Terms of service
GENERAL TERMS AND CONDITIONS
§ 1 General, scope of application
1) Our offer is aimed exclusively at industry, commerce and the public sector, not at end consumers (private customers within the meaning of §13 BGB). These General Terms and Conditions (GTC) apply to all business relationships between HE Wägetechnik Horst Eßmann GmbH (hereinafter referred to as "Essmann Wägetechnik", "Supplier" or "we") and our customers. The GTC shall only apply if the customer is an entrepreneur (§ 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale or rental of weighing equipment, the performance of calibrations and technical modifications to weighing equipment. The GTC shall also apply in their respective version as a framework agreement for future contracts with the same customer, without the supplier having to refer to them again in each individual case; in this case, the supplier shall inform the customer immediately of any changes to these GTC.
(3) These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the customer without reservation in the knowledge of the customer's General Terms and Conditions.
(4) Individual agreements made with the customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) The order of the goods by the customer through the order form provided or our online shop www.waagen-discounter.de (see paragraph 3) or by other express, written notification is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 5 days of its receipt by us.
(2) Acceptance can be declared either in writing (e.g. by countersigning the order form) or by delivery of the goods to the customer.
(3) The customer can select products from the range in the online shop www.waagen-discounter.de and collect them in a so-called shopping basket using the "Add to basket" button. By clicking the "Buy" button, the customer submits a binding request to purchase the goods in the shopping basket. Before submitting the order, the customer can change and view the data at any time. However, the application can only be submitted and transmitted if the customer has accepted these terms and conditions by clicking on the "Accept terms and conditions" button and has thereby included them in his application. The provider then sends the customer an automatic confirmation of receipt by e-mail, in which the customer's order is listed again and which the customer can print out using the "Print" function. The automatic confirmation of receipt merely documents that the customer's order has been received by the provider and does not constitute acceptance of the application. The contract is only concluded when the provider issues a declaration of acceptance, which is sent in a separate e-mail (order confirmation). In this e-mail or in a separate e-mail, but at the latest upon delivery of the goods, the contract text (consisting of the order, GTC and order confirmation) is sent to the customer by us on a permanent data carrier (e-mail or paper printout) (contract confirmation). The text of the contract is stored in compliance with data protection regulations
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or specified by us in the order confirmation upon acceptance of the order.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is also not available within the new delivery period, we and the customer shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the customer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery shall be governed by the statutory provisions. Claims for damages of any kind due to failure to meet deadlines are excluded except in cases of intent and gross negligence. (4) The rights of the customer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.
§ 4 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex warehouse, which is also the place of fulfilment. At the customer's request and expense, the goods will be dispatched to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of sale by despatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, carrier or other person or institution designated to carry out the despatch. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the customer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
(3) If the customer is in default of acceptance, fails to co-operate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this we charge a flat-rate compensation of 10% of the value of the goods per week or part thereof, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for dispatch. Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The customer shall be entitled to prove that we have incurred no loss at all or only a significantly lower loss than the above lump sum.
§5 Returns, right of cancellation
(1) There is no fundamental right of return. If the goods have been delivered in perfect condition and in accordance with the customer's order, the goods cannot be taken back. Exceptions may be possible after consultation with Essmann Wägetechnik, but this only applies to certain manufacturers and always involves a deduction from the refund after inspection of the item by the manufacturer.
(2) As we do not deliver to end consumers (private customers within the meaning of § 13 BGB), there is no statutory right of cancellation for our commercial customers.
§ 6 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT. From a net order value of € 500, we deliver parcelled goods ordered via the online shop "free domicile" within Germany. Bulky or heavy goods are delivered by a forwarding agent on a pallet and charged accordingly, regardless of the net order value. The shipping costs abroad differ and are stated in the online shop or the order confirmation. We reserve the right to charge different costs for particularly large or heavy products. This will be discussed with the customer in advance in individual cases.
(2) The minimum order value is €50.00 net. Purchases below this value are not possible in the online shop. Orders outside the online shop that are below this minimum order value will be subject to a minimum quantity surcharge of € 25.00 net.
(3) In the case of sale by despatch (§ 4 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the customer. If we do not invoice the transport costs actually incurred in the individual case, the prices shown under "Shipping and Payment Terms" shall apply depending on the country and mode of transport. Any customs duties, fees, taxes and other public charges shall be borne by the customer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the customer, with the exception of exchange pallets.
(4) The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods, by bank transfer, direct debit, credit card, Paypal or instant bank transfer. For contracts with a delivery value of more than EUR 5,000.00, however, we are entitled to demand a down payment of 50% of the purchase price. The down payment is due and payable within 14 days of invoicing by bank transfer or PayPal.
(5) For the purpose of deciding on the establishment, execution or termination of the contractual relationship, we collect or use probability values, the calculation of which includes address data. For the purpose of the credit check, CRIF Bürgel GmbH, Radlkoferstraße 2, 81373 Munich, will provide us with the address and creditworthiness data stored in your database, including those determined on the basis of mathematical-static procedures, provided that we have credibly demonstrated our legitimate interest.
(6) Upon expiry of the above payment period, the customer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest (§ 353 HGB) remains unaffected.
(7) The customer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the customer's counter-rights shall remain unaffected, in particular pursuant to § 8 para. 5 sentence 2 of these GTC.
(8) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardised by the customer's inability to pay (e.g. by an application to open insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (Section 321 BGB). In the case of contracts for the manufacture of non-fungible goods (customised products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
§ 7 Retention of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The customer must inform us immediately in writing if and insofar as third parties seize the goods belonging to us.
(3) If the customer acts in breach of contract, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
(4) The customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the customer stated in paragraph 2 shall also apply with regard to the assigned claims.
(c) The customer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer fulfils his payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the customer's request.
§ 8 Claims for defects of the customer
(1) The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below.
(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such, which were provided to the customer prior to his order or included in the contract in the same way as these General Terms and Conditions, shall be deemed to be an agreement on the quality of the goods.
(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (§ 434 Para. 1 S 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
(4) The warranty period is 12 months for new goods and 6 months for used goods, calculated from the transfer of risk, unless otherwise expressly agreed in writing. The customer's claims for defects presuppose that he has fulfilled his statutory inspection and complaint obligations (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified immediately in writing. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline. In the case of obvious damage to the packaging, this must also be reported to the carrier. If the customer fails to properly inspect the goods and/or report defects, our liability for the unreported defect shall be excluded.
(5) We are entitled to make the subsequent fulfilment owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(6) The customer must give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. The subsequent fulfilment includes neither the removal of the defective item nor the re-installation if we were not originally obliged to install it.
(7) The rejected goods must be sent to us or the manufacturer (by arrangement) at the customer's risk and expense, unless other arrangements have been agreed with us in writing. The delivery address must be clarified with us in advance in individual cases. Only after an inspection at our premises or at the manufacturer's factory can it be assessed whether or not it is a warranty case.
(8) In urgent cases, e.g. if operational safety is jeopardised or to prevent disproportionate damage, the customer has the right to remedy the defect himself and to demand compensation from us for the expenses objectively required for this. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy shall not apply if we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
(9) If the subsequent fulfilment has failed or a reasonable deadline to be set by the customer for the subsequent fulfilment has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of cancellation.
(10) Claims of the customer for damages or compensation for futile expenses shall only exist in accordance with § 10 and are otherwise excluded.
§ 9 Special conditions concerning the hire of scales
(1) The rental relationship begins on the day of handover or the agreed provision to the collector, parcel service or forwarding agent and ends with the timely return or return to the provider.
(2) The goods must be returned in the same packaging as delivered by the provider, otherwise separate packaging costs will be charged.
(3) The rental charges are calculated per 7 days or part thereof (not per week), i.e. from Mon - Sun, or from Tue - Mon, etc.
(4) Goods with obvious damage to the packaging must be reported to the forwarding agent/freight service. In addition, the supplier must be contacted immediately by e-mail, fax or post.
(5) The customer must report any damage to the supplier immediately after delivery. The customer must ensure adequate insurance cover.
(6) Cancellations will be charged at 50% of the rental rate. The customer reserves the right to provide evidence of lower damages.
(8) The rented item must be returned in a technically perfect and clean condition (simple cleaning, do not use aggressive cleaning agents).
(9) The rented equipment can also be purchased. In this case, half of the rental price shall be offset against the agreed purchase price.
§ 10 Liability
(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
(2) We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
a) for damages resulting from injury to life, limb or health,
b) for damages arising from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same applies to claims of the customer under the Product Liability Act.
(4) The customer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of cancellation of the customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.
§ 11 Statute of limitations
(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year, in the case of used goods three months, from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) This shall not affect special statutory provisions for third-party claims in rem for restitution (§ 438 para. 1 no. 1 BGB), in the event of fraudulent intent on the part of the supplier (§ 438 para. 3 BGB) and for claims in supplier recourse in the event of final delivery to a consumer (§ 479 BGB).
(3) The above limitation periods under sales law shall also apply to contractual and non-contractual claims for damages by the customer which are based on a defect in the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to claims for damages by the customer in accordance with § 10.
§ 12 Information on data processing
(1) The provider collects customer data in the course of processing contracts. In doing so, it shall observe in particular the provisions of the Federal Data Protection Act and the Telemedia Act. Without the customer's consent, the provider shall only collect, process or use the customer's inventory and usage data insofar as this is necessary for the processing of the contractual relationship and for the utilisation and billing of telemedia. The customer may at any time request information about the data stored about him or request its deletion, provided that no active contracts exist and the legal requirements are met.
§ 13 Final provisions
(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relationships between us and the customer to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title in accordance with § 6 are subject to the law at the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.
(2) If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hamburg-Harburg. However, we are also entitled to bring an action at the customer's general place of jurisdiction.
(3) Insofar as these General Terms and Conditions contain loopholes, those legally effective provisions shall be deemed to have been agreed to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
§ 14 Severability clause
(1) Should any provision of this contract be or become invalid or unenforceable, the remaining provisions of this contract shall remain unaffected. § 15 Provider identification HE Wägetechnik Horst Eßmann GmbH Elbgaustraße 250 22547 Hamburg Germany