General terms and conditions for sale and supply
1.1. All commercial transactions between the orderer (purchaser) and MTN Neubrandenburg GmbH (seller) including all, also future, deliveries, performances and offers shall be subject to the terms and conditions for sale and supply set forth herein. The purchaser agrees to the general terms and conditions as amended from time to time for the duration of the business relationship when placing an order, however when accepting a delivery the latest. For the purpose of these general terms and conditions “consumer” means every natural person who when entering into the contract acts for a purpose that is outside his trade, business or profession. “Entrepreneur” means a natural or legal person or a partnership with legal personality who or which, when entering into a contract, acts in exercise of his or its trade, business or profession. This includes bodies governed by public law which render services for privates in return for payment; excluding situations in which the performance relationship is solely governed by public law.
1.2. To any general terms and conditions of the purchaser which are inconsistent with ours we herewith object, they are not applicable even if the order is carried out. Other agreements, in particular assurances, amendments and side agreements shall only become effective with our explicit written approval.
2. Offers and orders
2.1. Our information given in brochures, advertisements and such alike are non-binding and without obligation, also concerning the indication of prices and terms of delivery. They constitute an invitation to the purchaser to place an order.
Insignificant technical amendments and insignificant changes in form, colour or weight shall be reserved as far as reasonable. If the purchaser is an entrepreneur only the product description of the manufacturer shall be agreed to be the condition of the goods. Public statements of the seller, the manufacturer or his assistants particularly in advertisements or when characterizing the products by means of different features, do not constitute an agreement on the conditions of the products if the purchaser is an entrepreneur.
2.2. We ask you to place your orders in written form. For small orders whose net value of the goods does not reach EUR 50,00 we can claim a minimum value charge of EUR 10,00 before proceeding the order.
2.3. The client is bound to his order, which is not accepted by us, for fourteen calendar days after dispatching the order. The contract is concluded through our written order confirmation; in case we do not submit an order confirmation the contract is concluded with the delivery of the goods with the content of our invoice.
3. Delivery, delivery terms and period of performance
3.1. The purchaser shall collect the goods ordered within three working days after they were ready to be picked up unless we agreed to dispatch them. In case the goods are marked as “in stock” and/or are soled ex warehouse they are deemed to be ready to be picked up on the day the order is placed. In all other cases we inform the client about the goods being ready to be picked up.
3.2. Irrespective of the mode of dispatch the dispatch shall always be at the risk and cost of the purchaser. The dispatch will be carried out by freight, a forwarding agency, the post or such like, either from our warehouse in Neubrandenburg or from a warehouse of one of our branches. The costs for the dispatch of the goods in the specific case are indicated in the invoice of the forwarding agency or are the actual expenses incurred for our carpool. If the purchaser stipulates the mode of dispatch we will invoice the costs for the dispatch even if we normally deliver to the home station of the purchaser for free (frei Empfangsstation). The risk passes to the purchaser as soon as the consignment is delivered to the forwarding agency, the carrier or another person or institution performing the transportation.
3.3. In case a period to supply and to render services is agreed upon the period shall run from the date of the conclusion of the contract; in case an obligation for advance performance of the purchaser is agreed upon the period does not start unless the agreed advance partial payment reaches us. To meet the period of delivery and the period to render services it is sufficient that we dispatch the goods. We are only obliged to meet the delivery period and the period to render services in case the purchaser among other things fulfilled his obligations.
3.4. We shall not be liable for any failure or delay to perform our obligations hereunder when the delay or failure is due to force major or other reasons which were not foreseeable at the time of the conclusion of the contract (for example intervention by the public authorities, export or import bans, strikes, delay or failure of the supply of essential raw materials, materials and parts by MTN’s suppliers) and which lay beyond the control of us. In so far as it is not only temporarily impossible for us to deliver we are allowed to rescind the contract. In case of the rescission from the contract we will instantly return the payments made to us by the purchaser. In case the delivery is only temporarily impossible the delivery period shall be deemed to be extended by the period of time during which the delivery was temporarily impossible plus an appropriate time period for resuming work. The purchaser will promptly inform us if he is aware of any facts delaying the delivery. The right of the purchaser to rescind the contract because a late delivery is unacceptable for him remains unaffected.
3.5. The exceeding of delivery dates and delivery periods can entitle the purchaser to revoke the contract. Precondition of the right to revoke the contract is that the purchaser specified an adequate grace period of a minimum of fourteen days for delivery, unless the setting of a grace period is dispensable according to the relevant law. The grace period shall be set in writing.
3.6. In the event that the purchaser or the recipient named by the purchaser fails to take delivery and the purchaser is responsible for the failure to take delivery we are entitled to rescind the contract if the purchaser still fails to take delivery after an additional period of time of fourteen days. In this case we are also entitled to claim a lump sum damage of 10 % of the purchase price. The purchaser shall have the right to prove that a damage or decline in value did not occur or is substantially lower than the lump sum.
3.7. In case the purchaser orders custom-build-models he is responsible for all consequences that might derive from the violation of intellectual and industrial property rights of a third party. The purchaser will immediately indemnify us for and against all claims of third parties.
4. Prices and payment
4.1. The prices quoted in our price list valid at the time of the conclusion of the contract, shall solely apply. If the purchaser is an entrepreneur we are allowed to invoice extra expenses that occur after the conclusion of the contract (e.g. new or increased custom duties, taxes, other costs, increase of the carriage charges etc.).
4.2. The payment shall be made immediately after receipt of the invoice without reduction in cash unless we explicitly set another term of payment. After the expiry of the deadline the purchaser is in default. Our receipt of payment is the relevant event that determines whether the payment is made in time. Drafts and cheques will only be accepted on account of performance. If the invoice is not settled in cash it shall be settled via bank transfer to the account indicated in our invoice, stating our invoice number. Remittance fees, note charges and discount charges shall be for the account of the purchaser.
4.3. The purchaser shall have no right of set-off unless the counter claim has not been disputed by us or has been determined by a final and binding decision. In case the purchaser is an entrepreneur he only got the right of set-off or retention if the counter claim has not been disputed by us or has been determined by a final and binding decision and if the counter claim derives from the same purchase agreement concluded between the parties.
4.4. In the event of late payment, well-founded evidence suggesting a considerable deterioration of the financial position or insolvency of the purchaser we are entitled to suspend any delivery or at our choice to claim a prepayment of all accounts receivable under all contracts concluded with the purchaser if he is an entrepreneur; this includes undue and deferred debts and claims deriving from bills of exchange or other securities. In case the purchaser does not fulfill our demand to prepay the open debts or to provide security within a reasonable period set by us, we shall be entitled to rescind the contract and to charge the purchaser with the costs incurred or incurring in the future as well as to bring to account our lost profit.
5. Notification of defects and warranty
5.1. In case the purchaser is an entrepreneur obvious defects must be reported to us immediately in writing, within seven calendar days after delivery and rendering services the latest; hidden defects must also be reported immediately in writing, within seven calendar days after their detection the latest. In case the purchaser is not an entrepreneur obvious defects shall be reported in writing within two weeks after delivery and the rendering of services the latest.
5.2. The same applies to transport damages. The special rules governing notices of defect associated with the transport are to be respected.
5.3. In case of defective delivery or service we will repair or improve the delivery or service or replace defective parts or subgroups. We are free to correct the defects at the place of the purchaser. The seller is entitled to refuse the supplementary performance if the costs arising are unreasonably high.
5.4. In case the purchaser is an entrepreneur the seller does not have to bare the expenses of the supplementary performance that arise because the goods bought have been sent to another place than the domicile or the place of business of the purchaser after their delivery, unless the change of place lies in the intended use of the goods.
For third party products our liability shall be limited to the assignment of our claims against the supplier of the third party products to the entrepreneur, provided that to the time of the assignment we made available all information about the supplier enabling the purchaser to assert the claim. The seller is liable if the purchaser unsuccessfully tried to enforce the claim against the third party in front of the courts.
5.5 In case the repair, the replacement delivery or performance failed once and for all the purchaser may choose between the reduction of the remuneration (price reduction) or rescind the contract (rescission of the contract). In case of a minor breach of the contract, especially in case of a minor fault the purchaser may not rescind the contract.
6.1. In so far as these general terms and conditions do not provide otherwise we shall be liable under the statutory provisions. We shall be liable for damages incurred due to intent or gross negligence.
6.2. In case of simple negligence we are liable
- for damages due to the injury of life, body or health,
- for damages arising from the breach of essential obligations under the contract, meaning obligations whose compliance is enabling the orderly accomplishment of the contract in the first place and whose compliance the contractual partner can trust upon regularly.
6.3. In case of slightly negligent breach of essential contractual obligations our liability shall be limited to the loss or damage that is foreseeable and typically occurs, unless the claims of the contractual partner result from the injury of the life, the body or the health.
6.4. The limitations of liability mentioned above do not apply in the case of claims being based on product liability.
7. Retention of title and security rights
7.1. Delivered goods shall fully remain our property until the purchase price is fully settled. For business with entrepreneurs the following applies additionally:
7.2. In case the purchaser is an entrepreneur the delivered goods shall fully remain our property until all receivables, also future claims based on the business relations with the buyer have been fulfilled. This includes liabilities based on cheques and drafts granted in connection with the business relationship. This shall also apply if individual or all claims have been put together in one invoice and the balance has been drawn and recognized by us. In this situation the title is retained as security for paying the balance.
7.3. Pledging and the transfer of ownership by way of security are not allowed. The purchaser is allowed to sell the goods in the ordinary course of trade subject to the transmission of our retention of title. In case the purchaser has to file for insolvency or sequestration is imposed this right expires. Hereby, the purchaser assigns to us all amounts receivable, including all secondary rights that he acquires towards his purchaser by the sale of items under our retention of title until all our claims resulting from the delivery and service are settled. If the purchaser records receivables from the resale of the reserved goods in an open account relationship with a third party the current account claim is assigned to us to its full amount. After balancing the open account the current account claim is replaced by the balance which is assigned in advance up to the amount of the current account claim.
7.4. The client stays entitled to collect the receivables as long as he meets his obligations towards us and we do not object. The amounts collected shall be transferred to us in so far as the claims resulting from the business relationship between the purchaser and us are due.
7.5. In case of impending suspension of payments, insolvency or circumstances which point to a significant deterioration in the purchaser’s net asset situation we are entitled to demand the return of the reserved goods. The purchaser irrevocably and unconditionally agrees to the surrender. The same applies in case of enforcement by writ, change processes or actions for assertion of a claim concerning payment of a cheque against the purchaser.
7.6. The purchaser shall be obliged to handle the reserved goods with care. In case of the impairment of the security interest of the seller by third parties, in particular in case of sequestration or the attachment of deliveries and/or garnishment of claims the purchaser will immediately inform the seller and send the documents available (e. g. records of the garnishment and the like) to us and inform the third party about our security interests. The purchaser shall bear our costs incurred due to defending our security interests against the third party.
7.7. The buyer is obliged to notify us immediately if a third party accesses the goods, for example by seizure or if the goods are damaged or destroyed. The purchaser immediately notifies us if the possession of the goods changes or if the purchaser changes his domicile. In the event of breaches of the contract, especially in the event of late payment, but also in the event of impending inability to pay, insolvency or information pointing to a considerable deterioration of the financial position of the purchaser we are entitled to rescind the contract and to reclaim the delivered goods; the purchaser herewith unconditionally and irrevocably agrees to surrender the goods delivered. The same applies in the event of change processes and actions for assertion of a claim concerning payment of a cheque brought forward against the purchaser.
8. Contract transfer and resale clause
8.1. The assignment of rights and/or the delegation of the purchaser’s obligations under the contract are not permissible without written consent of the seller.
8.2. Since the seller got the sole right of distribution it is deemed to be a breach of a major contractual obligation if the seller transfers the right of disposal of a new object of purchase to a person or an entity commercially or occasionally dealing with medical products (reseller) outside the European Internal Market.
8.3. If the buyer breaches his obligations according to clause No. 8.1. the seller is entitled to rescind the contract.
9. Place of fulfillment, place of jurisdiction and applicable law
The place of fulfillment of the delivery and payment is Neubrandenburg. The law of the Federal Republic of Germany shall solely apply, excluding the UN purchase law (CISG). The place of jurisdiction is Neubrandenburg for all purchasers that are entrepreneurs. The seller is entitled to take legal action against the purchaser at any legal place of jurisdiction.
10. Final provisions
Should any of the clauses of these terms and conditions be wholly or partly void, invalid and/or inoperable the validity of the remaining clauses shall not be affected. The provision rendered void, invalid or inoperable shall in this case be interpreted or replaced by an effective and operable provision that ensures that the economic purposes served by the invalid provision are met to the greatest extent possible. This applies also for gaps in the contract which need to be filled.
The German version of these general terms and conditions prevails.
Issue date: 2011-08-01