General Terms and Conditions

As of 04/2023

1. General Provisions
1. Our offers, order confirmations, commercial confirmation letters, deliveries and services are made exclusively in accordance with these General Terms and Conditions of Sale and Delivery (hereinafter referred to as the Terms and Conditions). The customer's general terms and conditions shall not apply.
2. These Terms and Conditions shall apply (i) even if we, being aware of terms and conditions of the customer that conflict with or deviate from these Terms and Conditions, perform delivery to the customer without reservation, and (ii) also to future transactions with the customer, even if we do not separately refer to their applicability.
2. Offers, Cancellations
1. We are entitled to revoke our offers without stating reasons until receipt of the declaration of acceptance (offers are non-binding).
2. Insofar as an order placed by the customer is to be regarded as an offer within the meaning of Section 145 of the German Civil Code (BGB), we may accept it within two weeks.
3. If we agree to cancellations as a gesture of goodwill, the costs incurred by us (e.g. for cancellations with our suppliers, etc.) and any additional costs incurred shall be borne by the customer. The same applies to changes to orders that we have already accepted, insofar as we agree to such changes.
3. Order Documents
   We reserve all copyrights to plans and documents (drawings, plans, bills of materials, calculations, cost calculations, etc.) that have been disclosed or made available to the customer. The customer shall use these plans and documents solely for the purpose of performing the contract and shall not make them accessible to third parties without our express written consent. They shall be returned to us upon request; a right of retention may only be asserted in the case of acknowledged, undisputed or legally established counterclaims.
4. Prices, Price Adjustments
1. Unless otherwise stated in our offers, order confirmations/confirmation letters, our prices apply ex works plus packaging costs and statutory VAT at the rate applicable on the date of invoicing. Any withholding tax shall be borne by the customer.
2. Our prices are non-binding. They are based on labour, material and overhead costs at the time of the order confirmation/confirmation letter. If labour, material or overhead costs increase within six weeks between conclusion of the contract and delivery, we are entitled to make a corresponding price increase, unless we are in default of delivery. We reserve the right to make other price adjustments in cases where the basis of the transaction has been disrupted.
5. Payment Terms
1. The customer is not entitled to withhold payment or offset counterclaims unless such counterclaims have been legally established, acknowledged or are undisputed, or unless there are complaints regarding defects whose justification is obvious and the counterclaims arise from the same contractual relationship.
2. In cases of a defence of uncertainty (Section 321 BGB) or if the customer is in default of payment in a total amount exceeding EUR 2,000.00 gross, we are entitled to revoke all payment terms granted and declare all claims immediately due and payable.
3. Insofar as we grant payment discounts in individual cases, this is subject to compliance with our payment terms. If these are not complied with, we are entitled at any time to revoke payment discounts for the future.
6. Delivery, Transfer of Risk, Storage
1. Partial deliveries are permissible insofar as they are reasonable for the customer, without prejudice to the customer's rights due to delay in delivery. Technical changes or changes to formulations are permissible insofar as they do not result in a price increase or a deterioration in quality.
2. Deliveries are made ex works (EXW) Emmendingen (Incoterms 2020). If the customer is in default of acceptance, the risk shall pass to the customer upon notification that the goods are ready for collection.
3. In the event of default of acceptance, we are entitled to charge the customer storage fees for the duration of the default at the customary rate charged by freight forwarders in the Emmendingen area. The same applies if collection or shipment of the goods is delayed at the customer's request.
7. Delivery and Performance Times, Default
1. Only agreed delivery periods are binding.
2. An agreed delivery period begins upon receipt of our order confirmation/ confirmation letter, but not before all technical questions have been clarified and any documents, permits and approvals to be provided by the customer have been received, nor before receipt of any agreed down payment or advance payment. The delivery period shall be deemed complied with if, by the end of the delivery period, the goods are ready for dispatch and the customer has been notified accordingly or, where agreed, the goods have been handed over to the carrier.
3. Agreed delivery times shall be extended appropriately in the event of operational disruptions for which we are not responsible, such as strikes, lockouts or delays in supplies for which we are not responsible. In such cases, the customer is entitled to withdraw from the contract after setting a reasonable additional period for performance. Claims for damages are excluded in such cases. If the operational disruption for which we are not responsible lasts longer than eight weeks, we are entitled to withdraw from the contract without being liable for damages. The same applies to the customer.
4. If we are in default of delivery or performance, our liability, insofar as the customer proves that it has suffered damage, shall be limited to the typical, foreseeable damage. This limitation of liability shall not apply in cases of intent or gross negligence.
5. The customer is obliged, at our request, to declare within a reasonable period whether it is withdrawing from the contract due to the delay in delivery or performance or whether it continues to insist on delivery.
6. The limitations of liability pursuant to point d. shall not apply if a commercial fixed-date transaction has been agreed; the same applies if, due to a delay for which we are responsible, the customer is entitled to assert a claim for damages in lieu of performance immediately.
8. Reservation of Deviations, Warranty
1. In the case of only insignificant defects, the customer shall only be entitled to a reduction in price. No further warranty rights shall exist in such cases. We reserve the right to customary deviations in dimensions, quantity, weight, quality, colour and other performance data, insofar as they do not materially impair the use of the goods assumed under the contract or the agreed quality or affect a guarantee given by us. In particular, a rejection rate of up to 2% of the delivery quantity shall not entitle the customer to make a complaint regarding defects. In the case of production batches, excess or short deliveries of up to 2% of the delivery quantity are permissible. This also applies to partial deliveries. In cases of rejected goods and excess or short deliveries, the price shall be adjusted accordingly.
2. The customer is responsible for checking whether substances that come into contact with the ordered goods are altered by them. The customer must notify us immediately of any such changes.
3. The customer shall inspect deliveries immediately for shortages and identifiable defects and shall notify us of these immediately, but no later than eight days after the transfer of risk, in text form. Defects that are not identifiable shall likewise be reported in text form immediately after discovery, but no later than eight days after discovery. The notification periods apply equally to direct deliveries to third parties designated by the customer; in such cases, the customer shall also ensure that notification is made within the applicable period.
4. Insofar as we are obliged to provide warranty remedies due to defects, we shall, at our discretion, be entitled and obliged to remedy the defect free of charge up to three times or provide a replacement delivery within a reasonable period, provided that the defect occurs within the limitation period pursuant to Section 8.5 and is reported in due time, and provided that the cause of the defect already existed at the time of the transfer of risk. The customer bears the burden of proof in this respect. If subsequent performance fails, the customer may, without prejudice to any claims for damages pursuant to Section 9, withdraw from the contract or reduce the remuneration.
5. Claims for defects shall become time-barred after one year. This shall not apply in cases covered by Sections 445a, 445b and 478 BGB, in the event of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty or culpable breach of a material contractual obligation within the meaning of Section 9.2 by us or our agents, in the event of fraudulent concealment of a defect, where a guarantee has been assumed, or insofar as we are liable under the provisions of the German Product Liability Act. The statutory provisions concerning suspension of expiry, suspension and recommencement of limitation periods remain unaffected.
6. Claims by the customer for expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods have been moved to a location other than the customer's place of business.
7. Rights of recourse by the customer against us pursuant to Section 478 BGB shall exist only insofar as the customer has not entered into any agreements with its purchaser that go beyond the statutory claims for defects. With regard to the scope of the customer's right of recourse, Section 8.6 shall apply accordingly.
8. Section 9 shall apply to claims for damages due to material defects. Beyond the claims regulated in Section 8 in conjunction with Section 9, the customer shall have no further warranty claims.
9. If the customer unjustifiably submits a complaint regarding defects, we are entitled, in cases of intent or gross negligence, to demand reimbursement of the expenses incurred by us.
9. Damages
1. Claims by the customer for damages and reimbursement of expenses (claims for damages), irrespective of their legal basis, in particular due to breach of obligations arising from the contractual relationship and tort, are excluded.
2. The exclusion of liability pursuant to Section 9.1 shall not apply in cases of liability under the German Product Liability Act, intent, fraudulent conduct, gross negligence, injury to life, body or health, insofar as we have assumed a guarantee, or due to the breach of material contractual obligations. Contractual obligations are material insofar as their fulfilment is essential for the proper performance of the contract and the customer may regularly rely on their fulfilment. In the event of a breach of material contractual obligations, however, our liability shall be limited to the typical, foreseeable damage, unless there is intent, fraudulent conduct or gross negligence or injury to life, body or health. The limitation of liability to typical, foreseeable damage also applies to cases of loss of profit and other financial losses. These provisions do not entail any change in the burden of proof to the detriment of the customer.
3. Claims for damages due to material defects (Section 8) shall become time-barred in accordance with Section 8.5.
10. Retention of Title, Deterioration of Financial Circumstances
1. The delivered goods shall remain our property until all claims arising from the supply contract with the customer have been fulfilled. The customer is authorised to sell or process, combine or install the products in the ordinary course of business (goods subject to retention of title), but not to pledge them or transfer them by way of security. In the event of deterioration of the customer's financial circumstances, we are entitled to prohibit the sale, processing and installation as well as the mixing of the goods.
2. Resale is permitted only on condition that the customer (reseller) stipulates that title shall not pass to its customer until the latter has fully fulfilled its payment obligations in respect of the goods subject to retention of title (simple retention of title). The customer hereby assigns to us in advance all claims arising from the resale up to the amount of our claim.
3. The customer is authorised to collect assigned claims. The authorisation to collect shall expire in the event of default in payment or a material deterioration in the customer's financial circumstances. In such cases, we are entitled to notify the customer's customers of the assignment and collect the claims ourselves. For the purpose of asserting the assigned claims, the customer must provide the necessary information and permit verification of such information. In particular, upon request, the customer shall provide us with a detailed list of the claims arising, including the names and addresses of the purchasers, the amount of the individual claims, invoice dates, etc., and shall permit access to its business premises for verification purposes.
4. In the event that the goods subject to retention of title are combined, mixed or processed with other items, we shall acquire co-ownership of the new item in proportion to the invoice value of the goods subject to retention of title relative to the total value.
5. The customer undertakes to notify us immediately in the event of cessation of payments, a material deterioration in its financial circumstances or attachments. The attaching creditors shall be identified by name and address. The customer shall bear all costs incurred in lifting the attachment by creditors and recovering the goods.
6. The customer shall store the goods subject to retention of title for us free of charge and shall not be entitled to establish a warehouse keeper's lien. The customer undertakes to insure the goods to an appropriate extent against customary risks such as fire, theft, water damage and transport damage. The customer hereby assigns to us, up to the invoice value of the goods, any claims for compensation against third parties arising from damage of the aforementioned kind.
11. Place of Jurisdiction, Applicable Law
1. The exclusive place of jurisdiction for all direct or indirect disputes arising from the contractual relationships shall be Emmendingen. However, we are also entitled to bring legal action at the customer's registered office.
2. The contractual relationship shall be governed by German law to the exclusion of private international law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded. Our current privacy policy is available to the customer at https://www.mivis.io.