Mediprint Apparatebau GmbH
General Terms and Conditions of Sale
Our service and delivery are provided based on the following General Terms and Conditions. They shall also apply to all future business relations.
Terms and conditions of the customer shall not be recognized, even if Mediprint Apparatebau GmbH do not expressly object to them. Therefore, any deviating or contradictory terms and conditions of the customer shall only apply if we have confirmed these terms and conditions in writing.
Unless otherwise expressly stipulated, our quotations and cost estimates are subject to change and do not constitute offers that can be accepted by the customer. All orders placed by the customer will only be accepted by our written or electronic confirmation.
1. BASIS OF CONTRACT; APPLICABLE LAW, PLACE OF JURISDICTION
(a) Mediprint Apparatebau GmbH, registered office: 85567 Grafing, Griesstr. 18 (“the Company”) – develops, produces and sells pollinators and strip inserts as well as spare parts, goods and services (“the Products”).
(b) The customer may not derive any representations, obligations or promises
from any oral or written statements made in negotiations prior to the signing of this contract unless the contrary (i) has been or is agreed to by the parties or (ii) is stated in this contract.
(c) The Company reserves the right to change or modify the design and construction of the Products (including technical changes and changes in shape, color, material and/or weight) or to substitute material of equal or greater value for the agreed material. Such change or modification does not change the contractually agreed quality of the Products.
(d) This contract is subject to the substantive law of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply. Munich (Germany, Regional Court Munich II) shall be the exclusive venue for any disputes. Alternatively, the Company shall also be entitled to bring a legal dispute before the court having jurisdiction over the customer’s registered office.
(e) All orders placed pursuant to these General Terms and Conditions of Sale are subject to change until these orders are confirmed and accepted in writing or electronically (e.g. e-mail) by an authorized employee of the Company.
2. DELIVERY; PACKAGING; TRANSFER OF RISK; FORCE MAJEURE
(a) Unless otherwise agreed, all sales shall be ex factory (EXW in accordance with Incoterms 2000). If the customer requests delivery, such delivery shall be made at customer’s expense and risk, unless otherwise provided. The Company may select the freight carrier at its discretion, unless otherwise agreed with the customer.
(b) The customer may not return any packaging material to the Company that is subject to the Dual System for Waste Disposal (“Grüner Punkt”) or a similar system recognized by the responsible authorities in accordance with the applicable packaging guidelines. The customer may not return any packaging material to the Company if the Company has contracted a suitable waste disposal company in accordance with the applicable packaging guidelines. In this case, the customer is obliged to hand over the packaging material to the waste disposal company.
(c) Should the Company be obliged to take back packaging material, the packaging material must be returned to the Company’s registered office during general business hours. The returned packaging material must be free of foreign substances and separated according to different types of packaging. Should the customer agree to waive their right of return in exchange for a flat waste fee, the customer shall be obligated to transfer the used packaging material to a recognized waste disposal company. The disposal company must ensure proper disposal in accordance with the provisions of the packaging company.
(d) If the Company is responsible for delivery only, the risk of accidental loss or damage to the Products shall pass to customer upon delivery of the Product to the carrier. If the Company is responsible for assembly or erection of the Product, the risk of unintentional loss or damage shall pass to customer upon (i) acceptance or (ii) completion of the services and expiration of the time set by the customer for acceptance or upon expiration of a reasonable limitation period after Company’s request for acceptance. If delivery, installation or set-up is delayed at customer’s request or for any other reason the customer is responsible for, the customer shall bear the risk of any unintentional loss or damage during such period of delay.
(e) The customer shall notify the Company thereof in writing without undue delay of any apparent defects in the deliveries made by the Company. But not later than ten days after the customer has received the delivery, otherwise the assertion of warranty claims shall be excluded. The obligation to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB) shall remain unaffected.
(f) If the date agreed for the performance of the Company’s obligations under this Agreement is exceeded due to circumstances beyond the control (force majeure event – see clause 8 (e)) of both parties, the Company shall be entitled to a reasonable extension of time. In the event of a delay caused by the customer, the Company shall be entitled to a reasonable extension of the deadline and compensation for all costs, expenses and losses incurred by the Company.
(g) Even if dates or periods for readiness for shipment or delivery of goods are given in good faith, they shall not form the basis of the contract and shall not be deemed to be conditions of the contract or warranties of fact unless otherwise expressly agreed.
(h) The Company reserves the right to make partial deliveries, provided that such partial deliveries are reasonable for the customer. Each partial delivery shall be invoiced separately.
3. RETENTION OF TITLE
(a) All Products shall remain the property of Company until the products have been paid in full by the customer. Until the payment in full of the purchase price of the Products, the customer shall always comprehensively insure the Products in an amount at least equal to the amount of the outstanding balance. Moreover, the products shall be insured against loss or damage by accident, fire, theft and against such other risks which are customarily assumed by insurance companies for the business conducted. Upon the Company’s request, the customer shall provide evidence of the existence of such insurance and assign all claims under such insurance to the Company. In addition, the customer agrees not to use any of the Products owned by the Company as collateral.
(b) If the customer further processes or remodels the Products, the Company and the customer shall be deemed to be the manufacturer pursuant to Section 950 of the German Civil Code (BGB); the Company shall acquire a co-ownership share in the new Product in the ratio of the invoice value of the Product to the value of the final Product. If the customer combines, mixes or blends the Products with items not owned by the Company, the Company shall become co-owner of the new Product in proportion between the value of the Products and the value of the items not owned by the Company. If the customer acquires sole ownership pursuant to Section 947 (2) of the German Civil Code, it shall transfer ownership of the new Product to the Company in proportion to the value of the Products and the value of the items not owned by the Company. The provisions of Clause 3 shall apply mutatis mutandis to the new product resulted from further processing, reshaping, combining, mixing or blending.
(c) Until the Products have been paid for in full by the customer: (i) the customer shall store the Products owned by the Company as well as any new Products in which the Company has acquired co-ownership free of charge; (ii) the customer may sell such Products in the ordinary course of business, but only against cash payment or subject to retention of title; (iii) the customer shall not be entitled to dispose of the Products in any other manner, such as transfer by way of security or pledge; (iv) the balance shall be assigned to the Company in the amount of the Company’s receivables if receivables of the customer are part of a current invoice, with the remaining part of the balance receivable having priority; (v) in the event of a resale of the new product created by further processing, transformation, combination, mixing or blending, the customer’s claims for compensation against the purchaser shall be assigned to the Company in the amount corresponding to the Company’s co-ownership share; (vi) if customer’s accounts receivable are part of a current account, the balance due to Company shall be assigned to Company in the amount of Company’s accounts receivable, with the remaining balance receivable having priority; and (vii) customer shall be entitled to collect the assigned accounts receivable on behalf of Company in trust until revoked (as described below).
(d) If customer is in default for more than 2 weeks, either in part or in whole, in any contractual obligations, such as the payment of Company’s receivables, or in the event of termination of the contract pursuant to Section 9, the Company shall be entitled: (i) revoke customer’s authorization to collect the assigned receivables on Company’s behalf, in which case customer shall disclose such assignment to its debtors and provide Company with all information necessary to collect the receivables and deliver all documents to the Company (including all bills of exchange and checks, if any); and (ii) rescind the Contract by written or electronically transmitted notice of termination and demand the surrender and return of the Products still in customer’s possession; the customer shall provide a list of all Products still available and shall ensure that the Company has access to those items at all times. The return of the Products alone does not constitute a withdrawal from the contract. The assertion of claims for damages shall remain unaffected by this. All costs incurred in connection with the collection of claims against third parties or the taking back of the Products shall be borne by the customer.
(e) The customer shall be credited with the proceeds of the Products taken back in accordance with Clause 3 (d) (minus the costs of delivery, assembly or installation). The Company shall be entitled to dispose of the Products by private sale after withdrawal from the Contract, after giving the customer two weeks’ notice of such private sale.
(f) The customer shall immediately notify the Company in writing of any seizure of Products and new Products owned by the Company or in which the Company has acquired a co-ownership interest, or of any claims asserted against the Company by third parties; in the event of an impending loss of rights, also by telephone followed by a written notice. The customer shall assist the Company in any action taken against any third party claim. The customer shall bear the costs for all such necessary measures.
(g) If the value of all security rights for the Company under the above conditions exceeds the amount of the secured claims by more than 10%, the Company shall release the excess amount of the security rights upon the customer’s request.
4. TECHNICAL CRITERIA; COOPERATION; DISCLAIMER OF WARRANTY IN CASE OF IMPROPER USE; INDEMNIFICATION
The Products are highly sophisticated technical products; accordingly, subject to the individual agreements reached between the parties, the customer agrees to ensure the following:
(a) that the customer has provided and will promptly provide all information reasonably necessary to enable the Company to (i) assess the requirements for fulfillment and (ii) fulfill the requirements of the contract, and that this information is complete and accurate;
(b) that all business premises, factory equipment, technical support, spare parts, associated machinery and inputs necessary for the development, design, construction, testing and use of the Products are ready for their purpose and are in technically good order and condition;
(c) that the customer will fully cooperate with the Company in the development, design, construction, inspection and use of the Products;
(d) that the customer will use the Products only for their intended purpose and in accordance with the Product instructions and will not, under any circumstances, use unsuitable spare parts, connect unsuitable machinery, make unsuitable maintenance or repairs, or use the Products in such a manner as to render them hazardous. Any defects of the Products caused by such violation shall release the Company from all warranty obligations with respect to the quality of the Products. Pursuant to the provisions of law, the customer shall also be liable to the Company for all costs, expenses and losses incurred by the Company as a result of or in breach of this undertakings.
5. DRAWINGS, DESIGNS AND CONFIDENTIALITY
(a) All specifications, designs, drawings, statements of physical, chemical and electronic properties and statements of inlet pressure or vacuum, outlet pressure and power consumption (“the Designs”) are made in good faith, are only approximations and are not individually binding unless the customer has agreed in writing with the Company to an exact statement the customer relies on. Provided that the Products continue to meet the requirements of the contract, the Company shall have the right to deviate from such statements and/or to correct errors and omissions.
(b) The Designs (including all copyrights, design rights and other intellectual property rights) shall be owned by the Company. The customer shall not be entitled to use the Designs for any other purpose beside the purpose of the contract.
(c) All inventions, modifications, improvements, processes or know-how relating to the Products made or obtained during the contract execution belong exclusively to Company.
(d) The customer shall not disclose the Company’s confidential information or trade secrets to any third party or use it for their own purposes.
(e) The customer agrees to ensure that the customer acquires or owns the necessary intellectual property rights to fulfil the contractual obligations and will promptly notify the Company of any intellectual property rights infringements that are discovered.
6. PRICES, TERM
(a) All invoices are payable in Euros within 14 days of the date of invoice (“Due Date”), unless otherwise agreed. Without any deductions for rights of retention or set-off customer may be entitled to (unless the customer’s counterclaims are undisputed or have been finally adjudicated). If the Company deems it necessary, the Company reserves the right to require payment in full or in part, or the provision of appropriate security or guarantee from or on behalf of the customer, prior to the commencement of performance of the Contract. The Company shall have the right at any time to review the terms of the credit limit granted to the customer and to increase or reduce such credit limit upon written notice to the customer. The Company may, in its sole discretion, accept cash payment in advance for the Products or cash payment with specified prepayments. Without prejudice to its other rights, the Company may, upon written notice to the customer, demand immediate payment of all outstanding balances for all Products delivered at any time.
(b) The Prices quoted are ex works (EXW in accordance with Incoterms 2000), exclusive of packaging and exclusive of sales tax or other taxes.
(c) If a delivery date is agreed to be later than three months after the date of the conclusion of contract, the Company’s prices may be adjusted on a pro rata basis to reflect changes in Company’s costs including (but not limited to) material costs, labor costs, and/or fixed costs, currency fluctuations, changes in customs duties, changes in specifications by the customer, and other costs since the date the conclusion of the contract. Accordingly, the Company reserves the right to increase or decrease the amount of the invoice by the amount of costs (pro rata) incurred after the date of the conclusion of the contract. The adjusted invoice shall be subject to the same payment terms as the original agreed price.
(d) If prices have not been expressly agreed between the Company and the customer, the Company’s list prices valid at the time of the order shall apply.
(e) Should the Company be responsible for the assembly or installation of the Product, the customer shall bear all necessary incidental expenses, such as travel expenses and transportation costs for tools and personal luggage, as well as daily expenses in addition to the agreed remuneration, unless otherwise agreed. If the customer is not the owner of the machine on which the installation is carried out, has assigned it as security or the rights of third parties to the machine could be affected, the customer hereby assures that he/she/they is entitled to have the machine modified accordingly. In all other respects, the exclusion of liability pursuant to Section 8 shall apply.
(f) Pursuant to Section 247 of the German Civil Code (BGB), the Company may charge interest at a rate of 8% p.a. above the base interest rate for all still outstanding amounts (default of payment).
(g) The Company may, at its sole discretion and in accordance with the separate agreements of the parties, require that export orders must be paid by letter of credit which is acceptable in its form to the Company and confirmed by an internationally reputable German bank.
(h) Insofar as the risk of the customer’s inability to perform becomes apparent to the Company after the conclusion of the contract, the Company shall be entitled to make overdue deliveries only against payment in advance or provision of security. If the payments in advance or securities have not been provided even after expiration of a reasonable grace period granted by the Company, the Company may, irrespective of its further rights, withdraw in whole or in part from individual or all the affected contracts with the customer. The Company shall be at liberty to assert further rights.
(i) In the event of termination, the customer hereby gives the Company irrevocable permission (if it is possible for the customer) to enter the customer’s premises to repossess the Products.
(j) The Company shall be entitled to rescind the Contract to the extent that, at any time when the price of the contract has not been paid fully (whether or not the claim for payment is already due), a petition in bankruptcy is filed or started in respect of the customer or in the event of the customer’s insolvency or in the event of the appointment of an administrator over the customer’s business (“Withdrawal”).
(k) The customer may only assign claims under this contract with the consent of the Company.
7. WARRANTY FOR DEFECTS
(a) “Warranty Period” in the sense of Clause 7 shall mean the period of time beginning on the date of delivery of the Products (or relevant parts) and expiring 12 months later, unless the Company has agreed in writing on a different warranty period, as well as in cases of injury to life, body or health, in case of intentional or grossly negligent breaches of duty by the Company or in case of fraudulently concealed defects. The statutory provisions on the suspension of the statute of limitations shall remain unaffected.
(b) The Company warrants that the Products will be free from material defects resulting from inadequate or negligent workmanship or materials during the warranty period (the “warranty”).
(c) Subject to the Section 7(d) and (e), if a valid and traceable claim based on breach of warranty concerning the Products (or any part) is presented within the Warranty Period, the Company will repair or replace the Products or, if the customer agrees, will credit an agreed sum to the customer. Recourse claims of the customer against the Company shall only be admissible to the extent that the customer has not signed an agreement with its own respective customer granting the latter rights exceeding the statutory defect liability rights. Regarding recourse claims pursuant to Section 478 (2) of the German Civil Code (BGB), the customer shall be entitled to withdraw from the contract or to reduce the purchase price.
d) Subsequent performance shall only be deemed to have failed after the second unsuccessful attempt. The customer is not entitled to withdraw from the contract in cases of insignificant deviation from the contract, especially in the case of insignificant defects.
(e) The Buyer shall provide the Company a reasonable time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to the Company in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor its re-installation.
(f) If the customer returns a product after asserting a warranty claim or demands that the Company take a product back, the customer must inform the Company in writing whether the products have come in contact with substances that are hazardous to health within the meaning of the applicable environmental regulations and, if so, with which substances. The Company shall be entitled to refuse to remedy defects insofar as such substances have been used with or have come in contact with the Products; the customer shall be obliged to pay compensation for any damage resulting from the customer’s failure to provide the Company with the required notification. If the returned Products have been used with or have come in contact with the mentioned substances, the customer shall mark the Products in accordance with environmental regulations and send them exclusively in suitable packaging and with suitable means of transport.
(g) The Company shall not be liable for any breach of warranty to the extent that
(i) the breach of warranty is due to the Products having been improperly installed, used, repaired and maintained by a party other than the Company itself;
(ii) the customer has failed to notify the Company of the claimed defect within 10 days of its discovery; and/or (iii) the defect is due to natural wear and tear, particularly with respect to wear parts.
(h) Insofar as a defect occurs, the customer shall notify the Company immediately, but no later than within 10 days of its discovery. (i) To the extent that the notification is made within the warranty period, the Company will respond and indicate whether the Company accepts its warranty obligation under Sections 7(c)-(e) and indicate what kind of action it proposes to take (such action may include further investigation by the Company’s customer service department); insofar as it turns out that the defect does not trigger any warranty obligation on the part of the Company and this was known or recognizable to the customer, the Company reserves the right to charge the customer for the expenses incurred for the investigation. ii) Insofar as the warranty claim is asserted after the expiry of the warranty period, the Company shall – without prejudice to the provision in clause 8 (b) – if necessary, offer a repair or replacement subject to a charge.
8. LIMITATION OF LIABILITY; FORCE MAJEURE; INDEMNIFICATION IN THE EVENT OF INFRINGEMENT OF INDUSTRIAL PROPERTY RIGHTS AND COPYRIGHTS
(a) Claims of the customer for damages are excluded. Excluded from this are claims for damages by the customer arising from injury to life, limb, or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the company, its legal representatives, or vicarious agents. Material contractual obligations are those whose fulfillment is necessary to achieve the objective of the contract.
(b) In the event of a breach of material contractual obligations, the Company shall only be liable for the contractually typical foreseeable damage if such damage was caused by simple negligence, unless the customer’s claims for damages are based on injury to life, body, or health.
(c) The restrictions of paragraphs (a) and (b) shall also apply in favor of the legal representatives and vicarious agents of the Company if claims are asserted directly against them.
(d) The limitations of liability resulting from paragraphs (a) and (b) shall not apply if the company has fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The provisions of the Product Liability Act shall remain unaffected.
(e) The Company shall not be liable for such breaches of duty that are based on circumstances or events that are beyond the Company’s control and for which the Company is not responsible (force majeure events,) notwithstanding any conflicting provisions of these Terms and Conditions of Sale. Such Force Majeure Events include unforeseeable acts of government officials or agencies of a civil or military nature, including fuel and material allocations, gasoline shortages, gasoline rationing, unavoidable accidents, wrongful acts of third parties, earthquakes, floods, fire, explosion, epidemics, vandalism or sabotage, riots, rebellions, civil disturbances, wars or conditions of war, shipwreck, strikes, trade stoppages, lockouts and other disruptions of production and transportation, shortages of materials and other causes similar to the mentioned Force Majeure Events which are beyond the Company’s control and prevent the Company from performing in whole or in part of its contractual obligations for a period equal to the delay resulting from the Force Majeure Event. If the performance of the Company is delayed due to Force Majeure, any obligations of the Company shall be fully effective as soon as the event has passed, or the cause has ceased to exist.
(f) customer shall indemnify the Company against all actions, claims, costs, charges, damages, losses and expenses the Company is exposed to or suffers if the Company is not responsible for their occurrence and/or if the Company is liable to a third party due to (i) customer’s instructions; (ii) customer’s default in acceptance or any other act, omission or failure of the customer or their agents, employees or vicarious agents if the customer can be held responsible for their conduct; or (iii) the customer’s culpable breach of this Agreement.
(g) The customer shall indemnify the Company against all costs, claims, losses, expenses and damages incurred by the Company or for which the Company is liable to any third party due to the infringement or alleged infringement of any patent, trademark, copyright, design right or other intellectual property right, as far as the infringement has occurred through import, manufacture or sale of Products made to specifications or according to the special requirements of the customer.
(a) The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 shall not apply to the Contract.
(b) To the extent that any provision or part of a provision of these Terms of Sale is found to be illegal, invalid, or unenforceable under applicable law, such provision or part of the provision, to the extent severable from the remaining provisions, shall be excluded from the Terms of Sale. Thereby, the legality, validity and enforceability of the remaining provisions shall not be affected.
(c) Changes and modifications to the Agreement shall only be effective and enforceable if made in writing and signed by the customer and the Company.
(d) The customer shall not be entitled to assign, substitute, or otherwise transfer its rights and obligations under this Agreement without the prior written consent of the Company; any attempt to do so shall be ineffective, void and of no effect. § Section 354 a of the German Commercial Code (HGB) shall remain unaffected by this provision.
(e) Failure to exercise the rights accruing to the Company under this Agreement shall not be deemed a waiver of such rights.
(f) We collect, process, and use your personal data, in particular your contact data for the processing of your order, including your e-mail address, if you provide it to us. To check your creditworthiness, we may use information (e.g. a so-called score value) from external service providers to help us make a decision and make the payment method dependent on this. The information also includes information about your address. This is done for the purpose of contract processing, Art 6 para 1b) DSGVO.
10. SCOPE & PROVIDER
(a) These General Terms and Conditions apply to all orders placed by the customers with the Company.
(b) The company’s range of goods is aimed exclusively at customers who are to be understood as entrepreneurs in the sense of Section 14 (1) of the German Civil Code (BGB), i.e. who are acting in the exercise of their commercial or self-employed professional activities at the time the contract was concluded.
(c) Deliveries, services and offers shall be made exclusively based on these General Terms and Conditions. The General Terms and Conditions shall also apply to all future business relations, even if they are not expressly agreed again. The inclusion of general terms and conditions of the customer that contradict our General Terms and Conditions is hereby already objected to.