General terms and conditions of MiniTec Maschinenbau GmbH & Co. KG, MiniTec Allee 1, 66901 Schönenberg-Kbg.
Version dated: 10 March 2020
Only applicable if the purchaser is:
- a person entering into the contract in the performance of his or her business operations or freelance occupation (entrepreneur), or
- a legal entity under public law or special fund under public law.
I. General provisions
- All deliveries and services are based on these terms and conditions as well as possible separate contractual agreements. Different purchasing conditions of the purchaser do not even become contract content through the acceptance of the order. Unless otherwise agreed, a contract is formed with the supplier's order confirmation in writing.
- Our offers are non-binding. Verbal agreements, promises, assurances and guarantees provided by our staff only become binding upon confirmation in writing.
- All the information provided such as dimensions, weights, depictions, descriptions, drawings and sketches as well as catalogue information and price lists in our illustrations, brochures and catalogues, advertisements, also in electronic form, have been compiled to the best of our knowledge, are merely non-binding information about the material, quality, attributes or suitability, and do not become an integral part of the contract, promised feature or warranty content in any case. We are unable to accept any liability for errors. The supplier is also reserved the right to include changes and further developments.
- Models and drawings remain our property.
- The contractor is free to invoice his services by letter post or electronically by e-mail.
II. Price and payment
- Unless otherwise agreed, prices are ex works, including the loading at the factory, but excluding the packaging and unloading. Sales tax will be added to the prices at the respective statutory rate.
- The purchaser is only due a right to withhold payments or set them off against counterclaims insofar as its counterclaims are undisputed or determined without further legal recourse.
- Unless otherwise agreed or stated in our invoices, the purchase price is due immediately upon delivery, without deductions, and payable in a manner ensuring that we can dispose over the amount on the due date. The payment transaction costs are borne by the purchaser.
- Unless otherwise agreed, our price list prices applicable on the day of contract conclusion apply, plus statutory sales tax.
III. Delivery period, delivery delay
- The delivery period is based on the agreements between the contacting parties. The supplier's compliance with it requires clarification of all commercial and technical questions between the contracting parties and the purchaser's fulfilment of all its obligations, such as the procurement of the required official certifications or permits or the payment of an advance, for example. If this is not the case, the delivery period will be extended correspondingly. This does not apply insofar as the supplier is answerable for the delay.
- Compliance with the delivery deadline is subject to the proviso of correct and timely self-delivery.
- The deadline is kept if the delivered item has left the supplier's plant or its readiness for shipping has been announced by its expiry. Insofar as an acceptance is required, the acceptance date is decisive, or alternatively the announcement of readiness for acceptance, except where the acceptance is justifiably refused.
- If the shipment and/or acceptance of the delivered item is delayed for reasons it is answerable for, the purchaser will be charged the costs arising from the delay, starting one month after the announcement of readiness for shipment and/or acceptance.
- If the non-compliance with the delivery period is attributable to force majeure, industrial action or other events outside the supplier's sphere of influence, the delivery period will be extended accordingly. The supplier will inform the purchaser of the start and end of such circumstances as soon as possible.
IV. Transfer of risk, acceptance
- The risk passes to the purchaser as soon as the delivered item has left the factory, also in the case of partial deliveries or where the supplier has taken on other services such as the shipping costs, or the delivery and installation, for example. If an acceptance is required, this is decisive for the transfer of risk. It needs to be performed be the acceptance date without delay, alternatively after the supplier's announcement of readiness for acceptance. The purchaser may not refuse acceptance based on an immaterial defect.
- If the shipment and/or acceptance is delayed or not taking place as a consequence of circumstances that are not attributable to the supplier, the risk passes to the purchaser from the day of the readiness for shipment and/or acceptance being announced. The supplier undertakes to take out the insurances requested by the purchaser at the purchaser's expense.
- Partial deliveries are permitted insofar as reasonable for the purchaser.
V. Reservation of ownership
- The supplier reserves ownership of the delivered item until the receipt of all payments from the delivery contract.
- The supplier is entitled to insure the delivered items against theft, breakage, fire, water and other damage at the purchaser's expense insofar as the purchaser has not demonstrably taken out the insurances itself.
- The purchaser may neither sell, pledge nor collateralize the delivered item. It needs to inform the supplier immediately of any attachment, seizure or other third-party dispositions.
- If the purchaser acts in breach of contract, especially in the event of default, the supplier is entitled to take the delivered item back after giving notice, and the purchaser to surrender it.
- Given the reservation of ownership, the supplier can only demand surrender of the delivered item if it has withdrawn from the contract.
- An application to institute insolvency proceedings entitles the supplier to withdraw from the contract and demand the immediate return of the delivered item.
- Claims from a possible resale of reserved goods are already assigned to the supplier now, along with all sureties acquired by the purchaser for the claim. Upon the purchaser's request, they need to be reassigned to it in whole or in parts if and insofar as these claims exceed the supplier's secured claims by 120 %, and upon full satisfaction of the supplier's claims (including all accessory claims) at the latest.
VI. Claims for defects
For material defects and defects of title of the delivery, the supplier warrants the following, under exclusion of further claims and subject to section VII.:
- All parts turning out to be defective as a consequence of circumstances preceding the transfer of risk need to be improved or replaced for free at the supplier's option. The discovery of such defects needs to be reported to the supplier immediately in writing. Replaced parts become the property of the supplier.
- Upon consultation with the supplier, the purchaser is required to provide the time and opportunity required to perform all the repairs and replacement deliveries deemed necessary by the supplier, with the supplier released from liability for the consequences arising from this otherwise. The purchaser is only entitled to eliminate defects itself or have them eliminated by third parties and demand reimbursement of the required outlays from the supplier in urgent cases of the operational safety being at risk and/or to avert disproportionately extensive damage, with the supplier needing to be informed immediately.
- Of the costs arising for the improvement and/or replacement delivery, the supplier covers – insofar as the complaint turns out to be justified – the costs of the replacement part including shipment as well as reasonable removal and installation costs and, where this can be justifiably demanded in the individual case, the costs for a possible required provision of its fitters and auxiliary staff.
- The purchaser is entitled to withdraw from the contract in keeping with the statutory provisions if the supplier – taking the statutory exemptions into account – allows a reasonable period to elapse fruitlessly that has been set for it for the subsequent improvement or replacement delivery owed to a quality defect. If the defect provided is merely minor, the purchaser is only entitled to reduce the contract price. The right to reduction of the contract price remains excluded in all other respects. Further claims derive from section VII. 2. of these terms and conditions.
- The warranty does not cover the following cases in particular:
Inappropriate or incorrect use, faulty assembly and/or start-up by the purchaser or third parties, natural wear and tear, incorrect or negligent treatment, improper maintenance, unsuitable operating materials, deficient construction work, unsuitable building ground, chemical, electrochemical or electrical influencing factors – insofar as the supplier is not answerable for them.
- If the purchaser or a third party makes inappropriate improvements, the supplier will not be liable for the consequences arising from this.
The same applies to modifications of the delivered item performed without the supplier's previous approval.
Defects of title:
- If the use of the delivered item leads to a violation of industrial property rights or copyrights, the supplier will, at its own expense, principally procure the right to further use for the purchaser or modify the delivered item in a manner that is reasonable for the purchaser and ensures that the proprietary right is no longer breached. If this is impossible at economically reasonable conditions or within a reasonable period of time, the purchaser is entitled to withdraw from the contract. The supplier is also entitled to withdraw from the contract under the named conditions.
Over and beyond this, the supplier will release the purchaser from undisputed or legally established claims of the respective holder of the property rights.
- The supplier obligations detailed in section VI. 7. are final for the event of industrial property rights or copyrights being breached, subject to section VII. 2.
They only apply if
- the purchaser informs the supplier of the asserted breaches of property rights or copyrights immediately
- the purchaser supports the supplier's defence against the asserted claims and/or enables the supplier to apply modification measures as per section VI. 7. to a reasonable extent
- all defence measures including out-of-court settlements remain the reserve of the supplier
- the defect of title is not based on an instruction by the purchaser, and
- the breach of rights was not caused by the purchaser having modified the delivered item without authorization or having used it in a non-contractual manner.
If the delivered item cannot be used by the purchaser as contractually agreed for reasons attributable to the purchaser as a result of negligent or incorrect execution of proposals and consultations provided before or after contract conclusion or of an infringement of other ancillary contractual duties – especially instructions for operating and maintaining the delivered item – the provisions in sections VI. and VII.2. apply correspondingly, with further purchaser claims excluded.
- Irrespective of the legal grounds, the supplier is only liable for damages not caused to the delivered item itself in case of
- deliberate intent
- gross negligence on the part of the owner / executive bodies or management staff
- culpable injury to life, body, health
- defects which it has fraudulently concealed or whose absence it has guaranteed
- defects of the delivered item insofar as a liability for personal injury or damage to privately used items is provided for by the Product Liability Act.
If material contractual duties are culpably breached, the supplier will also be liable for the gross negligence of non-managerial staff and for slight negligence, in the latter case limited to the reasonably expectable damage that is typical for the contract.
All claims over and beyond this are excluded.
All purchaser claims – irrespective of their legal grounds – expire in 12 months. Damage compensation claims as per sections VII. 2. a) – e) are subject to the statutory limitation periods. These also apply to defects of a building or to delivered items that have been used for a building in the customary manner and caused its defectiveness.
IX. Software use
Insofar as the delivery scope includes software, the purchaser is granted a non-exclusive right to use the delivered software, including its documentations. It is provided for use in the delivered item intended for it. A use of the software in more than one system is prohibited.
The purchaser is only allowed to copy, revise, translate or convert the software from object code to source code to the legally permitted extent (Copyright Act section 69 a ff.). The purchaser pledges to refrain from removing manufacturer information – particularly copyright notices and trademarks – or changing it without the supplier's previous explicit approval.
All other rights to the software and documentation including copies remain with the supplier and/or software supplier. Sub-licencing is not permitted.
X. Applicable law, place of jurisdiction
- All legal relations between the supplier and purchaser are exclusively subject to the laws of the Federal Republic of Germany applicable to legal relationships between domestic parties, excluding the UN Convention on the International Sale of Goods and German international private law or any laws of third countries.
- The place of jurisdiction is the competent court for the supplier's principal place of business if the purchaser is a merchant, legal entity under public law or special fund under public law. The statutory provisions for the place of jurisdiction remain applicable in all other cases.
The supplier is entitled to file suits at the purchaser's principal place of business, however.