General Delivery Terms and Conditions of MFI GmbH
(Updated October 2010)
1. General Delivery Terms and Conditions - General Provisions
1.1. All our goods and services, including suggestions, advice and other ancillary services, are provided exclusively based on these General Delivery Terms and Conditions. We do not recognise any contradictory terms and conditions of the customer, unless
we had expressly consented to their validity in writing. Our General Delivery Terms and Conditions shall apply even if we render our services unconditionally in the knowledge of contradictory terms and conditions of the customer, or ones that deviate from our own General Delivery Terms and Conditions.
1.2. Our General Delivery Terms and Conditions shall also apply for all future transactions with the Customer.
1.3. Our General Delivery Terms and Conditions apply only for traders pursuant to Article 24 of the German Standard Terms and Conditions Act [AGBG].
1.4. All agreements made between us and the Customer for the purposes of executing this Contract are to be set out in this Contract in writing.
1.5. We hereby inform the Customer that its data will be electronically stored and processed.
1.6. Electrotechnical material is governed by the regulations of the Association of German Electrical Engineers (VDE), as well as those regulations that might be applicable to the safety of the goods or services supplied. Departures are permitted provided that the same level of security is guaranteed through other means.
2. Conclusion of the Contract
2.1. Our non-binding offer constitutes only a request for the Customer to submit an offer itself. The Contract is concluded by means of our written order confirmation and/or when the order is executed.
2.2. The Customer is bound to its order for a period of four weeks. This period starts when we receive the order.
3. Offer documents
3.1. We reserve our ownership rights and copyrights to illustrations, drawings, installation instructions and other documents. They may be disclosed or reproduced only with our express written consent. Any contracts not effectively concluded must be returned to us immediately free-of-charge.
3.2. Where we supply items in accordance with drawings, models, samples or other documents provided by the Customer, the Customer shall give its assurance that no third-party industrial property rights are violated. If we are subject to a third-party claim, the Customer shall be obliged to indemnify us against such claims on first written request.
4.1. In the absence of any specific agreements, our prices are "ex works", excluding packaging, freight, postage, customs duties and insurance costs.
4.2. The prices are subject to VAT at the statutory rate.
4.3. Pricing is effected in Euro.
4.4. If between the time of the contract being concluded and the agreed delivery date, costs - specifically labour, raw material and energy costs - are subject to an increase beyond our control, we shall be entitled to increase our prices accordingly.
4.5. For deliveries abroad, any taxes we are required to pay in the country concerned shall be refunded by the Customer.
5. Terms of payment
5.1. In the absence of any agreements to the contrary, our purchase price shall fall due for payment, net and without discount, within 30 days of the invoice date.
5.2. Invoices covering the deployment of engineers for the installation, maintenance or repair of plants shall fall due for payment immediately without discount.
5.3. For deliveries with a value of up to Euro 250.00, we reserve the right to demand cash on delivery.
5.4. If the Customer defaults on payment, we shall be entitled to charge annual default interest amounting to 3% above the relevant rate applied by the Deutsche Bundesbank. We reserve the right to claim a higher amount of compensation. For its part, the Customer shall be entitled to demonstrate to us that the payment default has caused a lower amount of loss or no loss at all.
5.5. The acceptance of bills of exchange, which always occurs only on account of performance and subject to discounting, requires special agreement. Discount and bill charges are borne by the Customer. We are not liable for the prompt presentation of the bill of exchange, insofar as we are culpable only of slight negligence.
5.6. If, once the contract is concluded, a significant deterioration in the Customer's solvency occurs
(specifically cessation of payment, application to open bankruptcy or comparison proceedings on the Customer's assets) or if we do not become aware of an existing deterioration until after the event, we shall be entitled to demand performance in return for payment or the lodging of a security within a reasonable period and, where the Customer fails to satisfy this request, to withdraw from the contract.
5.7. The Customer can offset only with those counterclaims that have been established as final and absolute, are undisputed or have been accepted by us. The Customer is entitled to a retention right only for the aforementioned counterclaims that ensue from this contract.
5.8. If partial payments are agreed, the entire residual debt - regardless of the maturity of any bills of exchange - shall fall due for payment immediately, if the Customer has defaulted on two consecutive payments either in whole or in part to a minimum of 10% of the invoice amount.
5.9. Order values of less than € 150 shall attract a flat processing fee of € 50.
6. Lead deadline
6.1. Agreed delivery deadlines shall be postponed if the Customer fails to provision on time the parts, documents, permits and approvals it is required to furnish or if an agreed down-payment and/or contractually scheduled payment securities are not presented in due time. If the contract is revised retrospectively, the delivery deadlines must be renegotiated.
6.2. In the absence of any agreement to the contrary, delivery deadlines refer to the date on which the delivery item is ready for dispatch. The date of completion applies for supply and installation orders.
6.3. If we default on delivery for reasons within our control, the Customer shall be entitled to charge, for each full week, a lump sum default compensation amounting to 0.5% of the consignment value, the maximum being 5% of the supply value.
6.4. If, after we have defaulted, the Customer grants us a reasonable period of grace with a threat of decline, the Customer shall be entitled to withdraw from the contract if the period of grace lapses without result. Instead of withdrawing from the contract, the Customer can demand compensation due to non-fulfillment, this being limited to the foreseeable damage. If the delay is caused by slight negligence, the non-fulfillment damage is furthermore limited to direct damage.
6.5. The liability limitation of paras. 6.3. and 6.4. does not apply if a commercial fixed transaction has been agreed, or if the Customer can claim that its interest in contractual fulfillment has lapsed on account of the default.
6.6. Delivery deadlines shall be postponed by the duration of delays caused by lawful, internal industrial action, by lawful or unlawful industrial action in supplier operations or by force majeure events that were unforeseeable at the time of the contract being concluded, insofar as the delays thus caused cannot be prevented through our taking reasonable actions. If the delivery deadline is postponed on account of the aforementioned circumstances by more than 4 months, either contracting party can withdraw from the contract without charge.
6.7. If the Customer defaults on acceptance or breaches other duties to cooperate, we shall be entitled to demand compensation for the damage we incur, including any additional expenses.
7. Transfer of risk, transportation
7.1. Unless otherwise agreed, the goods are shipped at the Customer's expense. The risk of coincidental loss or deterioration shall pass to the Customer when the goods are transferred to the transporter. The same applies if the goods are shipped within the same location. If we handle the shipping ourselves, the risk is transferred on the date on which the goods are loaded onto our vehicle. At the Customer's written request, we shall insure the goods at its expense against theft, breakage, transport, water damage and other insurable risks.
7.2. If the goods are shipped by train or a forwarding agent, the Customer must lodge the compensation application itself in case of damage. The due date of our payment claims remains unaffected.
8. Installation and commissioning
The installation and commissioning of the delivery item are governed by special terms and conditions (General Terms and Conditions of MFI GmbH for Installation, Commissioning and Repairs).
9. Retention of title
9.1. We retain the title to the delivery item until all payments ensuing from the business relationship with the Customer are received. In the case of non-contractual conduct by the Customer, payment default in particular, we shall be entitled to withdraw the delivery item. Having withdrawn the delivery item, we shall be entitled to dispose of it. The proceeds, less the disposal costs involved, shall be offset against the Customer's liabilities. Unless proof is furnished, the disposal costs amount to 10% of the proceeds plus VAT. These costs can be set at a higher or lower amount if we are able to demonstrate higher costs or the Customer is able to demonstrate lower costs.
9.2. The withdrawn delivery item shall be disposed of through sale on the open market. At the Customer's request, which has to be announced immediately after the delivery item is withdrawn, a publicly appointed and sworn assessor selected by ourselves shall determine the market value, which must then be deemed the disposal proceeds pursuant to § 10, para. 1 of these Terms and Conditions.
9.3. The Customer is under an obligation to insure, at its replacement value, the reserved item at its own expense against fire, water and theft. It is obliged to make full use of the insurance benefits for the purpose of repairing the reserved item. In the case of complete loss, the insurance benefits must be used to satisfy our residual claims. The Customer is entitled to the additional amount.
9.4. The Customer is also obliged to maintain the item under retention of title in good order for the duration of the retention, as well as to have all specified maintenance work and requisite repair work carried out without delay and at its own expense.
9.5. The Customer must advise us immediately of any compromise to the property, specifically caused by threatened or actual seizure or other manipulation by a third party, to name this third party to us, make the executory officer aware of our claims to ownership and transmit to us immediately the documents required for intervention. The Customer is liable to us for damage ensuing from any default. Where we have to claim on a third party pursuant to § 771 ZPO, the Customer must indemnify us against court and out-of-court costs, insofar as the third party is unable to reimburse such costs.
9.6. For the duration of our retention of title, the Customer may dispose over, hire out or relocate the delivery item only after we grant our written consent.
9.7. In all cases, the Customer processes or transforms the delivery item on our behalf. If the delivery item is processed with other products that do not belong to us, we shall acquire co-ownership to the new item in the ratio of the value of the delivery item to the other processed products at the time of processing. The item created by processing is subject to the same conditions as the item supplied under retention.
9.8. If the delivery item is intrinsically mixed or joined with other products that do not belong to us, we shall acquire co-ownership to the new item in the ratio of the value of the delivery item to the other mixed or joined products at the time of mixing or joining. If the mixing or joining is carried out in such a a way that the items that do not belong to us are deemed to be the main item, it is considered agreed that the Customer shall transfer co-ownership to us pro-rata. The Customer shall preserve the sole ownership or co-ownership thus ensuing on our behalf.
9.9. If the reserved item is incorporated as an essential component into the Customer's property, the Customer shall assign to us at this juncture the claims ensuing from the sale of the property or property rights to the value of the retained item.
9.10. If we have permitted the Customer to sell the delivery item under retention of title, it shall assign to us at this juncture all claims ensuing from the resale to the amount equivalent to the ratio of our final invoice amount (including VAT) to the resale proceeds, irrespective of whether the delivery item has been resold without processing or following processing. The claim the Customer assigned to us in advance also refers to the recognised balance, and also, in the event of the buyer's bankruptcy, to the "causal" balance that will then exist. The Customer remains entitled to collect this claim following assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim insofar as the Customer meets its payment obligations ensuing from the earned proceeds, has not defaulted on payment and, in particular, no application has been made to open bankruptcy or comparison proceedings and no cessation of payments has occurred. If this is the case, we can demand that the Customer advises us of the assigned claims and the debtors of those claims, provides all the information required for their collection, surrenders the corresponding documents and notifies the debtors (third parties) of the assignment.
9.11. We undertake to release the securities due to us at the Customer's request if their value exceeds the claims to be secured by more than 20 %; the securities released shall be at our discretion.
9.12. If and insofar as the validity of the retention of title is, for us, subject to specific criteria or formal requirements, the Customer shall be obliged to ensure fulfillment of same at its own expense. This also applies in particular to deliveries abroad if, in the importing country, we are required to take certain measures to ensure the effectiveness of the retention of title set out above or the other rights mentioned there. If the law of the importing state does not permit a retention of title, but allows us to retain other rights to the delivery item, we may exercise all such rights. Where this does not achieve an equivalent securing of our claims against the Customer, the Customer shall be obliged to obtain other securities on the delivery item at its own expense.
10.1. Warranty rights of the Customer require it to have correctly met its obligations to inspect and report defects in accordance with §§377 et seq HGB.
10.2. We shall accept liability for faulty consignments, provided that the defect is apparent within 6 months - in the case of multi-shift operation within 3 months - of the delivery item being transferred. Defects asserted within this period become time-barred 6 months after being reported.
10.3. In cases of faulty consignments, we shall be entitled to a repair or a replacement consignment as we see fit. Where defects are rectified, we shall be obliged to bear all expenditure incurred, specifically transport, transport infrastructure, labour and material costs, insofar as such costs are not increased by the delivery item being moved to a location other than the place of fulfillment.
10.4. If we fail to exercise the right to rectification or a replacement consignment within a reasonable period of the fault being reported, no repair or replacement consignment will be possible, or if the repair or replacement consignment fails in any other way, the Customer shall be entitled to demand a reduction in the remuneration (reduction) or a cancellation of the contract (revocation).
10.5. Only in urgent cases of operational safety being at risk, to avert disproportionately high loss or if we have delayed rectifying a fault, shall the Customer be entitled to rectify the fault itself or have it rectified by a third party and to demand that we reimburse the necessary costs.
10.6. The Customer has no warranty rights if faults or loss are caused by the following:
a. Incorrect installation and/or repairs by the Customer or a third party assigned by the Customer.
b. Use of unsuitable equipment or substitute materials.
c. Inappropriate or incorrect use or treatment of the delivery item by the Customer or a third party, specifically non-compliance with operating instructions or failing to perform the specified maintenance and upkeep work.
d. Modifications to the delivery item, especially the installation of non-approved parts. e. Natural wear and tear.
f. Excessive usage.
g. Untimely reporting of a fault.
h. Chemical, electrochemical or electrical influences, temperature, weathering or other natural influences, insofar as we were unaware of such effects on conclusion of the contract.
10.7. Unless these Terms and Conditions state otherwise, any other claims of the Customer - regardless of the legal grounds - are impossible. We are not therefore responsible for damage sustained on the delivery item itself - specifically we are not liable for lost profit or other financial losses incurred by the Customer.
10.8. The aforementioned liability exemption does not apply if the damage is caused by intent or gross negligence. Neither shall it apply if the Customer, due to the absence of an assured property, assets damage claims on account of non-fulfillment.
10.9. Insofar as we are in negligent breach of a contractual duty, our obligation to compensate property damage and physical injury is limited to the amount of cover provided by our liability insurance. We are prepared to allow the Customer to inspect our insurance policy on request.
11. Overall liability
11.1. Any liability for damages other than set out in § 10, paras. 7 - 9, irrespective of the legal nature of the asserted claim - is ruled out.
11.2. The provision in accordance with para. 1 does not apply for claims pursuant to §§ 1, 4 of the Product Liability Act.
The same applies for incipient incapacity or culpable retrospective impossibility.
11.3. Insofar as our liability is precluded or limited, this also applies for the personal liability of our staff, employees, colleagues, representatives or vicarious agents.
12. Place of fulfillment, place of jurisdiction
12.1. In the absence of any other agreement, the place of fulfillment is our business location.
12.2. If the Customer is a registered trader or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction is our business location. We are however also entitled to sue the Customer at the court responsible for its business location.
13. Applicable law
The legal relationships existing between a foreign Customer and ourselves are governed exclusively by German substantive law. The United Nations Conventions on the Internal Sale of Goods of 11.04.1980 does not apply.
14. Partial invalidity
If any one of the aforementioned provisions becomes, either in whole or in part, a non-contractual component or is ineffective, the effectiveness of the contract itself and of its other provisions shall not be affected. The provision that has become ineffective or a non-contractual component shall be replaced by legal regulations.