General terms and conditions from MIAVIT GmbH, as from 10/2014
The deliveries, services and offers of Miavit GmbH – in the following called "seller" – are exclusively subject to these terms and conditions.
Therefore they apply in the current and all future business relations, even if they are not expressly agreed again.
At the latest with the acceptance of the goods or services, these terms considered as accepted.
Conflicting or deviating conditions of the customer - in the following called "buyer" - from the terms and conditions of the seller is contradicted.
They require the express written consent of the seller to be part of the contract.
1. Offer, conclusion of contract, subject matter of contract
1.1 The offers / quotations of the seller are non-binding and without obligation.
1.2 All orders shall be legally confirmed in writing by the seller. The written confirmation does not replace the requirement for written form, § 126 III BGB is excluded.
1.3 Dimensions, weights, information of content or quality and other performance data are only binding if expressly agreed in writing.
1.4 The agreements reached between the parties are set out fully in writing in the moment of conclusion of the contract. The sales personnel of the seller are not authorized to make verbal agreements or to give verbal assurances that go beyond the content of the written contract.
1.5 The seller shall provide only and solely in their order confirmations explicitly specified supplies and / or services.
2.1 The deciding prices are listed in the order confirmation of the seller additionally the valid VAT.
2.2 Deductions, especially for cash discount, require a written agreement.
3. Delivery and Time of performance
3.1 Delivery dates or delivery terms are only binding on the seller if agreed in writing.
3.2 The term of the delivery period begins on the date of dispatch of the order confirmation to the Seller, but not before the provision of any documents to be procured by the buyer, permits, approvals and not before receipt of an agreed deposit with the seller.
3.3 Force majeure and other exceptional circumstances or events that are not the responsibility of the seller and make its delivery significantly impede or impossible (in particular this includes strikes, lawful lockout, official orders, etc.), even if it occurs with supplier of the seller or subcontractors of even them, freeing the seller for the duration of their effects and, if they lead to impossibility of performance, completely of its obligation of liability and / or supply. Under these circumstances a possible agreed contractual penalty is forfeited.
3.4 If the hindrance lasts longer than three months, either party shall be entitled to withdraw from the not yet fulfilled contract. The right of withdrawal of the buyer assumes a reasonable grace period. If the delivery time extended or if the seller release of its obligation, the buyer shall have no claim for damages. In the said circumstances, the seller may only invoke if the seller notifies the buyer immediately.
3.5 If the seller is in default due to simple negligence, its liability for delay damages is limited (damages in addition to performance) to 5% of the invoice value of the delayed supplies and services. This does not apply in the event of culpable injury to body, life or health.
3.6 The seller shall be entitled to make partial deliveries and partial services if reasonable for the buyer.
3.7 Compliance with the delivery and performance obligations of the seller requires the timely and proper fulfillment of the obligations of the buyer.
4. Place of fulfillment, acceptance, approval and passing of risk
4.1 The place of performance for deliveries and services of the seller is the warehouse of the seller in Essen / Oldenburg. The risk passes to the buyer once the shipment has been delivered to the carrier or if the shipment has left the warehouse of the seller in Essen / Oldenburg, unless stated in otherwise in a written arrangement. This also applies to partial deliveries /services, also if the seller has taken other services (e.g. transport or transfer). If the delivery of the shipment becomes impossible independent of negligence of the seller or if the shipment is delayed for reasons not attributable to the seller, the risk passes to the buyer with the notification of readiness for shipment.
4.2 The seller is entitled, the goods / services that has not / taken by the buyer within the stipulated time to store at buyer's expense against local remuneration and insure against theft, breakage, fire, water and other damage at its expense, if the buyer does not submit in writing within a reasonable time (but not later than five business days) its conclusion of such insurance in writing.
4.3 The buyer has the goods / services without delay, but at latest within eight working days after request to take of at the place of delivery.
5 Rights of the purchaser due to defects
5.1 The buyer shall inspect the received goods for completeness, damages and defects. Obvious defects are to be reclaimed immediately upon receipt of the delivery, defects within the framework of a proper examination within one week of delivery and other later become evident defects within one week after discovery. Discovered defects must be notified in any case before processing, mixing or resale. Transport damages must be reported directly to the freight carrier.
5.2 The seller warrants the merchantable quality of their products.
5.3 The supplied products are to be used as intended within three months after delivery, unless longer storage stability has been expressly agreed in writing.
5.4 The limitation period for material defects and defects of title is one year and begins with the passing of the risk. This does not apply if the seller has acted with intent or grossly negligent or that in clause 8.3 of liability situations stated applies. The limitation provision of § 479 BGB in the case of suppliers' recourse also remains unaffected.
5.5 The seller is not obliged to analyze its purchased goods before resale if it at buying let guaranteed the substance / content or if it should go from experience that the purchased goods have the agreed quality. The seller shall not be liable for any damages that are caused by non-compliance of the instruction of use or application of the seller or if the buyer changes the products.
5.6 The buyer shall give the seller the opportunity to make supplementary performance within a reasonable time, in fact at the option of the seller by the removal of the defect, by exchanging the delivery and accordingly the replenishment of shortfalls.
5.7 If the supplementary performance finally fails, is refused by the seller, can not be expected of the seller or the buyer, or is it only possible with disproportionate costs, the buyer may - without possible claims for damages- withdraw from the contract or reduce the remuneration.
5.8 Claims of the buyer against the seller for reimbursement of necessary expenditures for the purpose of supplementary performance to the extent that expenses increased because the subject matter of the delivery/performance subsequently were placed or transported to a different location. In particular transport, travel, labour and material costs are excluded. Unless the transfer corresponds to the intended use of the object of delivery/service.
5.9 Claims against the seller for defects are only entitled to the immediate purchaser and are not transferable.
6 Extended and overall reservation of title
6.1 The seller reserves the title to the delivered goods (reserved goods) until full payment of all it out of this contract or resulting from the business relationship with each buyer, no matter of the legal reason, owing receivable, arise at the time of conclusion of the contract, already incurred or arise in the future from the business relationship.
6.2 The buyer shall be entitled for resale, processing, blending, mixing or combining as well as for subsequent sale within reservation of title, provided that this is done in the ordinary course of business.
6.3 In a mixing, blending, processing or reforming with other goods not belonging to the seller by the buyer, the seller shall acquire co-ownership of the new item to the invoice value of the goods. The result from the mixing, blending, processing and transformation shall be deemed as reserved goods in the sense of these conditions.
6.4 The buyer shall assign in advance all in connection with the resale of the reserved goods incurred claims with ancillary rights as well as possible requirements against its insurer as security in advance hereby to the seller, independent if the resale takes place before or after processing or mixing or blending. If the reserved goods will be sold by the buyer together with others, goods not belonging to the seller whether without or after mixing, blending, processing, transformation, requirements and claims in the amount of the invoice value of the reserved goods have been assigned to the seller. The buyer is authorized and obligates to collect the claim from the resale despite the assignment as long as the seller does not revoke this authorization. The seller undertakes not to collect the claims itself as long as the buyer meets his contractual obligations properly. The buyer shall remit immediately the value of the claim owed to the seller and keep it separate from its own assets.
6.5 The buyer is not entitled to pledge the reserved goods or to assign them as security. Impairment of the rights of the seller in particular through seizure and confiscation of the conditional goods, the buyer has to inform the seller immediately in writing and accompanied by copies of the seizure protocols etc.. If the third party is not able to reimburse the seller for the judicial and extrajudicial costs of such an intervention, the buyer is liable for the loss incurred with the seller.
6.6 If the buyer is in default with the payment of duty or breach resulting duties from the agreed extended and overall reservation of title obligations, the residual debt is due immediately.
6.7 At the request of the buyer, the seller is obliged to release the rightful ownership of the reserved goods and the assigned receivables to the buyer if the value exceeds the total outstanding debts of the seller against the buyer by more than 10 %. The selection of the required security is up to the seller.
7.1 Unless otherwise agreed, invoices of the seller shall be payable within 14 days after delivery without deduction.
7.2 Payment shall be deemed not completed until the seller has the invoiced amount at his disposal. In the case of checks and bills, payment is only deemed complete when the payment has been honored without reservation.
7.3 The purchaser may offset against the seller only undisputed or legally established claims.
7.4 The buyer is only entitled to exercise a right of retention insofar as its counterclaim is based on the same legal relationship.
8.1 The liability of the seller for damages of any kind is excluded, unless the damage has not been caused intentionally or by gross negligence by the seller, its legal representatives or vicarious agents (§ 278 BGB) or unless the damage is due to the culpable breach of an essential contractual obligation by the seller. Essential contractual duties are those whose fulfillment required the purpose of the contract and on whose compliance the buyer relies and may rely.
8.2 Unless the seller is liable in accordance with the above provisions, its liability is, if no intent is charged to the seller, limited to the contract- typical, foreseeable damage.
8.3 The above limitations do not apply in the event of culpable injury to life, body or health, the assumption of a procurement guarantee or fraudulent concealment of a defect and the mandatory liability under the Product Liability Act.
8.4 The provisions of clause 8.1-8.3 shall apply accordingly if the buyer asks for reimbursement of expenses instead of damages in lieu of performance.
9 Applicable law, place of jurisdiction, partial invalidity
9.1 For these terms and conditions and the entire legal relationship with the buyer, the law of the Federal Republic of Germany under exclusion of the agreement of the United Nations or other intergovernmental agreements on Contracts for the International Sale of Goods Convention.
9.2 If the buyer is a merchant as defined by Commercial Law, legal entity under public law or public special fund, Oldenburg (i. Oldb.) is exclusive jurisdiction for all disputes arising from the contractual relationship, directly or indirectly arising disputes.
9.3 If any provision in these terms and conditions or any provision in any other agreement be or become invalid, the validity of all other provisions or agreements shall not be affected.
9.4 The seller shall be entitled to process and safe the data relating to the contract in accordance with the regulations of the Federal Data Protection Act insofar this is necessary for the execution and completion of the contract. The elevation, transmission or other processing of personal data by the purchaser, for purposes other than stated purposes is not permitted.