General Trade Terms of Harald Fischer Verlag GmbH
1. Scope of Application
1.1. All goods and services of Harald Fischer Verlag GmbH are subject to the following General Terms of Trade of Harald Fischer Verlag GmbH. Terms and conditions different from those specified herein are only effective if expressly approved by Harald Fischer Verlag GmbH. Modifications of the rules, including confirmation clauses, as well as agreements on delivery times, firm or without engagement, require documented confirmation by Harald Fischer Verlag GmbH. These General Terms of Trade also apply to future business relations, even if they are not expressly agreed upon in advance.
1.2. «End User» as per these General Terms of Trade is a natural person who places orders with Harald Fischer Verlag GmbH for purposes which are not associated with the person's commercial or free-lance activities. «Tradesman» as per these General Terms of Trade is a natural or legal person or a personal company with legal status who buys goods from Harald Fischer Verlag GmbH in pursuit of its commercial or free-lance activities.
2. Offers, Conclusion of a Contract, Performance, Delivery Obligations
2.1. Offers on the website www.haraldfischerverlag.de and on all additional websites of Harald Fischer Verlag GmbH are without engagement, unless otherwise specifically agreed as binding. Orders are only considered to be firm if acknowledged by Harald Fischer Verlag GmbH and carried out by shipment of the goods. Orally agreed collateral arrangements are not effective without a written confirmation.
2.2. The contract is created by the customer calling, e-mailing or sending an order by mail or fax or filling out and confirming the form on the web and by Harald Fischer Verlag GmbH acknowledging and proceeding with the order.
2.3. If ordered goods are not available, Harald Fischer Verlag GmbH is entitled to withdraw from the contract. Harald Fischer Verlag GmbH will notify the customer immediately of such unavailability and reimburse to the customer any costs charged.
3.1. Any times quoted for dispatch or deliveries are estimates only and shall only be binding upon Harald Fischer Verlag GmbH if confirmed in writing. Meeting an estimated delivery date is always dependant on timely receiving subsupplies. If a subsupplier cannot deliver for reasons beyond Harald Fischer Verlag's responsibility or if the delivery is delayed or impeded by force majeure or other events for which Harald Fischer Verlag GmbH cannot be held responsible, Harald Fischer Verlag GmbH is entitled to withdraw from the contract. In such case the customer has no right to claim damages. Such events include: fire, flood, labor disputes, operating problems, strike, alterations of licenses and laws by authorities, which are not part of the normal operating risks. The customer will be notified immediately of such a default in delivery.
3.2. Partial deliveries can be made, unless the customer declines them or it is unreasonable for him to accept them. If partial deliveries are made, Harald Fischer Verlag GmbH will charge packing and shipping costs only once.
4. Shipment / Passing of Risks / Failure to accept goods
4.1. The goods are shipped ex stock of Harald Fischer Verlag GmbH in Erlangen, Germany.
4.2. The risk of loss or damages will in all cases pass to the customer as soon as the shipping goods leave the warehouse or the office of Harald Fischer Verlag GmbH. The same applies to deliveries free destination.
4.3. If a customer does not accept the sold goods, Harald Fischer Verlag GmbH is entitled to demand acceptance or, at its option, claim indemnification.
5. Prices and Conditions of payment
5.1. List prices quoted on the web sides are valid at the time of ordering.
5.2. The prices for End Users are to be understood for deliveries ex company site of Harald Fischer Verlag GmbH, excluding costs of packaging and freight. All prices are in Euros and subject to change without notice.
5.3. Harald Fischer Verlag GmbH is not obligated to accept payment by cheques or drafts. If accepted, this payment shall constitute settlement of the account. Charges for withdrawal and discounting as well as taxes on drafts shall be for customer's account. Harald Fischer Verlag GmbH does not warrant the punctual presentation, notification of protest and return of a draft in case of dishonor.
5.4. Harald Fischer Verlag GmbH delivers against advance payment or credit card. Supplies to companies and public authorities will be invoiced according to prior agreement. Advance payment or settlement by credit card will be duly considered at the time of invoicing.
5.5. On all invoices not paid when due, Harald Fischer Verlag GmbH shall charge interest at the rate of 5 percent over the prevailing rate of discount of the German Federal Bank. The right to assert further claims arising from delays is reserved. In the event of a payment in arrears, all customer related accounts receivable of Harald Fischer Verlag GmbH will be due for immediate settlement. The same applies in the event of a deterioration of customers assets and of payment that the customer suspends. Interest charges for default payments will accrue without notice. If Harald Fischer Verlag GmbH claims for damage caused by breach of a purchase contract, an indemnification equaling a flat rate of 15 percent of the agreed price will be chargeable, unless there is provided evidence of a considerably smaller damage. The right to assert a claim for actual damage in a larger amount is reserved.
6. Reservation of Proprietary Rights
6.1. All deliveries and services are subject to a reservation of all proprietary rights. Harald Fischer Verlag GmbH continues to own all goods delivered until full payment of the purchase price is received or all cheques and drafts are honored and all other demands are settled in accordance with the agreement concluded between Harald Fischer Verlag GmbH and the customer.
6.2. Exercising proprietary rights and claiming restitution are not considered to constitute a withdrawal from the contract. The customer hereby assigns to Harald Fischer Verlag GmbH all accounts receivable resulting from reselling the goods. The customer may, subject to revocation by Harald Fischer Verlag GmbH, collect these receivables. On demand of Harald Fischer Verlag GmbH, the customer must disclose the assigned accounts receivables and their debtors. Harald Fischer Verlag GmbH may give notice of the cession to the debtors of the customer. Harald Fischer Verlag GmbH has the option to allocate payments to older overdue receivables. Payments received may be set off against cost of legal actions - in particular hortatory proceedings in the first place, secondly against interest and finally against the main debt.
6.3. The customer is entitled to resell the goods subject to the condition of complying with the rules for transactions in the ordinary course of business. The Customer is not allowed to dispose of the goods by protective conveyance or by pawning. Harald Fischer Verlag GmbH is to be notified immediately of any dispositions by third parties, including in particular any intended pawnings and cessions, and all documents required for intervention must be submitted without delay.
7. Right of Restitution
7.1. According to «German Bürgerliches Gesetzbuch» Harald Fischer Verlag GmbH grants the End User the right of restitution in a transaction of distance selling. The return and re-taking of the goods must be asserted within two weeks. The designated time of two weeks commences when the conclusion of the business has been declared, but not before receipt of the goods.
7.2. The right of restitution does not apply for delivery of software, if the data carrier delivered has been unsealed by the End User. Tearing the cellophane wrapping of the goods is considered to constitute unsealing.
7.3. The goods must be in a pristine state (complete and without damage). If the End User is responsible for damage, loss or other defects, he must compensate Harald Fischer Verlag GmbH for the reduced or full value of the goods.
7.4. The claim for restitution and the return shipment of the goods must be addressed to : Harald Fischer Verlag GmbH, Theaterplatz 31, 91054 Erlangen, Germany.
7.5. The Right of Restitution is not applicable to tradesmen. The right of withdrawal according to the «German Bürgerliches Gesetzbuch» is therefore ineffective.
8. Prohibition of Set-off and Rights of Retention
8.1. The customer is not entitled to set off his own claims against payments due by him unless the claim is supported by legal findings.
8.2. The customer is not entitled to retain payments because of complaints about quality unless these complaints are uncontested or supported by legal findings.
9. Protective Rights of Electronic Products
With the purchase of software the customer acquires a single right of use. Making copies is generally not permitted unless it is expressly agreed upon in individual cases. In addition, the customer must respect all intellectual property rights to the goods and in the event of resale must transmit the limitation of the right of use to his customers. The use on an internal network is only permitted on basis of a license which is expressly extended to this effect.
10. Warranty / Exclusion of Liability
10.1. In the case of quality claims the warranty is, at the option of Harald Fischer Verlag GmbH, limited to replacement deliveries or subsequent repair. Harald Fischer Verlag GmbH disclaims any express or implied warranties of fitness for a particular purpose and merchantability.
10.2. If repairs or replacement deliveries fail within an appropriate period of time, the customer has the choice to claim a reduction of the purchase price or to withdraw from the contract. The specified time will not be less than four weeks. Repairs or replacement deliveries are to be considered as unsuccessful if three attempts to correct the quality claims have failed.
10.3. Notice of apparent defects or transparent damages must be given in writing to Harald Fischer Verlag GmbH within ten (10) working days from receipt of the goods at the destination, in any case, however, before the goods are processed or assembled.
If no quality complaint is lodged within the specified period of time after receipt of the shipment, the goods are considered to be accepted by the customer and all warranty claims are barred. In order to give timely notice, timely dispatch of the notice is sufficient; the burden of proof lies with the customer. Tradesmen must check quality and completeness of the goods immediately after their receipt and must notify Harald Fischer Verlag GmbH of discovered defects without delay. The goods delivered are considered to be accepted if a tradesman fails to inspect the goods received and notify Harald Fischer Verlag GmbH about any defects within the specified time, unless the defect was concealed at the inspection. Notice of a defect found at a later date must also be given to Harald Fischer Verlag GmbH without delay. Otherwise these defective goods will be considered as accepted. The notification of quality complaints must be effected in writing and the defects must be described in detail.
10.4. The warranty does not cover defects if the goods are improperly treated, used, modified or worn out by overuse. The warranty is inapplicable if the customer or a third party install the contractual goods improperly or maintain them on their own, repair, modify or expose them to a working environment, which is not compatible the stated requirements for installation.
10.5. Claims of a customer for indemnification on the grounds of non fulfillment, faulty contract conclusion, breach of agreed collateral obligations, consequential damages from defects, damages resulting from unauthorized actions and other legal grounds are excluded, provided that Harald Fischer Verlag GmbH is liable for failing to provide guaranteed properties, for wilful action or for gross negligence.
11. Date Protection and Confidentiality
All personal data obtained will be treated confidentially. The data required for business transactions will be stored and will only be transmitted to associated companies and sub-suppliers for the purpose of processing the orders.
12.1. As far as the contracting partners communicate by e-mail, they acknowledge the unlimited effectiveness of the declaration of intention, transmitted by this means, in accordance with the following regulations.
12.2. In e-mail, normal statements may not be suppressed or circumvented by making them anonymously. That means that the statements must indicate the postal and e-mail addresses of the senders, the dates and hours of dispatch and, at their end, a repetition of the senders' names. An e-mail received in accordance with these regulations will be considered as being sent by the other partner provided that no proof to the contrary is furnished.
13. Cession of Claims
The customer is not permitted to assign or transfer rights and obligations arising from the contract.
14. Commercial and Legal Domicile
Commercial domicile for the performance of the contracting parties is the registered seat of Harald Fischer Verlag GmbH, Erlangen, Germany. The legal domicile is agreed to be Erlangen. The contracting parties agree, that all legal relations of this contract now and after fulfillment of the contract shall be construed and enforced in accordance with German law, excluding the UN purchase right.
15. Severability Clause
These terms and conditions constitute the entire agreement between Harald Fischer Verlag GmbH and its customers. If a part, provision, or clause of the terms and conditions of sale, or the application thereof to any person or circumstances, is held invalid, void or unenforceable, such holding shall not affect and shall leave valid all other parts, provisions, clauses or applications of the terms and conditions remaining, and to this end, the terms and conditions shall be treated as severable. The section titles used in these terms and conditions are purely for convenience and carry with them no legal or contractual effect.
Harald Fischer Verlag GmbH
POB 1565, 91005 Erlangen
Theaterplatz 31, 91054 Erlangen
Phone: +49 (0)9131 205620
Fax: +49 (0)9131 206028
Commercial Register Fürth/Bay. HRB 4051
USt.Id.Nr. DE 132499995
Dr. Harald Fischer
Dr. Claudia Schorcht