General Terms and Conditions (GTC)
Status: June 30, 2012
§ 1 Scope of Application - Subject Matter of the Agreement
(1) These General Terms and Conditions (hereinafter referred to as "GTC") apply to the delivery of movable goods in accordance with the agreement concluded between memon and the Client.
(2) Deviating, conflicting or supplementary general terms and conditions - even if known - shall not become part of the contract. The use of the business partner's GTC is expressly rejected. An offer to include the client's GTC will be rejected by memon. The following general terms and conditions are part of the contract for all legal business relations of memon, including the conclusion of contracts via the medium of the Internet. The customer agrees to the inclusion of the terms and conditions in the contract by initiating the order or by submitting a legal declaration to memon aimed at concluding a purchase contract for a memon product.
(3) These GTC apply to both consumers and entrepreneurs, unless a differentiation is made in the respective clause.
§ 2 Offer and Conclusion of Contract - Offer Documents
(1) The offers of memon are subject to change. We reserve the right to make technical and other changes within reason.
(2) The customer's order constitutes a binding offer which we can accept within four weeks by sending an order confirmation or by delivering the goods.
(3) If the customer orders the goods electronically, the text of the contract as well as these GTC shall be stored in reproducible form and sent by e-mail upon request of the customer.
(4) In the case of orders for which the customer does not use the Internet as a medium, the provisions of the German Civil Code (§§ 145 et seq. BGB) shall apply to the conclusion of the contract, with the proviso that an order fax and an order confirmation return fax shall also be sufficient for the conclusion of the contract, taking into account clause 2.
(5) memon reserves the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as "confidential". The client must obtain memon's express written consent before passing them on to third parties.
(6) The conclusion of the contract is subject to the reservation for memon not to perform or to perform only partially in case of incorrect or improper self-delivery. In the event of non-availability or only partial availability of the service, the customer will be informed immediately. The (possibly already provided) consideration will be refunded immediately.
(7) Additional agreements or verbal assurances, insofar as they go beyond the written text of the contract, require written confirmation or confirmation by e-mail by memon in order to be valid.
§ 3 Right of use
(1) The scope of performance and functionality of the goods, devices and programs provided shall be determined by the product descriptions valid at the time of conclusion of the contract. Additional agreements in special cases, e.g. regarding capacity, timing and compatibility, are dependent on the customer-specific situation and must be expressly agreed in writing. The same shall apply to individual customer-specific adaptations of the products or other special conditions of use. We reserve the right to make technical changes and minor deviations that do not impair functionality (e.g. further developments).
(2) The customer receives a non-exclusive right to use the supplied software for an unlimited period of time. He is entitled to use the software only for the purpose stated in the assembly instructions of the purchased memon product. Duplication of the programs (coding) is not permitted.
(3) In all other respects, the mandatory provisions of the Copyright Act (§§ 69 a ff. UrhG) shall apply in addition with regard to the rights of use.
§ 4 Prices and terms of payment
(1) The purchase price offered is binding subject to the provisions in clauses 3 and 4. The statutory value added tax is included for consumers.
(2) Ist der Kunde Unternehmer, geben wir lediglich den Nettopreis an. Die If the customer is an entrepreneur, we only state the net price. The statutory value added tax is therefore not included in the prices; it will be shown separately in the invoice at the statutory rate on the day of invoicing.
(3) If the customer is a consumer, price changes are permissible if there are more than four months between the conclusion of the contract and the agreed delivery date. If wages or material costs change thereafter until delivery, we shall be entitled to change the price appropriately in accordance with the cost increases or cost reductions.
(4) If the customer is an entrepreneur, the agreed price shall apply subject to the following provisions. If the price has increased at the time of the service provision due to a change in the market price or due to an increase in the fees charged by third parties involved in the service provision, the higher price shall apply. If this is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be asserted immediately after notification of the increased price.
(5) The purchase price is to be paid within ten days after receipt of the goods and without discount, unless otherwise agreed. The statutory rules regarding the consequences of default in payment and compensation for damage caused by delay (§§ 280 II, 286 BGB) shall apply. For reminders memon may demand a lump sum of 10,00 € /reminder for reimbursement of expenses from the customer.
(6) The customer shall only have the right to offset if its counterclaims are legally established, undisputed or recognized by memon. If the customer is an entrepreneur, he is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
§ 5 Time of performance and transfer of risk
(1) If delivery deadlines have been specified by memon and made the basis for placing the order, such deadlines shall be extended in the event of strikes and cases of force majeure, for the duration of the delay. The same applies if the customer fails to fulfill any obligations to cooperate.
(2) If delivery deadlines have been specified by memon and made the basis for placing the order, such deadlines shall be extended in the event of strikes and cases of force majeure, for the duration of the delay. The same applies if the customer fails to fulfill any obligations to cooperate.
(3) The risk of accidental loss and accidental deterioration of the goods sold shall pass to the consumer - also in the case of sale by delivery to a place other than the place of performance - upon handover of the goods. The handover is the same if the customer is in default of acceptance.
§ 6 Right of withdrawal
(1) The customer, who is a consumer, has the right to revoke his declaration of intent to conclude the contract within two weeks after receipt of the goods. The revocation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, has or has taken possession of the goods. The revocation does not have to include a reason and must be declared to memon in text form or by returning the goods; timely dispatch is sufficient to meet the deadline. The revocation is to be sent to: memon® bionic instruments GmbH, Oberaustraße 6a, 83026 Rosenheim, e-mail: email@example.com, phone: 08031 - 402 200, fax: 08031 - 402 222.
(2) 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.
(3) If the Customer is unable to return the goods received in whole or in part or only in a deteriorated condition, the Customer must compensate memon for the loss of value. This does not apply if the deterioration of the item is exclusively due to its inspection - as would have been possible for the customer in a retail store, for example. In addition, the customer can avoid the obligation to pay compensation by not using the item as an owner and refraining from doing anything that could impair its value.
(4) Items that can be sent as parcels are to be returned at the expense and risk of memon. The return shipment is free of charge. Items that cannot be sent by parcel post will be collected from the customer.
(5) Consequences of the revocation
If you revoke this contract, we shall reimburse you for all payments we have received from you, including delivery costs (with the exception of additional costs resulting from the fact that you have chosen a type of delivery other than the most favorable standard delivery offered by us), without undue delay and no later than within fourteen days from the day on which we received the notification of your revocation of this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; in no case will you be charged any fees because of this repayment. We can refuse the repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us immediately and in any case no later than within fourteen days from the day on which you notify us of the revocation of this contract. The deadline is met if you send the goods before the expiry of the period of fourteen days. We shall bear the costs of returning the goods. You will only have to pay for any loss in value of the goods if this loss in value is due to the handling of the goods that is not necessary for the inspection of the condition, properties and functioning of the goods.
§ 7 Liability for defects
(1) If the Customer is a consumer, memon shall be liable in the event of a defect in accordance with the statutory provisions, insofar as no restrictions arise from the following. The consumer must notify memon in writing of any obvious defects within two weeks of the defect occurring. If the notification is not made within the aforementioned period, the warranty rights shall expire. This does not apply if memon has fraudulently concealed the defect or has given a guarantee for the quality of the item.
(2) The client does not receive any guarantees in the legal sense from memon.
(3) If the Client is an entrepreneur, memon reserves the right to choose the type of subsequent performance in the event of a defect.
(4) If the customer is a consumer, the limitation period for claims for defects shall be two years for the delivery of new items and one year for the delivery of used items. The period begins with the transfer of risk. The foregoing shall not apply insofar as claims for damages are concerned. The provisions of § 8 shall apply to claims for damages.
(5) If the customer is an entrepreneur, the warranty period is always one year. The period begins with the transfer of risk. The limitation period in the case of a delivery recourse according to §§ 478, 479 BGB remains unaffected. The foregoing shall not apply insofar as claims for damages are concerned. The provisions of § 8 shall apply to claims for damages.
(6) The warranty liability of memon is limited to defects directly on the object of the contract itself. Memon is therefore not liable for indirect damages (consequential damages), in particular for lost profits or other financial losses. This exclusion of liability does not apply if the damage was caused by memon intentionally or through gross negligence.
§ 8 Liability for damages
(1) Liability for contractual breaches of duty and for tort is limited for memon to intent and gross negligence. This does not apply in the case of injury to life, limb and health of the customer or claims for breach of cardinal obligations and claims for compensation for damage caused by delay (§§ 280 II, 286 BGB). In this respect memon shall be liable for any degree of fault.
(2) The aforementioned exclusion of liability also applies to slightly negligent breaches of duty by memon's vicarious agents.
(3) Insofar as liability for damages not based on injury to life, body or health of the customer is not excluded for slight negligence, such claims shall become statute-barred within one year beginning with the accrual of the claim or, in the case of claims for damages due to a defect, from the handover of the item.
(4) Insofar as liability for damages against memon is excluded or limited, this shall also apply with regard to the personal liability for damages of memon's employees, representatives and vicarious agents.
§ 9 Retention of title
(1) In the case of contracts with consumers, memon retains ownership of the object of purchase until the purchase price has been paid in full.
(2) If the Client is an entrepreneur, memon retains ownership of the goods until all claims against the Client have been settled, even if the specific goods have already been paid for.
(3) The customer must inform memon immediately of any execution measures by third parties against the goods subject to retention of title, handing over the documents necessary for an intervention; this also applies to impairments of any other kind. Irrespective of this, the customer must inform the third parties in advance of the existing rights to the goods. If the customer is an entrepreneur, it must bear the costs of an intervention by memon insofar as the third party is not in a position to reimburse these.
(4) If the customer is an entrepreneur, he hereby assigns to memon as security claims against his customers in the event of resale/rental of the reserved goods until all claims of memon arising from the aforementioned transactions have been fulfilled. In the event of processing of the goods subject to retention of title, their transformation or their combination with another item, we shall acquire direct ownership of the manufactured item. This is considered to be reserved goods.
(5) If the value of the security exceeds memon's claims against the Customer by more than 20%, memon shall, at the Customer's request and at its own discretion, release securities to which memon is entitled to the corresponding extent.
§ 10 Limitation of own claims
The statute of limitations for memon's claims shall be governed by the general statutory provisions (§§ 195 et seq. BGB), unless otherwise agreed in the contract between the Client and memon.
§11 Declaration form
Legally relevant declarations and notifications that the customer must make to memon or to a third party on the occasion of the conclusion of the contract or its execution must be made in writing. This also applies to the exemption from the aforementioned form requirement.
§ 12 Place of performance - choice of law - place of jurisdiction
(1) Unless otherwise stipulated in the contract, the place of performance shall be memon's place of business.
(2) The law of the Federal Republic of Germany shall apply to the contract. This does not apply if special consumer protection regulations in the customer's home country are more favorable (Art. 29 EGBGB).
(3) The law of the Federal Republic of Germany shall apply to the contract. This does not apply if special consumer protection regulations in the customer's home country are more favorable (Art. 29 EGBGB).
(4) If the customer does not have a general place of jurisdiction in Germany or in another EU member state, the exclusive place of jurisdiction for all disputes arising from this contract shall be the registered office of memon.
(5) In the case of contracts with merchants, legal entities under public law or special funds under public law, the exclusive place of jurisdiction is the court responsible for memon's place of business.
§ 13 Final provisions
(1) The customer expressly consents to the collection, processing and use of personal data. He has the right to revoke the consent at any time with effect for the future.
(2) Should individual provisions of the contract with the customer, including these General Terms and Conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision(s) shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision(s). The parties are obliged to agree on a correspondingly effective provision.