General Conditions of Delivery
These Conditions shall apply unless otherwise agreed in writing by the contracting parties. These General Conditions of Delivery shall prevail over any contradictory or conflicting terms or conditions.
II. Offers and Conclusion of Contract
- All offers shall be subject to confirmation.
- Technical particulars and data on weights, performance, operating cost, etc. shall not be binding unless expressly stated. MABEG Systems GmbH (MABEG) shall retain owner-ship of and copyright on offers, drawings and other documents. Such offers, drawings and documents shall not be disclosed to third parties and shall be returned immediately if so requested, or if no order is placed.
- These Conditions shall also be deemed accepted by the Purchaser when he accepts deliveries and services of MABEG or renders services himself.
- Other terms and conditions shall not become part of the contract without the written consent of MABEG, even if they are cited as contrary to these Conditions.
III. Extent of Supply
- The written order confirmation by MABEG shall be conclusive for the extent of supply. Additional understandings shall be subject to the written confirmation of MABEG. MABEG reserves the right to apply changes in technical design in so far as such changes are to be considered standard equipment at the time the machinery is delivered.
- Electrotechnical material shall be subject to the conditions issued by the Verband Deutscher Elektrotechniker.
- lf the supplied goods are to be used outside the Federal Republic of Germany, safety devices shall be supplied as agreed upon.
- In the event of commercial terms being agreed on the method of delivery, they shall be interpreted in accordance with the Incoterms issued by the International Chamber of Commerce, Paris, in the wording as valid on the date of signature of the contract.
- Any taxes or other dues or charges payable in the Purchaser's country or in the country of destination in connection with the deliveries made, shall be borne by the Purchaser.
- MABEG grants the Purchaser the right to use the software which is part of the goods supplied hereunder by MABEG, according to the contract. This right shall be unlimited in time, non exclusive, transferable in case Purchaser sells the equipment and non sub-licensable. Unauthorized modifications to the software programmes may disable built-in safety functions. MABEG shall not be responsible for hazards or damages resulting from such unauthorized modifications. The Purchases shall hold MABEG harmless from any possible claims by third parties pertaining to this subject.
- Unless otherwise agreed, the prices for deliveries to customers inside the Federal Republic of Germany shall be valid for delivery ex works inclusive of loading at the works, but exclusive of packing, freight, and installation, plus value added tax as fixed by law.
- For deliveries to customers in foreign countries the prices shall, unless otherwise agreed, be valid for delivery free German border or f.o.b. German port inclusive of packing, but exclusive of transport insurance and installation. The prices are calculated on the basis of the costs prevailing on the date of the offer. The right of price adjustment shall be reserved in the event of changes in the material prices, wages, freight costs, or other cost factors.
V. Terms of Payment
- All payments shall be made in cash, without any deduction whatsoever and payment shall be effected on the agreed dates to the bank named by MABEG. The value added tax shall be payable upon receipt of invoice unless the advance payments are liable to tax, in which case it shall be payable pro rata on the dates of payment agreed upon. lf payment by bills of exchange has been agreed upon, such bills of exchange will only be accepted subject to cash payment.
- The Purchaser shall not be entitled to make any deductions from the purchase price or to withhold any part of the purchase price by way of set off or otherwise save in respect of claims awarded by a court of law or undisputed claims .
- In the event that payment of any part of the price is not made to MABEG by the due date – without prejudice to other rights – MABEG shall be entitled to charge interest on the amount unpaid. Interest will be charged at the rate of 7 per cent per annum above the European Central Bank interest rate for main refinancing operations applicable on the first day of the calendar half-year that banks are open for business, plus value added tax, if any, for the time being until the date the amount outstanding is paid. The sending of a reminder is not required.
- lf the Purchaser makes default in his obligations of payment or his obligations arising out of the reservation of title or if there is any substantial deterioration in his financial situation or if he should suspend payments, the entire balance shall become due immediately, inclusive of bills of exchange having a later maturity.
Vl. Reservation of Title
- The supplied goods shall remain the property of MABEG until all claims arising in connection with the contract have been fully settled. This shall also apply if such claims are included in a current account.
a) Any processing or converting of supplied goods the title of which is reserved, or the combination of such supplied goods with third party material performed by the Purchaser or a third party, shall be performed on behalf of MABEG. MABEG shall be the co-owner of the altered supplied goods arising out of such processing or converting or combination in proportion to the value of the supplied goods.
b) As security for the claims of MABEG the Purchaser shall, as early as on the conclusion of this contract, assign to MABEG his claims from the resale of the supplied goods up to the amount arising from such claims.
c) The Purchaser shall be authorized to collect his claims. The right of collection by MABEG is reserved.
d) lf the Purchaser falls to comply with the contract, particularly if he makes default in payment, MABEG shall, subsequent to having sent a reminder, be entitled to withdraw and the Purchaser shall be liable to restitute the supplied goods. The Purchaser shall be liable for any damage arising in connection with the return of the supplied goods. In the event of the supplied goods having been used, MABEG shall be entitled to charge the Purchaser a depreciation of 25% for the first half year of use and 5% for any further half year commenced, without having to prove the damage sustained, unless the actual depreciation was lower.
lf the law of the country to which the goods are supplied does not permit a reservation of title but allows the supplier to reserve other comparable rights, MABEG shall be at liberty to exercise all such rights. The Purchaser shall undertake at his cost, all such measures as are necessary to render effective and maintain these rights to the supplied goods .
- During the period of reservation of title or any other right in accordance with subsection 1 above, the Purchaser shall insure the supplied goods against all relevant risks, with the proviso that MABEG shall be entitled to all rights arising out of the insurance contract. The policy and the receipts for the premiums shall be presented to MABEG upon request.
- The Purchaser shall advise MABEG immediately of any seizure or other impairment of the owner's interests
VII. Delivery Period
- The delivery period shall not begin before the receipt and clarification of the documents and approvals to be furnished by the Purchaser and not before the receipt of an agreed advance payment. The delivery period shall have been met whenever the advice of readiness for shipment is sent to the Purchaser prior to the expiration of the delivery period.
- The delivery date shall be reasonably extended in cases of force majeure and unforeseen events arising from circumstances beyond the control of MABEG such as strikes, lockouts, stoppages, rejects, mismachining leading to rejection, delayed delivery on the part of subcontractors or other delays beyond the control of MABEG, provided that such events affect the timely performance of the contract. This extension shall also apply if there is already default in delivery. In important cases MABEG will notify the Purchaser of the beginning and presumable duration of such events. The delivery date shall also be reasonably extended if the Purchaser is in arrears with his payments and other obligations, or if technical and commercial questions are not clarified within a reasonable period of time.
- lf a delay is proved to be due to reasons other than those specified in subsection 2 and the Purchaser has suffered a loss on account of such delay, he shall, to the exclusion of any other claims, be entitled to claim a compensation for the delay at a maximum rate of 1/2 per cent for each full week of delay, but not exceeding 5 per cent of the contract price of that portion of the total supply which by reason of such delay cannot be used in time or put to the use intended. Any compensation payable by MABEG under this section shall be balanced at the time of final settlement.
- In the event of despatch being delayed for reasons beyond the control of MABEG, the costs arising from the storage of the equipment will be charged to the Purchaser. lf stored at the works of MABEG a minimum of 1/2 per cent of the invoice amount will be charged for each month, beginning one month after notification of readiness for despatch, unless the actual costs were lower.
VIII. Passing of Risk
Risk shall pass to the Purchaser when the consignment has left the supplier's works. lf shipment is delayed for reasons beyond MABEG's control, risk shall pass to the Purchaser upon notification of readiness for despatch.
IX. Performance of Contract
- Delivery shall be considered as having been completed when the risk passes to the Purchaser pursuant to section VIII.
- Partial deliveries shall be allowed.
- From the date of completion MABEG shall be liable only in accordance with the provisions of section XI of these Conditions (Warranty).
- All supplies, even those showing immaterial defects, shall be accepted by the Purchaser, without prejudice to the rights under section XI.
X. Installation and set-up
lf the supplied goods are to be installed on site by MABEG this shall be explicitly agreed. In such case MABEG will carry out the installation of the supplied goods in accordance with their General Conditions covering Installation. However, sections XI (Performance of Contract) and XII (Warranty) of the General Conditions covering Installation shall not apply.
- a) MABEG warrants, subject to and in accordance with the applicable legal requirements, that the supplied goods will be free of defects in material and workmanship. Parts (including software) which by reason of defects have become unserviceable or the serviceability of which has been substantially impaired shall, at the option of MABEG, be reconditioned or MABEG shall supply new parts.
b) MABEG warrants any subsequent adjustments and replacement parts installed to the same extent as the original equipment. Parts that have been replaced shall become the property of MABEG.
- a) The period of warranty shall commence on the date on which the supplied goods are ready for operation. Readiness for operation shall be considered as having been achieved, if the handing over report enclosed to the contract has been signed by the Purchaser. In case that the supplied goods should be put into operation without the handing over report having been signed, the period of warranty shall commence on the day the supplied goods are put into operation. If the handing over report should not be signed within 14 days after it has been given to the Purchaser, the warranty period shall commence at the end of this 14 day period.
If the supplied goods are not operated by the Purchaser but by a third party (Operator) and if the Purchaser has notified MABEG of the Operator in writing when ordering the supplied goods, then the relevant dates for the beginning of the warranty period according to the foregoing shall be the day the handing over report is given to the Operator or signed by the Operator.
b) The warranty period shall terminate after 12 months.
c) In any case the warranty period shall terminate 18 months after notification of readiness for shipment has been given.
d) All Claims related to defects falling under the warranty which have been duly notified to MABEG in writing within the warranty period shall become barred within 12 months from the date on which MABEG has received the notice of the defect. The warranty period for subsequent adjustments and replacement parts shall terminate at the same time as that of the original supplied goods.
- For the execution of necessary subsequent adjustments the Purchaser shall
a) grant the required time and opportunity and
b) supply at his own expense auxiliary labour and equipment and perform any incidental work. The removal of defective parts as well as the fitting of supplied new parts shall be carried out by MABEG or by MABEG-authorized personnel at the cost and risk of MABEG, if and as far as the removal and fitting by the Purchaser should not be appropriate or reasonable. Extra costs for airfreight, express deliveries and the cost of any work carried out beyond regular working hours shall in any case be borne by the Purchaser.
- The warranty shall not cover normal wear and parts which, owing to their inherent material properties or the use they are intended for, are subject to premature wear. Damage caused by improper storage, handling or treatment, overloading, the use of unsuitable fuels, oils etc., faulty construction work or foundations, unsuitable building grounds, chemical, electrochemical or electrical influences or any other circumstances which may arise through no fault of MABEG, after the passing of the risk, shall also be excluded from the warranty.
- The Purchaser may only claim MABEG warranty ifa) the supplied goods were installed and put into operation by MABEG-authorized personnel,b) MABEG have been advised in writing of the claimed defect immediately,c) the Purchaser has observed the instructions issued by MABEG, in respect of the handling and maintenance of the supplied goods and, in particular, has duly carried out any specified checks,d) no repairs have been carried out without the approval of MABEG,e) no spare parts other than those manufactured by MABEG have been used,f) no unauthorized modifications of the supplied goods have been made.
- In addition section XIV shall apply.
XII. Right of Purchaser to Terminate the Contract
The Purchaser may terminate the contract subject to and in accordance with legal requirements, by giving notice in writing, provided that:
- the performance of the contract by MABEG has become entirely impossible. In the event of partial impossibility the right of termination shall be subject to the Purchaser proving that the partial delivery is of no interest to him, failing which the Purchaser shall be obliged to pay the proportionate purchase price for the partial delivery. Otherwise the Purchaser may claim a reasonable reduction of the purchase price. lf the impossibility occurs while there is default in accepting delivery or owing to a fault on the part of the Purchaser, the Purchaser's obligations under the contract shall remain. lf the impossibility is beyond the control of either of the contracting parties, MABEG shall be entitled to a part of the purchase price corresponding to the work done.
- the Purchaser is entitled to claim penalties in accordance with section VII, subsection 3, in full and has thereafter granted in writing a reasonable period of grace to MABEG with the express statement that he would terminate the contract after the fruitless expiration of this period and can prove that the set period of grace has been exceeded for reasons other than those mentioned in section VII, subsection 2.
- the Purchaser has granted in writing a reasonable period of grace for remedying a defect recognized by MABEG and for which MABEG is at fault, in accordance with section X[, with the express statement that he would refuse to accept the delivery after the expiration of the set period of grace and MABEG has made default in observing this period.
- in the case of section XII, subsection 2 the Purchaser may terminate the contract only if he can prove that his interest in the delivery is substantially impaired as a result of the delay.
- In addition section XIV shall apply.
XIII. Right of Supplier to Terminate the Contract
Without prejudice to MABEG’s other rights and remedies MABEG may terminate the contract in part or in whole if unforeseeable events considerably change the commercial importance or the scope of the services, or materially affect the operations of MABEG and if the contract cannot be adapted, giving due consideration to the principle of good faith, or if the economic situation of the Purchaser should undergo substantial deterioration. This shall also apply if an extension of the delivery period has previously been agreed with the Purchaser. In the event of MABEG desiring to exercise the right of termination, MABEG shall notify the Purchaser immediately after the significance of the circumstances has been ascertained.
XIV. Extent of Purchaser’s Claims
- MABEG shall be liable in cases of damage caused by their officers and executive employees either intentionally or through gross negligence, the violation of principal contractual obligations due to MABEG’s negligence, death or personal injury arising from MABEG’s negligence, the fraudulent non-disclosure of a defect, the compliance with a guarantee specifically assumed by MABEG in the contract, death or personal injury or damage to property used for private purposes under the provisions of the German Product Liability Act. Guarantees are only those which are expressly specified as such in writing.
- Irrespective thereof MABEG shall be liable in all those cases covered by the manufacturer's liability insurance maintained by MABEG, and to the extent indemnity is paid under this insurance. This manufacturer's liability insurance is governed by the German General Conditions of Liability Insurance (AHB).
- To the extent MABEG are liable for gross negligence or for the intentional or grossly negligent violation of principal contractual obligations under section XIV, subsections 1 a) and b), the extent of this liability shall be limited to any damage directly caused to the supplied goods themselves.
- Any further claims except those specified in these Conditions or covered by the text of the contract shall be excluded. This shall particularly apply to more extensive contractual or statutory claims for damages.
XV. Contractual Rights not to be assigned
The Purchaser shall not assign his contractual rights to a third party without the express consent of MABEG.
XVI. Jurisdiction and Arbitration
- The place of jurisdiction for all disputes arising out of the contract - including actions on negotiable legal instruments and documents - shall be Darmstadt. MABEG may also bring an action at the place of the Purchaser's registered office.
- In the event arbitration proceedings being agreed with a Purchaser having his registered office outside the Federal Republic of Germany, any disputes arising out of the contract or in respect of its validity or the validity of the arbitration agreement, shall be finally settled, to the exclusion of legal proceedings, under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in Paris, by a court of arbitration, composed of three arbitrators, appointed under such Rules. As long as no recourse to arbitration has been made, the contracting parties shall be free to bring an action at the competent court of law at the place of the defendant party's registered office.
XVII. Law Applicable and Binding Force of Contract
- The contract shall be governed by German Law. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.
- In the event of part of the contract being invalid, the validity of the remaining portions shall not be affected provided such invalidity is without prejudice to the essential features of the contract.
MABEG Systems GmbH
Effective December 6, 2013