1.1 All offers, purchase agreements, deliveries and services based on the orders of our customers via our on-line shop www.klang.com (hereinafter, the 'On-line Shop') are subject to these General Terms and Conditions. The customer's terms and conditions shall not apply, even if we do not separately contradict the applicability thereof in any individual case.
1.2 The range of products in our On-line Shop is intended equally for consumers and companies. For the purposes of these General Terms and Conditions, (i) a 'Consumer' is every natural person who concludes a contract for a purpose that can be attributed neither to that individual's commercial activities nor independent professional activities, and (ii) a 'Company' is a natural person or legal entity or a partnership with legal capacity acting in the exercise of its commercial or independent professional activities.
1.3 The contracts with the customer shall be exclusively concluded in the German or English language, depending upon whether the customer places the order via the German language or English language page of the On-line Shop. If the customer's order takes place via our German language website, accordingly, the German version of these General Terms and Conditions shall exclusively apply. If the customer's order takes place via our English language website, the English version of these General Terms and Conditions shall exclusively apply.
2.1 Our offers in the On-line Shop are not binding. By placing an order in the On-line Shop the customer is making a binding offer to purchase the relevant product.
2.2 We shall promptly send the customer a confirmation regarding our receipt of the offer after the offer has been received. This confirmation does not represent acceptance of the offer. The offer shall only be deemed to be accepted by us and the purchase agreement concluded once we state our acceptance vis à vis the customer (via e-mail) or send the goods.
2.3 The contract conclusion shall take place subject to the proviso that in the case of the delivery of supplies and raw materials to us by our suppliers in a manner that is incomplete or incorrect, we are not liable for performance under the contract or may perform only in part. This does not apply for the case that the seller is not responsible for the non-delivery and has, with the required care, concluded a specific covering transaction with the supplier. The seller shall undertake all reasonable efforts to obtain the goods. Otherwise, the consideration shall be immediately reimbursed. In the event of non-availability of the goods or only partial availability, the customer shall be promptly informed.
2.4 Every customer who is a Consumer is authorized to revoke the offer and return the goods according to the separate revocation and return instructions communicated within the framework of placing the order on our website.
3.1 Our prices include the statutory value added tax, but not shipping costs. Customs duties and similar charges must be borne by the customer.
3.2 If delivery on account has been agreed, our invoices are due for payment within 10 working days after the goods have been sent and the customer's receipt of the invoice.
3.3 The customer is not entitled to rights of offset and retention insofar as the countervailing claim is not undisputed or finally adjudicated.
4.1 Delivery times and scheduled dates stated by us for shipment of the goods are always only approximations and may therefore be reasonably exceeded. This does not apply if a firm shipment date is agreed.
4.2 All delivery times stated at the time the order is placed or as otherwise agreed commence (a) if delivery against prepayment is agreed, on the date of receipt of the total purchase price (including value added tax and shipping costs) or (b) if payment per collection on delivery or on account is agreed, on the date the purchase agreement is concluded.
4.3 For purposes of complying with the shipment date, only the date on which we transfer the goods to the shipper is decisive.
4.4 Insofar as goods are marked as 'in stock' on the order form, we are authorized to sell these goods at any time if (a) a reference was made on the order form that there is limited availability of these goods or (b) the delivery takes place against prepayment and the payment is not received by us within a time period of five working days after our acceptance of the offer. In these cases the shipment shall take place within the delivery time agreed or as stated by us only for as long as the stocks last.
4.5 If no delivery time is stated or otherwise agreed or if we are no longer obligated to comply with an agreed delivery time due to a permissible sale under item 4.4, a shipment within three weeks after the applicable date according to item 4.1 shall be considered to have been agreed.
4.6 In the event that our supplier does not timely deliver goods to us that were listed on the order form as 'not in stock' or that were sold according to item 4.4, the applicable delivery time is extended until delivery by our supplier occurs plus a time period of three working days, however, no more than a time period of three weeks, provided that we are not responsible for the delivery delay by our supplier and have promptly reordered the goods.
4.7 If it is not possible to deliver or timely deliver the goods due to one of the above-mentioned reasons, we shall immediately notify the customer concerning this. If the goods are not available from our supplier for the foreseeable future, we are authorized to withdraw from the purchase agreement. In the event of a withdrawal, we shall immediately reimburse to the customer the payments made to us. The customer's statutory rights arising from delayed delivery are not affected by the above regulation, although the customer may only demand compensatory damages in accordance with the special rules of item 8 of these General Terms and Conditions.
4.8 We are authorized to make partial deliveries of products included in an order that are capable of being used separately, in which case, we shall bear the resulting additional shipping costs.
5.1 Provided that it has not been expressly otherwise agreed, we shall determine the appropriate mode of shipment and the carrier in our reasonable discretion.
5.2 We are only liable for the timely, proper delivery of the goods to the carrier and are not responsible for delays caused by the carrier. Consequently, shipping times stated by us are not binding.
5.3 If the customer is a Consumer, the risk of accidental destruction, damage or loss of the delivered goods transfers to the customer on the date on which the goods are delivered to the customer or the customer falls into default in accepting the goods. In all other cases the risk transfers to the customer with delivery of the goods to the carrier.
5.4 We shall insure the goods at our expense against ordinary transportation risks.
6.1 In the case of Consumers, the seller retains title to the goods until payment of the purchase price in its entirety. In the case of Companies, the seller retains title to the goods until complete settlement of all claims arising from an ongoing business relationship.
6.2 In the event of a customer's conduct contrary to the contract, in particular a default in payment, a customer's misstatements concerning the customer's creditworthiness or if judicial settlement proceedings or insolvency proceedings concerning the customer's assets are opened, the seller is authorized to withdraw from the contract and to demand the return of the goods.
6.3 If the customer is a Company, the Company is authorized to resell the goods in the ordinary course of business. The customer now hereby assigns to seller all of the claims accruing to customer as against a third party by virtue of the resale in the amount of the sum invoiced. The seller hereby accepts the assignment. After the assignment, the Company is authorized to collect the claim. The seller reserves the right to collect the claim as soon as the Company does not properly comply with its payment obligations and falls into default in making its payment.
6.4 Upon the customer's request, the seller hereby commits to release the security to which the seller is entitled to the extent that the realizable value of the seller's security exceeds the claim to be secured by more than 10%. The selection of the security to be released is incumbent upon the seller.
7.1 If the delivered goods reveal a material defect, the customer may, as an initial matter, request that we remedy the defect or deliver non-defective goods. However if the customer is a Company, we may choose between remedying the defect or delivery of a non-defective item, whereby this choice may only be made by informing the customer in written form (also via telefax or e-mail) within three working days after receipt of the notice concerning the defect. We may refuse the purchaser's selected manner of subsequent performance if such performance is only possible by incurring disproportionate costs.
7.2 If the subsequent performance according to item 7.1 fails or is unreasonable for the customer or we refuse subsequent performance, the customer is entitled to withdraw from the purchase agreement, to reduce the purchase price or to demand compensatory damages or compensation for frustrated expenses. For the customer's compensatory damage claims, the special provisions of item 8 of these General Terms and Conditions additionally apply.
7.3 The warranty period is two years from the delivery date if the customer is a Consumer, otherwise, it is twelve months from the delivery date.
7.4 If the customer is a Company, the customer must carefully inspect the goods promptly subsequent to shipment. The customer shall be considered to have approved of the delivered goods if we are not informed of the defect (i) within five working days subsequent to delivery, in the case of apparent defects, or (ii) otherwise within five working days after discovery of the defect.
Unless otherwise regulated in these terms, the seller shall pay compensatory damages in all cases of contractual and non-contractual liability exclusively according to the following provisions:
8.1 The seller is liable to the full extent in the case of intentional acts and for the absence of a condition of the goods for which seller assumed a guarantee. For gross negligence, the seller is only liable in the amount of the foreseeable damages that should be prevented by the duty that was violated. In other cases, the seller is only liable due to violation of a material contractual duty if the purpose of the contract is thereby jeopardized, however, always only in the amount of the foreseeable damages. The above-mentioned limitations of liability shall not apply in the case of liability for personal injuries and liability under the German Product Liability Act.
8.2 For the limitation of actions due to lapse of time, item 7.3 shall apply accordingly, provided that for claims arising from liability for intentional acts and the failure to guarantee the condition of the goods as well as for cases of liability for personal injuries or under the German Product Liability Act, the statutory statute of limitations shall apply.
9.1 We may process and store the data insofar as this is required for the implementation and handling of the purchase agreement and for as long as we are obligated to retain this data based upon statutory regulations.
9.2 We reserve the right to transmit the personal data of the customer to credit agencies to the extent that this is required for the purpose of credit checks, provided that the customer expressly agrees to this in the individual case. We will also not otherwise transmit personal data to third parties without the expressly stated consent of the customer except and to the extent that we are statutorily obligated to release the data.
9.3 We are not permitted to collect, transmit or otherwise process the customer's personal data for purposes other than those mentioned in this item 9.
10.1 The legal relationship existing between us and the customer is in conformity with the law of the Federal Republic of Germany, excluding the UN Sales Convention.
10.2 If the customer is a merchant, a public law entity or special fund under public law, the courts seated in Aachen have exclusive jurisdiction for all disputes arising from or associated with the relevant contractual relationship. In all other cases, we or the customer may file an action before any court of competent jurisdiction on the basis of statutory regulations.
KLANG:technologies GmbH, Aachen