General Terms and Conditions of Mesutronic GmbH
Dated 2023/11
| § 1 Application |
| (1) These General Terms and Conditions shall apply for all deliveries and services of Mesutronic GmbH, hereinafter referred to as „Manufacturer“. They shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing. |
| (2) These General Terms and Conditions shall also govern all future transactions between the parties. They shall also apply exclusively if we perform delivery despite our knowledge of differing or contrary terms. |
| (3) These General Terms and Conditions shall only apply vis-à-vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code). |
| § 2 Offer, Acceptance |
| (1) All offers from the Manufacturer are subject to change and non-binding unless they are expressly marked as binding or contain a specific acceptance period. The Manufacturer can accept orders or commissions within fourteen days of receipt. |
| (2) The respective contract, including these General Terms and Conditions, is solely decisive for the legal relationship between the Manufacturer and the customer. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the Manufacturer before the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the contract unless they expressly state that they continue to be binding. |
| (3) Additions and amendments to the agreements made, including these General Terms and Conditions, must be in writing to be effective. Transmission by fax or e-mail is sufficient to comply with the written form; otherwise, transmission by telecommunications is not sufficient. |
| (4) Information from the Manufacturer on the subject of the delivery or service (e.g. weights, dimensions, utility values, resilience, tolerances and technical data) and our representations of the same (e.g. drawings and illustrations) are not guaranteed quality features, but descriptions or labels of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts are permissible as long as they do not impair the usability for the contractually intended purpose. |
| (5) The Manufacturer retains ownership or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the customer. Without the express consent of the Manufacturer, the customer may not make these items accessible to third parties, disclose them, use them himself or have them used or reproduced by third parties. At the request of the Manufacturer, he must return these items to the Manufacturer in full and destroy any copies that may have been made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. |
| § 3 Prices, Payment |
| (1) Prices are in EURO ex works, exclusive of the respective statutory VAT and excluding the costs of other public charges, packaging, insurance, freight, assembly and commissioning, except as otherwise expressly agreed upon. |
| (2) The purchase price is due and payable without deduction within 10 days from the date of the invoice. If the purchaser does not pay by the due date, default interest in the amount of 9 % above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay. |
| (3) Insofar as a quantified price has not been expressly agreed as fixed, the list price valid on the day of delivery will be invoiced. |
| (4) Subject to an expressly different contractual provision, even if a quantified price is agreed, if our delivery or service or our partial delivery or partial service is not due within four (4) months after conclusion of the contract and material, wage, energy and /or freight costs and/or public charges increase or these are newly introduced, we are entitled to charge a price surcharge corresponding to the change that has occurred. |
| (5) The Manufacturer is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if circumstances become known to him after conclusion of the contract which are likely to significantly reduce the creditworthiness of the customer and which make the payment of the open claims of the Manufacturer by the client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies) is endangered. |
| § 4 Offset, Right to Retain |
| With the exception of claims arising from the warranty for defects, offsetting against counterclaims by the customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established. The customer is entitled to claim rights to retain only to the extent such rights are based on the same transaction. |
| § 5 Delivery |
| (1) Deliveries are made ex works. Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved. |
| (2) Periods and dates for deliveries and services promised by the manufacturer are non-binding and are always only approximate, unless a fixed period or a fixed date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the freight forwarder, carrier or other third party commissioned with the transport. |
| (3) The Manufacturer can – without prejudice to his rights arising from the customer’s default – demand an extension of delivery and service periods or a postponement of delivery and service dates by the period in which the customer does not meet his contractual obligations towards the Manufacturer. |
| (4) The Manufacturer is not liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, epidemics or pandemics, difficulties in obtaining the necessary official permits, official measures or the lack of, incorrect or late delivery by suppliers despite a congruent hedging transaction concluded by the Manufacturer) for which the Manufacturer is not responsible. If such events make the delivery or service significantly more difficult or impossible for the Manufacturer and the hindrance is not only of a temporary nature, the Manufacturer is entitled to withdraw from the contract. In the event of hindrances of a temporary duration, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the customer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the Manufacturer. |
| (5) The Manufacturer is only entitled to partial deliveries 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 any significant additional work or additional costs as a result (unless the Manufacturer agrees to bear these costs). |
| (6) If the Manufacturer defaults on a delivery or service, or if a delivery or service becomes impossible for whatever reason, the Manufacturer’s liability for damages is limited in accordance with Section 10 of these General Terms and Conditions. |
| (7) In case of default in acceptance or other breach of obligations to cooperate by the purchaser we are entitled to claim any resulting damages including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default in acceptance or breach of obligations to cooperate. |
| § 6 Place of Fulfillment, Passing of Risk, Shipment |
| (1) The place of performance for all obligations arising from the contractual relationship is the Manufacturer’s registered office, unless otherwise specified. If the Manufacturer is also responsible for the installation, the place of fulfillment is the place where the installation has to take place. |
| (2) In the case of shipping, the shipping method and packaging are subject to the dutiful discretion of the Manufacturer. |
| (3) If the goods are shipped at the request of the customer, the risk passes to the customer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party responsible for carrying out the shipment. This also applies if partial deliveries are made or the Manufacturer has taken on other services (e.g. shipping or installation). If dispatch or handover is delayed as a result of a circumstance for which the customer is responsible, the risk passes to the customer on the day on which the delivery item is ready for dispatch and the Manufacturer has notified the customer of this. |
| (4) The shipment will only be insured by the Manufacturer against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at his expense. |
| § 7 Retention of Title |
| (1) The retention of title agreed below serves to secure all existing current and future claims of the Manufacturer against the customer from the supply relationship existing between the contractual partners (including balance claims from a current account relationship limited to this supply relationship). |
| (2) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the customer including, without limitation, default in payment, we are entitled to take possession of the goods. |
| (3) The customer keeps the reserved goods free of charge for the Manufacturer.The customer shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods. |
| (4) If third parties access the goods subject to retention of title, in particular through seizure, the customer will immediately point out the Manufacturer’s ownership and inform the Manufacturer about this in order to enable him to enforce his property rights. If the third party is not in a position to reimburse the Manufacturer for the court or out-of-court costs incurred in this connection, the customer shall be liable to the Manufacturer for this. |
| (5) The customer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the customer hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments. |
| (6) Insofar as the above securities exceed the secured claim by more than 10 %, we are obliged, upon our election, to release such securities upon the customer‘s request. |
| (7) If the Manufacturer withdraws from the contract in the event of breach of contract by the customer – in particular default in payment – (case of enforcement), he is entitled to demand the return of the reserved goods. |
| § 8 Warranty |
| (1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer resulting from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the Manufacturer or his vicarious agents, which are time-barred in accordance with the statutory provisions. |
| (2) The delivered items are to be carefully examined immediately after delivery to the customer or to the third party designated by him. With regard to obvious defects or other defects that would have been recognizable in an immediate, careful inspection, they are deemed to have been approved by the customer if the Manufacturer does not receive a written notification of defects within (seven) working days after delivery. With regard to other defects, the delivery items are deemed to have been approved by the customer if the Manufacturer does not receive the notice of defects within (seven) working days after the point in time at which the defect became apparent; if the defect was already evident at an earlier point in time during normal use, this earlier point in time is decisive for the beginning of the complaint period. At the request of the Manufacturer, a delivery item that has been the subject of a complaint must be returned to the Manufacturer carriage paid. If the notice of defects is justified, the Manufacturer will reimburse the costs of the cheapest shipping method; this does not apply insofar as the costs increase because the delivery item is located at a location other than the place of intended use. |
| (3) In the event of material defects in the delivered items, the Manufacturer is initially obliged and entitled to choose between repairs or a replacement delivery within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay in rectification or replacement delivery, the customer can withdraw from the contract or reduce the purchase price appropriately. |
| (4) If a defect is due to the fault of the Manufacturer, the customer can demand compensation under the conditions specified in Section 10. |
| (5) The warranty does not apply if the customer changes the delivery item or has it changed by a third party without the consent of the Manufacturer and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer must bear the additional costs of remedying the defect arising from the change. |
| § 9 Intellectual Property |
| (1) In accordance with this Section 9, the Manufacturer is responsible for ensuring that the delivery item is free of industrial property rights or copyrights of third parties. Each contractual partner shall inform the other contractual partner immediately in writing if claims are asserted against him due to the infringement of such rights. |
| (2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Manufacturer will, at its discretion and expense, modify or replace the delivery item in such a way that third-party rights are no longer violated, but the delivery item continues to fulfill the contractually agreed functions, or provide the customer with the right of use by concluding a license agreement. If he does not succeed in doing this within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the customer are subject to the restrictions of Section 10 of these General Terms and Conditions. |
| § 10 Haftung |
| (1) The liability of the Manufacturer for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts, insofar as fault is involved, is in accordance with this Sec. 10 restricted. |
| (2) The Manufacturer is not liable in the event of simple negligence on the part of its organs, legal representatives, employees or other vicarious agents, unless there is a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as duties to provide advice, protection and care, which are intended to enable the customer to use the delivery item in accordance with the contract or to protect the life and limb of the customer’s staff or to protect his property from significant damage. |
| (3) Insofar as the Manufacturer is liable for damages pursuant to Section 10 (2), this liability is limited to damage which the Manufacturer foresaw as a possible consequence of a breach of contract when the contract was concluded or which he should have foreseen if he had exercised due diligence. In addition, indirect damage and consequential damage resulting from defects in the delivery item can only be compensated insofar as such damage is typically to be expected when the delivery item is used as intended. The above provisions of this paragraph 3 do not apply in the case of intentional or grossly negligent behavior by board members or senior employees of the Manufacturer. |
| (4) In the event of liability for simple negligence, the Manufacturer’s obligation to pay compensation for damage to property and the resulting further financial losses is limited to the amount of the net order sum excluding additional costs per case of damage, even if it is a matter of breaching essential contractual obligations. |
| (5) The above liability exclusions and limitations apply to the same extent in favor of the organs, legal representatives, employees and other vicarious agents of the Manufacturer. |
| (6) The restrictions of this Sec. 10 do not apply to the liability of the Manufacturer due to intentional behavior, for guaranteed quality features, due to injury to life, limb or health or under the Product Liability Act. |
| § 11 Applicable law, Jurisdiction, Final Provisons |
| (1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods). |
| (2) If the customer is a merchant, a legal entity under public law or a special fund under public law, or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Manufacturer and the customer is, at the choice of the Manufacturer, his registered office or the seat of the customer. In such cases, however, the Manufacturer’s place of business is the exclusive place of jurisdiction for lawsuits against the Manufacturer. Mandatory legal provisions on exclusive places of jurisdiction remain unaffected by this regulation. |
| (3) If one of the provisions of the contract or of these General Terms and Conditions is or becomes ineffective, void or unenforceable, the validity of the remaining provisions shall not be affected. The parties undertake to agree on an effective and enforceable provision in place of the ineffective, void or unenforceable provision, which comes as close as possible to the economic purpose of the ineffective, void or unenforceable provision. This applies accordingly in the event of a contractual gap. |
| (4) In the event of discrepancies, the German version takes precedence over the English. |