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I. General
1. The following terms of business shall apply for every
order. Other terms of business shall only be binding for us
if we recognize them in writing.
2. Orders and oral agreements require our written
confirmation to be binding.
3. Our offers are subject to alteration, unless they are
specifically declared binding. Statements of expected costs
are not binding. The prices are to be understood ex works
without packaging and transport.
4. We reserve the right to change prices proportionally if
after closing an agreement the costs of materials, personnel
and/or the rate of exchange change.
5. If an order is cancelled by the Orderer or Hirer, which
requires our consent, Our actual costs but at least 25 % of
the net order value shall be paid to us.
6. We reserve our exclusive rights and claims to any drafts,
tracings, pictures, drawings, tables, circuit diagrams and
any other production documents of our wares that may be sent
or shown to any Orderer or potential Orderer. Such drafts,
tracings, pictures, drawings, tables, circuit diagrams and
any other production documents may not be given, shown to or
otherwise brought to the knowledge of any third party
without our express prior written consent. They are to be
returned at any time if so requested by us.,
II. Delivery
1. We endeavor to meet delivery and performance dates;
however, we are entitled to reasonably extend such deadlines,
especially when there are delays such as for prior order
clarification with the Customer as well as for such arising
while processing an order. Information on delivery dates
refer to the shipment of the goods from the works or
respectively to the preparedness to accept and are hence
subject to alteration if nothing else is expressly written.
2. Force majeure and other events for which we are not at
fault that may keep the order from being carried out
smoothly and in particular a delay of our supplier’s
deliveries, strikes, scarcity of energy or materials entitle
us to extend the delivery or to rescind the agreement in
whole or part without giving rise to claims on the part of
the Customer. This shall also apply if said events occur at
a time when we are already in default of delivery.
3. Partial deliveries shall be allowable for us at the terms
of the entire order. Partial invoices are also possible.
4. For repair work we are also entitled to repair such
defects as are not noticeable until after beginning work.
Instead of repairing we may also deliver objects of
equivalent value in exchange. Replaced parts will not be
returned.
5. Without previously informing the Customer we are also
entitled to have service or maintenance orders carried out
by other firms.
III. Shipping
1. Shipping is done at the customer’s expense and risk and,
unless otherwise directed, transport insurance will only be
closed at the Customer’s express wish and expense, except
when at our discretion deemed essential. Even when
transported by us, transport insurance may be necessary.
2. We assume no responsibility for the cheapest shipping.
3. We reserve the right to ship from another place in the
Federal Republic of Germany by our choice and not from the
place of fulfillment as defined in section XI.
IV. Complaints, Defects, Acceptance
1. Complaints about incomplete or false shipments or
recognizable defects must be reported in writing and without
delay and within 15 days of receipt of the goods at the
latest. Other defects are to be reported immediately upon
discovery. When reporting defects their correction free of
cost must also be requested.
2. If complaints or defects are not reported promptly
warranty claims are excluded. For prompt reports we shall
only be responsible for replacement or respectively for
warranty as set out in section V.
3. Work performances and deliveries, as a matter of
principle, require formal approval and have to be requested
by the customer. The approval is considered to be carried
out 10 days after completion, at the latest 3 days after
bringing the owed performance/delivery into service.
V. Warranty
1. We warrant all assured characteristics and a lack of
defects corresponding to the respective state of technology.
Changes in construction or design that we generally perform
on goods before delivery shall not be deemed a cause for
complaint.
2. The warranty period begins with dispatching the commodity
by us and amounts to in principle 6 months - so far by legal
Regulation of the FRG differently does not determine.
Stranger certifications with shorter warranty period are of
it excluded e.g. disk drives (warranty period 90 days),
objectives, head wheels etc., to which the warranty periods
of the suppliers apply. We do not take over a guarantee on
using devices, if nothing different one is in writing agreed
upon.
3. Kind of Warranty
a) The Warranty goes to our choice on repair or substitution
of the complained of product or part. Replaced parts change
into our property.
b) The complained of product is to be sent in for repair at
us or to one of us for the respective product area
recognized customer service place. The costs and of the back
dispatch go debited to the customer. Transport insurance
like III, 1
4. The warranty period begins with the shipment of goods and
generally lasts 6 months. Goods produced by other suppliers
are excepted from this and have a shorter period of warranty
such as disc drives (warranty period 90 days), objectives,
head wheels etc. for which the warranty periods of the
producers shall apply. We assume no warranty for used
equipment unless expressly agreed upon in writing.
5. Type of Warranty
a) The warranty includes either repair or replacement of the
defective product as we choose. Replaced parts become our
property,
b) The defective product is to be sent to us for repair or
to a repair service shop in the area recognized by us. The
transport costs to and from there shall be at the Customer’s
expense. Transport insurance as in III,1.
6. There shall be no claim for cancellation or price
reduction unless we are unable to repair the defect.
7. Warranty responsibility shall cease when the object
delivered is changed by someone else or by the installation
of parts of other origin unless the defect was not in any
way caused by the change. It also ceases if installation and
maintenance instructions are not followed.
8. Normal wear and tear and damage due to improper treatment
is excluded from the warranty. Data security in any data
storage is the customer’s responsibility. In particular we
are not liable for changes in condition or function of our
products due to improper storage or climatic or other
influences. The warranty does not include such defects due
to defective design or materials that the Customer has
prescribed despite previously being warned against.
9. The period of warranty is not extended or renewed by
repair or delivery of a replacement.
10. For difficulties resulting from the stipulations of
business legal protection for resale or the use of our
products or the goods sold by us, we reject responsibility
and in particular claims for compensation.
VI. Liability
1. We shall be liable for any damage hereunder caused by it
intentionally or caused by its gross negligence.
2. In the event of simple negligence by the MWA, we shall be
liable only for ordinary and foreseeable damage arising from
the contract, and only to the extent that the MWA has
breached material contractual obligations. Further, in the
event of simple negligence by the MWA, we shall be liable
for personal injury and/or health-related damage
attributable to the MWA.
3. We shall not be liable for consequential damages and
unforeseen damages (including consequential damages
resulting from defective goods) as well as loss of profits
in the event it has acted with simple negligence.
4. Any further liability of the MWA Nova is excluded.
5. To the extent that our liability is excluded or limited,
such exclusion or limitation shall apply to any persons or
entities employed by the MWA in the performance of its
contractual obligations.
6. The limitations of liability delineated herein shall not
apply to any legally prescribed strict liability, in
particular any such strict liability arising from laws
regarding guarantees or product warranties.
VII. Export
1. The goods supplied by us may not be exported to other
countries than the Common Market in an uninstalled state
without our written permission.
2. In case of a violation of this, we are entitled to cancel
current orders besides claiming damage compensation.
VIII. Reservation of Title
1. We reserve title to the delivered goods until complete
payment of all claims due to us from the business
relationship regardless of legal basis.
2. The Customer is entitled to process our products or their
connection with other products within the scope of his
regular business. To secure our claims we gain joint title
to the objects generated by processing our products with
other products according to number 1 above which the
customer transfers as a stipulation of purchase. The
Customer will keep the objects subject to our joint title
free of charge. The portion of the joint title corresponds
to the value of our product in comparison with the value of
the object arising from the processing.
3. Resale within the scope of regular business requires our
written approval. If granted this approval becomes void in
the event of cessation of payment on the part of customer.
As a condition of sale the Customer transfers to us all
claims arising to him including peripheral rights. The
transferred rights serve as security for all claims defined
under No. 1. The Customer is entitled to collect the
transferred claims as long as we have not revoked this
empowerment. The right to collect also expires without
express revocation if the Customer ceases to make payments.
At our request the Customer shall promptly inform us to whom
the goods have been sold and which claims are still open
from the sale as well as issue us a notarized statements of
the transfer at his own expense.
4. The Customer shall not be entitled to any other
disposition of the property under our reserved title or
joint title or of the Claims transferred to us. The Customer
shall immediately inform us of liens and other infringements
of the objects under our sole or joint title.
5. We shall at any time be entitled to request hand-over of
the goods belonging to us if the Customer falls in default
of payment to us or if there is an essential worsening of
liquidity. If we avail ourselves of this right our right to
rescind the contract shall only be deemed as exercised if
expressly so declared, except as compulsorily required by
law.
6. If the value of the securities for us exceeds our claims
by as total of more than 20 % we will at the Customer’s
request waive such a corresponding share of the securities
as we choose.
7. If the reservations of title as above No. 1 to 6 should
be invalid in a foreign state the Customer is obligated to
co-operate in all measures to achieve equivalent security
for us as above in numbers 1 to 6, in particular to make any
statement necessary.
IX. Payments
1. Unless otherwise agreed upon the Orderer owes payment in
Euro (EUR) for deliveries and services even if the invoices
show amounts in foreign exchange. Foreign exchange in the
form of transfers, cheques, bills of exchange etc. shall be
credited to the amount in EUR we get for the amount of
foreign exchange.
2. Payments are to be made according to the terms of payment
agreed upon. Service invoices shall always be due
immediately upon receipt. In the absence of specific
agreements the opening of a certified divisible irrevocable
documentary letter of credit shall be payable in EUR at a
major bank in the Fed. Rep. Of Germany at least 90 days
before the delivery date agreed upon and 30 days after order
confirmation – depending upon the delivery time.
3. Payments will be credited against the oldest invoice due.
4. If the Customer is in default of payment or his solvency
seriously worsens we may demand Immediate payment of all
claims, even such as have been granted a longer period for
payment. This shall also apply when we have accepted cheques
or bills of exchange. Under such circumstances we demand
advance payment or security for all current orders. Claims
based on § 326 BGB remain in effect.
5. In case of default of payment and without preclusion of
other rights we may claim interest to the amount of 5% above
the respective discount rate of the German Federal Bank.
X. Liability for Equipment Rentals
The hirer shall be liable according to the general terms for
liability if the equipment is damaged or if he is otherwise
in default of obligations. In particular the hirer shall
return the equipment in the same condition as he received
it. The hirer’s liability shall also cover peripheral damage
like the costs of appraisal, loss of value, lost rental
revenues etc.
XI. Invoicing Rates, Law Applying, Court of venue
Clearance rates, expenses, etc. are to be inferred from the
valid price lists
XII. Place of fulfillment, court of venue, applicable law.
1. Place of fulfillment and court of venue is Berlin,
Federal Republic of Germany.
2. We shall also be entitled to enter litigation at the
court which is competent for the seat of business of the
Customer.
3. The law of the Federal Republic of Germany shall apply
for the delivery and service relationship. |
