General Terms and Conditions of Sale and Delivery

(as at: April 2013)

I. General – Scope

(1) Our deliveries and services are exclusively subject to the following General Terms and Conditions of Sale and Delivery. These General Terms and Conditions shall also apply to all future transactions between the contracting parties without the need to refer to them again. They shall also apply if we do not expressly refer to them in subsequent contracts, in particular also if we provide deliveries or services without reservation in the knowledge of conflicting terms and conditions or terms and conditions that deviate from our General Terms and Conditions of Sale and Delivery. We do not recognise deviating terms and conditions unless we have expressly agreed to their validity in writing.

(2) All agreements made for the purpose of executing this contract are set out in writing in this contract. Amendments and / or supplements to this contract, including this provision, must be in writing to be effective. The formal requirement may only be waived by written declaration.

(3) Our Terms and Conditions of Sale shall only apply to companies within the meaning of Sections 14, 310 (1) of the German Civil Code (BGB).

II Subject matter of the contract, conclusion of the contract

(1) The goods shall be sold by the Seller either via its online shop system under www.efi-automation.de oder eBay-Shop als Shop Artikel oder als allgemeine Auktionsartikel angeboten. Allgemeine Auktionsartikel sind sowohl auf den allgemeinen eBay-Websites als auch im eBay-Shop des Verkäufers sichtbar.

(2.0) The offers in our online shop at www.efi-automation.de are non-binding. The presentation of the articles is not a legally binding offer. It is an invitation to you to submit a binding offer to us. All goods shown are expressly subject to sufficient availability.

(2.1) You can make your offer by telephone, letter, e-mail or in the online shop by placing the desired items in the shopping basket (click on the button "Add to shopping basket" and "Add to shopping basket") and sending the items placed in the shopping basket (click on the button "Order subject to payment") to us. With your order, you are making a binding offer to us to conclude a purchase contract. You will receive an automatic order confirmation from the system by e-mail to the e-mail address you have provided. This order confirmation does not constitute an acceptance of your offer. This e-mail merely confirms that we have received your order. A contract has not yet been concluded. Only when we send you an order confirmation by e-mail or when we deliver the ordered goods is the submitted offer deemed to have been accepted. A purchase contract is therefore only concluded with the sending of our order confirmation and the accompanying request for payment by e-mail to you or with the delivery of the ordered goods.

(3.0) The offers of goods posted on the general eBay websites or in the seller's eBay shop are binding offers by the seller to conclude a contract for the respective item.

(3.1) The buyer can buy goods offered via the seller's eBay shop immediately or bid on these goods as part of an auction. Auction offers can also be linked to the buy-it-now option. The goods offered in the seller's eBay shop in the buy-it-now offer format and auctions of these goods are also visible on the general eBay websites. This does not apply to items of the seller which are exclusively intended by him as shop items.

(3.2) In the case of buy-it-now, an effective purchase contract at the buy-it-now price (fixed price) is concluded between the Buyer and the Seller when the Buyer clicks on the "Buy-it-now" or "Buy-it-now&New" button and confirms the transaction.

(3.3) In the case of an auction, an effective purchase contract is concluded with the buyer who has submitted the highest bid within the bidding period. The amount of the purchase price is determined by this highest bid.

(3.4) If an auction offer is additionally provided with the buy-it-now option, an effective purchase contract for the acquisition of the item is already concluded at the buy-it-now price (fixed price), irrespective of the expiry of the offer period and without holding an auction, if a Buyer exercises this option. The option can be exercised by the buyer as long as no bid has been placed on the item.

(3.5) ATTENTION: We can withdraw from a binding declaration of intent (such as placing an offer on the eBay marketplace) if there is a so-called ground for avoidance. A ground for rescission exists if we were in a relevant error when making a declaration of intent.

The following errors are possible: error of explanation (e.g. we mistyped the starting price or buy-it-now price), error of content, error of characteristics.

In this case, the seller may withdraw from the purchase contract. By placing a bid you agree to this rescission clause.

(3.6) After conclusion of the contract, the Seller shall send the Buyer an order confirmation and information on order processing. 

(4) The contract language is exclusively German.

(5) If the delivery item is used outside Germany, the scope of delivery for industrial safety and environmental protection devices shall be based on the agreement reached, in case of doubt on the regulations applicable in the Federal Republic of Germany. The customer shall be responsible for compliance with statutory or other regulations at the place of use.

(6) If customary trade clauses are agreed on the type of delivery, the Incoterms (ICC) of the International Chamber of Commerce Paris in the version applicable on the date of conclusion of the contract shall apply to the interpretation.

III. performance – REPAIRS

(1) If the customer sends goods to EFI-automation GmbH and (1) EFI-automation rejects the offer, (2) no offer is available or (3) the goods are not repairable, EFI-automation will inform the contractual partner immediately. The customer should request the return or disposal of the goods within fourteen days. 

(2) EFI-automation shall reset the goods sent to the customer to their respective standard settings prior to inspection. If the customer receives the goods back, the settings/parameter sets made by the customer on the goods are no longer available.

(3) The customer is obliged to check the goods - in particular their settings/parameter sets as well as, in the case of customer-specific re-installed data, to check that these are correctly set for the use intended by the customer.

(4) EFI-automation assumes no warranty for a secured data set of the customer and no liability for damage to the customer's property after recovery of the data.

IV Storage of the text of the contract

We save the contract text of your order. You can print this out before sending your order to us by clicking on "Print" in the last step of the order process. We will also send you an order confirmation and an order confirmation with all order data and these General Terms and Conditions to the e-mail address you have provided.

V. Prices, terms of payment, default in payment

(1) The prices agreed upon conclusion of the respective contract shall apply. If a price is not expressly determined or if the delivery item is purchased at list prices, the prices valid on the day of delivery according to our price list shall apply. Unless otherwise agreed in individual cases, the prices shall apply ex works, but excluding packaging and other ancillary costs.

(2) Statutory value added tax (unless otherwise stated) is not included in our prices; it will be shown separately in the invoice at the statutory rate on the date of invoicing.

Unless otherwise agreed in individual cases, all public charges (tax, fees, customs duties, etc.) arising out of or in connection with the conclusion or performance of the contract shall be borne by you.

(3) Unless otherwise agreed in individual cases, the net purchase price (without deduction) shall be due for payment within 14 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.

VI. delivery time

(1) The start of the stated delivery period is subject to the clarification of all technical questions. Agreed delivery periods are only approximate unless a fixed date transaction within the meaning of Section 286 (2) No. 4 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB) has been expressly agreed in writing.

The delivery period shall be deemed to have been met if the delivery item has left our warehouse or notification of readiness for dispatch has been given by the time the delivery period expires.

(2) Compliance with our delivery and performance obligations requires the timely and proper fulfilment of your obligations. If a down payment has been agreed or if documents, approvals or releases are to be procured by us for the performance of the service, the delivery period shall not commence until all the aforementioned prerequisites have been fulfilled. We reserve the right to plead non-performance of the contract.

(3) We shall only be in default after the expiry of a reasonable grace period set by you. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. The same applies if the delay in delivery for which we are responsible is due to a culpable breach of a material contractual obligation.

(4) If you prove that you have suffered damage as a result of this, we shall be liable in the event of a negligent delay in delivery for each full week of delay within the framework of a lump-sum compensation for delay amounting to 3% of the delayed delivery value, but not more than 15% of the delayed delivery value.

(5) We are entitled to make partial deliveries and render partial services within the agreed delivery and performance times if this is reasonable for the customer.

(6) If you are in default of acceptance or if you culpably breach other duties to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.

(7) If the conditions of paragraph (6) exist, the risk of accidental loss or accidental deterioration of the object of sale shall pass to you at the time at which you are in default of acceptance or debtor's delay.

(8) In the event of force majeure and other unforeseeable, extraordinary circumstances for which we are not responsible, e.g. (8) In the event of force majeure and other unforeseeable extraordinary circumstances for which we are not responsible, such as e.g. operational disruptions due to fire, water and similar circumstances, operational interruptions, shortage of labour, strike, lockout, difficulties in procuring means of transport, traffic disruptions or official interventions, we shall be entitled - insofar as we are prevented from the timely fulfilment of our performance obligations through no fault of our own due to the aforementioned circumstances - to postpone the delivery or performance for the duration of the hindrance plus a reasonable start-up period. If the delivery or service is delayed by more than one month as a result, both we and you are entitled to withdraw from the contract with regard to the quantity affected by the delivery disruption, to the exclusion of any claims for damages.

VII Transfer of risk

(1) Unless expressly agreed otherwise in writing, delivery shall be made ex our warehouse (Ex Works). In this case, the risk of accidental loss and accidental deterioration of the contractual delivery items after they have been made available for collection shall pass to you upon receipt of the notification that they have been made available. Otherwise, the risk of accidental loss and accidental deterioration of the delivery items shall pass to you upon handover to the carrier. The risk of accidental loss and accidental deterioration of the delivery items shall also be borne by you if partial deliveries are made or if we have exceptionally assumed other services, e.g. the shipping costs, export or installation, unless the delivery is made by our own vehicles or means of transport. If the shipment is delayed due to circumstances for which you are responsible, the risk shall pass to you from the day of readiness for shipment.

(2) If you so wish, we shall cover the delivery by transport insurance; you shall bear the costs incurred in this respect.

(3)          Sollen unsere Liefergegenstände durch uns versendet werden, erfolgt die Wahl der Versandart und des Versandweges durch uns, falls wir keine abweichenden schriftlichen Vereinbarungen darüber getroffen haben. Auch in diesem Fall gelten die Regelungen aus Ziffer VI. 1 Satz 3-5 und Ziffer VI. 2.

(4) Separate agreements shall apply to the return of packaging.

VIII Retention of title

(1) We retain title to the goods ("goods subject to retention of title") until you have fulfilled all claims arising from the contract on which these claims are based ("retention of title"). The retention of title shall also extend to the items created by processing, combining, mixing or installing the goods subject to retention of title ("extended retention of title"), as well as to the claims you acquire against third parties due to resale of the goods subject to retention of title ("extended retention of title"), in a proportion measured by the value of the respective goods subject to retention of title.

(2) You are obliged to treat the goods subject to retention of title with care, to insure them adequately at their replacement value against fire, water and theft at your own expense and to carry out maintenance and inspection work on the goods subject to retention of title in good time at your own expense and not to assign or pledge them as security without our consent.

(3) You are obliged to notify us immediately in writing in the event of seizures or other interventions affecting our property rights and to indemnify us against costs incurred by us due to the securing/realisation of their rights.

(4) You are obliged to expressly inform third parties of the retention of title.

(5) You shall notify us immediately in writing of any change of address or change of location of the goods subject to retention of title or parts thereof.

IX. Liability for defects

(1) Claims for defects presuppose that you have properly fulfilled your obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The notification of defects must be made in writing. In the period from delivery to notification of defects, you bear the burden of proof for the proper handling of the delivered goods and their product-specific storage.

(2) Warranty claims shall only exist if you immediately provide us with all the information we deem necessary to determine the cause of the defect in our delivery items and the extent of our responsibility or grant us the possibility of our own investigations, including on site. If a defect is not determined or if a defect cannot be found, you shall bear the costs of determining the cause of the defect.

(3) Guarantees of quality and durability for special features (warranted characteristics) as well as other independent guarantee obligations shall only be assumed if they are agreed as such in writing.

(4) In the event of a late or improperly asserted notice of defect, you shall lose your defect rights, unless the defect has been fraudulently concealed by us.

(5) In the case of delivery items described in the item description as "NEW / OVP VERSIEGELT", the item is new in unopened original packaging and the limitation period for claims for defects is 12 months, calculated from the transfer of risk.

(6) In the case of delivery items described as "AS NEW" in the item description, the item is in unopened original packaging if applicable or, if possible, checked in opened original packaging or alternative packaging and the limitation period for claims for defects is 6 months, calculated from the transfer of risk.

(7) In the case of delivery items described as "OVERCOME" in the item description, the item has been inspected if possible and the limitation period for claims for defects is 6 months, calculated from the transfer of risk.

(8) In the case of delivery items described as "USED" in the item description, the item has been inspected if possible and the limitation period for claims for defects is 3 months, calculated from the transfer of risk.

(9) You shall not be entitled to any warranty rights in respect of delivery items described as "UNTESTED" in the item description. The same applies in the case of deviations, in particular in dimensions, thicknesses, weights, performance data or colour shades, which are within the tolerances customary in the industry, as well as in the case of insignificant reductions in the value or suitability of the delivery items.

(10) In the case of delivery items designated as "REPAIR" or "EXCHANGE" in the item description, the limitation period for claims for defects shall be 12 months, calculated from the transfer of risk.

(11) If none of the classifications of Clauses VII (5) to (11) is specified in the item description, the specification in the respective item description alone shall be decisive for the existence and limitation of warranty rights for defects.

(12) Insofar as there is a defect in the delivery items, we are entitled, at our discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. If the goods already have a defect at the time of the transfer of risk to the customer, the seller is entitled to remedy the defect by way of rectification. The customer is only entitled to further warranty rights if EFI-automation does not rectify the defect within a reasonable period of time or if the rectification fails, is unreasonable or impossible or EFI-automation refuses the rectification.

If rectification is not possible, the seller may withdraw from the purchase contract. In this case, the buyer will be refunded the amount paid.

(13) The Seller shall not be liable if and to the extent that damage to the goods occurs after the transfer of risk to the Customer due to wear and tear or improper use/operation.

(14) We shall be liable in accordance with the statutory provisions if you assert claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.

We are not liable for your loss of profit.

(15) Liability for culpable injury to life, limb or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.

(16) Unless otherwise stipulated above, liability is excluded.

(17) Claims under a right of recourse against us pursuant to Section 478 of the German Civil Code (BGB) shall only exist insofar as you have not entered into any agreements with your customer that go beyond the statutory claims for defects.

(18) The limitation period in the case of delivery recourse according to §§ 478, 479 BGB remains unaffected; it expires at the earliest two months after the time at which you have fulfilled the consumer's claims.

X. Total liability

(1) Any further liability for damages than provided for in Section VII. shall be excluded - regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for material damage in accordance with § 823 BGB.

(2) The limitation according to para. 1 shall also apply insofar as you demand compensation for useless expenses instead of a claim for damages.

(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, representatives and vicarious agents.

XI. Privacy policy

(1) When initiating, concluding, processing and reversing a purchase contract, we collect, store and process data within the framework of the statutory provisions.

(2) When you visit our website, the IP address currently used by your PC, the date and time, the browser type and the operating system of your PC as well as the pages you have viewed are logged. However, it is not possible for us to draw conclusions about personal data, nor is this intended.

(3) The personal data that you provide to us, e.g. when placing an order or by email, will only be processed for correspondence with you and only for the purpose,

for which you have provided us with the data. We only pass on your data to the shipping company commissioned with the delivery, insofar as this is necessary for the delivery of the goods. For the processing of payments, we pass on your payment data to the credit institution commissioned with the payment.

(4) We assure you that we will not pass on your personal data to third parties unless we are legally obliged to do so or you have given your prior consent. Insofar as we use the services of third parties for the implementation and handling of processing procedures, the provisions of the Federal Data Protection Act will be complied with.

Duration of storage

(5) Personal data that has been communicated to us via our website will only be stored until the purpose for which it was entrusted to us has been fulfilled. Insofar as retention periods under commercial and tax law must be observed, the duration of storage of certain data may be up to 10 years.

Your rights

(6) If you no longer agree to the storage of your personal data or if this data has become incorrect, we will arrange for the deletion, correction or blocking of your data within the framework of the legal provisions on the basis of a corresponding instruction. Upon request, we will provide you with information free of charge about all personal data we have stored about you. If you have any questions regarding the collection, processing or use of your personal data, for information, correction, blocking or deletion of data, please contact:

EFI-automation GmbH
Bayernstrasse 6
63939 Wörth am Main
Germany
Mail@efi-automation.de

Links to other websites

(7) Insofar as we refer or link from our website to the websites of third parties, we cannot assume any guarantee or liability for the correctness and completeness of the contents and the data security of these websites. Since we have no influence on compliance with data protection regulations by third parties, you should check the respective data protection declarations offered separately.

(8) Should the content or the presentation of our Internet pages violate the rights of third parties or statutory provisions, we request that you notify us accordingly without cost note. This also applies to errors/suspected errors in words, writing and images. Rightly objected passages will be removed or changed immediately without the need for legal assistance from your side. Any costs incurred by you without prior contact will be rejected in full and, if necessary, a counterclaim for infringement of the aforementioned provisions will be filed.

XII. Dual-use items

All goods that are classified as dual-use items under the "List of Dual-Use Items" of EC Regulation No. 428/2009 (Community regime for the control of exports of dual-use items and technology) must also be clearly identified as such on the usual commercial documents. Should you wish to (re-)export dual-use items or make them available to third parties in another country, you are obliged to comply with all relevant export control laws and regulations.

XIII.All goods

You further confirm your exact compliance with all UN sanctions. You agree not to make available, export or re-export the goods received under this Agreement, in whole or in part, directly or knowingly, to any receiving agency or to any person or entity subject to United Nations sanctions or for any purpose subject to such sanctions.

Compliance with all applicable national and international export control laws and regulations (such as U.S. re-export control, German military final acceptance control, etc.) is assumed. You hereby certify that the goods purchased by you under this Agreement will not be used, in whole or in part, in connection with the development, manufacture, transfer, handling, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons, or the development, manufacture, maintenance or storage of launch vehicles capable of delivering such weapons.

XIV Place of performance, place of jurisdiction, applicable law

(1) The place of performance and jurisdiction for all claims between us merchants or legal entities under public law or special funds under public law shall be the registered office of our company, unless mandatory statutory provisions provide otherwise. However, we shall also have the right to bring legal action against a customer at the customer's general statutory place of jurisdiction.

(2) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

XV Binding nature of the contract

Should any of the above provisions be or become invalid or be excluded by a special agreement, this shall not affect the validity of the remaining provisions.