General Terms and Conditions of the AXDIA International GmbH
- hereinafter referred to as AXDIA GmbH
A. General provisions
1 Validity of the Terms and Conditions
1.1 Deliveries, services and offers of AXDIA GmbH shall be made exclusively on the basis of the following terms and conditions. Counter-confirmations with reference to own terms and conditions of business or purchase are hereby expressly rejected; these shall not apply even if they do not contradict these terms and conditions but merely supplement them.
1.2 Deviations from the terms and conditions of business shall only be effective if AXDIA GmbH confirms them in writing. Individual agreements shall take precedence over these Terms and Conditions.
2.1 The offers of AXDIA GmbH are subject to change without notice and are non-binding, unless they are expressly
expressly designated as binding in individual cases. All orders must be confirmed by AXDIA GmbH in writing or by telephone; only then shall a contract binding on both parties be concluded.
2.2 AXDIA GmbH reserves the right to technical and design deviations from descriptions and information in brochures, catalogs, the internet presentation and written documents as well as changes in the course of technical progress without any rights against AXDIA GmbH being derived therefrom. This applies in particular to model changes, changes in design or equipment, provided that the subject matter of the contract does not thereby undergo any change which is unreasonable for the Buyer. All other performance data shall only be binding if expressly agreed in writing and confirmed in writing by AXDIA GmbH.
3 Prices, Transfer of Risk, Insurance
3.1 The prices of AXDIA GmbH are EXW ex warehouse Willich plus the statutory value added tax. Any agreements to the contrary must be confirmed in writing.
3.2 Price quotations which are recognizably addressed exclusively to commercial buyers are in case of doubt exclusive of statutory value added tax and shall be binding upon immediate acceptance. If AXDIA GmbH submits a binding offer and this is not accepted within 10 days, any acceptance occurring later shall constitute a new offer by the Buyer, so that AXDIA GmbH shall no longer be bound by the prices on which the offer was based.
3.3 If the Buyer is not a consumer as defined by. § If the Buyer is not a consumer within the meaning of Section 13 of the German Civil Code (hereinafter referred to as "Consumer"), the risk of transport shall be borne by the Buyer even if, contrary to the above provisions, carriage paid delivery has been expressly agreed; the risk shall then pass to the Buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the warehouse of AXDIA GmbH for the purpose of dispatch.
3.4 AXDIA GmbH reserves the right to decide on the form of shipment, transport route and means of transport.
4. price reservation
If the goods ordered by the Buyer are to be delivered later than within the first four months after conclusion of the contract and if within this period there is a change in the manufacturing or purchasing conditions or a change in price as a result of an increase in the price of raw materials, increased wage rates or other cost increases, AXDIA GmbH shall be entitled to withdraw from the contract and to submit a new offer to the Buyer taking into account the changed prices.
5 Delivery and Performance Time
5.1 The dates and periods stated by AXDIA GmbH are not binding unless expressly agreed otherwise in writing.
5.2 If a delivery period is agreed and not complied with by AXDIA GmbH, the Buyer shall only be entitled to withdraw from the contract if a reasonable period of grace to be set by him has not been complied with. If the Buyer is not a consumer, a grace period of at least one month shall be deemed reasonable. Delays in delivery and performance due to force majeure and/or due to events which make it considerably more difficult or impossible for AXDIA GmbH to perform, for example interruption of operations, strike, difficulties in procuring materials, official orders, etc., shall entitle AXDIA GmbH to postpone delivery for the duration of the hindrance plus a reasonable start-up period or to withdraw from the contract in whole or in part on account of the part not yet performed.
5.3 The delivery period shall be deemed to have been complied with if the goods have been dispatched or the Buyer has been notified of readiness for dispatch by the time of its expiry.
5.4 In the event of non-availability of the ordered goods for which AXDIA GmbH is not responsible as a result of untimely or incorrect delivery (including the delivery of short quantities) by a (pre)supplier despite a delivery contract already concluded by AXDIA GmbH with the (pre)supplier for the ordered items or the relevant input material at the time of the conclusion of the contract with the Buyer, AXDIA GmbH reserves the right not to deliver. In this case AXDIA GmbH undertakes to inform the Buyer without delay of the non-availability of the ordered goods and to reimburse without delay any consideration (payment) already received by the Buyer.
6. terms of payment
6.1 Unless otherwise expressly agreed in writing, AXDIA GmbH's invoices shall be due for payment immediately upon delivery without deduction. AXDIA GmbH shall be entitled, despite any provisions of the Buyer to the contrary, to set off payments first against the Buyer's older debt. If costs and interest have already been incurred, payments shall be set off against the costs, then against the interest and finally against the principal claim.
6.2 AXDIA GmbH shall not be obliged to accept checks or bills of exchange in payment. Cheques or bills of exchange shall not be deemed to be payment until they have been honoured. Collection or discount charges as well as bill of exchange tax shall be paid by the Buyer with the invoice amount. AXDIA GmbH shall not be liable for timely presentation, protest, notification and return of bills of exchange in case of dishonor.
6.3 If the Buyer is in default, AXDIA GmbH shall be entitled to charge interest on arrears at the statutory rate from the date in question. The right to claim further damages is expressly reserved.
6.4 If, after conclusion of the contract, it becomes apparent that AXDIA GmbH's claim to the purchase price is endangered by the Buyer's lack of ability to pay, AXDIA GmbH may refuse delivery. The right to refuse performance shall not apply if the purchase price is paid or security is provided for it. AXDIA GmbH may set a reasonable time limit within which the Buyer shall, at his option, effect counter-performance or provide security. After unsuccessful expiry of the period AXDIA GmbH may withdraw from the contract.
7. claims for defects
7.1 If the Buyer is a consumer, AXDIA GmbH shall be liable for claims based on defects in accordance with the statutory provisions, whereby Clause 8 shall apply to claims for damages. If the Buyer is not a consumer, the following provisions of this Clause 7 shall apply.
7.2 Claims for defects shall become statute-barred within 12 months after delivery of the item. This shall not apply in the event of intent, gross negligence, fraudulent concealment of a defect or culpable injury to life, limb or health.
7.3 In case of defects of the delivered goods AXDIA GmbH shall be entitled to repair the goods or to deliver a new item at its discretion. The parts used for a repair shall be new or as good as new.
7.4 Liability for defects does not include the elimination of defects and additional expenses, insofar as these have been caused by external influences, operating errors and modifications and attachments not carried out by AXDIA GmbH as well as services to the goods not approved by AXDIA GmbH.
7.5 The Buyer shall send defective goods at his own risk to AXDIA GmbH with an enclosed description of the defect and a copy of the invoice.
7.6 The Buyer may in principle first demand only rectification of the defect. If the rectification fails, AXDIA GmbH shall, at the Buyer's option, take back the defective goods and refund the purchase price or grant a reduction.
7.7 All claims directed against AXDIA GmbH are not assignable without written consent and may be asserted exclusively by the Buyer himself.
8 Limitation of Liability
8.1 AXDIA GmbH shall be liable for intent and gross negligence, for culpable injury to life, body or health and within the scope of the Product Liability Act in accordance with the statutory provisions.
8.2 In the event of a slightly negligent breach of material contractual obligations, i.e. such obligations on the observance of which the Buyer regularly relies and may rely for the proper performance of the contract, AXDIA GmbH shall be liable for the typically arising, foreseeable damage.
8.3 Any further liability is excluded.
8.4 Insofar as the liability of AXDIA GmbH is limited or excluded in accordance with the above provisions, this shall also apply for the benefit of the organs, employees and other vicarious agents of AXDIA GmbH.
9. retention of title
9.1 If the Buyer is a consumer, AXDIA GmbH shall retain title to the goods until payment has been made in full. The following provisions of this Clause 9 shall not apply to consumers.
9.2 If the Buyer is not a consumer, the goods shall remain the property of AXDIA GmbH until full payment of all claims, including ancillary claims, claims for damages and redemption of cheques and bills of exchange, as well as balance or current account claims, to which AXDIA GmbH is entitled against the Buyer now or in the future for any legal reason.
9.3 In the event of the existence of a current account relationship, the retention of title shall remain in force even after inclusion in the current account or balancing.
9.4 The Buyer shall be entitled to process and sell the Reserved Goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. The Buyer hereby assigns to AXDIA GmbH by way of security all claims arising from the resale or any other legal reason in respect of the goods subject to retention of title. AXDIA GmbH authorizes the Buyer in a manner that is always revocable to collect the claims assigned to AXDIA GmbH for its own account in its own name. Upon AXDIA GmbH's request the Buyer shall disclose the assignment and provide and submit the necessary information and documents. AXDIA GmbH shall only exercise the revocation if the Buyer is in default of payment.
9.5 In the event of access by third parties to the goods subject to retention of title, in particular in the event of seizure, the Buyer shall draw attention to AXDIA GmbH's ownership and notify AXDIA GmbH without delay. He shall also hand over the documents necessary for the intervention.
9.6 In the event of conduct by the Buyer in breach of the contract - in particular default in payment - AXDIA GmbH shall be entitled, if the statutory requirements are met and after declaring its withdrawal from the contract, to take back the Reserved Goods at the Buyer's expense or, if applicable, to demand assignment of the Buyer's claims for return against third parties.
9.7 The Buyer shall be obliged to store the reserved goods properly and to insure them properly against fire, theft, water and other risks. Upon request, the Buyer shall furnish proof of such insurance.
10 Additional Conditions for Hardware Repairs
10.1 In case of repairs outside the limitation period for claims due to defects, the actually incurred working and travel times, travel costs and expenses as well as the installed spare parts shall be charged plus the statutory value added tax. Cost estimates shall only apply to the work specified therein. They shall only be binding in written form.
10.2 The total invoice amount is due and payable immediately upon receipt of the invoice.
10.3 If the equipment has to be taken to a special workshop or to the manufacturing plant for repair, the transport shall be at the expense and risk of the purchaser.
Insofar as AXDIA GmbH is legally obliged to take back packaging, this shall be done by the Buyer who is himself a reseller.
12 Additional Conditions
12.1 A set-off against the purchase price claim is only permissible with an undisputed or legally established claim as well as a claim for defect removal costs.
12.2 The place of performance for delivery and payment shall be Willich, the place of jurisdiction shall be Krefeld if the Buyer is a merchant, a legal entity under public law or a special fund under public law. German law shall apply with the exception of the CISG.
B. Regulations for contracts with consumers
1. scope of application
The following conditions apply exclusively to contracts with consumers,
2 Conclusion of the contract
2.1 The offers of AXDIA GmbH on the Internet represent a non-binding invitation to the Buyer to order goods. By submitting the order on the Website, the Buyer submits a binding offer to conclude a purchase contract for the Goods.
2.2 AXDIA GmbH may accept this offer by sending an acceptance confirmation by e-mail or, at the latest, by sending the Goods. Receipt of the order shall be confirmed electronically without delay. This order receipt confirmation does not constitute acceptance of the Buyer's offer.
2.3 The buyer can correct input errors at any time during the ordering process. He can return to the previous screen via the "Back" button of his browser or via the corresponding button. Before submitting his order, all order data will be displayed again in an overview, so that he can recognize possible input errors and correct them as mentioned above. Only by sending his order in this overview he submits a binding offer according to this clause 2.
2.4 The essential characteristics of the goods and the price result from the respective product description on the website.
2.5 The Buyer may access these General Terms and Conditions at any time on the website of AXDIA GmbH at
http://www.odys.de/webshop/odys/de/index.html and print them out by clicking on the "Print Version" button using the print function of his browser and save them on your computer using the "File - Save As" function. In addition, AXDIA GmbH will send you the text of the contract, including the General Terms and Conditions (in PDF format), by e-mail with the order confirmation.
2.6 Only the German language is available for the conclusion of the contract.
Right of revocation
You may revoke your contractual declaration in writing (e.g. letter, fax, e-mail) within 14 days without stating any reasons. To exercise your right of revocation, you must inform us by means of a clear declaration (e.g. a letter sent by post, fax or e-mail) of your decision to revoke this contract. The time limit begins after receipt of this notification in writing, but not before receipt of the goods by the consignee (in case of recurring deliveries of similar goods not before receipt of the first partial delivery) and also does not fulfill our obligations to provide information pursuant to Article 246 § 2 in conjunction with § 1 paragraph 1 and 2 EGBGB and our obligations under § 312e paragraph 1 sentence 1 BGB in conjunction with Article 246 § 3 EGBGB. The timely dispatch of the revocation or the item shall be sufficient to comply with the revocation period. The revocation is to be addressed to:
AXDIA International GmbH, Formerweg 9, D-47877 Willich, Germany
Fax: +49 (0)2154 - 8826 - 100
Consequences of revocation
In the event of an effective revocation, the services received by both parties shall be returned and any benefits derived (e.g. interest) shall be surrendered. If you are unable to return or surrender the received performance and benefits (e.g. benefits of use), or are only able to do so in part or in a deteriorated condition, you must compensate us for the loss of value. You do not have to pay compensation for any deterioration caused by the intended use of the goods. You only have to pay compensation for the value of the use made of the goods if you have used the goods in a way that goes beyond the examination of the characteristics and the mode of operation. By "testing the properties and functionality" we mean testing and trying out the respective goods, such as is possible and customary in a retail store. Goods that can be shipped by parcel are to be returned at our risk. You have to bear the regular costs of the return if the delivered goods correspond to the ordered goods or if you have not yet paid the consideration or a contractually agreed partial payment at the time of the revocation. Otherwise, the return shipment is free of charge for you. Goods that cannot be sent by parcel post will be collected from you. Obligations to refund payments must be fulfilled within 30 days. The period begins for you with the dispatch of your cancellation or the goods, for us with their receipt.End of the cancellation policy.
Exceptions to the right of revocation:
In the cases of § 312d paragraph 4 BGB a right of revocation does not exist. Should this be the case, AXDIA GmbH will inform you of this within the scope of the respective product description.
4. cost sharing agreement for return shipment in case of revocation
If the buyer makes use of his legal right of revocation, he has to bear the regular costs of the return shipment if the delivered goods correspond to the ordered goods or if at the time of the revocation he has not yet rendered the consideration or a contractually agreed partial payment. Otherwise, the return is free of charge for the buyer. Items that cannot be shipped by parcel post will be collected from the buyer. Prior to shipment, the Buyer shall contact the Seller's customer service department. The Seller will send the Buyer a shipping bill for free return shipment or arrange for pick-up of the items. If the Buyer returns goods without prior consultation with the Seller, the Seller may charge the Buyer for any additional costs incurred and deduct them from the purchase price to be refunded.
5. customer service
The customer service of AXDIA GmbH can be reached as follows:
AXDIA International GmbH, Formerweg 9, D-47877 Willich, Germany.
Phone: +49 (0)2154 - 8826 - 101
Fax: +49 (0)2154 - 8826 - 100
6. provider/contract partner
Provider/contract partner is:
AXDIA International GmbH, Formerweg 9, D-47877 Willich, Tel.: +49 (0)2154-8826-101, Fax: +49 (0)2154-8826-100, E-Mail: firstname.lastname@example.org, Internet: www.axdia.de, registered in the commercial register of the district court Krefeld, HRB 10533, sales tax identification number according to §27a sales tax law DE 814237240, WEEE-Reg.-Nr. DE 67930200, managing director authorized to represent Fei Tong.