GTC from 01.05.2022
1. General and scope
1. These general terms and conditions "GTC" form the basis for business relationships with:
EMIT Sales and Projects GmbH
Wilhelm-Ruppert-Str. 38,
51147 Cologne
- hereinafter referred to as "EMIT" -
Opposite to:
a) Companies, legal entities under public law and special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code
- hereinafter referred to as "client" -
or
b) private individuals
- hereinafter referred to as "private customers" -
2. Conditions deviating from these GTC, as well as conflicting GTC and AEB (general purchasing conditions) of the customer are hereby contradicted and are not valid.
3. Verbal agreements and special agreements remain invalid or require written confirmation by EMIT to be binding.
4. Our terms and conditions are also valid if the customer excludes the validity of the sales and delivery conditions in general or EMIT's terms and conditions and EMIT does not expressly object to them. Conditions, regulations, AEB, general terms and conditions of the client only apply if EMIT has expressly agreed to them in writing.
5. These General Terms and Conditions are deemed to have been accepted by the client when EMIT has received an order from the client in accordance with Article 3.2, but no later than upon receipt of goods or other services by the client.
6. EMIT is entitled to unilaterally change these General Terms and Conditions, insofar as this is necessary to eliminate subsequent equivalence disturbances or to adapt to changed framework conditions (such as legal or technical ones). Corresponding change notifications about the content of the changed regulations will be sent to the last known addresses of the client. This change becomes part of the contract if the customer does not respond within six weeks
Receipt of the change notification contradicts the inclusion in the contractual relationship with EMIT in writing or in text form.
7. Before placing the written order and before concluding a contract, the client can independently inform himself about the latest version of EMIT's general terms and conditions, which are available for download at https://www.emit.de/agb.
2. Ownership and Copyright
1. EMIT reserves its unrestricted proprietary and copyright usage and exploitation rights to drafts, concepts, suggestions, designs, cost estimates, drawings and other documents (hereinafter: documents).
2. The documents may only be made accessible to third parties with the prior consent of EMIT and must be returned immediately upon request if the order for a delivery is not placed with EMIT.
3. The provisions of Articles 2.1 and 2.2 apply accordingly to the client's documents; however, these may be made accessible to third parties to whom EMIT is permitted to transfer deliveries or who are contractually involved in the calculation process
must in order to enable order fulfillment.
3. Offer and conclusion of contract
1. Our offers are always subject to change and non-binding, unless they contain a statement to the contrary.
2. Orders placed with us are binding for the customer. Whether this order was submitted in writing or in text form, by telephone, fax or e-mail is irrelevant. Orders are deemed to have been accepted by EMIT if they have been confirmed by us in writing.
3. Contracts become legally valid when we send the written order confirmation, at the latest when the delivery or service is performed.
4. The scope of our services results from our order confirmation.
5. If additional services are commissioned after this, we will only carry them out if we also confirm them. Additions, changes or verbal agreements also require our written confirmation to be effective.
4. Prices
1. All prices are in euros. EMIT reserves the right to make price changes and errors.
2. Unless otherwise stated, all offered prices are net (plus taxes) ex works and are valid for four weeks.
3. The prices valid on the day the contract is concluded shall be charged.
4. Unless otherwise possible, our project calculation is based on empirical values from past services that are similar to the requested range of services. The service description is roughly set out in our cover letters and in cost estimates. You will receive full cost control at the latest with our offer, in the calculation of which all binding details are included.
5. Special conditions, eg when providing fee-based services
a. Proof of performance for increases and decreases
1. Insofar as fee-based services are billed by EMIT according to hours of work or days' work, EMIT will send a to the client after the order has been carried out
Evidence of performance in tabular form.
2. The description of the service to be provided by EMIT results from the created order confirmation in accordance with Article 3.5. The workload for the services provided is to be remunerated at cost, unless a separate fee agreement has been made.
3. If the customer does not object to the services listed in the proof of performance within 10 working days of receipt, he has the burden of proof that the
listed (partial) services were not provided by EMIT.
b. working hours
1. All listed prices refer to one-day productions, maximum working time 8 hours. Additional services, night surcharges, but also possible discounts for long-term
Productions are not taken into account and are to be negotiated individually by the contractual partners.
c. occupational safety
1. It is the customer's duty to notify EMIT in good time of any risks and dangers at the planned site of use before the inquiry and at the latest before the work begins
to inform.
i.e. provision of material
1. The material made available to EMIT by the client to carry out the project/production must be in a safe and usable condition
condition. Here are the generally recognized rules of technology (DIN, VDE ...), the generally recognized safety and occupational health
Comply with the rules and provisions of the trade association regulations.
2. Delays due to non-compliance are the responsibility of the customer.
6. Delivery
1. The customer must fulfill all of his obligations properly and in good time, in particular to deliver the necessary documents and materials to be provided properly and in good time, to grant releases and other approvals and to meet the agreed payment terms.
2. EMIT expressly reserves the right to delay delivery if an imminent delay continues to exist as a result of events for which the customer is responsible. If this circumstance means that the given schedule has to be replanned and, if necessary, additional costs have to be scheduled, the customer does not have the right to withdraw from the contract as a result.
3. Depending on the case, goods are delivered from the EMIT warehouse in Cologne or, in the case of direct delivery, from the warehouse of the relevant manufacturer to the customer.
4. Deliveries are made at the expense of the customer and at the risk of the recipient.
5. Data and software are equated with the shipment of goods when the data carrier is sent. Data carrier-free deliveries of documents and software, planning results or other immaterial items are made available for download. The delivery date is deemed to have been met once the goods have been made available.
6. The delivery date for goods is deemed to have been met at the time of acceptance by the transport operator.
7. The choice of shipping method is made by EMIT, unless the customer has made any other specifications.
8. Delivery deadlines/delivery dates specified by us will be met as far as possible in our own interest. However, they are not binding if this has not been expressly agreed separately.
9. In the event of force majeure, e.g.:
a. mobilization, war, acts of terrorism, riot, vandalism or similar events,
b. strike, lockout,
c. power outages, internet outages,
i.e. Virus and other attacks by third parties on EMIT's IT systems,
e. Obstacles due to German, US and other applicable national, EU or international regulations of foreign trade law or due to other circumstances for which EMIT is not responsible, or
f. untimely or proper delivery to EMIT
even if they occur with our sub-suppliers, EMIT is not responsible for the delay in delivery and performance, even in the case of bindingly agreed deadlines and dates, and the deadlines are extended appropriately.
10. If these delays last longer than 8 weeks, the buyer is entitled, after setting a reasonable grace period in writing, to withdraw from the contract in writing with regard to the part that still has to be fulfilled.
11. Both claims for damages by the customer due to delay in delivery and claims for damages in lieu of performance are excluded in all cases of delayed delivery, even after the expiry of a delivery deadline set by EMIT. This does not apply if there is liability in cases of intent, gross negligence or due to injury to life, limb or health. The customer can only withdraw from the contract within the framework of the statutory provisions if EMIT is responsible for the delay in delivery.
12. A change in the burden of proof to the detriment of the client is not associated with the above regulations.
13. EMIT is expressly entitled to make partial deliveries and partial services.
14. If dispatch or delivery is delayed by more than 14 days after notification of readiness for dispatch at the request of the customer, the customer can be charged a storage fee of 3% of the price of the items to be delivered for each additional week started. The contracting parties are free to provide evidence of higher or lower storage costs.
15. Refusals to accept closed sales contracts - including subsequent deliveries from sales contracts - are not permitted
16. If the shipment or delivery is delayed due to reasons for which the customer is responsible or if the customer is in default of acceptance for other reasons, the risk is transferred to the customer.
17. Returns and exchanges of goods are excluded.
18. If we nevertheless agree to a return as a gesture of goodwill, we are entitled to charge a return fee of 30% of the value of the goods to partially cover our costs, but at least €25 and all expenses and processing fees.
19. In such cases, the return shall only take place subject to the prior written consent of EMIT and without exception for material goods that are in their original packaging and are in an unused, undamaged and unused condition. In any case, the customer must provide evidence of the condition of the returned goods.
20. All processing, freight and packaging costs are also charged to the customer. Returns are always at the risk of the returning customer.
21. The client undertakes to ensure the disposal of the delivered products in accordance with the provisions of the "Electrical and Electronic Equipment Act - ElektroG". In the event of resale, the customer transfers this obligation to his contractual partner. For EU customers outside of Germany, the implementation of WEEE in national legislation must be observed.
7. Damage in transit
1. Private customers and clients complain about transport damage immediately to the deliverer.
2. In addition, please contact us. The contact options can be seen in the imprint.
3. Please note that failure to make a complaint or contact for your
statutory warranty rights have no consequences whatsoever. However, they help to be able to assert claims against the transport company.
4. For clients, the following applies with regard to the standard of inspection § 377 HGB: The recipient of a delivery must immediately inspect it for transport damage and report any damage immediately in writing to the transport company and EMIT.
5. The recipient is responsible for adhering to the reporting deadlines and formalities of the respective transport company. We take over the settlement of the transport damage with the transport insurance company and let the customer receive their services. A direct performance of the transport insurance to the customer is excluded.
8. Reservation of Performance
1. The fulfillment of the contract is subject to the proviso that there are no obstacles due to German, US or other applicable national, EU or international regulations of foreign trade law, as well as no embargoes or other sanctions.
2. The client is obliged to provide all information and documents required for the export,
Shipment or import are required.
9. impossibility; contract adjustment
1. If delivery is impossible, the client is entitled to demand compensation, unless EMIT is not responsible for the impossibility. However, the customer's claim for damages is limited to 10% of the value of that part of the delivery that cannot be used appropriately due to the impossibility. This limitation does not apply if there is liability in cases of intent, gross negligence or due to injury to life, limb or health; a change in the burden of proof to the detriment of the client is not associated with this.
10. Terms of Payment, Late Payment, Offsetting and Rights of Retention
1. Payment of the purchase price must be made exclusively to the specified account. Payments only have a debt-discharging effect on the day on which the sum of the outstanding amounts has been credited to the account. The deduction of cash discount is only permitted with prior written agreement. Unless otherwise agreed, the purchase price is due immediately, but must be paid within eight days at the latest.
2. If the customer is in default of payment, EMIT is entitled to charge interest on arrears and to make all outstanding invoice amounts, including those that have been deferred, due for immediate payment or to demand security. Interest on arrears will be charged at a rate of 9% pa (5% for private customers) above the respective base interest rate. This does not exclude the assertion of further claims for damages due to the delay in payment.
3. The customer only has the right to offset if his counterclaims have been legally established or are undisputed.
4. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
5. For orders with a total amount of less than €500, a flat rate of €40 will be charged. A corresponding proportionality applies to higher order volumes.
6. The customer only has a right of retention with regard to claims from the same contractual relationship that are undisputed or have been legally established. In the latter case, in the event of defects in parts of the delivery or service, he can only withhold payment of the amount that corresponds to the value of the defective delivery or service. Counterclaims by the client due to breaches of duty by EMIT remain unaffected.
11. Withdrawal and termination of the purchase contract for private customers
1. We only offer returns to our private customers. This right of withdrawal does not apply here either:
a. If the goods you have ordered serve your commercial or self-employed professional purposes.
b. For goods that are made to special specifications or are clearly tailored to personal needs.
c. programming and software
i.e. Concepts and deliveries of designs and drafts
e. In the case of delivery of audio or video recordings or software, if the sealed data medium has been unsealed by the customer.
f. For goods which, due to their nature, are not suitable for return or which can spoil quickly or whose expiry date has passed.
Right of withdrawal:
You can cancel your contractual declaration within 14 days without giving reasons in text form (e.g. letter, fax, e-mail) or - if the matter is left to you before the deadline
– also revoked by returning the item. The period begins after receipt of this instruction in text form, but not before receipt of the goods by the recipient (at the
recurring delivery of similar goods not before receipt of the first partial delivery) and also not before fulfilling our information obligations according to Article 246 § 2 in connection with § 1 paragraph 1 and 2 EGBGB as well as our obligations according to § 312g paragraph 1 sentence 1 BGB in connection with Article 246 § 3 EGBGB. The timely dispatch of the cancellation or the item is sufficient to meet the cancellation deadline. The revocation must be sent to:
https://www.emit.de
EMIT Sales + Projects
Mr. Florian Kick
Wilhelm-Ruppert-Str. 38
Building D
51147 Cologne
Fax: +49 (0) 2203 - 1835561
Email: info@emit.de
Consequences of revocation:
In the event of an effective revocation, the services received by both parties are to be returned and any benefits (e.g. interest) surrendered.
Are you unable to give us back the received service and benefits (e.g. benefits of use) or only in part or only in a deteriorated condition or
issue, you must pay us compensation in this respect. You only have to pay compensation for the deterioration of the item and for any use made if the use or deterioration is due to handling of the item that goes beyond the examination of the properties and functionality. "Checking the properties and functionality" means testing and trying out the respective goods, as is possible and customary in a retail shop.
Transportable items are to be returned at our risk. You have to bear the regular costs of the return if the delivered goods are the ones ordered
and if the price of the item to be returned does not exceed an amount of 40 euros or if you had a higher price of the item at the time of withdrawal
have not yet provided the consideration or a contractually agreed partial payment. Otherwise, the return is free of charge. Items that cannot be sent as a package will be
picked up from you. Obligations to reimburse payments must be fulfilled within 30 days. The period begins for you with the sending of your declaration of revocation
or the thing for us with its receipt.
End of revocation!
12. Retention of Title
1. The delivery items (reserved goods) remain the property of EMIT until all claims against the customer arising from the business relationship have been settled.
2. If the value of all security rights to which EMIT is entitled exceeds the amount of all secured claims by more than 20%, EMIT will release a corresponding part of the security rights at the request of the customer; EMIT is entitled to choose between different security rights when releasing.
3. During the existence of the retention of title, the customer is prohibited from pledging or assigning security and resale is only permitted to resellers in the ordinary course of business and only under the condition that the reseller receives payment from his customer or makes the reservation that the property only belongs to the customer transferred when he has fulfilled his payment obligations.
4. If the customer resells goods subject to retention of title, he already assigns his future claims from the resale against his customers with all ancillary rights - including any balance claims - to EMIT as security, without the need for any further special declarations.
5. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the customer assigns to EMIT that part of the total price claim that corresponds to the price of the reserved goods invoiced by EMIT.
6. The client is permitted to process the reserved goods or to mix or combine them with other items. The processing is done for EMIT. The new item is regarded as reserved goods.
7. The customer keeps the new item created for EMIT with the care of a prudent businessman. The customer must carry out maintenance and inspection work that is due in good time at his own expense.
8. EMIT and the client already agree that if they are combined or mixed with other items that do not belong to EMIT, EMIT is entitled to co-ownership of the new item in the amount of the share that results from the ratio of the value of the combined or mixed items goods subject to retention of title at the value of the remaining goods at the time of connection or mixing.
9. In this respect, the new item is deemed to be reserved goods.
10. The regulation on the assignment of claims also applies to the new item.
11. However, the assignment only applies up to the amount that corresponds to the value of the processed, combined or mixed reserved goods invoiced by EMIT.
12. If the customer connects the goods subject to retention of title with land or movable property, he shall, without the need for further special declarations, also assign his claim to which he is entitled as remuneration for the connection, with all ancillary rights, as security in the amount of the ratio of the value of the connected goods subject to retention of title to the other connected goods at the time of connection to EMIT.
13. Until revoked, the client is authorized to collect assigned claims from the resale.
14. If there is an important reason, in particular default in payment, cessation of payments, opening of insolvency proceedings, bill protest or justified indications of over-indebtedness or imminent insolvency of the customer, EMIT is entitled to revoke the customer's authorization to collect.
15. EMIT can also disclose the assignment for security, realize the assigned claims and demand disclosure of the assignment for security by the customer to his customers after prior warning and observing a reasonable period of time.
16. Upon request, the customer must name the debtors of a claim assigned to us and inform the debtors of the assignment. A pledging or security transfer of the reserved goods is prohibited.
17. In the event of impending seizure, confiscation or other dispositions or interventions by third parties, the client must notify EMIT immediately. If a legitimate interest can be substantiated, the client must immediately provide EMIT with the information required to assert its rights against the customer and hand over the necessary documents.
18. In the event of breaches of duty by the customer, in particular in the event of default in payment, EMIT is entitled to withdraw from the contract after a reasonable deadline set for the customer has expired without result; the statutory provisions on the dispensability of setting a deadline remain unaffected. The client is obliged to surrender.
19. The taking back or assertion of the retention of title or the seizure of the reserved goods by EMIT does not constitute a withdrawal from the contract unless EMIT has expressly declared this.
13. Material Defects
1. In order to assert warranty rights, the customer is initially obliged to properly comply with his inspection and notification obligations according to § 377 HGB.
2. Unless longer statutory periods are mandatory, claims for defects become time-barred 12 months after delivery of the goods delivered by us to the customer. The same applies to withdrawal and reduction. This period does not apply: - insofar as the law pursuant to §§ 438 Paragraph 1 No. 2 (buildings and objects for buildings) and
634a Para. 1 No. 2 (construction defects) BGB prescribes longer periods,
- in case of intent,
- in the event of fraudulent concealment of the defect, as well as
- in the event of non-compliance with a quality guarantee.
3. If the delivered goods or services have a defect that already existed at the time of the transfer of risk, we have the right to repair or replace the defect at our reasonable discretion and subject to a proper and timely notification of defects. We shall carry out the subsequent improvement within a period that is reasonable for us.
4. Claims for reimbursement of expenses by the customer pursuant to § 445a BGB (recourse of the seller) also become statute-barred 12 months after the start of the statutory limitation period, provided that the last contract in the supply chain is not a consumer goods purchase.
5. The legal regulations on suspension of expiry, suspension and restart of the periods remain unaffected.
6. Notifications of defects by the client must be made immediately in writing or in text form to "info@emit.de".
7. In the event of claims for defects, payments by the customer may be withheld to an extent that is in reasonable proportion to the material defects that have occurred.
8. The customer has no right of retention if his claims for defects have become statute-barred.
9. If the notice of defects was unjustified, EMIT is entitled to demand reimbursement of the expenses incurred by the client.
10. EMIT is to be granted the opportunity for supplementary performance within a reasonable period of time.
11. The customer cannot claim any costs from us, in particular transport, travel, labor and material costs, which had to be provided for the purpose of supplementary performance.
12. If the subsequent performance fails, the client can - without prejudice to any claims for damages only with regard to the defective part in accordance with Article 6.1 of the Agreement
resign or reduce the remuneration.
13. Claims for defects do not exist in the case of only insignificant deviations from the agreed quality, in the event of only insignificant impairment of usability, natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment, defective construction work, unsuitable building ground or the due to special external influences that are not required by the contract, as well as non-reproducible software errors.
14. If the client or third parties make improper changes, installation/dismantling or repair work, there are no claims for defects for these and the resulting consequences.
15. Claims by the customer for the expenses required for the purpose of supplementary performance are excluded insofar as the expenses increase because the delivery item was subsequently moved to a location other than the customer's branch, unless the relocation corresponds to his intended use. This applies accordingly to the customer's claims for reimbursement of expenses in accordance with § 445a BGB (recourse of the seller),
provided the last contract in the supply chain is not a consumer purchase.
16. In the event of claims for reimbursement of expenses by the client, the most economical solution must be chosen from equally suitable means for dismantling the defective item and installing or attaching the repaired or subsequently delivered defect-free item. Disproportionate costs will be refused by EMIT.
17. Recourse claims of the customer against EMIT according to § 445a BGB (recourse of the seller) only exist insofar as the customer has not made any agreements with his customer that go beyond the statutory claims for defects.
18. Claims for damages by the customer due to a material defect are excluded. This does not apply in the event of fraudulent concealment of the defect, non-compliance with a quality guarantee, injury to life, limb or health and an intentional or grossly negligent breach of duty by EMIT.
19. Any claims for damages for consequential damage caused by a defect in goods or services supplied by us are excluded. The customer only has recourse claims against us insofar as he has not agreed any claims for defects with third parties that exceed the statutory minimum.
20. A change in the burden of proof to the detriment of the customer is not associated with the above regulations.
21. Claims by the customer that go further or differ from those regulated in this Art. VII due to a material defect are excluded.
22. Unless otherwise regulated in these terms and conditions of sale and delivery, claims for damages by the customer are excluded, regardless of the legal reason, in particular due to breach of obligations arising from the contractual relationship and tort. This does not apply if liability is as follows:
a) according to the Product Liability Act,
b) in the case of intent,
c) in the event of gross negligence on the part of owners, legal representatives or executives,
d) in the case of fraudulent intent,
e) in the event of non-compliance with an assumed guarantee,
f) due to culpable injury to life, limb or health, or
g) due to the culpable breach of essential contractual obligations.
However, the claim for damages for the breach of essential contractual obligations is limited to the foreseeable damage that is typical for the contract, unless another of the aforementioned cases applies. A change in the burden of proof to the detriment of the client is not associated with the above regulations.
14. Place of Performance and Jurisdiction
1. Place of performance and place of jurisdiction for all legal disputes arising from this contract is Cologne. This contract and all legal transactions between the parties are subject to the law of the Federal Republic of Germany. The UN sales law, CISG is expressly excluded.
15. Severability Clause/ Partial Invalidity
1. All provisions and agreements made between the parties for the fulfillment of legal transactions are recorded in writing in these General Terms and Conditions.
2. Should individual provisions of these General Terms and Conditions be ineffective or unenforceable or become ineffective or unenforceable after conclusion of the contract, the effectiveness of other provisions shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions apply accordingly in the event that these GTC prove to be incomplete.
3. The contract remains binding in its remaining parts even if individual provisions are legally ineffective. This does not apply if adhering to the contract would represent unreasonable hardship for one party.