Right of withdrawal
Telefon EMUK Store 07821 32901-30
Fax 07821 32901 99
Sparkasse Freiburg-Nördlicher Breisgau
IBAN: DE 50 6805 0101 0013 1570 98
Data protection notice
Personal data such as the name, address, e-mail address or telephone number of a data subject are always processed in accordance with the General Data Protection Regulation (GDPR) and the national data protection provisions that apply for EMUK GmbH & Co. KG. With this data protection notice, our company informs the public of the type, scope and purpose of the personal data collected, used and processed by us. This data protection notice also informs data subjects of the rights they are entitled to.
EMUK GmbH & Co. KG as the controller has implemented numerous technical and organisational measures to ensure the most comprehensive possible protection of personal data processed through this website. Nevertheless, the transfer of data over the Internet is fundamentally subject to security vulnerabilities, so that absolute protection cannot be guaranteed. Every data subject is therefore free to provide us with their personal data using alternative means, for example, by telephone.
- a) Personal data
- b) Data subject
- c) Processing
Processing means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as
- d) Restriction of processing
- e) Profiling
- f) Pseudonymisation
- g) Controller
- h) Processor
- i) Recipient
- j) Third party
- a) Right to confirmation
- b) Right to information
- The purposes of processing
- The categories of personal data being processed
- The recipients or categories of recipient to whom the personal data have been or will be disclosed, in particular recipients in third countries or international organisations
- Where possible, the envisaged period for which the personal data will be stored, or, if not possible, the criteria used to determine that period
- The existence of the right to request from the controller rectification or erasure of personal data or restriction of processing of personal data concerning the data subject or to object to such processing
- The existence of the right to lodge a complaint with a supervisory authority
- Where the personal data are not collected from the data subject, any available information as to their source
- The existence of automated decision-making, including profiling, referred to in Article 22(1) and (4) GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject
- c) Right to rectification
- d) Right to erasure (right to be forgotten)
- The personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.
- The data subject withdraws consent on which processing is based according to point (a) of Article 6(1) GDPR or point (a) of Article 9(2) GDPR, and there is no other legal ground for processing.
- The data subject objects to processing pursuant to Article 21(1) GDPR and there are no overriding legitimate grounds for processing, or the data subject objects to processing pursuant to Article 21(2) GDPR.
- The personal data have been unlawfully processed.
- The personal data have to be erased for compliance with a legal obligation in Union or Member State law to which the controller is subject.
- The personal data have been collected in relation to the offer of information society services referred to in Article 8(1) GDPR.
- e) Right to restriction of processing
- The accuracy of the personal data is contested by the data subject, for a period enabling the controller to verify the accuracy of the personal data.
- The processing is unlawful and the data subject opposes the erasure of the personal data and requests the restriction of their use instead.
- The controller no longer needs the personal data for the purposes of processing, but they are required by the data subject for the establishment, exercise or defence of legal claims.
- The data subject has objected to processing pursuant to Article 21(1) GDPR pending the verification whether the legitimate grounds of the controller override those of the data subject.
Insofar as one of the aforementioned reasons applies and a data subject wants to initiate the erasure of personal data stored by EMUK GmbH & Co. KG, they may contact our Data Protection Officer or another employee of the controller at any time. The Data Protection Officer of EMUK GmbH & Co. KG or another employee will initiate the restriction of processing.
- f) Right to data portability
Every data subject for whom personal data are processed has the right granted by European directives and regulations to receive the personal data concerning the data subject, which they have provided to a controller, in a structured, commonly used and machine-readable format. The data subject also has the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, where processing is based on consent pursuant to point (a) of Article 6(1) GDPR or point (a) of Article 9(2) GDPR or on a contract pursuant to point (b) of Article 6(1) GDPR and processing is carried out by automated means, insofar as processing is not necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.In exercising the right to data portability pursuant to paragraph Article 20(1) GDPR, the data subject also has the right to have the personal data transmitted directly from one controller to another, where technically feasible, provided the rights and freedoms of others are not adversely affect.To assert the right to data portability, the data subject may contact the Data Protection Officer appointed by EMUK GmbH & Co. KG or another employee at any time.
- g) Right to object
Every data subject for whom personal data are processed has the right granted by European directives and regulations to object, on grounds relating to their particular situation, at any time to processing of personal data concerning the data subject which is based on point (e) or (f) of Article 6(1) GDPR, including profiling based on those provisions.In case of such an objection, EMUK GmbH & Co. KG shall no longer process the personal data unless we can demonstrate compelling legitimate grounds for processing which override the interests, rights and freedoms of the data subject, or in case of processing for the establishment, exercise or defence of legal claims.Where personal data are processed by EMUK GmbH & Co. KG for direct marketing purposes, the data subject has the right to object at any time to the processing of personal data for such marketing, which includes profiling to the extent that it is related to such direct marketing. Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed by EMUK GmbH & Co. KG for such purposes.Where personal data are processed by EMUK GmbH & Co. KG for scientific or historical research purposes or statistical purposes pursuant to Article 89(1) GDPR, the data subject, on grounds relating to their particular situation, has the right to object to the processing of personal data concerning the data subject, unless such processing is necessary for the performance of a task carried out for reasons of public interest.
To assert the right to object, the data subject may contact the Data Protection Officer of EMUK GmbH & Co. KG or another employee directly. In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise their right to object by automated means using technical specifications.
- h) Automated individual decision-making, including profiling
Every data subject for whom personal data are processed has the right granted by European directives and regulations not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning the data subject or similarly significantly affects them, unless the decision (1) is necessary for entering into, or performance of, a contract between the data subject and a data controller or (2) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests or (3) is based on the data subject’s explicit consent.If the decision (1) is necessary for entering into, or performance of, a contract between the data subject and a data controller or (2) is based on the data subject’s explicit consent, EMUK GmbH & Co. KG shall implement suitable measures to safeguard the data subject’s rights and freedoms and legitimate interests, at least the right to obtain human intervention on the part of the controller, to express their point of view and to contest the decision.If the data subject wants to assert their rights related to automated decision-making, they may contact our Data Protection Officer or another employee of the controller at any time.
- i) Right to revoke the data protection declaration of consent
Every data subject has the right granted by European directives and regulations to withdraw their consent for the processing of personal data at any time.If the data subject wants to assert their right to withdraw consent, they may contact our Data Protection Officer or another employee of the controller at any time.
9. Data protection for applications and application processesThe controller collects the personal data of applicants for the purpose of conducting the application process. Processing may also be carried out electronically. This is the case in particular when an applicant submits application documents to the controller using electronic means, such as e-mail or an online form on the website. When the controller concludes an employment contract with an applicant, the transmitted data are stored for the purpose of the employment relationship in compliance with the applicable legal regulations. If the controller does not conclude an employment contract with the applicant, the application documents are automatically erased two months after a notice of rejection is issued, unless erasure conflicts with other legitimate interests of the controller. In this context, an example of another legitimate interest is the burden of proof in proceedings under the German General Equal Treatment Act (AGG).
General Terms and Conditions of Delivery and Service of EMUK GmbH & Co. KG, Lahr, Germany B2C
1.1 These General Terms and Conditions of Sale (hereinafter referred to as "GTC") shall apply to all contracts concluded between us and the customer (hereinafter referred to as “Customer”) via the webshop https://www.emuk.com/cms-de/Shop.aspx (hereinafter referred to as "Web-shop") operated by EMUK GmbH + Co KG, Raiffeisenstr. 39, 77933 Lahr, Germany (herein-after referred to as "we" or "us"). The GTC shall apply in the version valid at the time of the order. By placing an order in the Webshop, the Customer accepts these GTC.
1.2 Orders placed in this Webshop can be delivered within the European Union and to Switzer-land. Deliveries to other countries are only possible upon prior request.
2. Conclusion of Contract
2.1 The presentation of goods in the Webshop does not constitute a legally binding offer, but is an invitation to the Customer to submit an offer.
2.2 By clicking on the button "buy now", the Customer, after having gone through the ordering process, makes a binding offer for the conclusion of a contract with regard to the orders in the electronic shopping basket. Before submitting the order, the Customer can view and change the data regarding the order at any time. The placement of an order is only possible if the Customer data requested in the Webshop are fully provided.
2.3 We shall confirm receipt of the order in the Webshop without delay, first on screen and then also by e-mail (acknowledgement of receipt). This acknowledgement of receipt does not con-stitute an acceptance of the purchase offer; a contract is not yet concluded by the acknowl-edgement of receipt.
2.4 A purchase contract for the goods shall only be concluded after we have expressly declared acceptance of the purchase offer (order confirmation) or – without the need of a prior express declaration of acceptance – after dispatch the goods to the Customer.
2.5 After conclusion of the contract, the content of the purchase contract on the basis of these GTC shall be sent to the Customer by e-mail and stored electronically by us in compliance with the applicable data protection regulations. The Customer may view and save these GTC via a link in the Webshop before placing its order and via a link in the acknowledgement of receipt. Deviating or supplementary terms and conditions of the Customer shall not become part of the contract unless we expressly agree to their validity in writing. Any ancillary agree-ments require our written confirmation to be legally effective and binding.
2.6 All information about our goods in offers, catalogues, brochures, advertising material, web-sites, illustrations, drawings, on data carriers etc. are only indicative unless they are expressly confirmed as binding.
The prices stated in the Webshop are EURO prices including the statutory sales tax and other price components, but excluding the respective shipping costs, unless expressly stated other-wise. The individual prices, the shipping costs as well as the total order price shall be indicated to the Customer in the Webshop during the ordering process.
4. Terms of Payment
4.1 The purchase price shall become due upon conclusion of the contract.
4.2 Payment shall be made by PayPal, credit card, invoice or prepayment/bank transfer. The se-lection of the respective available payment methods is at our discretion. In particular, we re-serve the right to offer the Customer only selected payment methods.
4.3 If the Customer is in default of payment, we shall be entitled to claim the damage actually incurred by us as a result, but at least the statutory default interest. For each reminder sent to the Customer after the default has occurred, the Customer shall be charged a reminder fee of EUR 2.50, unless a lower or higher damage is proven in the individual case.
4.4 The Customer may only offset or assert a right of retention against claims that are undisputed or have been legally established or are in a reciprocal relationship with our claim.
4.5 We shall be entitled to withdraw from the contract in accordance with the statutory provisions in the event of breach of contract by the Customer, in particular in the event of default in pay-ment, and to demand the return of the goods from the Customer. This shall not affect our right to claim damages for non-performance.
5. Delivery Periods
5.1 The delivery of ordered goods is subject to the availability of the goods. If the goods are not available at the time of the order, the Customer will receive a notification of the expected de-livery date instead of the order confirmation and the order will be entered by us. As soon as the goods are in stock, they will be dispatched to the Customer without any further notification to the Customer. In the event of permanent unavailability, in particular because a limited stock of goods (e.g. special edition), the Customer will be informed by us immediately. Payments already made will be refunded immediately.
5.2 We shall not be liable for impossibility of delivery or delays in delivery if these are caused by force majeure (e.g. natural disasters, war, riots, epidemics, pandemics, explosions) or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of
all kinds, transport delays, strikes, lawful lock-outs, shortages of labor, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the failure of our suppliers to deliver or to deliver correctly or on time) for which we are not responsible. If such events make it considerably more difficult or impossible for us to deliver or perform and it is not foreseeable that we will be able to perform the contract within a reasonable period of time – at the latest within 2 months – we and the Customer may withdraw from the contract; we will immediately refund any consideration already paid by the Customer. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period.
5.3 In the event of a delay in delivery for which we are responsible, the Customer may set us a reasonable period of grace, which must be in text form in order to be effective. After the un-successful expiry of this period of grace, the Customer may either declare withdrawal in written form, or demand compensation for damages due to delay and/or non-fulfilment.
5.4 In case that not all products ordered by the Customer are in stock, we are entitled to make partial deliveries, insofar as this is reasonable for the Customer. Any deadlines shall com-mence upon receipt of the last partial delivery.
6. Shipping and Transfer of Risk
The goods shall be delivered to the delivery address specified by the Customer using custom-ary shipping methods (post, delivery services, etc.). The risk of loss of or damage to the goods shall only pass to the Customer as soon as the goods have been delivered to the Customer or to a third party designated by the Customer and different from the carrier.
7. Claims for Defects
The Customer's claims for defects shall be governed by the statutory provisions (Section 433 et seq. of the German Civil Code (Bürgerliches Gesetzbuch “BGB”)).
8.1 We shall be liable in accordance with the statutory provisions for any breach of material con-tractual obligations for which we are responsible, i.e. contractual obligations the fulfilment of which gives the contract its character and which make its proper performance possible in the first place. We shall only be liable for all other breaches of duty if damage has been caused intentionally or by gross negligence by us or one of our legal representatives, employees or other vicarious agents.
8.2 Insofar as we have not acted intentionally, we shall only be liable for the typically occurring foreseeable damage.
8.3 Liability under the Product Liability Act remains unaffected; this also applies to liability for cul-pable injury to life, limb or health. If we assume a guarantee, we shall be liable in accordance with the statutory provisions.
8.4 Unless otherwise stipulated above, claims for damages against us for breach of duty are ex-cluded.
8.5 Insofar as our liability is excluded and limited, this shall also apply to the personal liability of our legal representatives, employees and other vicarious agents.
9. Retention of Title
9.1 The sold goods shall remain our property until they are fully paid (“Reserved Goods”).
9.2 The Customer must notify us immediately in text form of any seizure or other interference by third parties regarding the Reserved Goods
9.3 In the event the Customer breaches the contract intentionally or negligently, in particular in the event of default in payment and imminent suspension of payments, as well as in the event of compulsory enforcement measures and unsatisfactory information about the solvency and/or financial situation of the Customer, we shall be entitled, after setting a reasonable deadline, to take back the Reserved Goods at the Customer’s expense; the Customer shall be obliged to surrender the goods. Our taking back of the Reserved Goods shall always constitute a with-drawal from the contract.
10. Intellectual Property
Insofar as the design of our products is protected by protectable, registered or unregistered rights, the presentations of the products in catalogues, brochures, sent illustrations, drawings, sketches, on the Internet, on data carriers and other documents is our intellectual property. All the aforementioned documents and other documents made available in the course of business may not be used for any other purpose, in particular for advertising purposes, or reproduced and/or made available to third parties without our written consent. They shall be surrendered immediately upon request.
11. Consumers’ Right of Withdrawal
Consumers have a statutory right of revocation in the case of distance contracts. A consumer is any any natural person who enters into a legal transaction for purposes that can predominantly be attributed neither to his/her commercial nor to his/Her independent professional activity (Sec. 13 German Civil Code). We inform you about the legal right of withdrawal in our with-drawal policy, which is linked here.
12. Withdrawal from the Contract and Return of Goods
If the Customer is not entitled to withdraw from the contract on the basis of our terms and conditions or statutory provisions, a withdrawal or partial withdrawal from the contract declared by the Customer for other reasons requires our express prior written consent in order to be effective.
13. Place of Jurisdiction
Insofar as the Customer had his domicile or usual place of residence in Germany at the time of conclusion of the contract and has either moved from Germany at the time of initiating the legal proceedings by us or his domicile or usual place of residence is unknown at this time, the place of jurisdiction for all disputes shall be the registered office of our company.
14. Applicable Law
German law shall apply under exclusion of the UN Convention on Contracts for the Interna-tional Sale of Goods (CISG). If the Customer has placed the order as a consumer and has his usual place of residence in a country other than Germany at the time of the order, German law shall also apply, whereby mandatory consumer protection provisions of the country in which the consumer has his usual place of residence shall remain unaffected.
15. Alternative Dispute Resolution
Online dispute resolution (ODR) pursuant to Art. 14 (1) ODR Regulation: The EU Commission provides a platform for online dispute resolution (ODR), which is available under http://ec.eu-ropa.eu/consumers/odr/. This platform gives consumers the opportunity to resolve disputes in connection with their online order without involving a court.
We will endeavor to resolve any disagreements amicably. Beyond that, we are not willing or obliged to participate in dispute resolution proceedings before a consumer arbitration board.
General Terms and Conditions of Delivery and Service of EMUK GmbH & Co. KG, Lahr, Germany B2B
1. Conclusion of Contract
1.1 Unless otherwise stated, our offers are non-binding; a contract shall only be concluded upon the issue of our order confirmation in writing (incl. e-mail, fax) or upon delivery. With regard to the content of the contract, in particular with regard to the scope of services, only our order confirmation shall be decisive. Amendments and supplements to the contract require our written confirmation (incl. e-mail, fax).
1.2 We reserve the right to make changes to illustrations, descriptions, drawings, weights, dimensions and other information contained in our brochures, price lists, catalogs and our offer, insofar as the delivery or service item has not changed significantly or has improved its quality and the changes or deviations are reasonably acceptable for the Customer.
2. Prices and Terms of Payment
2.1 Our prices for deliveries are ex works plus transport insurance, packaging, shipping, statutory value added tax, and, in the case of export deliveries, plus customs duties, fees and other public charges. Service and repair work shall be invoiced in accordance with the price list valid at the time of performance.
2.2 Payment shall be due without any deduction upon delivery or – in case of acceptance – upon acceptance. The Customer shall be in default of payment 30 calendar days after delivery and invoicing without necessity of a reminder. The date of receipt of payment shall be decisive. The Customer shall only be entitled to any discounts – as far as granted by us – subject to timely payment.
2.3 In the event that we must consider our claims to be at risk due to a significant deterioration in the customer's financial circumstances, we shall be entitled to withdraw from the contract. If the Customer is in default of payment for more than 8 weeks, we shall be entitled to demand immediate payment of our total claim. In the aforementioned cases, we are further entitled to demand advance payment or a security deposit for the performance of all of the Customer's orders.
2.4 Offsetting counterclaims of the Cusomer or the retention of payments due to such claims shall only be permitted if the counterclaims are undisputed or have become final and absolute, or in the case of reciprocity of these claims with our claims.
2.5 If delivery is made later than 6 months after conclusion of the contract for reasons for which we are not responsible, we reserve the right to increase the contractually agreed price (in each case after deduction of an agreed percentage or fixed discount if any) at any time before shipment of the goods by written notice (incl. e-mail, fax) to the extent that (i) our costs increase due to fluctuations in foreign exchange, currency regulations, changes in customs duties and fees, increases in raw material prices, personnel or transportation costs and (ii) such cost increases are beyond our reasonable control.
3. Terms of Delivery and Delay, Documentation of Transport Damage, Transfer of Risk
3.1 Delivery dates shall be based on the agreements made between the parties in the individual case. A delivery date shall be met if the delivery item is handed over for transport or if the delivery items are ready for shipment on the delivery date and the readiness for shipment has been notified to the Customer. The agreed delivery period shall be extended accordingly if the Customer causes delays of necessary cooperation or if he requests subsequent amendments to the contract.
3.2 Unless otherwise agreed, all deliveries shall be ex works (EXW, Incoterms 2020). If requested by the Customer, the goods may be delivered to another destination at the Customer's expense (shipment to a place other than the place of performance).
3.3 The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer as soon as the goods have been handed over for transport or readiness for dispatch has been notified and the Customer does not collect the goods immediately. This shall apply irrespective of whether the shipment is made from the place of performance (in particular if delivery is made from the premises of a third party (so-called drop shipment)) and who bears the transport costs.
3.4 In the event of externally visible damage to the goods or packaging (especially transportation damage), the Customer shall ensure that the damage is documented (in particular by taking pictures of the damaged packaging or good) and that the damage is noted on the receipt of the freight service provider. Sec. 5.1 remains unaffected.
3.5 Partial deliveries are permissible if the partial delivery can be used by the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur significant additional expenses or costs as a result of the partial delivery.
3.6 We are not liable for impossibility of delivery or delays in delivery, as far as they are due to force majeure (e.g. natural disasters, war, riots, epidemics, pandemics) or other unforeseeable events at the time of conclusion of the contract (e.g. breakdowns of all kinds (incl. unavailability of the IT system e.g. due to hacker attacks, viruses), delays in transport, strikes, legitimate lockouts, lack of manpower, energy or raw materials, difficulties in obtaining necessary regulatory approvals (incl. licenses), regulatory action or the lack of incorrect or untimely supply from upstream suppliers) which we are not responsible for. If such events make the delivery or service significantly more difficult or impossible for us and cannot be foreseen that we can provide our services within a reasonable period – at the latest within 2 months – we are entitled to withdraw from the contract; in this case, we will immediately refund any payment already made by the Customer. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period.
3.7 If the Customer is negligently or intentionally in default of acceptance of the delivered goods or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to claim liquidated damages for the resulting damage, including storage costs, additional routes or partial deliveries. With regard to any storage costs, we shall be entitled to receive a lump-sum compensation for storage costs in the amount of 0.5% of the invoice amount for the goods stored per completed week up to a maximum of 5% of the invoice amount, starting with the delivery date or - if there is no delivery date – with the notification that the goods are ready for dispatch. The Customer reserves the right to prove lower damages. We reserve the right to assert demonstrably higher damages. Our statutory claims and rights shall remain unaffected. The amounts paid by Customer as set forth above, shall, however, be deducted from any further claims for damages.
4. Retention of Title
4.1 We reserve title to all deliveries (“Reserved Goods”) until full fulfilment of all current and future claims from the entire business relationship with the Customer (current account reservation). The retention of title shall also apply to replacement or exchange parts, unless those parts become essential parts of another good.
4.2 The Customer shall be obliged to store and mark the Reserved Goods separately. He shall insure the Reserved Goods against fire, water damage, burglary and theft at his own expense. Upon our request, the insurance policy shall be provided to us. The Customer shall assign to us in advance the claims against the insurance company. We hereby accept said assignment.
4.3 The Customer shall notify us immediately of any dispositions of the Reserved Goods by third parties (attachment, seizure, etc.). The Customer shall bear all costs incurred in order to stop the attachment and to recover the Reserved Goods.
4.4 The Customer shall be entitled to sell the Reserved Goods in the ordinary course of business as long as the Customer is not in default of payment. Pledges or transfers by way of security are not permitted. During the period of retention of title, the Customer is not entitled to pledge the Reserved Goods or assign them as security. The Customer hereby already assigns the accounts receivable that arise out of the re-sale or for any other legal reason (in particular but without limitation any transfer of title to the end customer, any insurance case or any tortious act) concerning the Reserved Goods to us in full as security – in the case of co-ownership of the Reserved Goods pro rata according to the co-ownership share, without the need for any special declaration. We accept said assignment. We revocably authorize the Customer to collect the claims assigned to us for our account in his own name. Upon our request, the Customer shall disclose the assignment and provide us with the information and documents required for the collection of the claim.
4.5 If the Reserved Goods are combined with other items, the retained title to the newly created item shall continue. We shall thereby acquire a co-ownership share in the ratio of the value of the Reserved Goods (invoice value) to the value of the other combined items. The Customer shall store the new item free of charge with regard to our co-ownership share. If the Reserved Goods are resold as a component of the new item, the advance assignment as stated in Sec. 4.4 shall apply only to the amount of the invoice value of the Reserved Goods.
4.6 In the event of a breach of contract by the Customer, in particular in the event of default in payment, we shall be entitled, after setting a reasonable deadline, to demand the return of the Reserved Goods at the Customer's expense. The Customer shall be obliged to return the Reserved Goods. Our request to return the Reserved Goods shall only be considered as withdrawal from the contract if we have declared the withdrawal. Subject to a prior notification, we shall be entitled to use the Reserved Goods (e.g.to sale them) and to offset the proceeds thereof against the outstanding payments.
4.7 If the law of the country where the delivered items are located does not allow for retention of title or only in a restricted format, we shall reserve the right to retain other rights to the Reserved Goods. The Customer shall cooperate with all required measures (e.g. registration) to realize the retention of title or other rights in place of retention of title and to protect these rights.
5. Claims for Defects
5.1 As a matter of principle, we shall not be liable for defects of which the Customer is aware at the time of conclusion of the contract or is not aware due to gross negligence (Section 442 German Civil Code). Furthermore, the customer's claims for defects are subject to the condition that he has complied with his statutory obligations to examine the goods and to give notice of defects (Sections 377, 381 of the German Commercial Code). If a defect becomes apparent upon delivery, inspection or at a later point in time, the Customer shall immediately give notice thereof in text form. In any case, the Customer shall give notice of obvious defects in text form within three (3) working days after delivery (i.e. receipt of the goods), and of defects not apparent upon inspection within the same period after discovery of the defect. If the Customer fails to make the proper inspection and/or notification of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.
5.2 If the deliveries or services prove to be defective, we shall be entitled to remedy the defects at our own discretion by rectifying the defect or providing replacement or respectively by providing a defect free services (supplementary performance). In the event of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. We shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, labor and material costs; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
5.3 We shall be entitled to make the subsequent performance owed by us dependent on the Customer paying the purchase price due. However, the Customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
5.4 If the defect is based on a defective third-party product, we shall be entitled to assign our warranty claims against our supplier to the Customer. In this case, the Customer can only assert warranty claims against us if the judicial enforcement of the aforementioned claims against the supplier or manufacturer of the defective third-party product was unsuccessful or is – for example, due to insolvency – hopeless.
5.5 For defects of used delivery items which we sell as "repaired" or "used" and not as "refurbished" or "as new" items, we shall be liable only in accordance with Sec. 6. In the case of defects of used but refurbished or as new items, we shall only be obliged to make one attempt to remedy the defect. If the removal of the defect fails, the rights of the Customer are limited to a reduction of the purchase price. The liability according to Sec. 6 remains unaffected. Apart from that, the Customer shall not be entitled to any claims in case of defects of used delivery items, in deviation from Clauses 5.2 to 5.4.
5.6 The Customer shall have a claim for damages or reimbursement of futile expenses in the event of defects only in accordance with the following Sec. 6.
6. Liability, Statute of Limitations
6.1 We shall be liable in accordance with the statutory provisions for any negligent or intentional breach of material contractual obligations by us, i.e. contractual obligations, the performance of which characterize the contract, which are necessary for its proper performance and which the contracting party may regularly rely on being complied with. Insofar as we did not act gross negligently or intentionally, we shall only liable for typically occurring foreseeable damage.
6.2 In all other cases, we shall be liable if damage has been caused intentionally or by gross negligence by one of our legal representatives, an employee or another vicarious agent.
6.3 Liability under the Product Liability Act remains unaffected; this also applies to liability for negligent or intentional injury to life, body or health. When assuming a guarantee, we shall be liable in accordance with the statutory provisions. Otherwise, claims for damages against us for breaches of duty shall be excluded.
6.4 Claims for damages according to the above Sec. 6.1 to 6.3 expire within the statutory periods.
6.5 The limitation period for claims for defects according to Sec. 438 para 1 No. 3 German Civil Code (BGB) is – except for intent and subject to Sec. 6.4 – 12 months and starts from delivery or, if acceptance is required, from acceptance.
6.6 A claim for damages for breach of the obligation to supplementary performance according to Sec. 437 para. 1, Sec. 439 German Civil Code (BGB) exists only if during the 12-month limitation period acc. to Sec. 6.5 both (i) the Customer demands supplementary performance, and (ii) we have violated our supplementary performance obligation.
6.7 The warranty shall not apply if the Customer modifies the delivery item, or has it modified by a third party without our prior written consent and if such modification makes it impossible or unreasonably difficult to remedy the defect. In any case, the Customer shall bear the additional costs of remedying the defect resulting from the modification.
7. Drawings, Constructions and other Documents, Trademarks and Intellectual Property Rights
7.1 Drawings, designs, calculations and other documents such as samples and models provided by us shall remain our property. They may not be made accessible to third parties or duplicated or used for other purposes without our prior written consent. They shall be returned to us after execution of the order or upon our request.
7.2 In the case of deliveries based on drawings, models or information provided by the Customer, the Customer shall hold us harmless and indemnify us against all claims of third parties for intellectual property rights. In the event of breach of contract by the Customer, his intellectual property rights shall not prevent us from exploiting the goods.
7.3 The right to use trademarks and other intellectual property rights of EMUK GmbH & Co. KG remains only with us. In particular, the use of our domains or logos requires our prior written consent and is otherwise prohibited. The aforementioned restrictions do not apply insofar as the use is permitted by law.
8. Information and Technical Advice
9. Final Provisions
9.1 The place of performance for all obligations of both contracting parties shall be Lahr/Schwarzwald, Germany.
9.2 This contract shall be subject to the laws of the Federal Republic of Germany without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.
9.3 If the Customer is a merchant (Sec. 1 German Commercial Code), a legal person under public law or special assets (Sondervermögen) under public law, or has the Customer no general venue in Germany, the sole place of jurisdiction for all disputes derived directly or indirectly from the contractual relationship between the parties shall be Lahr/Schwarzwald, Germany. We are also entitled to assert our claims at the general place of jurisdiction of the Customer.
I. General provisions
EMUK GmbH & Co. KG grants this manufacturer's warranty to consumers for EMUK products in addition to the statutory warranty to which the consumer is entitled against the seller. It is valid without prejudice to mandatory statutory liability regulations, for example, according to the German Product Liability Act (ProdHG), in cases of intent or gross negligence, the loss of life, physical injury or the impairment of health by EMUK or its vicarious agents.
“Consumer” in terms of this manufacturer's warranty means any natural person who is the owner of the product and did not acquire it for the purpose of resale. “First customer” means the consumer who first acquired the product from EMUK, a dealer or another natural or legal person who resells the product in the course of their commercial or independent occupational activity.
II. Warranty protection
EMUK guarantees consumers that its products are free of material, manufacturing and design defects. Here the state of science and technology at the time of manufacturing is relevant. The product must have already exhibited the defect that caused the damage at that time. Compensation claims for consequential damage or based on product liability exist only according to the provisions of applicable mandatory legal regulations.
This warranty applies for a term of 5 years from the date of purchase by the first customer. The warranty term is not extended in case of performance under this warranty, in particular not in case of repair or replacement. The warranty term also does not restart in these cases.
III. Written reporting of defects
The consumer can only assert the rights under this warranty by reporting defects in writing within the warranty term to EMUK or the dealer from whom the first customer purchased the product. Furthermore, the consumer has to report the defect within two months after it is discovered or should have been discovered. It is up to the consumer to prove that the warranty term has not expired (for example, by submitting the first customer's proof of purchase). Where applicable, EMUK has the right to establish the start of the warranty term according to the manufacturing date.
IV. Performance under the warranty
EMUK is free to repair or replace the product or to reimburse the consumer for the purchase price.
As a rule, the consumer sends in the defective product and EMUK bears the incurred costs in warranty cases for replacement parts, repairs and own labour costs as well as possible outlays for transportation or shipment of the product.
In case of replacement, the old product is replaced free of charge with a new product of the same kind, quality and type. If the product in question is no longer manufactured when the defect is reported, EMUK has the right to deliver a similar product.
V. Prerequisites and exclusions
Proper installation and maintenance according to the operating manual and the recognised standards of good practice as well as observing the operating manual and using the EMUK products according to the technical instructions are prerequisites for the effectiveness of this warranty. Operating and installation manuals are included with every product, and are available under www.emuk.com.
Warranty claims do not extend to:
Wear parts such as sponge rubber, due to wear
Fragile parts such as glass, due to breakage
Minor deviations of the EMUK products from the specifications that do not affect the product's serviceability
Product defects caused by installation, transportation and trial operation of the purchase object
Damage caused by the defective EMUK product
Exhibition products and similar
The validity of the warranty ends in case of:
Failure to comply with the installation and user manuals provided or available under www.emuk.com
Repairs by other than specialised personnel
Product damage caused by the seller or third parties
Damage caused by normal wear or intent – in case of damage due to negligence, contributory negligence is amicably taken into account
Improper installation, storage or use
Products that have been or are used contrary to their intended purpose
Damage due to force majeure or natural disasters
VI. Non-warranty cases
If a product defect turns out not to be covered by this warranty, the costs incurred for the shipment and transportation of the product are borne by the consumer. In addition, the consumer shall bear the costs incurred for the inspection of the product, including possible labour costs. If the consumer, after being informed that the warranty does not apply and about the expected costs to be incurred for repair, wishes to have the product repaired, the consumer shall also bear the costs for replacement parts and the labour costs.
If the product did not already exhibit the defect at the time of delivery, EMUK decides on a case-by-case basis whether the defect will be rectified on a goodwill basis. The consumer has no legal right to the rectification of defects in this case.
VII. Legal rights
Aside from the rights under the warranty, the consumer has statutory rights. These rights, which may be more favourable for the consumer, are not limited by the warranty. Furthermore, the warranty does not affect the rights that the first customer and where applicable the consumer has against the seller from whom the first customer acquired the product.
VIII. Place of fulfilment, jurisdiction and applicable law
This warranty is subject to the laws of the Federal Republic of Germany; the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is excluded. The place of fulfilment for the obligations under this warranty is Emmendingen, Germany. To the extent permitted, the jurisdiction is Freiburg, Germany.
Your long text for customer information.