General Terms and Conditions
Aipermon GmbH & Co KG – Activity Solutions
For use in business correspondence with other companies.
§1 General
1.1 The following conditions apply to all of our offers, sales, deliveries and services for AiperMotion and coaching programmes, AiperSunny and web-e programmes and form an integral part of the contract. Their validity shall remain in effect for all future business relationships, even if they are not explicitly negotiated. They shall not apply if our contractual partner is a consumer as defined in § 13 BGB (paragraph 13, German Civil Code).
1.2 These shall be the solely applicable general terms and conditions of sale, payment and delivery. General business terms of the customer shall only be deemed valid if expressly agreed to by us in writing.
§2 Offers and orders
2.1 Our offers are essentially non-binding, until written confirmation is established. The acceptance of orders becomes binding once they are confirmed in writing or on delivery of the goods. Our written confirmation of an order is the sole authorative basis for the terms of contract.
2.2 We reserve all rights of ownership and copyright pertaining to technical drawings, measurements, depictions, descriptions and any other documentation forming part of our non-binding offers. Such documents may only be made accessible to third parties if explicit permission is granted by us in writing.
2.3 The information and data contained in documents referred to in clause 2.2 are non-binding and only form part of the contract when expressly confirmed by us in writing.
§3 Prices
3.1 Our prices are quoted in EURO and apply ex works unless otherwise agreed with the customer. Shipping costs are not included in the price.
3.2 Statutory value-added tax is not included in our prices and shall be indicated separately on the invoice, charged at the applicable rate on the date of invoicing.
§4 Period of delivery and shipment
4.1 Delivery deadlines are only binding if explicitly confirmed in writing.
4.2 If we are unable to meet an explicity agreed deadline or delivery is subject to delay for any other reason, the customer shall allow us a reasonable extension. This extension shall be confirmed in writing. Should the order not have been completed within the extended period, the customer is free to withdraw from the contract.
4.3 Should we be unable to fulfil an order either partially or completely due to force majeure or other extraordinary circumstances beyond our control, the delivery period shall be extended for the duration of the hindrance. The same shall apply in the case of a statutory deadline or limit set by the customer for the fulfilment of the order, particularly in the case of amendment or improvement according to clause 6.3.
4.4 The customer shall not be entitled to withdraw from the contract nor claim compensation prior to the expiry of the extended delivery deadline or order fulfilment noted in paragraph 3. Should the hindrance to fulfilment continue for a period exceeding 12 weeks, both we and the customer shall be entitled to withdraw from the transaction, if the contract has not been completed. Should the customer be contractually or legally entitled to withdraw from the contract without a reasonable deadline extension (e.g. due to frustration of interest), this right shall be upheld.
4.5 In the case of delayed delivery, we shall only be held liable for damages arising out of deliberate or gross negligence. In the case of gross negligence, our liability shall be limited to foreseeable damages typical for this form of contract. For injury to life, body and health, our liability shall be in accordance with statutory regulations.
4.6 Delivery shall be carried out at customer's cost. The risk of accidental loss or incidental deterioration shall be carried by the customer from the commencement of shipping, even in the case of freight paid delivery and/or if our own vehicles have been used for transportation. Shipping insurance will only be taken out if specifically requested in writing by the customer at his expense.
4.7 Unless expressly agreed otherwise in writing, we are allowed to make partial deliveries of reasonable scope, which may be charged separately.
§5 Payment
5.1 The agreed purchase price shall be payable in full, without any deductions, on delivery of the ordered goods.
5.2 The customer shall be deemed in default of payment, without any further notification on our part, if he has not paid within 30 days of the due date and receipt of the invoice or a comparable statement of payment. Settlement by the due date shall only be recognized once payment has appeared on our account.
5.3 Should the customer default on any payment, all claims resulting from the contractual relationship shall be payable immediately. In this case, we reserve the right to charge interest at the statutory rate from the respective due date onwards. The right to claim higher compensation remains unaffected.
5.4 The customer shall only be entitled to compensation, even if complaints or counterclaims are asserted, if the counterclaims are deemed legally valid, are recognized by us or are undisputed. The customer may only exercise his right of retention if his counterclaim arises out of the same contract of purchase.
§6 Warranty/Liability
6.1 The customer shall examine goods immediately on receipt to ascertain if delivery is complete and to inspect goods for damage in transit, defects, condition and quality. We are to be notified in writing immediately by the customer of any obvious defects and within a period of two weeks of delivery at the latest. The same shall apply to excess or incomplete deliveries and in the case of delivery of incorrect goods (wrong delivery). If the customer does not exercise his right of inspection and notification of defects within the given period, he shall lose all claims concerning defective delivery, excess, incomplete or wrong delivery, unless we are to be charged with malice or concealment of a material defect.
6.2 Should the goods delivered by us prove to be defective, the customer shall have recourse to legal rights according to the following conditions. Claims pertaining to defects shall not be admitted in the case of minimal variation to agreed conditions, nor in the case of negligible impairment of use.
6.3 Any claim to redress must be submitted in writing by the customer. We can choose whether to alleviate the defect (redress) or provide replacement goods. The customer shall afford us a period of two weeks minimum to meet his claim. If a second attempt proves unsuccessful, redress is deemed ineffective. Should this be the case, the customer may demand a reduction in the purchase price (reduction) or withdraw from the contract. Until such time as redress has irrevocably failed, reduction and withdrawal are not admissible. Without prejudice to further claims, the customer shall be liable – as far as it is demanded of him – for the costs incurred in inspecting and eradicating any defect, should the claim be unjustified.
6.4 Claims for compensation under the following conditions on account of any defect can only be made by the customer, if redress has failed or has been denied by us. The customer's right to assert any further claims for compensation remains unaffected.
6.5 For deliberate or grossly negligent breach of duty or damages arising from injury to life, body or health, we shall be held liable in accordance with the provisions of the law. Furthermore, we shall only be held liable in accordance with the German Product Liability Act in the event of fraudulent conceaIment of defects or when a breach of duty is clearly an infringement of a basic contractual obligation. A claim for compensation pertaining to the infringement of contractual obligations shall be limited to the level of reasonably foreseeable damages.
6.6 The limitations of liability according to clause 6.5 shall be applied to all other claims for compensation beyond warranty for defects, regardless of their legal basis, in particular for such claims relating to the impossibility of fulfilment or action ex delicto. Further, they shall also be applicable for the benefit of our staff, employees, representatives and agents.
6.7 Aipermon shall not be held liable for potential damage to health arising from participation in a programme which incorporates coaching material or web-e. The customer is obliged to question programme participants concerning potential health risks. The customer is solely responsible for activity and training guidelines and must adapt these to the physical condition of participants.
6.8 The statutory period of limitation for claims and rights pertaining to defects is one year, commencing on delivery to the customer. Cases of delivery regress referred to in paragraphs (§§) 478, 479 of the BGB (German Civil Code) remain unaffected. The limitation period specified in sentence 1 of clause 6.8 shall also be applicable in the event of other claims of damages against us, irrespective of the legal basis of the claim, including such claims which are not related to defects. The limitation period is not, however, applicable in the event of intent or fraudulent concealment of a defect. The limitation period for compensatory claims does not apply in cases of gross negligence, in the event of injury to life, body or health, or for claims governed by the Product Liability Act. The statute of limitation for compensation claims shall also apply to the reimbursement of unavailing expenditure.
6.9 Any further liability not covered in clauses 6.4 to 6.8 shall be excluded, without regard to the legal nature of the claim. This shall apply in particular to claims arising from faults at conclusion of contract or minor, secondary breaches of contractual obligations. Insofar as liability for damages towards us is excluded or limited, this shall also apply to the personal liability for damages of our legal representatives, executive staff and employees, as well as our fulfilment agents and vicarious agents.
§7 Reservation of proprietary rights
7.1 We retain title in the products (ownership of goods) until full payment has been received as per purchase contract. Ownership of goods delivered is only transferred to the customer when all payments pertaining to the business relationship, including incidental and compensatory claims, depositing of cheques and exchange have been fulfilled.
7.2 In the event that the goods are sold on, the customer herewith assigns his claim from resale against his buyer with all subsidiary rights as security to us, without any further declarations being necessary. The assignment is, however, valid only at the level of the sum corresponding to the value of the invoice for the goods delivered by us.
7.3 The customer is required to inform us in writing without delay of any intervention by third parties, especially with regard to foreclosure measures or any other impairment of ownership. The customer shall be liable for the settlement of any damages or costs incurred (by us) through such a breach of duty or in the course of necessary protective measures against access or intervention by third parties.
7.4 Should the customer not effect payment in spite of our having issued a reminder, we shall be entitled to instruct the customer to release the goods (under retention of title) in his possession to us without prior notice. The customer shall cover the cost of shipment. In the seizure of goods (under retention of title), a withdrawal from the contract is only valid if explicitly declared so by us. On receipt of the goods (under retention of title), we are free to utilize them as we see fit. Any income thus derived shall be offset against our outstanding claims.
§8 Data processing
The customer gives his consent that we may process, transfer and, in particular, store data concerning the customer acquired through the course of the business transaction for our own commercial purposes, in accordance with the Federal Data Protection Act.
§9 Severability Clause
Amendments or supplements shall only be deemed valid if presented in writing by the management board or specially authorized agents of the vendor. Should any provision of these general terms and conditions of delivery and payment become invalid or unenforceable, this shall not affect the validity of the general terms and conditions of the remainder of this agreement.
§10 Place of jurisdiction and applicable law
10.1 The contractual relationship between us and the customer, even if the customer's place of residence or business is abroad, shall be governed by the law of the Federal Republic of Germany, with the exception of a conflict of law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applied.
10.2 The customer shall not be entitled to raise claims pertaining to the purchase contract without obtaining our prior written consent.
10.3 If the customer is a merchant, legal entity of public law or public separate estate, then any dispute arising out of the contractual relationship shall be under the sole jurisdiction of the courts of Munich. We reserve the right, nevertheless, to sue the customer at his general place of jurisdiction.
Date: 09.06.2011