handling by the buyer shall always be on behalf of, and by order of, the seller. In this case the buyer’s expectant right for the retained goods and the retained processed goods respective of handled goods, shall continue. Provided that the retained goods are processed with other goods which do not belong to the seller’s goods, the seller acquires the co-ownership of the new product at the ratio of the total invoice amount of the retained goods to the other handled goods at the time of the handling process. The same is valid in case of mixture. If the mixing occurs in such way that the goods of the buyer are to be regarded as the main goods, it is hereby agreed that the buyer shall regularly transfer co-ownership and shall store in this way the sole or joint ownership for the seller. In order to secure the claims of the seller in regard to the buyer, the buyer shall also assign such claims he accrues through the connection of the retained goods with a property against third parties. The seller herewith accepts the assignment.

(4) As long as the ownership has not yet been transferred, the buyer is obliged to inform the seller immediately in written form, if the delivered retained goods are seized or exposed to other interventions of third parties. The buyer is obliged to give all relevant information to the seller and to provide documents, which are required for a third – party action, against execution according to § 771 ZPO.

(5) The seller commits himself to release, upon the request of the buyer, the collateral entitled to him as far as the value exceeds the claims by more than 20 %.

§ 8 – Liability for defects

(1) The period of limitations for claims concerning new goods shall be 1 year starting with the transfer of risk. The period of limitations shall not start again if replacement is delivered within the initial liability period.

(2) There will be no claims for defects if there is only a slight variation from the agreed quality or if the usability is only slightly impaired.

(3) In the case of a defect, subject to notification of the defect within the deadline, the seller shall provide at his option either repairs or a replacement. If two attempts to remove the deficiency have been unsuccessful, the customer shall have the right to withdraw from the contract or to reduce the payment.

(4) The legal periods of limitation for the recourse action according to § 478 BGB shall remain unaffected. The same applies for an intentional breach of duty and fraudulent concealment of a defect. In accordance with the following, section 6) applies - liability limitations do not cover claims for damages and reimbursement of expenses that can be claimed from the buyer due to a defect.

(5) In case of sales to a businessman in regard of (§ 1 HGB – German Commercial Code), the commercial obligation of examination and notification of defects applies according to § 377 HGB. In case of omission of the legal notification requirements the goods shall be deemed as approved.

(6) In case of injury of life, limb and health, the seller is liable for any legal reason. This shall also apply in case of fraudulent intent and guarantee promises or if the liability complies with the mandatory legal regulations e.g. product liability law.

(7) For all other cases, the legal provisions shall apply.

§ 9 - Packaging

To take back packaging, special agreements shall apply.

§ 10 – Final provisions

(1) The laws of the Federal Republic of Germany shall apply.

(2) If the buyer is a merchant, legal entity of public law or specially funded under public law, the exclusive place of jurisdiction for all disputes resulting of this contract shall be the business location of the seller. The same applies if the buyer has no place of general jurisdiction in Germany or in the EU or whose domicile or habitual place of residence is not known at the time of taking action.

(3) The UN purchase right provisions shall not apply.

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