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General Terms and Conditions
PMS electronics GmbH
General Terms & Conditions for natural persons
1. Parties to Contract / Scope
1.1 Party to contract with orderer/customer is PMS electronics GmbH, Große Heide 27, D-32425 Minden, Federal Republic of Germany, Phone: +49 571 646000, Fax: +49 571 6460010, E-Mail: info[at]pms-electronics.de. The Company is legally represented by the member of the board of directors, Hans Paschka. The firm is registered in the commercial register, Federal Republic of Germany, under HRB 4650, Bad Oeynhausen, UStIdNr. (Value Added Tax Identification Number) VAT DE 126031074.
1.2 The business relations between PMS electronics GmbH and the customer are exclusively governed by the following General Terms & Conditions, in the version valid at the time of placing the order. Conflicting conditions, agreements to the contrary and/or supplementary terms and conditions of the customer, irrespective of knowledge thereof, shall not become part of the contract unless they are expressly approved of in writing by PMS electronics GmbH.
1.3 In addition thereto the licence terms of the manufacturers, enclosed with the products, are in force. Product names and Logos are the exclusive property of the manufacturers and may only be used with their prior consent. Product illustrations are example illustrations and may differ from the products delivered.
1.4 The person ordering, i.e. the customer, within the meaning of these general terms and conditions are solely “consumers”. The term “consumer” relates to natural persons with whom PMS electronics GmbH enters into terms and conditions of business for a purpose attributable neither to a commercial nor to an independent professional activity of that person.
2. Orders, Conclusion of Contract
2.1 The conditions for our goods are not binding and subject to confirmation. The description of our range of products on the PMS electronics GmbH website does not constitute a contractual offer. It is solely a non-committal invitation to customer to place an order.
2.2 Submission of an order by customer of the desired goods shall constitute a binding offer to conclude a purchase contract.
2.3 PMS electronics GmbH exclusively enters into contract with customers who are “natural persons” of full legal capacity, thus having attained the age of 18 years.
2.4 The minimum order value shall be € 17,85 exclusive delivery costs.
2.5 In case PMS electronics GmbH has accepted an offer from a non-acceptance customer due to an error, PMS electronics GmbH is entitled to declare rescission from contract within a period of two weeks from the time of the erroneously accepted order.
2.6 We shall confirm receipt of customer order without delay. The confirmation of customer order does, however, not constitute a binding acceptance of order, unless expressly stipulated otherwise in the order confirmation.
2.7 We are entitled to accept customer order, constituting offer for conclusion of contract, within a period of two weeks. For orders received via electronic channels we are entitled to accept such orders within a period of three working days upon receipt. Furthermore, we are entitled to reject acceptance of customer order, for instance after examination of financial soundness. The order may ultimately be reduced to usual domestic quantities.
2.8 Contract is concluded under the reservation that if correct and orderly delivery fails by our suppliers we may not perform in whole or in part. This expressly only applies if non-delivery does not rest upon our responsibility. In the event of non-availability or availability of the goods only in part, we shall immediately inform customer. The consideration will promptly be refunded.
2.9 If customer places order through electronic channels, the text of contract will be stored by us and forwarded to customer by E-Mail after conclusion of contract together with legally effective general terms and conditions.
3. Rights of Refund
3.1 You may withdraw from the contract in writing (e.g. letter, email) within 14 days without giving any reason or - if the item has been delivered before expiry of said term - by retuning the goods. The term starts with receipt of these instructions in writing, however not before delivery of the goods to the recipient (in case of recurring deliveries of the same type of goods not before receiving the first partial delivery), not before the conclusion of the contract and not before the information duties according to article 246 section 2 German Civil Code (EGBGB) in combination with section 1 subsection 1 and 2 German Civil Code (EGBGB) have been fulfilled. The withdrawal deadline is deemed PMS electronics GmbH to be met if the notice of withdrawal or the item was sent in a timely fashion. The notice of withdrawal has to be addressed to:
PMS electronics GmbH
Große Heide 27
3.2 Distance Selling Regulations void the right of withdrawal for deliveries of tailor made products or products which have been ordered according to the customer's specifications. Furthermore, Distance Selling Regulations void the right of withdrawal for deliveries of audio and video recordings, or software with a broken seal. A withdrawel is impossible especially for the following cases:
a) goods which are manufactured according to customer’s specifications and are clearly tailored to the personal needs of the customer;
b) circuit data, technical data, which have been down-loaded and despatched online;
c) Goods which have already been installed by customer after receipt;
d) Batteries, accumulators, cables, illuminants, semiconductors and similar articles, if they have been unsealed or unpacked;
e) Goods sold by the meter, consumable materials;
f) Special orders of customer, for instance spare-parts, equipment/devices and components, specially ordered or manufactured for the customer;
g) video, audio and data carriers, CD’s, DVD’s software if they have been unsealed or down-loaded by customer.
The Consequences of Cancelation
3.3 in case of an effective cancelation, both parties shall return the received goods, payments and all other derived benefits (e.g. interest). In case the customer is unable to return any or all of the received goods or in case he returns them in a diminished state, the customer shall compensate PMS electronics GmbH for the lost value. This shall not apply to objects when the reduction of their value is caused exclusively by testing them – e.g. the way a customer in a brick and mortar store may evaluate merchandise. Incidentally, the customer is free to avoid the obligation to PMS electronics GmbH to compensate the contractual partner for lost value due to using the object as intended by not using the object like his/her property and by refraining from all use that may result in a value loss. To the extent possible, the customer shall return objects by parcel post. You have to bear the costs of returning the merchandise provided goods which have been delivered as ordered and the price of the return merchandise does not exceed EUR 40.00 or in case of merchandise valued at more than € 40.00, when at the time of the cancelation you have not performed as stipulated or have not made the contractually agreed partial or full payment. In all other cases you may return the merchandise free of charge. Objects not suitable for shipment by parcel post shall be picked up at the customer’s premises. For you the grace period starts with the date the cancelation is sent or the object is returned; for the vendor, PMS electronics GmbH the grace period begins with the receipt of the cancelation or the returned goods.
Yours PMS electronics GmbH
4. Prices, Terms of Payment, Prohibition of Set-Offs, Dispatch
4.1 The specified prices are binding and include Value Added Tax (VAT). For orders via our webshop the prices stated at cashpoint shall be valid.
4.2 Our invoice will display the net price of the goods and any other elements of the ultimate price, like costs for packaging, delivery/express-delivery and the VAT at the relevant prevailing rate on the day of billing.
4.3 For each order we charge a lump sum of forwarding charges amounting to € 25,00. This shall apply to payments via credit card. Cash on Delivery (c.o.d.) or bank transfer isn’t possible. The above-mentioned costs include carriage charges, packaging and handling costs.
4.4 It will be optional for the customer to pay c.o.d., via bank transfer or credit card. For reasons of financial soundness PMS electronics GmbH reserves the right in individual cases to exclude certain modalities of payment or to execute deliveries only on the basis of prepayment. When placing the order, customer has to bear no additional costs for long-distance communication media.
4.5 Customer is under obligation to render total payment without deduction within ten days after receipt of the merchandise. After the above set period of time customer shall be in arrears of payment. The rate of interest on overdue payments to be borne by customer shall be 5 % above the base lending rate on the aggregate amount due.
4.6 Customer shall only be entitled to set-off counterclaims if they have been established by declaratory judgement (become res judicata) or are not disputed by us. A retention right may only be enforced on the strength of counterclaims which are based on the same contractual relationship.
5. Passing of Risks
5.1 The risk of incidental loss and incidental deterioration of the sold goods shall, also in the event of “Versendungskauf”; i.e., sale by delivery to a place other than the place of performance (at the request of the purchaser), pass from PMS electronics GmbH to the customer at the point of delivery of the goods. PMS electronics GmbH shall bear the total risk for damages or loss of the goods in transit to customer. If the goods have been damaged in transit or delivery is incomplete PMS electronics GmbH requests notification within two days after receipt of goods. From non-observance of the request for prompt notification no disadvantages shall arise to the detriment of customer.
5.2 Delivery shall be deemed as accomplished if customer is in default of acceptance.
5.3 When downloading and sending data via internet the risk of loss and modification of data passes on to customer at the point of going beyond the network interface.
6.1 PMS electronics GmbH warrants that the products are at the point of time of delivery in the agreed condition/state and are free from defects, i.e., suitable for use according to contract or equal in kind and quality, suitable for ordinary use and of the like grade and quality which is customary to things of the same kind and/or which customer may expect as a result of announcements made by PMS electronics GmbH, e.g. the manufacturer or initial supplier.
6.2 Precondition for warranty claims is that the defect has not been caused by improper handling. Is the defect only apparent/recognisable later than six months after delivery, customer has to give proof that the goods were faulty at the day of the passing of the risk. Otherwise it is left to the discretion of PMS electronics GmbH to give proof that the item was not defective at the time of delivery of goods.
6.3 In the event of defectiveness of goods customer may choose whether he/she requires subsequent performance by subsequent improvement or goods in replacement. PMS electronics GmbH is entitled to refuse the kind of subsequent performance chosen by customer if the costs incurred thereby are disproportionately high and if another kind of subsequent performance is not to the substantial disadvantage of the customer.
6.4 In the event that subsequent performance has failed customer can, on principle, at his choice, demand abatement of the purchase price (reduction) or cancellation (rescission) of contract as well as damages. The right of rescission does not apply with regard to minor defects. If customer chooses compensation, limitation on liability is effective pursuant to section 7 of the General Terms and Conditions.
6.5 It is imperative that we be notified in writing of any obvious defects in the delivered goods within two months after receipt. Otherwise the assertion of warranty claim is excluded. With regard to non-obvious defects notification has in any case to take place within the term of warranty obligation.
6.6 The limitation period for warranty shall be two years as from delivery of the goods. With regard to used goods the limitation period for warranty shall be one year as from delivery of goods. The one-year-period is not effective in case of alleged gross negligence on our part and in case of damages to life, body or health of customer, if attributable to us. Our liability with regard to the Product Liability Act remains unaffected.
6.7 We do not grant any guarantees within the meaning of the law. Guarantees from manufactures remain unaffected.
7. Limitation of Liability
7.1 In the event of slight negligence on our part, our employees and vicarious agents, our liability shall be limited to the foreseeable, typical contractual, direct average damage. We are not liable for slight negligence on our part and on part of our employees and vicarious agents, not essential to contractual obligation, thus not endangering performance of contract. The aforesaid limitation of liability does not apply to claims of customer arising from product liability and from guarantee. Furthermore, the aforesaid does not apply to the liability for damages to life, body or health of customer, if attributable to us.
7.2 PMS electronics GmbH cannot be held responsible in case of customer’s loss of data. It is the sole responsibility of customer to safeguard his data in an appropriate manner.
7.3 We are only liable for the contents on the website of our online-shop. If we render links for access to external websites, we are not liable for the contents contained therein. We do not deem such external contents to be our own. If it comes to our knowledge that external websites comprise illegal contents we shall immediately block access to the pages referred to above.
8. Reservation of title
8.1 Until complete payment of the purchase price, the merchandise shall remain the sole property of PMS electronics GmbH.
8.2 Under reservation of title customer is obliged to handle the goods with due care. If maintenance and inspection works are necessary, customer is obliged to carry them out regularly at his/her own expense. Customer is obliged to notify us in writing without undue delay if the goods shall be subject to any third-party rights of possession or order of execution and in the event of damage and destruction of the goods. Change of possession of the goods and change of address of the customer have to be promptly notified to us. PMS electronics GmbH shall hold customer responsible for all damages and costs arising from violation against these obligations and necessary intervention measures against attachment of third parties.
8.3 PMS electronics GmbH shall have the right of withdrawal from the contract if customer is in breach of contract, in particular with regard to arrears of payment, and reclaim the goods. Violation of an obligation under section 8.2 shall entitle us to withdraw from contract and reclaim the goods if continuation of the contract is unreasonable.
9. Protection of Data Privacy
9.1 It is known to customer and he consents that the personal data provided by him/her be stored for purposes of order execution. Customer consents to the inquiry, processing and use of his/her personal data for promotion purposes by PMS electronics GmbH. In particular customer consents that PMS electronics GmbH will, from time to time, inform him/her about special offers or special actions via post or E-Mail.
9.2 Customer is entitled to revoke his/her consent pursuant to section 9.1 at any time with effect to the future. In this case PMS electronics GmbH undertakes to delete all personal data. If the order has not yet been executed in full, deletion of personal data will be undertaken immediately after completion of order.
9.3 Customer consents that PMS electronics GmbH seeks information with regard to his/her past payment behaviour / financial soundness via data exchange from inquiry agencies, in particular from “Creditreform” or “SCHUFA”.
9.4 PMS electronics GmbH will not make use or pass on customer data beyond the scope laid down under section 9.1 and 9.3; no further data will be disclosed to third parties.
10. Final Provisions
10.1 The contract shall be governed by the laws of the Federal Republic of Germany. If customer is a “consumer” within the meaning of these General Terms and Conditions, this choice of law is only applicable insofar as the protection granted is not revoked by provisions of customer protection law prescribed as mandatory in the country where the customer habitually resides. Application of the UN uniform law is excluded.
10.2 If the customer has no common venue in Germany or his/her residence or habitual abode is unknown at the time of commencement of action, exclusive venue for all claims arising from the contract shall be our place of business.
10.3 The unenforceability or invalidity of any clause of the contract including the General Terms and Conditions will not affect the enforceability or validity of the remaining regulations. The wholly or partly invalid regulation shall be substituted by a provision which most closely resembles the economic result of the invalid regulation.
10.4 Unauthorized reproduction, duplication circulation and use of these General Terms and Conditions in whole or in part, are, without prior written consent by PMS electronics GmbH, prohibited.