Terms and Conditions
General Business Terms and Conditions of EMO Systems GmbHExecutive management: Friedrich Riemeier,
registered in the commercial register of the district court of Berlin-Charlottenburg (HRB 91886)
EMO Systems GmbH
- For all purchase contracts for the delivery of goods, which come about via the Online Shop of EMO Systems GmbH, Rungestr. 19, 10179 Berlin, Germany (hereinafter called EMO Systems), the following delivery and payment conditions are valid. In all cases the edition of these AGB valid at the time of the order is applicable.
For deliveries and services that are not ordered via the EMO Systems Online Shop, our delivery and payment conditions for machines, installations, equipment and constructions are valid.
- Deviating regulations of the orderer are herewith contradicted.
- The business relationships between EMO Systems and the orderer are subject to the laws of the Federal Republic of Germany under exclusion of the UN Sale of Goods Law.
- Place of jurisdiction is Berlin, insofar as the orderer is a businessman, a juristic person of public law or public law special fund. This does not apply, if the litigation concerns claims other than proprietary claims or if an exclusive place of jurisdiction is justified for the action.
II. Contract Conclusion
- The purchase contract comes about with the sending of the order information via the EMO Systems Online Shop by the orderer and the confirmation of the order in text form, in other words per e-mail, fax or letter, by EMO Systems.
III. Delivery and Transfer of Risk
- The ordered goods, unless otherwise contractually agreed, are delivered to the address specified by the orderer. EMO Systems reserves the right to undertake a partial delivery, insofar as this appears beneficial for prompt processing and not unreasonable to the orderer. Special forms of shipment requested by the orderer are calculated separately and according to agreement.
- If the orderer is a consumer in the sense of § 13 BGB, then according to § 446 BGB, the risk is transferred to the purchaser with the handover of the sold item. In all other cases, according to § 447 BGB the risk is transferred to the purchaser with the handover of the sold goods to the transport organization.
- If the orderer is a businessman, EXW according to Incoterms 2000 is agreed as form of delivery.
IV. Packaging and Shipment Costs
- A list of the packaging and shipment costs can be found in the EMO Systems Onlineshop.
V. Prices and Payment
- The sales price specified in the EMO Systems Online Shop at the time the order is received is valid. The net and gross prices are specified. The statutory value added tax and the shipping costs are identified separately. No value added tax is charged for deliveries outside Germany.
- For purchases via the EMO Systems Online Shop you will receive an order confirmation per e-mail.
- For a bank transfer the name of the orderer and the tracking number or the online order number is to be specified as intended purpose, so that we can allocate the payment received to the order.
- The order will be delivered by an organization authorized by EMO Systems against cash in advance or cash on delivery. First-time customers and customers with a domicile outside the Federal Republic of Germany will be delivered exclusively against cash in advance. EMO Systems issues an invoice to the purchaser, which is handed to him when the sold goods are delivered or is sent to him in a timely manner per e-mail, fax or letter.
- Deviating from section V No. 4, at their own discretion EMO Systems can offer the orderer delivery against invoice. The amounts invoiced are due immediately and without deduction for the delivery against invoice.
VI. Right of Cancellation
- For all orders via the EMO Systems Online Shop the purchaser, insofar as he is a consumer, can return the goods received in accordance with the following cancellation policy. Before receiving the goods the customer has a free right of cancellation, which can be declared within two weeks after ordering in text form, in other words per e-mail, fax or letter.
- The right of return and cancellation is not applicable to business persons.
- The orderer can cancel his contract within two weeks without specifying reasons in text form, in other words per e-mail, fax or letter, or – if the sold goods are left with him before expiry of the deadline – by returning the items. The period begins on receipt of this policy in text form. The timely sending of the cancellation or sold goods is sufficient for the observance of the cancellation period.
- The cancellation is to be addressed to:
EMO Systems GmbH For the attention of the legal representative Friedrich Riemeier Rungestr.19 10179 Berlin or e-mail to: firstname.lastname@example.org
- In the case of an effective cancellation the services received on both sides are to be given back and, if applicable, emoluments gained (e.g. interest) assigned.
- If the purchaser is unable or partly unable or only able to give back the service received to EMO Systems in poor condition, insofar as applicable the purchaser must compensate EMO Systems.
- With the surrender of items this does not apply, when the deterioration of the items can be traced back exclusively to their control – which could possibly have been the case in a shop.
- Otherwise the purchaser can avoid the obligation to compensate for deterioration caused through the proper intended setting to use of the item, by not using the item as his own property and not doing anything which could impair its value.
- Items that can be sent in parcels are to be returned at the cost and risk of EMO Systems. Items that can not be sent in parcels will be picked up from the purchaser.
- Obligations to reimburse payments must be fulfilled within 30 days. For the purchaser the period begins with the sending of the cancellation declaration or the sold item, for EMO Systems with its arrival.
VII. Reservation of Ownership and Offsetting
- The sold item remains the property of EMO Systems until fulfillment of all requirements from the contract. In the case, that the purchaser is a juristic person of public law, public law special fund or a business person, EMO Systems reserves ownership of the sold item until all payments are received.
- The purchaser is only entitled to exercise the right of offsetting, if his counterclaims are recognized by EMO Systems, undisputed or established as legally valid. Offsetting is also possible in a process, when the counterclaim is indeed disputed, but is ripe for judgment. The purchaser is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
VIII. Liability for Defects or Legal Imperfection in Title
- Insofar as the purchaser is a business person in the sense of § 14 BGB, he can only assert claims for obvious defects on the delivered goods or incorrect deliveries, if he has complained about this to EMO Systems within one month of delivery in text form, in other words per E-Mail, fax or letter. The timely sending of the complaint letter is sufficient to comply with the time period.
- If the contractual parties are exclusively merchants, then in addition §§ 377 ff. HGB is valid.
IX. Liability for Damages
- The purchaser can only assert claims against EMO Systems for compensation for damages outside the statutory warranty claims in the case of malice or gross negligent behavior. This liability exclusion does not apply for injury to life, body or health and in the case of violation of essential contract obligations. Except for malice, gross negligence and damages from the injury to life, body or health, the liability of EMO Systems is limited to the amount of damage foreseeable at conclusion of the contract.
- The liability according to the Product Liability Law and other mandatory statutory regulations remains unaffected.
X. Data Protection
- The collection, processing and utilization of the personal data of the purchaser is carried out under observance of the EMO Systems Data Protection Declaration, the Federal Data Protection Law (BDSG) and the Telemedia Law (TMG).
- All third-party logos, images and graphics displayed are the property of the corresponding firms and are subject to the copyright of the respective licensor. All photos, logos, texts, reports, scripts and programming routines displayed on these pages which are own-developments of EMO Systems or have been prepared by EMO Systems, must not be copied or otherwise utilized without written consent. All rights reserved.
XII. Language Clause
- The contract language is German. The EMO Systems internet offer is available in German and English language.
- The offers and details in the EMO Systems Online Shop are valid until further notice.
- All deliveries and services are based on the following conditions as well as any possible separate contractual agreements. Deviating purchase conditions of the orderer are also not part of the contract through acceptance of the order. A contract comes into effect, with the lack of separate agreement, with the written order confirmation from EMO Systems.
- EMO Systems retains the property rights and copyrights to samples, quotations, drawings and similar information of a physical and non-physical nature – also in electronic form. These must not be made accessible to third parties. EMO Systems is obligated only to make accessible to third parties information and documentation designated as confidential by the orderer with his consent.
II. Prices and Payment
- With the lack of separate agreement, the prices are regarded as ex works, EXW according to Incoterms 2000. Added to the prices comes value added tax to the respective statutory amount.
- If fees or other external costs that are included in the agreed price change later than four weeks after conclusion of the contract or if they are created new, EMO Systems is entitled to change the price by the corresponding amount.
- With the lack of separate agreement, every payment is to be made to the account of EMO Systems without deduction. The following scaling is agreed: 1/3 as down payment after receipt of the order confirmation, 1/3 as soon as the purchaser is notified, that the main parts of the object of the contract are ready to ship, and the remaining amount within one month after the transfer of risk.
- The purchaser is only entitled to exercise the right to withhold payments or offset them with counterclaims insofar as his counterclaims are undisputed or established in law.
III. Delivery Time and Delivery Delay
- The delivery time is produced from the agreements of the contractual parties. Its observance by EMO Systems presupposes, that all commercial and technical queries between the contractual parties are clarified and the customer has fulfilled all his respective obligations, such as e.g. provision of plans, parts and materials, the production, if applicable, of all necessary official certificates and authorizations, the presentation of letters of credit and guarantees and the rendering of payments. If this is not the case, the delivery time will extend accordingly. This does not apply, insofar as EMO Systems is accountable for the delay.
- The observance of the delivery time is under the reservation of correct and timely obtaining of supplies oneself. Signs of delays will be notified to the customer by EMO Systems as soon as possible.
- The delivery time is observed, when the object of the contract has left the EMO Systems works before its expiry or the readiness to ship is notified. Insofar as an acceptance is to take place, – except with entitled acceptance refusal – the acceptance date is decisive, alternatively the notification of acceptance readiness.
- If the shipment or the acceptance of the object of the contract is delayed for reasons for which the customer is accountable, then he will be charged the costs resulting from the delay, beginning one month after notification of shipment or acceptance readiness respectively.
- If the non-observance of the delivery time can be traced back to force majeure, industrial disputes or other events, which are outside the sphere of influence of EMO Systems, then the delivery time will be extended accordingly. EMO Systems will notify the customer of the beginning and the end of such circumstances as soon as possible.
- The customer can withdraw from the contract without setting a period of notice, if the entire performance ultimately becomes impossible for EMO Systems before the transfer of risk. In addition the customer can withdraw from the contract, if for an order the export of part of the delivery becomes impossible and he has a justified interest in the rejection of the partial delivery. If this is not the case, then the customer must pay the contract price accruing on the partial delivery. The same applies with inability of EMO Systems. Otherwise section VII. No. 2 of these conditions applies. If the impossibility or the inability occurs during the acceptance delay or if the customer is solely or overwhelmingly responsible for these circumstances, he remains obligated to counter-performance.
- If EMO Systems defaults and damages arise for the customer as a result, then he is entitled to demand an all-inclusive compensation for damage resulting from delay or default. It shall be 0.5% for every full week of the delay, in total however maximum 5% of the value of that part of the entire delivery, that can not be used in time or not in accordance with the contract as a result of the delay. If the customer grants EMO Systems - under consideration of the statutory exceptional cases – a reasonable period of grace to produce the performance and if this deadline is not observed, then in the framework of the statutory regulations the customer is entitled to withdraw. Other claims from the delayed delivery are regulated exclusively according to section VII. No. 2 of these conditions.
IV. Transfer of Risk and Acceptance
- The risk is transferred to the customer, when the object of the contract has left the EMO Systems works (EXW according to Incoterms 2000), and indeed also then, when part deliveries take place or when EMO Systems has taken over other services, e.g. the shipping costs or delivery and installation. Insofar as an acceptance test is to take place, this is decisive for the transfer of risk. It must be carried out without delay on the acceptance date, alternatively after EMO Systems has announced the acceptance readiness to the customer. The customer must not refuse the acceptance with the presence of non-essential defects.
- If the delivery or the acceptance is delayed or does not take place due to circumstances for which EMO Systems is not accountable, the risk is transferred to the customer on the day of notification of shipment or acceptance readiness. For this purpose EMO Systems is obligated to conclude insurance demanded by the customer. The costs for this will be borne by the customer.
- Part deliveries are permitted, insofar as they are reasonable for the customer.
V. Reservation of Ownership
- All supplied items and services remain the property of EMO Systems (reserved goods) until fulfillment of all claims. This also concerns in particular the respective balance claims, which EMO Systems is entitled to in the framework of the business relationship, in addition claims, that are justified by the insolvency administrator one-sided in the way of settlement choice. In addition it is also applicable for future occurring and conditional claims, e.g. from change of acceptor, and also if payments are made to separately designated claims.
- EMO Systems is entitled, at the cost to the customer, to insure the object of the contract against theft, breakage, fire, water and other damage, insofar as the customer has not provably concluded the insurance himself.
- As manufacturer in the sense of § 950 BGB, EMO Systems carries out machining and processing of the reserved goods without obligating itself. The machined and processed goods are regarded as reserved goods in the sense of section V. No. 1 of these conditions. If the purchaser processes, combines and mixes the reserved goods with other goods, EMO Systems is entitled to proportional joint ownership of the new item at the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If the ownership of EMO Systems expires through combining or mixing, then the customer now already transfers the rights of ownership to the new stock or new item to which he is entitled to EMO Systems to the extent of the invoice value of the reserved goods. The new stock or the new item will be safeguarded for EMO Systems by the purchaser free of charge. The joint ownership rights of EMO Systems are regarded as reserved goods in the sense of section V. No. 1 of these conditions.
- The customer may only sell the reserved goods in normal business transactions and at his normal business terms and conditions. And only as long as he is not in default of payment to EMO Systems. Precondition for resale is, that the claims from this resale are transferred to EMO Systems in accordance with section V. No. 4 to 6 of these conditions. The customer is not entitled to other powers of disposal of the reserved goods.
- The claims from the resale of the reserved goods are already now assigned to EMO Systems. They serve to the same extent as security as the reserved goods. If the reserved goods are sold by the customer together with other goods not supplied by EMO Systems, then EMO Systems shall assign the claim from the resale in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. For the sale of goods, to which EMO Systems has joint ownership shares according to section V. No. 2 of these provisions, a part corresponding to his joint ownership share is assigned to EMO Systems. If the reserved goods are used by the customer for the fulfillment of a contract for work or contract for labor and materials, then the claim from the contract for work or contract for labor and materials is assigned to the same extent in advance to EMO Systems.
- The customer is entitled to collect accounts receivable from the resale. This authority to collect expires in the event of revocation by EMO Systems, at the latest however with default in payment, non-redemption of a bill of exchange or application to open insolvency proceedings. EMO Systems will only exercise its right to revoke if circumstances become known, through which a major deterioration of the purchaser’s pecuniary circumstances endangering the payment claim result. At the request of EMO Systems the customer is obligated, to inform his consumers immediately about the assignment to EMO Systems as well as to hand over the documents necessary for collection to EMO Systems. An assignment of claims from the resale is not permitted, unless it concerns an assignment by way of non-recourse factoring, which is indicated to EMO Systems and the factoring proceeds exceed the value of the secured claim of EMO Systems. With the credit advice of the factoring proceeds the claim of EMO Systems immediately becomes due.
- The customer must inform EMO Systems without delay about a seizure or other negative impact by a third party. The customer shall bear all costs that must be expended to cancel the seizure or for the return transport of the reserved goods, insofar as they are not reimbursed by a third party.
- If the customer gets in default of payment or if he does not redeem a bill of exchange when due, EMO Systems is entitled to take back the reserved goods and, if necessary, to enter the customer’s premises for this purpose. The same applies, if other circumstances occur, which let one conclude a major deterioration in the pecuniary circumstances of the customer and which endanger the payment claim of EMO Systems. The taking back is not a withdrawal from the contract. Regulations of the insolvency act remain unaffected.
- If the invoice value of the existing securities exceeds the secured claims including incidental claims (interest, costs or the like) altogether more than 50 percent, on demand of the customer, EMO Systems is insofar obligated to release securities according to his choice.
- All rights, in particular copyrights of construction documents produced by the customer, such as pictures, drawings, plans etc. remain in all cases with the customer and may only be supplied for use by third parties with written approval.
- The application to open bankruptcy proceedings entitles EMO Systems to withdraw from the contract and to demand the immediate return of the item sold.
VI. Defect Claims / Warranty
- Defects in services rendered or on the item sold are to be notified in writing, in other words per E-mail, fax or letter, at acceptance, or if an acceptance is not agreed, without delay, at the latest within seven days of delivery. Defects that cannot be discovered within this period, even with the most careful inspection, are – with the immediate cessation of any machining or processing – to be notified in writing immediately after being discovered, at the latest however before expiry of the warranty period.
- For defects and legal imperfections of the delivery, EMO Systems provides a guarantee, under exclusion of further claims – subject to section VII of these conditions – as follows:
Defects of quality
- All those parts that turn out to be defective as a result of a circumstance before the transfer of risk, are to be remedied or replaced free of defects free of charge and at the discretion of EMO Systems. The determination of such defects is to be reported immediately and in writing to EMO Systems, in other words per E-mail, fax or letter. Replaced parts become the property of EMO Systems.
- To carry out improvements and replacement deliveries, which appear necessary to EMO Systems, following agreement with EMO Systems the customer must provide the necessary time and opportunity; otherwise EMO Systems is released from the liability for the consequences occurring as a result. Only in urgent cases of endangerment of the operating safety or to prevent disproportionately great damage, whereby EMO Systems is to be notified immediately, does the customer have the right to remedy the defect himself or have it remedied by a third party and to demand compensation from EMO Systems for the necessary expenditures.
- Of the costs occurring through the improvement or replacement delivery, EMO Systems – insofar as the complaint turns out to be justified – shall bear the costs of the replacement part including shipment. EMO Systems shall also bear the costs for the removal and installation as well as the costs for the necessary provision of the required fitters and auxiliary workers including travel expenses, insofar as no disproportionate encumbrance of EMO Systems occurs through this.
- In the framework of statutory regulations, the customer has the right to withdraw from the contract, if EMO Systems - under consideration of the exceptional legal cases – allows a set and reasonable period of grace for the improvement or replacement delivery due to a defect of quality to elapse fruitlessly. If there is only one negligible defect, the customer is merely entitled to a right of reduction of the contract price. The right of reduction of the contract price is otherwise excluded. Other claims are determined according to section VII. No. 2 of these conditions.
- No guarantee is accepted in particular in the following cases:
- Unsuitable or improper use,
- Faulty execution, assembly or setting into operation by the customer or a third party,
- Natural wear and tear,
- Faulty or negligent handling,
- Improper maintenance,
- Use of unsuitable operating materials,
- Defective building work,
- Unsuitable building ground,
- Chemical, electrochemical or electrical influences – insofar as they are not to be accounted for by EMO Systems.
- If the customer or a third party improves improperly, there exists no liability for EMO Systems for the consequences occurring as a result. The same applies for modifications to the object of delivery carried out without prior consent by EMO Systems.
- The rectification of a defect can be refused by EMO Systems, as long as the customer is in default of payment. This does not apply, insofar as the customer exercises his statutory right of retention in an acceptable manner.
- All claims against EMO Systems lapse 12 months after acceptance or delivery, insofar as longer mandatory statutory periods of limitations do not apply.
- For lack of other agreement, EMO Systems does not carry out any research with regard to protective rights at home and abroad, which could be violated by the sale, the creation or the application of an object of a contract.
- If the utilization of the object of the contract leads to the violation of domestic industrial protective rights or copyrights, EMO Systems will advise and support the customer in the search for a solution, without assuming the costs or other obligations.
- If the object of the contract can not be used by the customer as specified in the contract due to the fault of EMO Systems as a result of neglected or faulty execution of suggestions and advice given, before or after contract conclusion, or through the violation of other contractual incidental obligations – in particular instructions for operation and maintenance of the object of the contract -, then under the exclusion of further claims of the customer, the regulations of sections VI. and VII. No. 2 of these conditions are applicable.
- For damage that has not occurred on the object of the contract itself, EMO Systems is liable – for whatever legal reasons – only in the case of
- Gross negligence of the proprietor / the organs or executive employees,
- Culpable injury to life, body or health,
- For defects, that are maliciously concealed or whose absence has been guaranteed,
- Defects of the object of the contract, insofar as liability is incurred according to the Product Liability Law for persons or property damage to privately utilized objects.
- With culpable violation of essential contractual obligations, EMO Systems also incurs liability for gross negligence of non-executive employees and for minor negligence, in the latter case limited to the contract-typical, reasonable foreseeable damage. Other claims are excluded.
VIII. Limitation of Actions
- All claims of the customer - for whatever legal reasons – shall elapse after 12 months. For claims for compensation for damages according to section VII. No. 2 of these conditions, the statutory time periods apply. They also apply for defects of a building or for objects of delivery, that have been used for a building according to their usual method of use and have caused its defectiveness.
IX. Software Usage
- Insofar as software is included in the scope of delivery, the customer is accorded a non-exclusive right to use the software supplied including its documentation. It is left with the customer to use on the object of delivery or system for which it is intended (as a rule a computer). The use of the software on more than one system is prohibited without explicit written agreement.
- The customer may only duplicate, revise, translate the software or convert from the object code into the source code in the legally permitted scope (§§ 69 a ff. UrhG). The customer is obligated not to remove or alter manufacturer details – in particular copyright notices – without the prior written consent of EMO Systems. The production of backup copies is basically allowed.
- All other rights to the software and the documentation including the copies remain with EMO Systems or the software suppliers. The issue of sublicenses is not permitted.
X. Applicable Law, Place of Jurisdiction
- For all legal relationships between EMO Systems and the customer, the law of the Federal Republic of Germany relevant for the legal relationships between domestic parties is exclusively applicable.
- Place of jurisdiction is the responsible court for the head office of EMO Systems.