Terms and Conditions for MBS GmbH
1. General Terms
We only accept orders and deliveries on the basis of the following general conditions.
Terms and conditions of the buyer, which differ from ours, apply only if this has been acknowledged by us in writing. Our general conditions also apply in the event that we acknowledge contrary or differing conditions on the side of the customer and unreservedly fulfill the order. Our offers are always subject to change. All contracts and agreements, even if they are concluded by traveling salesmen and agents, are only binding if we have confirmed the offer in writing. Subsidiary agreements and changes only take effect after our written confirmation.
As agreed, the prices which are current at the conclusion of the contract as shown on our price list have validity. The prices listed in the price list are net and ex warehouse from Krefeld plus the applicable value-added tax.
Unless otherwise agreed, the payment is due 14 days after the invoice date without any deductions and at no cost to us. With a delivery of EUR 10,000.00 and exceeding, one third of the order value is due as a down payment on receipt of order confirmation, another third is due at the point of readiness for dispatch and the balance is due 14 days after the invoice date. If the payment period exceeds the due date, interest will be charged in accordance with the relevant bank rates for short-term loans, but at least at 2% above the discount rate of the European Central Bank. The right to claim further damages is reserved. Should the financial circumstances of the buyer deteriorate after contract completion and the payment of our claim is at risk, the remaining outstanding invoices are payable immediately. In this case we are only obliged to further execution of the contract and delivery after payment of the total amount. The buyer does not have the right to counter-claims against the purchase price to offset a claim and to retain the purchase price due, unless the counterclaim is undisputed or legally binding.
MBS is entitled, notwithstanding any provisions of the customer, to offset payments on previous debts. In the event that expenses and interest have already arisen, MBS GmbH shall be entitled to charge the defaulted payment in question to the expenses and then to the interest and finally to the primary obligations.
4. Periods and terms of delivery
The delivery time begins with the dispatchment of the order confirmation, but not before the buyer's required documentation and the receipt of the agreed payment. The delivery period shall be met if the delivery item has left the factory by the end of the period or readiness for dispatch has been notified. Force majeure, late delivery from our suppliers, strikes, lockouts, and incidents not caused by our company entitle us, at our discretion, to withdraw from the contract or to the appropriate extension of the delivery period in the case of the aforementioned delay after default without claims to damages by the buyer.
We will retain the right of cancellation, even if an extension of the delivery date had been agreed.
We may be deemed in delay with our delivery commitments only after the buyer has sent a written reminder and set a reasonable extension of at least 21 days, and we culpably have not delivered within the deadline set for us. In this case the buyer has the right to cancel the contract after the end of the delivery period extension, which was caused by circumstances arising beyond control, and after giving due warning.
The buyer generally has no claims for compensation for any delay or default loss, for whatever legal reason, unless the delay in delivery is due to gross negligence on our part and the legal requirements for a claim are otherwise satisfied. In this event, the damage is limited to a maximum of 0.5% per week but altogether not more than 5 % of the value of that part of the delivery which, due to the delay, cannot be used punctually or not according to contract. If the execution of the contract is subsequently impossible, the buyer has the right to cancel the contract. Claims for whatever legal reason, are excluded, unless we are responsible for this not being possible through gross negligence.
5. Place of fulfillment, dispatch and passage of risk
Place of fulfillment for our delivery obligation is Krefeld. At the request of the buyer, we will arrange the shipment at his/her expense. The risk shall pass to the buyer at the latest with the transfer to the dispatching company. This also applies even when we have taken over the transport costs, delivery or installation. The goods are generally uninsured. On express request and at the expense of the customer, the consignment will be insured against transit, breakage, fire and water damage. If shipment is delayed for reasons for which we are not responsible, the risk shall be passed to the customer from the day of readiness for dispatch, but upon the customer's request and at his cost we shall be obliged to conclude the insurance demanded. Delivered items are, even if they contain material defects, notwithstanding the rights conferred by the defect liability section, initially to be accepted by the buyer.
We are entitled to partial deliveries.
Reasonable divergence from descriptions and information in brochures, catalogues and other documents as well as model, design and material changes in terms of technical progress and further development remain our reserved right and do not constitute grounds for any claims by the customer against MBS.
6. Title retention and trusteeship
The goods delivered remain our sole property until the purchaser has paid all claims – including future claims – arising from the business relationship between MBS GmbH and the buyer, especially a possible current account balance. Rights resulting from the retention of title are valid until full release from contingencies, including acceptance liability. Any processing or modification of goods subject to retention which is carried out on our behalf shall not put us under any obligation. The processing, combining, mixing or blending of the goods processed with other, mixed, blended or combined items is done only with the proviso that the buyer keep such in safekeeping for us free of charge. The buyer is entitled to sell the goods in the normal course of business, but the goods may not be put up as security or collateral.
Third party access to the goods
or assigned claims are to be notified without delay to transfer the necessary documents for an intervention. Upon agreeing with these general terms and conditions, the customer assigns all claims arising from the sale of the reserved goods and asserted against its customers including all ancillary rights to MBS; we accept this assignment The buyer as our trustee is authorized to collect the assigned debts as long as he fulfils his obligation to pay and has not become insolvent.
If the conditional commodities are resold together with other goods regardless of whether this is with or without processing, linkage, mixture or incorporation, the advance cession agreed upon in the foregoing shall only apply to the amount of the invoice value of the conditional quantities which are resold with the other goods. If the value of the collateral to which we are entitled exceeds the total debt owed by the buyer by more than 20 %, we are obliged to release security collateral of our choosing at the request of the buyer.
MBS guarantees that the contract products are not subject to material defects which include the absence of guaranteed properties. The preparation of the contracted products takes place with the necessary care. The parties are however aware that given the state of the art is not possible to exclude errors in hardware and software under all conditions.
MBS guarantees that the contract products are appropriately described in the product information and in this context are fundamentally operational The specifications and descriptions in the documentation alone is no guarantee for specific properties. An assurance of properties in the legal sense is given only if the particular details have been confirmed by the MBS in writing. We do not guarantee that the program functions meet the requirements of the customer or interoperate in the selection made by him/her.
The guarantee specifically excludes defects or damages that result from wear out and normal wear, improper use/handling errors and negligence of the customer/company with the wrong type of current or voltage as well as connection to unsuitable power sources, fire, lightning, explosion or network induced surges, moisture of any kind, false or erroneous programs, software and/or processing data as well as spare parts, unless the customer proves that these circumstances are not the cause of the alleged deficiencies.
The guarantee shall not apply if serial numbers, model name or similar marks are removed or made illegible.
The guarantee period for new equipment is twenty-four (24) months, or twelve (12) months for used equipment; with the period beginning at the transfer of risk. This period is subject to statutory limitation and shall also apply to claims for compensation in respect of damage consequential to a defect unless tort claims are asserted. Guarantee claims are not transferable.
Irrespective of this, MBS GmbH extends any further guarantees and related commitments of the manufacturer in full to the customer without taking responsibility.
In the case of liability for defects, either repair or replacement will be carried out according to the choice of MBS GmbH. Replaced parts become the property of MBS. If the MBS does not eliminate the deficiencies within a written reasonable period of extension, the customer is entitled to either rescission of contract or an appropriate reduction of the purchase price.
In the case of repair, MBS will bear the labor costs. All other costs associated with the repair and replacement delivery, especially transportation costs for the replacement part, will be carried by the customer as far as these other costs are not disproportionate to the value of the contract.
If the examination of a defect notice reveals that there is no defect, MBS GmbH is entitled to demand compensation of all expenses. Costs of examination and repair will be charged at the current applicable service prices of the MBS.
All further or different provisions laid down in these claims by the customer, regardless of their legal basis, are excluded to the extent that these provisions do not indicate otherwise.
When claiming liability or guarantee, as well as fee-based repair orders and returns of any kind, the customer must comply with the settlement policy of customer services in its current version and the corresponding procedures of the applicable MBS price list.
For all of our distributed software products only a right of use can be acquired. The owner of the software remains, in any case, the manufacturer. This applies to both the original and each copy.
The usage may only occur on one computer system. Multiple use of the program (or copy thereof), e.g. on several computers of the acquirer, is not allowed. Our software may not be sold, lent, exchanged, or otherwise disclosed to third parties. Any violation of these provisions imposes a penalty of EUR 50,000. In addition, compensation and consequential damages claims will be invoked.
Before opening the disk seal the number of the disk should be compared to the number on the invoice to ensure it is identical. With the removal of the diskette envelope at the latest, all provisions of these terms will be accepted as binding, and the identity of the numbers will be confirmed.
A reproduction of programs – as well as sections thereof – from data media or other forms is prohibited; except for copies for backup purposes for personal use.
German law applies exclusively to the legal relationship between us and the buyer. The exclusion applies to the uniform law on the sale of moveable goods as well as the uniform law on the conclusion of international contracts for the sale of movables.
10. Partial inefficacy
Should individual provisions of the contract conditions turn out to be non-applicable or invalid, this does not affect the validity of the contract and the remaining provisions.
11. Place of jurisdiction
Is Krefeld for both parties. However, we are also entitled to sue at the buyer's headquarters.
12. Data protection
The order is handled within MBS GmbH using automatic data processing. The customer hereby gives his/her express consent to MBS for the processing of data which has become known and necessary for processing the order in the context of contractual relations.
Krefeld, June 2011
Should there be any discrepancies between the original German version of this document and the English translation; the German version shall take precedence. Sollte es Unstimmigkeiten zwischen der deutschen Originalfassung dieses Dokuments und der englischen Übersetzung, ist dem deutschen Original Vorrang zu geben.