General Terms and Conditions of MB connect line Fernwartungssysteme GmbH
I) General Terms and Conditions
- These terms and conditions apply solely to all our deliveries made, services rendered and quotations submitted, even if not expressly stated in any negotiations. Our Terms of Sale apply to all the contracts made with companies, legal entities under public law and separate assets under public law and thus also to all future business relationships, even if not again expressly agreed upon. Our Terms of Sale are deemed to be accepted with acceptance of the goods at the latest. Any other terms and conditions of the purchaser contrary to or deviating from our terms and conditions will only be valid if expressly agreed to in writing.
We reserve the unlimited and unrestricted exploitation rights as to our copyright and right of ownership to all the quotations submitted, cost estimates, drawings, calculations, descriptions, models, tools and other documents and aids (referred to in the following as documents) made available to the purchaser. The documents may not be disclosed to or made available to any third party, may not be used or polycopied without the prior consent of the user, and they are to be returned on demand without delay in case the order will not be placed with the user. The clauses 1 and 2 also apply to the purchaser’s documents; however, they may be disclosed to and made available to any third parties who we permissibly transferred deliveries to.
- As for the standard software, the purchaser has the non-exclusive right to use with the performance characteristics agreed and unchanged on the devices agreed upon. The purchaser is allowed to back-up without any express consent.
- The purchaser’s claims resulting from the contractual relationship may not be assigned without our consent.
- These General Terms of Sale and Delivery only apply to contracts in the form of already existing permanent contractual obligations from 01.01.2003. Until then, our General Terms of Sale and Delivery existing up to now which will immediately be sent to you on request, will apply.
II) Offer and Conclusion of a Contract
- All our offers are without engagement. To be effective, all supply and performance contracts as well as any other agreements and legally relevant statements need to be confirmed by the user in writing or by telefax. This also applies to supplements and alterations. Our sales staff is not entitled to make any oral collateral agreements or give any warranties exceeding the contents of a written agreement.
- Delivery dates indicated are approximate and not binding, except for the fact that their binding nature has been expressly guaranteed. Indications as to the object of the delivery or the performance (e.g. weights, measures and technical characteristics) as well as representations thereof (e.g. drawings and illustrations) are only approximative. They are no warranted qualities, however only descriptions or markings of the delivery or the performance.
- Customary deviations and deviations made because of legal regulations or those representing technical improvements, are admissible unless they impair their contractual usability.
- Orders can be accepted by the user within 30 days.
III) Prices and Terms of Payment
- Our prices are ex works, packing not included. The legal value added tax valid on the day of invoicing will be added to these prices. Costs of a possibly agreed transport insurance or similar insurance – unless otherwise provided – of the purchasers.
- If, at a day of delivery, if this day is more than four months after concluding the contract, modifications of the basis the price was calculated (e.g. price increases of basic materials, wage increases) are made, we reserve the right to readjust the prices accordingly upon information of the purchaser.
- In case of part shipments, every shipment may be invoiced separately.
- Should no price agreement be made when concluding the contract, our prices valid on the day of delivery will apply.
- Should we have taken over installation or assembly and if not otherwise agreed upon, the purchaser will bear all incidental costs required besides the payment agreed upon, such as travel expenses, costs for transport of hand tools and personal luggage as well as travel allowances.
- Unless otherwise indicated in the order confirmation (if not, the invoice), the price will be due and payable and payment of the price be effected net (strictly net) until the 15th day of the month following the delivery ex works or ex warehouse or the completion notified.
- Should the purchaser be in default, we are entitled to invoice interests on arrears in the amount of 8 percentage points over the base lending rate. Moreover and any times we are allowed to establish proof of a higher loss of interest and to invoice it.
- Non-observance of our terms of payment, default or circumstances suitable to reduce the creditworthiness of the purchaser, will result in the fact that all our claims and demands will immediately become due and payable.
- The purchaser will only be entitled to rights to set-off if his counterclaims are legally valid, undisputed or are recognized by our company. The purchaser is entitled to exercise his right of retention only should his counterclaim be based on the same contractual relationship.
- We are under no obligation to discounting of bills and checks. Credit notes regarding this matter are always valid subject to their cashing in (for payment, not in satisfaction of a claim); they are made out with value of the day we are able to dispose of the equivalent. Bills of exchange will be credited by debiting the discount invoiced to us on rediscounting the bill, the stamp tax and bank charges as well as collecting charges, if any.
- We reserve the right to enforce any further contractual or legal titles in case of default.
IV) Delivery time and impediments to delivery
- Observance of terms for deliveries is subject to the fact that all of the documents to be provided by the purchaser, all of the approvals and releases required, in particular of plans are made available in time. Furthermore, it is subject to the fact that the terms of payment agreed upon as well as all and any other obligations (i.e. clarification of technical details) will be strictly adhered to. Should these prerequisites not be complied with in time, this will result in a reasonable extension of the terms; this is also true for the fact that non-observance of the terms is due to Force Majeure (e.g. mobilization, war) or similar occurrences (e.g. strike, lock-out).
- In case of a delay in delivery, the purchaser may rescind the contract after a reasonable period of extension granted has not been met; in case we are unable to render our service, he is entitled to exercise this right without any additional period. Delay in delivery equals impossibility if delivery is not effected for more than a month. Claims for damages – including possibly arising consequential damages – are excluded regardless of paragraph 3; this also applies to reimbursement of expenditure.
- Exclusion of liability provided for in paragraph 2 is not applicable in case an exclusion or a limitation of liability for damages resulting from the danger to life and limb, bodily injury or injury to health has been agreed, which are based on a wilful breach of duty or resulting from negligence on the part of the user, his legal representative or his vicarious agent. Besides, this also applies to the fact that we commit a culpable breach of any essential contractual obligation or any „cardinal obligation“; in this respect, liability is limited to the forseeable damage agreed in the contract. The foregoing also applies to reimbursement of expenditure.
- If a commercial transaction for delivery by a fixed date has been made, the limitations of liability agreed in paragraph 2 and 3 do not apply.
- If dispatch or delivery will be delayed on request of the purchaser by more than one month after notification that the consignment is ready for dispatch, we are entitled to charge storage fees in the amount of 0.5 % of the price of the objects of delivery per month, however, not more than a total of 5 %. The parties to the contract are free to furnish proof of higher or lower storage fees. Any further contractual or legal claims in case of default on the part of the purchaser remain unaffected.
V) Passing of risk
- The risk will be passed on to the purchaser as follows, even if delivery is effected carriage paid:
a) for deliveries without installation or assembly, when dispatched or collected. On request and at the expense of the purchaser, we are prepared to take out insurance for deliveries against the usual transport risks,
b) for deliveries with installation or assembly on the day of taking them over on their premises or, if agreed, after perfect test run.
- In case of a delay of dispatch, delivery, start-up, execution of installation or assembly, taking over on the premises or test run for reasons attributable to the purchaser,
- or if the purchaser is in default of acceptance for any other reasons, the risk will pass on to the purchaser.
- The purchaser may not refuse acceptance of deliveries for minor defects.
- Part shipments are admissible if reasonable for the purchaser.
VI ) Reservation of ownership
- We reserve the ownership of all the goods supplied until the purchaser has paid for all current and future claims arising from the business relationship. The reservation of ownership also includes replacement parts or spare parts such as motors etc., even if incorporated, as they thus will become non integral parts as per § 93 BGB (Civil Code).
- In case the purchaser behaves contrary to the terms of the contract, in particular concerning a delay in payment, we are entitled to take the goods back; in this case, the purchaser already now accepts taking-back. Taking-back of the goods constitutes rescission of the contract only if expressly stated by us. The costs incurred with us for taking-back the goods (transport costs in particular) will be at the purchaser’s expense.
Furthermore, we are entitled to prohibit the purchaser all and any reselling or processing of the goods supplied with reservation of ownership and to cancel direct debiting (VI, clause 5).
The purchaser may require delivery of the goods taken back without any express notice of withdrawal only upon payment of the purchase price and all other expenses in full.
- The purchaser is obliged to treat the goods with care (incl. required inspection and maintenance work).
- The purchaser is not entitled to pledge the goods delivered nor the claims taking their place, nor to transfer or assign the ownership as security on a debt.
In case of any attachments or other interventions of third parties, the purchaser has to notify us in writing without delay to enable us to institute legal proceedings as per § 771 ZPOO (Code of Civil Procedure).
Any costs in connection with this legal action remaining with us in spite of our prevailing over in legal proceedings as per § 771 ZPO (Code of Civil Procedure) are to be borne by the purchaser.
- The purchaser is entitled to resell, to process or to mix the object of sale in the proper course of business; however, he already now assigns to us all and any claims arising from the reselling, processing or mixing or from any other legal justification (in particular from insurances or actionable tort) in the amount of the total amount of the invoice agreed with us (incl. value added tax).
The purchaser will be authorized to collection of these outstanding accounts even after assignment, whereas our authorization to collect an outstanding account ourselves will remain unaffected.
We, however, commit ourselves not to collect an account as long as the purchaser meets his financial obligations arising from the proceeds collected, is not in default and no petition in bankcruptcy has been filed or suspension of payments has been made.
Should this be the case, however, the purchaser has to notify us on demand of the claims assigned and the names of the debtors, to give all necessary details concerning collection, to hand over the respective documents and to inform the debtor (third party) of the assignment.
We are entitled to cancel direct debiting in case the purchaser commits any breach of contract (in particular delay in payment).
- Reservation of ownership will also apply to the products created through processing, mixing or combination of our goods at their complete value, whereby these processes are made for our company so that we are deemed to be the manufacturer. If, in case of processing, mixing or combination with goods of third parties the right of ownership of these parties will remain unaffected, we will have a share in the ownership in relation to the objective values of these goods.
- The purchaser also assigns to us all and any claims for safeguarding our claims against himself arising from the connection of the goods delivered with a property against any third party.
- The collaterals we are entitled to are not included as far as the value of our collaterals exceeds the nominal value of the claims to be secured by 30 %.
- Assertion of the reservation of ownership in case of any delay in payment or risk as well as any attachment of the goods delivered through us are deemed rescission of the contract.
- The purchaser is obliged to examine and inspect the goods delivered immediately on receipt and to inform us without delay of any existing defects and deficiencies in writing (on the second workday following delivery at the latest). Any defects and deficiencies which are notified at a later date, i.e. contrary to the above mentioned obligation, are not considered by the supplier and are excluded from warranty.
Notices of defect are only recognized by our company as such if made in writing. Notices of defect made with our sales representatives or forwarding agents or any other third parties are not regarded as formal notices made in time.
Payments to be effected by the purchaser may only be withheld to such an extent as being reasonable compared to the material deficiencies occurred. The purchaser is only entitled to withhold payments if a notice of defect has been made legitimacy of which is beyond any doubt. If the notice of defect has been wrongly made, the supplier has the right to demand compensation for the expenses incurred with him from the purchaser.
- Return of the goods to our company required in case of any defect or deficiency may only be made subject to our prior consent. We are entitled to refuse acceptance of returns made without our prior consent. In this case, the costs for return will be at the purchaser’s expense.
- Should a defect or deficiency exist, we are entitled at our discretion either to remedy the defect or deficiency or to supply faultless goods (subsequent performance). This, however, requires that the deficiency is not a minor one. Should one of the two manners to render the performance at a later date not be possible or be unreasonable, we are entitled to refuse it. This is also true for the fact that the purchaser fails to meet his financial obligations with our company with respect to the default-free part of our performance.
Any claims of the purchaser regarding the expenses required for the purpose of subsequent performance, in particular transport costs, travel expenses, labour costs and cost of materials are excluded in case the expenditure will increase for the fact that the object of delivery is subsequently transported to a location different from the registered office of the purchaser, unless this transportation is in accordance with its intended use.
- Should it not be possible to render the performance mentioned in paragraph 3 or should it fail, the purchaser is entitled at his discretion either to reduce payment accordingly or to rescind the contract as per the statutory provisions; this is particularly true for the fact of a culpable delay or refusal of subsequent performance, and also if it fails for the second time.
Any further claims of the purchaser – unless otherwise stipulated in the following – are excluded, notwithstanding any legal justification (in particular claims arising from any breach of contractual main obligations and additional obligations, reimbursement of expenditure with the exception of § 439 paragraph II BGB (Civil Code), actionable tort as well as any other tortiuous liability); this is in particular true for claims arising from damages not affecting the goods delivered as well as for claims for compensation of lost profit; this also includes claims not resulting from the inadequacy of the goods delivered. The stipulations above also apply to delivery of any other kind of goods or to a lower quantity.
- Exclusion of liability provided for in paragraph 4 is not applicable in case an exclusion or a limitation of liability for damages resulting from the danger to life and limb, bodily injury or injury to health has been agreed, which are based on a wilful breach of duty or from negligence on the part of a legal representative or vicarious agent of the user or on a wilful or gross negligent breach of duty on the part of a legal representative or vicarious agent of the user.
Should we commit a culpable breach of any essential contractual obligation or any „cardinal obligation“, liability is not excluded, however, limited to the foreseeable damage agreed in the contract. It is excluded for any other cases as per paragraph 4.
Moreover, exclusion of liability is not applicable to cases where liability is covered by the law of product liability for defects of the goods delivered for injury to persons and damage to property for things used for private purposes.
Furthermore, it is not applicable to any taking over of a warranty and with warranty of a quality, if our liability is started just because of a deficiency affected thereby.
The stipulations above also apply to reimbursement of expenditure.
- Warranty claims will not be applicable in case of any minor deviation from the nature and condition agreed upon, of any minor impairment to usability, of natural wear and tear or damages resulting after passing on the risk from faulty or negligent handling, excessive use, inappropriate production equipment and facilities, insufficient construction work, unsuitable building sites or arising from any particular outside events not being a prerequisite as per the contract, as well as for any not reproducible software errors. If the purchaser or any third party carry out improper modifications or repair work, warranty claims may not be filed against this kind of work nor for the consequences resulting thereof.
- Statute of limitations for claims for material deficiencies is 24 months. This is not applicable to the fact that longer deadlines are provided by law as per §§ 438 paragraph 1 no. 2 (Buildings and objects for buildings), 479 paragraph 1 (Claim to recourse) and 634 a paragraph 1 no. 2 (Defects or deficiencies in construction) BGB (Civil Code) as well as in cases of danger to life and limb, bodily injury or injury to health, of a wilful or gross negligent breach of duty on the part of the supplier or with malicious withholding of a defect. The legal provisions as to suspension of the running of a period, suspension and new start of the periods will remain unaffected.
Rights to reduction of the purchase price and exercising the right of rescission are excluded, in case the right to subsequent performance has become statute-barred. In this case, however, the purchaser may refuse payment of the purchase price should he be entitled to do so because of rescission or reduction; in case of exclusion of rescission and a subsequent refusal to pay, we are entitled to rescind the contract.
- Rights of recourse on the part of the purchaser against the supplier as per § 478 BGB (Civil Code) (Recourse of Entrepreneur) are only applicable unless the purchaser has entered into any agreements with his customer exceeding the legal warranty claims. No. 8 will be applicable accordingly as to the extent of the right of recourse on the part of the purchaser against the supplier as per § 478 paragraph 2 BGB (Civil Code).
VIII) Liability for additional obligations
If through a fault by our own, the goods delivered cannot be used by the purchaser as to their intended use because of faulty execution or non-execution of suggestions and discussions as well as other contractual additional obligations made prior to or after the conclusion of the contract (in particular instructions for operation and maintenance of the goods delivered) or damages occur, the stipulations made in paragraph VII will apply accordingly excluding all and any other claims of the purchaser.
- The stipulations below shall apply to breaches of duty beyond liability for defects and should not constitute any restriction nor exclusion of the legal right of rescission. In the same way, it shall not constitute any restriction nor exclusion of any legal or contractual rights and claims we are entitled to.
- The purchaser may rescind the contract if the entire performance will definitely be impossible; the same is true for inability. The purchaser may also rescind the contract in full if, when ordering similar objects, execution of part of the delivery will be impossible as to their number and quantity through a fault by our own and he is not interested in any part delivery; if this is not the case, the purchaser has the right to reduce his service in return accordingly; the right of rescission is not applicable to any minor breach of duty.
- Should a failure to meet an obligation exist and the purchaser grant us a reasonable period of time to render our services after stating our reasons for the delayed performance and if the additional period granted will not be met, the purchaser is entitled to rescind the contract. Paragraph 1 Clause 1 will also apply to any partial failure to meet an obligation.
Should the principal require any other execution of the goods to be delivered in any aspect whatsoever prior to their supply, running of the term of delivery will be interrupted up to the day an agreement has been made as to the execution and will possibly be extended by the additional time required for a different execution.
- Rescission will be excluded if the creditor is solely responsible or mainly responsible for the circumstances giving him the right to rescission or if the circumstances we are responsible for occur at the time the creditor is in delay of acceptance. In case of impossibility, we will still be entitled to a service in return according to § 326 II BGB (Civil Code) for the foregoing .
- Any further claims of the purchaser are excluded, notwithstanding any legal justification (in particular claims arising from any fault when entering into the contract, any breach of contractual main obligations and additional obligations, reimbursement of expenditure, actionable tort as well as any other tortiuous liability); this is in particular true for claims arising from damages not affecting the goods delivered as well as for claims for compensation of lost profit; this also includes claims not resulting from the inadequacy of the object of sale.
This is not true for the fact that the cause of damage is based on intention or gross negligence on the part of our own, our legal representatives or vicarious agents.
This is also not true for damages resulting from any culpable injury to life and limb, bodily injury or injury to health.
Nor will any liability of taking over a warranty be excluded, in case a breach of duty particularly covered by the latter will start our liability.
Should we commit a culpable breach of any essential contractual obligation or any „cardinal obligation“, liability is not excluded, however, limited to the foreseeable damage agreed in the contract.
IX) Place of performance, Governing Law and Venue
- The place of performance will be the place of dispatch (factory or storage place).
- Place of jurisdiction is Heilbronn provided that the purchaser also is a commercial businessman. We are entitled to institute legal proceedings against the purchaser also at other admissible venues.
- In view of all claims and rights arising from or relating to this agreement, the non-standardized law of the Federal Republic of Germany will apply (BGB, HGB) (Civil Code, Commercial Code). Validity of the UN sales law (CISG) is expressly excluded.
X) Further provisions
- Amendments to this agreement may only be effective upon our consent.
- Should individual provisions of these terms and conditions partly or wholly be or become ineffective or nul and void, the remaining provisions will remain unaffected. The parties to the contract, however, rather commit themselves to agree to a provision coming closest to the commercial purpose of the ineffective or invalid provision.