Conditions of sale, delivery and payment (Conditions of Sale)
1. General information – scope of validity
Our Conditions of Sale shall apply exclusively; we do not recognise any terms and conditions on the part of the customer that conflict with or deviate from our conditions unless we have expressly agreed to their validity in writing. Our Conditions of Sale shall also apply if we perform the delivery to the customer without reservation in the knowledge of any terms on the part of the customer that conflict with or deviate from our Conditions of Sale, including any procurement guidelines from public authorities.
All agreements made between us and the customer for the purpose of executing this contract shall be set down in writing in this contract. Amendments and supplements to this contract must be made in writing.
Our Conditions of Sale shall also apply to all future business transactions with the customer within the scope of their activities from the present business relationship. Our Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 14(1) of the German Civil Code (BGB), legal entities under public law and special funds under public law within the meaning of Section 310(1) of the BGB.
2. Quote – quote documents
Our quote is subject to change unless otherwise stated in the order confirmation or unless we have expressly stated otherwise in writing. A contract shall only be concluded if we have confirmed an order in writing or if we carry out the order. Our sales representatives are generally only authorised to arrange orders; an order is only deemed to have been accepted once it has been confirmed in writing by our head office or one of our sales offices, or when the goods have been delivered. Individual agreements, in particular certain assurances on characteristics or recommendations for the use of our goods, information regarding delivery periods, discounts and bonuses, as well as any goodwill gestures, require express written confirmation from our head office or our branches in order to be legally effective, unless there is contractual power for oral declarations according to commercial law or prima facie principles. We reserve the property rights and copyrights to illustrations, brochures, calculations and other documents; they may not be made accessible to third parties. This shall apply in particular to any written documents designated as ‘confidential’; the customer shall require our express written consent before sharing these with third parties. For any written documents designated as ‘confidential’ by the customer, we are obliged only to make these accessible to third parties with the express consent of the customer.
The documents and brochures that are part of the quote, such as illustrations, drawings and item descriptions, are approximate guides unless they are expressly designated as binding. Weights and dimensions, as well as information regarding technical equipment, are non-binding. We reserve the right to make changes and additions at short notice. Information relating to strength shall be regarded as non-binding guide values determined in our own tests based on static load tests.
3. Pricing – terms of payment
Unless otherwise specified in the order confirmation, our prices are ex works (Incoterms 2010), excluding packaging. Stock items shall be delivered in original packaging.
Special packaging shall be charged at cost price. Express costs and freight costs shall be borne by the customer in accordance with the applicable freight price schedule. Exceptionally agreed deliveries involving breakage shall be charged with a 30% breakage surcharge, and at least €12. For orders with a net value of less than €75, we charge a minimum quantity surcharge of €4.95. All prices are in euros, plus statutory value-added tax. The deduction of discounts is only permissible if this has been expressly agreed in writing in advance.
Unless otherwise agreed in writing, invoices shall be payable in euros or in another agreed currency within 10 days of receipt of the invoice after the performance of our service that is due. If the customer is in default of payment, we shall be entitled to charge the statutory default interest.
In the event of default in payment and in particular in the event of judicial recovery, all outstanding invoices shall become due for payment immediately. Furthermore, any discounts, bonuses, etc. granted shall be forfeited. The same legal consequences shall apply if judicial insolvency proceedings are initiated against the customer’s assets.
The customer shall only have set-off rights if their counterclaims have been legally established, are undisputed or have been recognised by us. If the customer is an entrepreneur, they shall only be entitled to exercise a right of retention or a right to withhold performance if the same conditions are met in the case of counterclaims or, in the case of defects in the goods delivered, if these defects have been established, recognised by us or at least substantiated (e.g. by means of written confirmation from a neutral party) and, in addition, their counterclaim is based on the same contractual relationship.
Pre-litigation costs may be claimed at a flat rate of €10, subject to any higher costs actually incurred. This applies in particular to dunning costs, with the exception of the costs for the first reminder following default. Our contractual partner is entitled to prove that the damage incurred is actually lower. Bills of exchange and cheques are only accepted on account of performance. Costs for bills of exchange and cheques shall be borne by the customer.
If we are obliged to provide services in advance and if, after conclusion of the contract, we become aware of circumstances whereby our claim for payment is jeopardised by an inability to pay on the part of the customer, we may, at our discretion, demand either security within a reasonable period or concurrent payment against delivery. If the customer does not comply with this request, we shall be entitled to terminate the contract, subject to further statutory rights.
4. Delivery time
The start of the delivery period specified by us is dependent on the clarification of all necessary questions and compliance with the customer’s obligations. Unless otherwise agreed or specified to the contrary by the contractual relationship, the delivery time stated by us is always non-binding. We are entitled to make partial deliveries, provided that partial performance is reasonable for the customer.
Delays in delivery due to force majeure or unforeseen circumstances for which we are not responsible, such as operational disruptions, strikes, lockouts, lack of transportation, difficulties in the procurement of raw materials, official directives, late delivery by our supplier (insofar as the customer is an entrepreneur within the meaning of section 14 of the BGB), shall not lead to default on our part. An agreed delivery period shall be extended by the duration of the disruption. If the disruption lasts for longer than one month, we and the customer shall be entitled, after a reasonable grace period, to terminate the contract with regard to the incomplete part.
If the customer sets us a reasonable deadline after our default, they shall be entitled to terminate the contract after the expiry of this deadline without results; in this case, the customer shall only be entitled to claims for damages due to non-performance if the default was due to intent or gross negligence or severe negligent breach of obligations.
The limitations of liability pursuant to section 4.3 shall not apply if a commercial transaction for delivery by a fixed date has been agreed; the same shall apply if the customer can claim that its interest in the performance of the contract no longer exists due to the default for which we are responsible. In these cases, liability is limited to the foreseeable damage typical for the contract, unless we can be accused of malicious intent.
Compliance with our delivery obligation assumes that the customer’s obligations have been fulfilled in a timely and proper manner.
If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or degradation of the purchased item shall also pass to the customer at the time the customer enters into default of acceptance.
We are entitled to make partial deliveries, provided that this does not conflict with any recognisable interest on the part of the customer.
5. Transfer of risk
Unless otherwise agreed in writing, the delivery terms with regard to entrepreneurs and public authorities shall be ex works (Incoterms 2010). At the express request of the customer, we shall cover delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
6. Warranty for defects
We are liable for material defects for deliveries to consumers in accordance with the law. In the case of contracts with entrepreneurs, we shall be liable for material defects as follows: The warranty rights (claims for defects) of the commercial customer require that the customer inspects the goods immediately upon receipt and notifies us in writing of any visible defects immediately after said inspection or of any hidden defects immediately after their discovery, indicating the defect (section 377 of the German Commercial Code (HBG)). If the customer is not a merchant, they must notify us in writing of any obvious defects within 14 days of their discovery.
Claims for defects do not exist if there are only negligible deviations from the quality or an insignificant impairment in terms of usability. When ordering custom-made products, variant products and items not kept in stock, please note that there may be production-related quantity tolerances of ±5 %.
All those parts or services which show a material defect within the limitation period shall – at our discretion – be repaired, replaced or provided again free of charge, insofar as the cause of the defect already existed at the time of the transfer of risk.
Payments by the customer in the event of notices of defects may only be withheld to an extent which is in reasonable proportion to the defects which occurred. These payments may also only be withheld if the conditions according to item 3.4, second sentence, of these Conditions are fulfilled.
If the customer wrongly complains about the presence of a defect for reasons for which we are not responsible, we shall be entitled to charge the customer for the reasonable expenses incurred by us for the rectification or determination of the defect.
Claims by the customer for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour and material costs, shall be excluded insofar as the expenses increase due to the subsequent transfer of the delivered item to a location other than the original place of delivery, unless this transfer is required under the terms of the contract. We are entitled to charge the customer for such additional costs. Statutory recourse claims on the part of the customer against us from the sale of consumer goods (sections 478, 479 BGB) are excluded in this respect in relation to agreements on the part of the customer with their customers in turn which go beyond the statutory claims for defects of the customers.
The customer’s claims for material defects shall lapse 12 months after the transfer of risk. However, the statutory limitation periods for claims for defects shall apply insofar as these are longer than 24 months and nothing to the contrary arises from these Conditions, e.g. for items that have been commonly used for buildings (section 438, para. 1, no. 2 b), BGB), for the right of recourse (section 479, para. 1, BGB), and for buildings and construction defects (sections 634 a, 438, para. 1, no. 2 a), BGB), as well as in the case of intentional or gross negligence leading to a defect and in the case of fraudulent concealment of a defect.
These limitation periods shall also apply to consequential damage from defects under section 437 no. 3 or section 634 no. 4 of the BGB (damages for defects). If supplementary performance is required due to a defect, the limitation period shall only be suspended until supplementary performance and shall not be restarted.
Before the customer can assert further claims or rights (withdrawal, reduction, damages, reimbursement of expenses), we must first be given the opportunity for supplementary performance within a reasonable timeframe, unless we have given a guarantee to the contrary. If supplementary performance fails despite at least two attempts at supplementary performance, if supplementary performance is impossible, if we refuse supplementary performance, or if it is unreasonable for the customer, the customer may terminate the contract or reduce the remuneration (reduction).
Section 8 of these Conditions shall apply to the assertion of claims for damages by the customer. Section 8 of these Conditions shall apply to claims for damages due to defects. The assertion of further claims and rights against us or our vicarious agents due to a material defect is excluded.
7. Industrial property rights/defects of title
Unless otherwise agreed, we are only obliged to make the delivery free of third-party rights in the country of the place of delivery. In the event of an infringement of third-party industrial property rights for which we are responsible, we may, at our discretion, either obtain and grant at our expense a right of use sufficient for the agreed or presumed use, or modify the delivery item in such a way that the industrial property right is not infringed, or replace the delivery item, provided that this does not impair the agreed or presumed use of the delivery item by the customer. If this is not possible or reasonable for us, the customer shall be entitled to the statutory claims and rights. Item 8 shall apply to claims for damages.
Items 6.4, 6.5, 6.8 and 6.10 of these Conditions shall apply accordingly.
8. Claims for damages and liability for other reasons
The assertion of claims for damages due to defects in our services owed to the customer is excluded, unless we have caused the defects intentionally, through gross negligence or through severe negligent breach of obligations. The assertion of claims for consequential damages, in particular loss of profit, due to such defects is excluded insofar as we have only caused the defect through slight negligence or through no fault of our own.
This applies in particular if we are unable to carry out supplementary performance for reasons for which we are not responsible. This limitation of liability shall also apply to claims for reimbursement of expenses on the part of the customer due to defects. This limitation of liability for damages caused by defects shall not apply to slightly negligent causation of damage resulting from loss of life, bodily injury or damage to health.
The assertion of claims for damages for a breach of any durability guarantee provided by us or by third parties for whom we are responsible (section 443, para. 2, BGB) is excluded, insofar as we are not responsible for the breach.
Otherwise, claims for damages and claims for reimbursement of expenses (hereinafter referred to as ‘Claims for Damages’) on the part of the customer are excluded, irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from tort. This shall not apply to claims in accordance with sections 1, 4 of the Product Liability Act, in cases of intent or gross negligence, for loss of life, bodily injury or damage to health, due to the assumption of a guarantee for the existence of a property (condition guarantee), or in the event of the negligent material breach of our obligations. However, our liability in the event of negligence shall be limited to the foreseeable damages typical for the contract, unless there has been a loss of life, bodily injury or damage to health, or a guarantee for the existence of a property or something else has been agreed. There is no change in the burden of proof associated with the above provisions in accordance with items 8.1–8.3.
Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
The limitation of claims between the supplier and the customer shall be governed by item 6.8 of these Conditions, unless claims arising from the producer’s liability in tort (sections 823 et seq. BGB) and the Product Liability Act are concerned.
9. Retention of title
If the customer is an entrepreneur, the following shall apply (para. 9.1–9.7): we shall retain title to the goods delivered until receipt of all payments arising from the business relationship with the customer. In the event that the customer acts in breach of contract, in particular in the event of default of payment upon agreement of a reasonable deadline, we shall be entitled to take back the delivered item. This shall not apply if the customer has already filed for insolvency proceedings or insolvency proceedings have been opened on the basis of which immediate repossession of the items delivered by us is not permitted. Termination of the contract does not exclude the assertion of claims for damages against the customer. After recovery of the delivered item, we shall be entitled to utilise it; the utilisation proceeds shall be credited against the customer’s liabilities, less the reasonable utilisation costs. The provisions in the German Insolvency Code regarding utilisation shall remain unaffected.
The customer is obliged to treat the delivery item with care, in particular they are obliged to insure it adequately at their own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is required, the customer is obliged to carry this out in good time at their own expense.
In the event of seizures or other third-party actions, the customer must inform us immediately in writing. The customer shall be liable to us for the judicial and extrajudicial costs of any necessary action pursuant to section 771 of the Code of Civil Procedure (ZPO) (third-party proceedings).
The customer is entitled to resell the delivery item in the proper course of business, however, they shall assign to us all claims in the amount of the final invoice amount (including VAT) which accrue to them from the resale against their customers or third parties, irrespective of whether the delivered item has been resold without or after processing. The customer shall remain authorised to collect this claim even after the assignment. However, we shall be authorised to collect the claim ourselves if the customer no longer meets their payment obligations from the income collected, defaults on payment, has filed an application to open insolvency proceedings or has suspended payments. In such cases, we may demand that the customer discloses the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtor (third party) of the assignment. However, it is not possible for us to collect the claim if this is precluded by the German Insolvency Code.
The processing or transformation of the delivered item by the customer is always carried out for us. If the delivered item is processed with other items that do not belong to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered item to the other processed items at the time of processing. The same shall apply to the new item created through the processing as to the items delivered under reservation.
If the items delivered by us are installed in properties in such a way that the owner of the properties receives ownership of the items upon installation, item 9.5 shall apply accordingly.
We undertake to release the securities to which we are entitled at the request of the customer, also to the extent that the value of our securities exceeds the claims to be secured by more than 20%; the selection of the securities to be released is at our discretion.
If the customer is not an entrepreneur within the meaning of section 14 of the BGB, the purchased item shall remain our property until the purchase price has been paid in full. In all other respects, items 9.2, 9.3 and 9.6 shall apply.
If the delivery item is taken abroad, the following shall apply: if the delivery item was delivered prior to payment of all amounts owed by the customer under the terms of the contract, it shall remain our property until payment in full, to the extent that this is permissible under the law in whose jurisdiction the delivery item is located. If this does not permit the retention of title, but allows us to reserve other rights to the delivery item, we may exercise all rights of this kind. The customer is obliged to cooperate with the measures that we will take to protect our property right or the right replacing it for the delivery item.
The customer warrants in general and, in particular during the term of the contractual relationship, to MÜPRO that they will comply with all applicable laws, orders and regulations, including all anti-corruption laws and regulations. The customer warrants to MÜPRO that they have not committed any prohibited acts or assisted others directly or indirectly in committing any prohibited acts in connection with the services under this agreement or any other services provided to MÜPRO. This also includes promising, offering or granting, as well as soliciting or accepting, an unfair advantage or benefit in order to influence actions in an unfair manner or to derive benefit from them.
11. Place of jurisdiction – place of performance
If the customer is an entrepreneur, the place of jurisdiction shall be Wiesbaden. However, we are also entitled to take legal action against the customer at the court of their place of residence. Unless otherwise stated in the order confirmation, the place of performance for merchants shall be Wiesbaden.
12. Applicable law, severability clause
The legal relations between the parties shall be governed exclusively by German law, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (UNCITRAL/CISG). In the event that individual provisions of this contract or these Conditions be invalid, the validity of the other provisions shall not be affected.
Correct as at: 02 / 2020