General Terms and Conditions of ELARIS AG
1 Validity of the terms and conditions
1.1 These terms and conditions apply to all contracts between
Elaris AG with registered office at Robert-Bunsen-Str. 1, 67098 Bad Dürkheim, Germany
registered with the Commercial Register of the Ludwigshafen Local Court under HRB 68480, represented by the Executive Board Lars Stevenson
VAT ID No. DE 330566043
(hereinafter referred to as the "Seller")
and the Buyer in the version valid at the time of the order.
1.2 The buyer is a consumer insofar as the purpose of the ordered deliveries and services cannot be predominantly attributed to his commercial or independent professional activity. In contrast, an entrepreneur is any natural or legal person or partnership with legal capacity who, when concluding the contract, is acting in the exercise of their commercial or independent professional activity. This includes persons as merchants, legal entities under public law or special funds under public law.
1.3 These terms and conditions apply to all business relationships, deliveries, services and offers and other legal transactions with both consumers and entrepreneurs, unless expressly stipulated otherwise. They shall therefore also apply to all future business relationships, even if they are not expressly agreed again. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods or services. Counter-confirmations by the buyer with reference to his terms and conditions of business or purchase are hereby rejected. Deviations are only valid if they are confirmed in writing by the seller.
1.4 All agreements made between the Seller and the Buyer for the purpose of executing this contract must be recorded in writing.
1.5 All orders are accepted subject to the possibility of delivery and prior sale.
2 Offer and conclusion of contract
2.1 The Seller's offers are subject to change and non-binding. The buyer is bound to the order for a maximum of ten days. The purchase contract is concluded when the seller confirms acceptance of the order for the specified object of purchase in writing within the respective periods stated or carries out the delivery. However, the seller is obliged to inform the purchaser immediately if he does not accept the order. Transfers of rights and obligations of the buyer arising from the purchase contract require the written consent of the seller.
2.2 Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing. We reserve the right to minor deviations from the information on dimensions, weights, properties and quality.
2.3 Subsequent changes to the vehicle configuration after the order has been placed are only possible within one week of the order; the Seller shall endeavour to meet the Buyer's request as far as possible.
2.4 The manufacturer reserves the right to make changes to the design or shape, deviations in colour and changes to the scope of delivery during the delivery period, provided that the changes or deviations are reasonable for the buyer, taking into account the interests of the seller.
3 Right of cancellation for consumers
3.1 If the contract was concluded by an end consumer outside the business premises of ELARIS or its dealers or using exclusively means of distance communication, the consumer has a cancellation period of 14 days from the date of the order.
Right of cancellation
You have the right to cancel this contract within fourteen days without giving any reason.
The cancellation period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken possession of the goods.
In order to exercise your right of cancellation, you must inform us (see section 1.1 above for contacts) by means of a clear statement (e.g. a letter sent by post, fax or email) about your decision to cancel the contract.
Of your decision to cancel this contract. You can use the attached sample cancellation form, but this is not mandatory.
To meet the cancellation deadline, it is sufficient for you to send your notification of exercising your right of cancellation before the cancellation period has expired.
Consequences of cancellation
If you withdraw from this contract, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from 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 for this repayment.
We may withhold the refund until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earliest.
You must return or hand over the goods to us immediately and in any case within fourteen days at the latest from the day on which you inform us of the cancellation of this contract. The deadline is met if you dispatch the goods before the period of fourteen days has expired.
You shall bear the direct costs of returning the goods.
You only have to pay for any loss in value of the goods if this loss in value is due to handling of the goods that is not necessary for checking their condition, properties and functionality.
3.2 The Seller shall provide the following information on the model cancellation form in accordance with the statutory provisions:
Sample cancellation form
(If you wish to cancel the contract, please complete this form and return it to us).
To [here the name, address and, if applicable, the fax number and e-mail address of the entrepreneur must be inserted by the entrepreneur]:
I/we (*) hereby cancel the contract concluded by me/us (*) for the purchase of the following goods (*)/the provision of the following service (*)
Ordered on (*)/received on (*)
Name of the consumer(s)
Address of the consumer(s)
Signature of the consumer(s) (only for notification on paper)
(*) Delete as appropriate
4.1 All prices stated on the provider's website include the applicable statutory value added tax.
4.2 Unless otherwise stated, the prices contained in the offers are binding for ten days from their date. Otherwise, the prices stated in the order confirmation plus the respective statutory value added tax shall apply. Deliveries and additional services shall be invoiced separately.
4.3 Unless otherwise agreed, the prices are free warehouse. In the case of sale to destination (clause 6.2), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer.
4.4 We reserve the right to increase the prices for contracts with an agreed delivery time of more than four months in accordance with the cost increases that have occurred due to collective labour agreements or material price increases.
5.1 The purchase price, including the costs for ancillary services, such as additional equipment and delivery costs and the applicable statutory value added tax, shall be due for payment immediately upon handover or transmission of the invoice, at the latest upon handover of the object of purchase.
5.2 If the Seller has provided a discount based on the fact that the vehicle is subject to a state subsidy, the Buyer agrees that this discount shall no longer apply and that the purchase price shall increase if the vehicle is no longer eligible for a subsidy or the Buyer is no longer in need of a subsidy.
5.3 The Buyer is responsible for ensuring that local taxes and fees are paid in the event that the vehicle is exported from the country of delivery; this also applies in the event that, at the Buyer's request, the vehicle is exported by the Seller to a country other than the country to which delivery was agreed.
5.4 In the event of default in payment, the Seller shall be entitled to demand interest at the applicable statutory default interest rate as lump-sum compensation from the relevant date. Proof of higher damages by the seller is permissible. The claim to commercial maturity interest (§ 353 HGB) against entrepreneurs remains unaffected.
5.5 The Buyer shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or an acknowledgement has been declared. This does not apply to counterclaims of the buyer arising from the same purchase contract. He may only assert a right of retention if it is based on claims from the same contractual relationship.
6 Delivery and performance time
6.1 Delivery dates or periods, which may be agreed as binding or non-binding, must be in writing.
6.2 Delivery is ex warehouse, which is also the place of fulfilment for the delivery and any subsequent fulfilment. At the request and expense of the Buyer, the goods shall be dispatched to another destination (sale to destination). Unless otherwise agreed, the Seller shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) itself.
6.3 The risk shall 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 for dispatch. If dispatch is delayed at the request of the buyer, the risk shall pass to the buyer upon notification of readiness for dispatch.
6.4 The Seller shall not be responsible for delays in delivery and performance due to force majeure and due to events that make it significantly more difficult or impossible for the Seller not only temporarily - this includes in particular strikes, lockouts, official orders, etc., even if they occur at suppliers or subcontractors - even in the case of bindingly agreed deadlines and dates. The delays shall entitle the Seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
6.5 If the hindrance lasts longer than four months, the Buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the seller is released from his obligation to fulfil the contract the buyer cannot derive any claims for damages from this. The Seller may only invoke the aforementioned circumstances if he notifies the Buyer immediately.
6.6 If the Seller is responsible for failure to comply with bindingly agreed deadlines and dates or is in default, the Buyer shall be entitled to compensation for default in the amount of 0.5 % for each completed week of default, but not exceeding a total of 5 % of the invoice value of the deliveries and services affected by the default. Any further claims are excluded, unless the delay is due to at least gross negligence on the part of the seller.
6.7 Compliance with the delivery and service obligations presupposes the timely and proper fulfilment of the Buyer's obligations.
7.1 The Buyer is obliged to accept the object of purchase within 14 days of receipt of the notification of readiness.
7.2 If the Buyer is in default of acceptance, the Seller shall be entitled to demand compensation for the damage incurred; the risk of accidental deterioration and accidental loss shall pass to the Buyer upon the occurrence of default of acceptance.
7.3 In the event of non-acceptance, the Seller may exercise its statutory rights. If the Seller demands compensation, this shall amount to 15% of the purchase price. In the case of replacement parts, the compensation shall be reduced to 10 % of the purchase price. The compensation shall be set higher or lower if the Seller proves higher damages or the Buyer proves that lower damages or no damages at all have been incurred.
8 Rights of the buyer due to defects
8.1 The products are delivered free of manufacturing and material defects. The Buyer is obliged to inspect the delivered goods immediately for obvious defects. If a defect is discovered, the Buyer must notify the Seller of this in writing without delay, at the latest within 14 days. Defects that cannot be discovered within this period, even after careful inspection, must be reported to the seller in writing immediately after discovery.
8.2 If the operating or maintenance instructions are not followed, changes are made to the products, parts are replaced or consumables are used that do not correspond to the original specifications, claims due to defects in the products shall lapse.products if the buyer does not refute a corresponding substantiated claim that only one of these circumstances caused the defect.
8.3 Claims of the Buyer due to material defects shall become time-barred in accordance with the statutory provisions two years after delivery of the object of purchase. For entrepreneurs pursuant to section 1.2 sentence 2, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery or acceptance, in deviation from § 438 para. 1 no. 3 BGB. Further claims remain unaffected insofar as the seller is liable by law or something else is agreed, in particular in the case of the assumption of a guarantee.
8.4 If a defect is to be remedied, the following shall apply:
(a) The Buyer may assert claims for rectification of defects with the Seller or with other companies recognised by the manufacturer for the care of the object of purchase; in the latter case, the Buyer must inform the Seller of this immediately if the first rectification of defects was unsuccessful. In the event of verbal notification of claims, the Buyer shall be provided with written confirmation of receipt of the notification.
(b) If the object of purchase becomes inoperable due to a material defect for which the seller is responsible, the buyer must contact the nearest service centre to the location of the inoperable object of purchase that is recognised by the manufacturer for the care of the object of purchase.
(c) The Buyer may assert claims for material defects for the parts installed to remedy the defect until the expiry of the warranty period of the object of purchase.
(d) If spare parts are replaced, these shall become the property of the Seller upon removal.
8.5 A change of ownership with regard to the object of purchase shall not affect claims for rectification of defects.
8.6 If the rectification of defects fails after a reasonable period of time, the Buyer may, at its discretion, demand a reduction in payment or withdraw from the contract. However, further claims, in particular compensation for lost electricity revenues, are excluded.
8.7 Liability for normal wear and tear is excluded.
9 Retention of title
9.1 The object of purchase shall remain the property of the Seller until all claims (including all current account balance claims) to which the Seller is entitled against the Buyer for any legal reason have been fulfilled. At the request of the buyer, the seller is obliged to waive the retention of title if the buyer has indisputably fulfilled all claims in connection with the object of purchase and there is adequate security for the remaining claims from the current business relationship. For the duration of the retention of title, the Seller shall be entitled to hold the registration certificate Part II (vehicle registration document).
9.2 As long as the retention of title exists, the Buyer may neither dispose of the object of purchase nor grant third parties contractual utilisation; the granting of an extended retention of title on the part of the Buyer is excluded.
9.3 In the event of access by third parties to the reserved goods, in particular seizures, the Buyer shall draw attention to the Seller's ownership and inform the Seller immediately so that the Seller can enforce its ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for such costs.
9.4 In the event of breach of contract by the Buyer - in particular default of payment - the Seller shall be entitled to withdraw from the contract and demand the return of the reserved goods. The demand for return does not at the same time include a declaration of cancellation; rather, the Seller is entitled to demand only the return of the goods and to reserve the right to cancel the contract. If the buyer does not pay the purchase price due, the seller may only assert these rights if he has previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.
10.1 Claims for damages are excluded irrespective of the type of breach of duty, including unauthorised acts, unless caused by intent or gross negligence. Insofar as the damage is covered by an insurance policy taken out by the Buyer for the claim (with the exception of comprehensive insurance), the Seller shall only be liable for any associated further disadvantages suffered by the Buyer, e.g. for higher insurance premiums (maximum two years) or for interest disadvantages until the claim is settled by the insurance company.
10.2 In the event of a breach of material contractual obligations, the Seller shall be liable for any negligence, but only up to the amount of the foreseeable damage typical for the contract. Claims for loss of profit, saved expenses, claims for damages by third parties and other indirect and consequential damages cannot be demanded unless a quality feature guaranteed by the Seller is specifically intended to protect the Buyer against such damages.
10.3 If the Buyer is a legal entity under public law, a special fund under public law or an entrepreneur who is acting in the exercise of his commercial or independent professional activity when concluding the purchase contract, and if claims for damages due to material defects are asserted after the expiry of one year after delivery of the object of purchase, liability shall be limited to the statutory warranty rights, whereby further damages shall be excluded.
10.4 The limitations and exclusions of liability in paragraphs 11.1 and 11.2 shall not apply to claims arising from fraudulent behaviour on the part of the Seller, nor to liability for guaranteed characteristics, claims under the Product Liability Act or damages resulting from injury to life, limb or health.
10.5 Insofar as the Seller's liability is excluded or limited, this shall also apply to its employees, workers, representatives and vicarious agents.
11 Applicable law, place of jurisdiction, partial invalidity
11.1 These Terms and Conditions and the entire legal relationship between the Seller and the Buyer shall be governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
11.2 If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the Seller's registered office shall be the exclusive place of jurisdiction and place of fulfilment for all disputes arising directly or indirectly from the contractual relationship.
11.3 The Seller's registered office shall also be the place of jurisdiction if the Buyer has no general place of jurisdiction in Germany, moves his domicile or usual place of residence outside Germany after conclusion of the contract or his domicile or usual place of residence is not known at the time the action is filed. Otherwise, the place of jurisdiction for claims of the seller against the buyer shall be the buyer's place of residence.
11.4 Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
12 Notice pursuant to § 36 of the Consumer Dispute Settlement Act (VSBG)
The seller will not participate in a dispute settlement procedure before a consumer arbitration board within the meaning of the VSBG and is not obliged to do so.