General terms &
conditions
A. General Provisions
§ 1 Application–Protective Clause–Severability Clause
(1.) The present conditions of contract shall only be valid vis-à-vis entrepreneurs in the sense of § 310, para. 1 of the German Civil Code (BGB).
(2.) The contractual relationship established hereunder, all legal relationships and all deliveries and services based hereon, as well as all obligations being similar to legal transactions in the sense of § 311 para. 2 and 3 BGB shall exclusively be governed by our Standard Terms and Conditions of Business as outlined below. Our Standard Terms and Conditions of Business shall equally be applicable to all future legal relationships, contractual obligations, and obligations being similar to legal transactions.
(3.) A customer’s terms and conditions that may be contrary to or different from our Standard Terms and Conditions of Business shall not become part of the present contract, even if such customer’s terms and conditions should be part of a confirmation of contract, and even if they are not explicitly contradicted from our side, unless we explicitly consent to the applicability of such terms and conditions in writing; our Standard Terms and Conditions of Business shall be applicable instead, and even in case we should make delivery unconditionally in awareness of a customer’s terms and conditions being different from ours.
(4.) By accepting our services and deliveries, the customer shall acknowledge our Standard Terms and Conditions of Business as binding, unless provided to the contrary in writing under a prior individual agreement entered between the customer and MayTec GmbH.
(5.) Any amendment or supplement to the present contract shall be made in writing. This also applies to any waiver of such written-form requirement itself. Prevalence of individual agreements in the sense of § 305(b) BGB shall remain unaffected.
(6.) Customer data will be stored, processed and shared electronically as far as permitted under relevant statutory provisions and in particular under the German Federal Data Protection Act.
(7.) In case any particular term or condition or any part thereof, or any part of the present Standard Terms and Conditions of Business should be ineffective, this contract shall be governed by the relevant statutory regulations insofar, whereas all other provisions of the present Standard Terms and Conditions of Business shall remain valid.
B. Conditions of Sale and Delivery
§ 1 Offer and Contracting
(1.) Our offers shall be non-binding.
(2.) Offers made by the customer shall be binding, regardless of their form.
(3.) Acceptance of any offer that we may submit as a binding offer by way of exception shall be declared within two weeks from receipt by our future contractual partner.
(4.) As far as a customer’s purchase order shall be considered as an offer in accordance with § 145 BGB, we are able to accept such offer within two weeks from receipt thereof. Acceptance of such offer may in particular also be effected by means of an order confirmation or by sending the ordered goods to the customer.
Our field staff is merely authorised to solicit orders. An order shall not be deemed accepted before it has been confirmed in writing or before the ordered goods have been delivered.
§ 2 Documentation Provided to Customer
(1.) We reserve all ownership rights and copyrights in and to all and any documents and records that we may have provided to the customer in connection with the ordering process, e.g., calculations, drawings, catalogues, leaflets, and other sales documents, etc.
(2.) Documentation as specified above shall not be made available to any third party, unless we explicitly authorise the customer in writing to do so.
(3.) The customer shall not reproduce, and in particular shall not make photocopies of, any such documentation for any other purpose than performance of the contract. In case of non-compliance, the customer shall be liable to prosecution, and a complaint will be lodged against such customer.
(4.) If an offer is not accepted within the time limits specified in Section B. – Conditions of Sale and Delivery – § 1, para. (3.) and (4.), all documentation provided as above shall be returned to us immediately.
§ 3 Prices – Payment – Payment Arrears
(1.) Our prices are quoted in EUROS. Our list prices, or catalogue prices, resp., shall be applicable. Catalogues and price lists can be inspected at our office or requested from us free of charge. Unless otherwise agreed in writing, our prices shall be ex works, or ex warehouse, resp., and shall be exclusive of all costs due for installation, start-up, and assembly, as well as for packaging, freight, postage, and insurance, which will all be charged separately. All prices are quoted net of value-added tax at such rate as applicable from time to time.
(2.) We reserve the right to modify our prices adequately with regard to increased costs, especially when caused by changes in costs for wages, staff, materials and distribution related to deliveries to be made four months after conclusion of contract or later. If prices are increased by more than 5 %, the customer shall be entitled to cancel the contract.
(3.) Our prices are quoted net of value-added tax. Unless otherwise agreed, the purchase price shall, at the customer’s option, be due and payable either within 30 days from receipt of the invoice and without deduction, or 14 days from the invoice date and with a discount of 2 % to be deducted from the invoice amount inclusive of value-added tax. The date on which the invoice amount is credited the account specified on the invoice shall be relevant. We reserve the right to stipulate alternative terms of payment (advance payment, payments in thirds, etc.) in particular cases.
(4.) In case of foreign shipments, we can request the customer to open an irrevocable and certified letter of credit payable at a bank specified by us, or to provide equivalent security.
(5.) Cheques and payment orders will be accepted on account of payment only; payment shall not be deemed effected before the related amount has been credited to our account. Bills of exchange will not be accepted in payment.
(6.) From the 31st day following receipt of our invoices, the customer shall be in payment arrears without the necessity of a reminder. From such day, and latest from occurrence of payment arrears, we shall be entitled to charge interest on arrears at the rate of 8 percentage points above the respective base rate p.a. of the German Federal Bank (Deutsche Bundesbank). We reserve the right to claim damages for any higher amount of payment arrears inasmuch as tangibly substantiated.
(7.) From the second reminder issued, we shall be entitled to claim an arrears fee of EUR 5.00 for each reminder. Contractual partners shall yet be at liberty to furnish proof of a lower or higher amount of loss.
(8.) Discounts will not be granted as long as the contractual partner is in arrears of payment for previous invoices. Rebates granted shall be forfeited if the customer should file for insolvency or be in arrears of payment.
(9.) The contractual partner shall only be entitled to set-off if such partner’s counterclaims have been determined with final legal effect. The contractual partner shall only be entitled to exercise a right of retention if such partner’s counterclaim is based on the same contractual relationship and has been determined with final legal effect, or if it is uncontested.
(10.) We shall have the option to assign all claims arising from our business relation, inclusive of any security interest and ancillary rights pertaining to such claims.
§ 4 Retention of Ownership Title
(1.) Ownership of the goods delivered will remain with us till payment of all claims attributable to our business relationship with the customer on any legal ground whatsoever has been effected in full, even if the purchase price for specifically designated claims has been paid. With respect to current accounts, retention of title will be considered as security for our outstanding balance claim.
(2.) We shall be entitled to take out adequate insurance, at the customer’s expense, for the deliverable(s) against theft, breakage, fire, water and other kinds of loss or damage, unless the customer furnishes proof of adequate insurance taken out by the customer himself.
(3.) In case of any combination, intermixture, or mingling of the goods delivered by us with any other items, we shall acquire co-ownership on the basis of the proportion of the value of such goods to the value of the other items combined, intermixed or mingled therewith. In the event that the ownership title in and to the goods delivered be lost inasmuch as the goods become an integral or necessary part of another item, the customer hereby agrees to grant us a co-ownership title in and to the substance item by now and to such extent as corresponding to the proportion of the value of the goods delivered to the value of the substance item. Such co-ownership title shall pass on to us by now, and surrender of such goods shall be replaced by a safekeeping contract which shall provide that the customer shall keep the substance item for us at his expense. Upon payment of the respective claim, any co-ownership title granted as above shall pass on to the customer.
(4.) Any transformation or processing of items shall be carried out on our behalf free of charge and without any obligation on our part, such that we shall be considered as the manufacturer in accordance with § 950 BGB, meaning that we shall retain ownership of the products at any time and level of processing. As far as any other goods that are not our property and have been processed by the customer are concerned, we shall be entitled to co-ownership of any such new item at the proportion of the invoice value of the goods being subject to retention of title to the other processed goods as applicable per the processing date. Apart from that, any new item arising from processing as above shall be subject to the same rules as the goods being subject to retention of title. Any such new item shall be defined as goods being subject to retention of title in the sense of the present terms and conditions.
(5.) The customer shall be authorised to resell the goods within the scope of his ordinary business activities. We reserve the right to revoke this authorisation in the event of the customer being in payment arrears, and at latest when the customer is facing crisis, i.e., in case of the customer’s illiquidity, and in particular following the customer’s suspension of payments or application for insolvency proceedings. This authorisation shall not be applicable if the customer elects to preclude the option of assigning to us the claim from the resale of the goods. The customer shall not be entitled to dispose of the goods being subject to retention of title in any other manner.
(6.) All of the customer’s claims arising from resale of the goods being subject to retention of title shall be assigned to us by now for the purpose of securing all of our claims from the business relationship.
(7.) The customer shall be authorised to collect any claim as above, but he shall not assign any such claim to any third party. We reserve the right to revoke this authorisation in the event of the customer being in payment arrears, and at latest when the customer is facing crisis, i.e., in case of the customer’s illiquidity, and in particular following the customer’s suspension of payments or application for insolvency proceedings. At our request, the customer shall notify the third-party purchaser that the amount receivable is to be assigned to us.
(8.) We hereby undertake to release, if requested by the customer, all claims we may be entitled to, inasmuch as the realisable value of such claims should be in excess of 110 % of all secured claims after deduction of all expenses incurred for administration and exploitation purposes.
(9.) MayTec GmbH shall be entitled to rescind this contract upon occurrence of the prerequisites provided under § 323 BGB or § 324 BGB in conjunction with § 241 para. 2 BGB.
(10.) If we are entitled to take goods back, the customer shall enable us or an authorised agent of our company to make an inventory of all goods on hand being subject to retention of title.
(11.) In the event of seizure or other inventions by third parties, the customer shall promptly notify us in writing. The third party involved shall immediately be informed of our rights. Insofar as such third party is unable to refund expenses incurred for an action under § 771 of the German Code of Civil Procedure (ZPO), the customer shall be liable for such expenses, if he has culpably failed to give notifications as provided above.
§ 5 Period of Delivery and Performance
(1.) Our delivery period shall reckon from the date of our related order confirmation.
(2.) All delivery dates scheduled shall depend on timely, complete and correct supply to ourselves.
(3.) In any case, commencement and observance of any delivery period shall be subject to definite clarification of all technical details involved, receipt of all documentation to be furnished by the purchaser and of all permissions and plans required, compliance with all payment terms and other obligations stipulated, and mutual agreement between the parties on all and any technical issues the parties had reserved in contracting for subsequent clarification.
(4.) In case the above requirements should not be fulfilled, the delivery period shall extend by the period of delay, plus a reasonable lead time. This provision shall not be applicable if we are responsible for the delay occurred.
(5.) In the event of delays occurring in delivery or performance from any kind of force majeure, for instance, from mobilisation, acts of war, riot, terrorist assaults, or similar incidents, which significantly impede us in our definitely prevent us from making delivery, e.g., hold-ups, strike, or lockout, or failure of important production facilities/ machinery, delays in the supply of essential raw materials and construction materials, delays in transport, or regulatory actions, delivery periods will extend by the duration of the respective delay, plus a reasonable lead time. Alternatively, we shall have the option to rescind the contract on the basis of such portion thereof as affected by non-performance, unless we have failed to promptly inform the customer that delivery is not available and to promptly refund the customer any consideration he may have paid or furnished in view of the subject delivery. The foregoing provision shall only be applicable to such extent as we are not responsible for such failure. This shall equally be applicable in the event that the circumstances mentioned above should occur with our suppliers or their sub-suppliers.
The foregoing shall also be applicable in the event that the circumstances described above should occur during a present delay in delivery.
(6.) We shall have the option to make partial deliveries, especially for major purchase orders, to such extent as reasonable in due consideration of the customer’s interest.
(7.) In case we should fail to make delivery within the appointed period of time, the customer shall be entitled to rescind the contract, if he has set an appropriate deadline of at least 10 working days with no avail, or if it is unnecessary under applicable statutory provisions to set such deadline at all.
Except for particular circumstances that would justify rescission of the contract in due consideration of the parties’ mutual interests, the above right of customer to rescind the contract shall be precluded, if the impediment obstructing our performance has been caused by circumstances beyond our control, inclusive of any delay in timely and correct supply to ourselves that we are not responsible for. The due date of the customer’s entitlement to delivery shall be postponed accordingly.
§ 6 Passing of Risk
(1.) The risk in the goods shall pass on to the purchaser as soon as the goods have been handed over to the purchaser or his authorised agent, and further, as soon as the consignment has been handed over to the person carrying out the transport (the forwarder, the carrier, or any other person instructed to carry out the shipment). This provision shall not be applicable to any transport that we may carry out ourselves.
(2.) Unless otherwise agreed, the route and means of transport shall be left to our reasonable discretion.
(3.) In case the dispatch of a consignment should be delayed due to circumstances that the customer is to be held responsible for, the risk in the goods shall pass on to the customer as from notice of readiness.
(4.) If requested by the customer, we shall take out transport insurance at the customer’s expense.
(5.) The foregoing provisions shall be applicable to partial deliveries as well.
§ 7 Liability for Defects
In the event of defects of material or title, we shall be liable as follows:
(1.) For defects caused by poor assembly, incorrect installation, poor maintenance, incorrect or careless handling or storing, improper repair which was not carried out by us, modifications made without our written approval, natural wear and tear, excessive load, inappropriate equipment or operating conditions, or by any chemical, electro-chemical or electrical impact beyond our control, or by negative effects of the weather or other forces of nature, any warranty shall be forfeited inasmuch as such circumstances were not without effect on the incurrence of a material defect.
(2.) In case of any parts or elements the purchaser may send us for completion, refurbishing, or re-engineering, we shall not assume any liability for the behaviour of such parts or elements under machining or thermal treatment. If the material should sustain any defect or damage in such process, we shall be entitled to reimbursement of all expenses incurred with respect thereto.
(3.) Warranty claims of the customer require that the customer has duly fulfilled his duty to examine and notify the subject defect in accordance with § 377 of the German Commercial Code (HGB). We shall be notified in writing of any apparent defect immediately upon receipt of the subject goods, and of any non-apparent defect immediately upon detection of such defect. Defective parts or elements shall be sent to us at our request.
(4.) In case of failure by the customer to fulfil his duty of examination and notification with respect to a defect, the subject goods shall be deemed approved by the customer in view of the respective defect.
(5.) If the notification of defect proves unjustified, we shall be entitled to compensation from the customer for expenses incurred.
(6.) The period of warranty shall be 12 months. This time limit shall be inapplicable if longer periods are provided by the law under § 438 para. 1 item 2 (buildings, and items used for buildings), § 479 para. 1 (claim to recovery of expenses), and § 634(a) para. 1 item 2 (construction defects) of the BGB, and in case of injury to life, body or health, of intentional or grossly negligent breach of duty from our side, and when a defect has been concealed maliciously. The relevant statutory provisions related to expiry suspension, interruption, and resumption of time limits shall remain unaffected.
(7.) If the purchased item is defective, we shall have the option to either remedy the defect in terms of supplementary performance, or to make delivery of an item that is free from any defect.
If the customer has set us an appropriate deadline for supplementary performance with no avail, or if it is unnecessary under applicable statutory provisions to set such deadline at all, or supplementary performance is denied from our side or has failed, or the type of supplementary performance that we have chosen is not acceptable to the customer, or the defect involved cannot be remedied within a reasonable period of time, the customer’s rights shall be limited to reduction of remuneration (reduction of price) or to rescission of the contract. The customer’s right to claim damages under § 437 item 3 BGB shall be precluded within the limits of Section B. § 8, unless such right is based on infringement of essential contractual obligations (cardinal obligations), i.e., obligations that must be discharged for the implementation of the contract to be at all possible and on the observance of which the contractual partner may as a rule rely.
§ 8 Overall Liability
The following provision shall be applicable to all and any cases where we shall be liable to our customer under any legal ground whatsoever, unless otherwise provided in the present Standard Terms and Conditions of Business or any other agreement.
(1.) In case we should violate any of our contractual obligations by slight negligence, we shall not be held liable, unless such violation affects any essential contractual obligations (cardinal obligations), or damages from injury to life, body or health, or breach of warranty, or claims under the German Product Liability Act. In such cases, our liability shall neither be precluded, nor limited. The same applies to any breach of duty committed by any of our vicarious agents or legal representatives.
(2.) In case we shall be held liable under § 8 para. (1.) above for violation of essential contractual obligations by slight negligence, damages payable shall nevertheless be limited to claims that are typical of contracts and foreseeable at conclusion thereof, and to consequential damages incurred.
(3.) The foregoing provision shall not be applicable in case of malicious concealment of a defect, or in case of assumption of warranty for specific properties of goods.
C. Final Provisions
(1.) Applicable Law
The present Standard Terms and Conditions of Business shall exclusively be governed by the law of the Federal Republic of Germany.
Any application of the Vienna UN Convention of 11.04.1980 on Contracts for the International Sale of Goods (CISG) shall be precluded.
(2.) Place of Performance and Jurisdiction
The agreed place of performance and exclusive place of jurisdiction for the purposes hereof shall be the location of our registered office. Our registered office is located in Dachau. Furthermore, MayTec reserves the right to file an action at any contractual partner’s general place of jurisdiction.
