General Conditions of Sales and Delivery
myonic GmbH Leutkirch
1.1. The contract is concluded on receipt of our written confirmation that we accept the order (order confirmation). Offers made by us that do not contain a time limit for acceptance will not be binding on us.
1.2. These conditions of sale and delivery shall be binding when they are declared applicable in the offer or in the order confirmation. Other conditions having a contrary intention made by the purchaser will only be valid if they are expressly accepted by us in writing.
1.3. All agreements and legally applicable declarations made by the parties to the contract, in particular alterations and/or additions made to the contract must be in writing and signed in order to be valid. Computer generated correspondence without a signature shall be deemed to be in writing for the purpose of this sub-clause.
1.4. Should any clause in these conditions of sale and delivery prove to be partly or wholly ineffective, the parties to the contract will replace this clause with an agreement that is as legally and commercially viable as possible.
2.0 Extent and Execution of Deliveries and Services
2.1 The order confirmation containing express specifications and accompanying documents shall be authoritative as to the extent and execution of our deliveries and services. We shall invoice materials or services that are not mentioned within the order confirmation separately. For products made specially to order, we shall be entitled to make excess or short deliveries up to a 10% margin.
2.2 We shall be entitled to make alterations to goods and services in order to improve them, so long as this does not result in a price increase.
3.0 Technical Documents, Projects and Preliminary Studies
3.1 Statements made in sales literature, catalogues, technical documents such as drawings, descriptions, projects, studies and suchlike shall only be binding if they have been expressly confirmed by us. We reserve the right at all times to make any changes which appear to us to be necessary. If not specified otherwise we produce and inspect according to myonic standards.
3.2 Projects, preliminary studies, patterns and prototypes that are developed by us on behalf of the purchaser shall remain our property and may neither be copied, duplicated, given nor made accessible to third parties, nor may they be used to assemble the product or parts of it, nor may they be utilised for other purposes without our written consent. All technical documents, patterns and protoypes for offers that do not lead to the placing of an order must be returned to us immediately.
3.3 Each party to the contract reserves its rights to plans and technical documents given to the other. The receiving party acknowledges these rights and shall neither make the plans either wholly or in part accessible to third parties, nor use them for other purposes outwith their originally intended use without written consent of the other party.
3.4 In so far as objects are to be produced and delivered in accordance with designs, drawings, models, patterns supplied to us by the purchaser or in accordance with the purchaser's specification of whatever description, the purchaser warrants that production and delivery by us will not infringe the intellectual property rights of third parties. The purchaser agrees to indemnify us against all damage and loss which can result from an infringement of the rights of third parties in connection therewith.
4.0 Regulations in the Country of Destination and Safety Regulations
4.1 The purchaser must notify us of all legal, official, technical and any other rules and regulations in the country of destination that are connected with the delivery of goods and services, their assembly and construction, operation and adherence to local health and safety regulations and general damage prevention. This must be done at the latest with the placement of the order. In addition, the purchaser must identify any changes in these rules and regulations without delay and in good time.
The same applies to any regulation that differs from German law, in particular (but not by way of limitation) stricter product liability and safety regulations.
4.2 Absent agreement to the contrary, our goods and services shall comply with the rules and regulations prevailing at our seat of business. Additional regulations or further safety regulations shall only be taken into consideration if this has been expressly agreed.
4.3 All consequences that might arise from defective instructions by the purchaser must be exclusively borne by the purchaser. These consequences include changes in price resulting from alterations to goods and services made necessary by changes in the rules and regulations in the country of destination. In the event of defective explanation of product liability and safety regulations, we shall be fully entitled to withdraw from the contract within one month after we have become aware of the relevant legal position. The purchaser is obliged – irrespective of withdrawal from the contract – to indemnify us against any claims by third parties to the extent they would exceed our duty of care in a similar case of product liability in Germany.
5.1 All specified prices are net prices ex works, exclusive of packaging and do not include the legally applicable turnover tax (Umsatzsteuer). Unless otherwise agreed upon in writing all goods are billed at the prices in effect at the time of shipment.
5.2 All expenses such as freight, packaging, insurance, export, transit and import costs as well as other permits and documentation are chargeable to the purchaser. Similarly, the purchaser shall pay all taxes, duties, fees and customs duties that are connected with the contract. Failing this, the purchaser shall reimburse us on presentation of suitable proof of payment of these expenses by us and/or the carrier, in the event that we or the carrier are responsible for payment. In the event that these expenses are included in the price or have been separately identified, they shall be subject to changes in the corresponding tariffs. We reserve the right to amend our charges in this regard in accordance with any alteration of the tariffs.
6.0 Conditions of Payment
6.1 Payments must be made to our legal business address according to the conditions set out in the order confirmation, net terms only, without cash discounts, bank charges, taxes, fees, customs duties or similar. In the case of part deliveries, these are payable according to the quantity of the individual delivery. If payment by cash or cheque has been agreed upon, the purchaser shall pay any discounts or taxes on bills of exchange as well as bank and collection fees.
6.2 Any advance payment made by purchaser shall not be interest bearing. In the event of breach of contract by the purchaser, the advance payment made to us may be applied by us to cover any costs and damages caused, while the right to claim compensation for damages exceeding this amount is reserved. We shall be entitled to apply payment to such head of damage as we shall deem fit.
6.3 The purchaser shall adhere to the agreed dates of payment even if transport, delivery, installation, commissioning or acceptance of delivery have been delayed or made impossible for reasons outwith our control.
6.4 The purchaser shall not be permitted to reduce, offset or hold back payments due to complaints, claims or counterclaims of the purchaser not recognized by us. Payments shall be made punctually, even when insignificant parts of a product or service are still missing or reworking may become necessary, neither of which preclude use of the goods.
6.5 If advance payments are not made or securities not given in accordance with the contract we shall be entitled to withdraw from the contract and to claim compensation. If further payments are delayed and we fear that we shall not receive payments in time or in full, then without restriction of our legal rights we shall be legally entitled to suspend further performance of the contract and to suspend delivery of goods and services to the purchaser until payments are made or secured. If payments are not made or secured in good time, we shall be entitled to withdraw from the contract and to claim compensation.
6.6 If the purchaser fails to make payment on the due date, then interest must be paid at the rate of 8% above the interest base rate from time to time of the European Central Bank without further notice and from the date payment falls due. The right to claim compensation for other damages is expressly reserved. If goods delivered are damaged or destroyed for any reason, the purchaser remains in every case liable for outstanding installments.
7.0 Retention of Title
7.1 We shall retain title to goods delivered by us until there no longer exists any claim for payment arising out of the order. Should there be at the time of the delivery other claims for payment against the purchaser as well as the claim for payment arising from the order then we shall retain title to the goods delivered by us until settlement of all claims for payment described above (extended retention of title). Where the purchaser makes payment by cheque or bill of exchange then the claim for payment arising from the order and delivery shall continue to exist until the bill of exchange or cheque of the purchaser has been credited to our account. The extended retention of title shall also apply to the balance from time to time where payments are made into a running account.
7.2 Should the purchaser process or adapt the goods delivered then the processing or adaptation is carried out on the basis that we acquire co-ownership in the new product in the proportion which the purchase price of the product delivered bears to the total sales value of the new product. In the case of processing by the purchaser with other goods which do not belong to us co-ownership in the new product produced shall belong to us in the proportion which the value of the goods to which we retain title bears to the sales value of the new product at the time of processing. The provisions of this clause extend to all claims for payment which the purchaser acquires in the future as a result of the subsequent sale of products subject to the provisions of this clause. The purchaser assigns to us all claims for payment arising out of the subsequent sale of this product to the extent of our claims for payment. We hereby accept this assignment.
7.3 If goods supplied under retention of title are combined, mixed or blended in such a way that they cannot be separated, then we shall acquire co-ownership of the entirety in proportion to the value of our delivery, §§947, 948 BGB. Should the purchaser acquire sole ownership as a result of combining, mixing or blending then he is deemed to transfer to us co-ownership in the proportion which the value of the goods to which title has been retained bears to the value of the new product at the time of combining, mixing or blending. We hereby accept the transfer thereof. The purchaser is obliged in this case to keep safe at no charge to us the goods in which we have ownership.
7.4 Retention of title is extended to all claims of the purchaser, which are acquired by him as a result of the subsequent sale of the goods delivered or from the subsequent sale of the new products. These claims are hereby assigned to us up to the value of the amount of invoices unpaid. The purchaser assigns these future claims by way of security at the time they come into being. We hereby accept this assignment. The purchaser is only entitled to sell goods to which we retain title or new products subject to the proviso that his claim for payment for goods or services passes to us in accordance with the preceding conditions. The purchaser is not entitled to make any contrary dispositions.
7.5 The purchaser is not entitled to pledge or grant security rights over goods delivered. The purchaser shall inform us without delay in the event of the goods becoming subject to any security rights, seizure or other dispositions by third parties.
7.6 Our rights of security shall not prevent the purchaser from dealing with goods belonging to us or rights assigned to us by way of security in the normal course of business. Normal course of business shall be deemed no longer to exist if the purchaser is in arrears with payments to us one month after payment is due, if bills of exchange on which he is liable are protested, he suspends payment of liabilities as they fall due or an application for an insolvency procedure is made. In this case the purchaser is obliged at our request to notify his customers of the assignments, to refrain from collecting payment and to allow collection by us. On our request the purchaser is further obliged on first demand being made to inform us of the names and addresses of his sub-purchasers.
7.7 If the purchaser is no longer carrying on business in the ordinary course then we are entitled to take back goods to which we have retained title at the cost of the purchaser. Should goods be taken back in this way then there shall be no withdrawal from the contract in the enforcement of the right of retention of title nor in the taking of security over the goods delivered, in so far as legally permissible.
7.8 At the request of the purchaser we are obliged to release such security rights as we deem fit given to us under the preceding conditions and to the extent that the realisable value of our security rights exceeds the value of our claims which are to be secured.
8.0 Delivery Times
8.1 The delivery period begins when the contract is concluded, all official approvals have been obtained, the necessary payments at date of order made and securities have been given and the essential technical points have been settled. Adherence to the delivery period is dependent on the purchaser fulfilling his contractual obligations.
8.2 The delivery period and all other delivery dates have been adhered to if notice of our willingness to deliver has been sent to the purchaser prior to expiration of the period/date concerned.
8.3 Orders to be called off must be taken delivery of at the latest within twelve (12) months of the first part delivery, without further notification to the purchaser.
8.4 The delivery period shall be prolonged accordingly if:
8.4.1 The information needed by us to fulfil the contract is not received on time or the purchaser makes alterations to the information at a later date, thus causing a delay in the delivery of the goods and services; or
8.4.2 We encounter hindrances which, despite due diligence, cannot be averted whether they concern us, an outside supplier, the purchaser or a third party. These hindrances include epidemics, mobilisation, war, riots, strikes, boycotts, extensive plant breakdown, accidents, employment conflicts, delayed or deficient delivery of the necessary raw materials, semi or finished products, key components needing to be scrapped, official measures or omissions, natural causes; or
8.4.3 The purchaser or third parties are delayed in the work to be carried out by them or in their fulfillment of their contractual duties particularly when the purchaser does not adhere to the conditions of payment.
8.5 The purchaser has no rights or claims other than those given here for lateness of deliveries and services. In particular, the purchaser shall not be entitled to claim compensation for direct or indirect loss. This limitation shall not apply in the case of deliberate wrongdoing on our part, but it shall apply in the event of deliberate wrongdoing on the part of agents and subcontractors.
Packaging shall be invoiced separately and shall not be returnable to us. If however it is described as our property and we are officially and legally obliged to take the packaging back, the purchaser must separate it and return carriage paid to its point of origin.
10.0 Transfer of Right to Use and Risk
10.1 The right to use and risk transfer to the purchaser at the latest when the deliveries leave the factory, even if the delivery is carriage paid, CIF, FOB or under similar clauses according to INCOTERMS in the version current at the time of conclusion of the contract, or if transport is arranged and carried out by us.
10.2 If delivery is delayed at the request of the purchaser or for other reasons which are not our responsibility, the risk transfers to the purchaser on the date the product was originally intended to leave the factory. From this time onwards goods are stored at the purchaser’s cost and risk.
11.0 Dispatch, Transport and Insurance
11.1 The purchaser must notify us in good time of any special requirements for dispatch, transport and insurance. Dispatch and transport are to be invoiced to the purchaser and are at the purchaser’s risk.
11.2 Complaints connected with dispatch and transport must be made without delay by the purchaser to the ultimate carrier on receipt of the goods delivered or the freight documents received.
11.3 Insurance against any kind of damage shall be incumbent on the purchaser. If insurance is to be effected by us, it shall be considered as concluded on behalf of the purchaser and for his account and shall be invoiced to the purchaser.
12.0 Inspection and Acceptance of Goods and Services
12.1 We shall carry out the usual inspections of goods and services prior to dispatch according to our inspection criteria. Additional inspections required by the purchaser are to be arranged separately and paid for by the purchaser. The purchaser must check the goods and services within a reasonable time and notify us immediately in writing with a detailed description of any shortcomings or defects. Any obvious defects in goods supplied by us must be reported to us immediately giving a detailed description. We must also be notified without delay of latent defects as they appear. If the purchaser fails to lodge the complaint within the period for doing so of fourteen (14) days, then the goods supplied shall be considered accepted even with respect to the defect.
12.2 The carrying out of tests on delivery as well as the determination of conditions pertaining to it requires a separate agreement.
12.3 In the event of any defects in goods and services the purchaser has no other rights other than those expressly mentioned in clause 13. In particular, the purchaser shall not be entitled to claim compensation for direct or indirect loss or damage caused by defective delivery.
13.1 If the purchaser or a third party undertakes inappropriate changes or repair works without our previous permission, then we accept no liability for the consequences. Save in so far as fault can be attributed to us, we do not accept liability for unsuitable or inappropriate use, especially faulty installation or operating by the purchaser or by third parties, normal wear and tear, faulty or negligent handling, inappropriate operating resources etc.,
13.2 If movable goods delivered by us are defective and if the purchaser is a consumer within the meaning of the German Civil Code (BGB, consumer sale of goods) then the purchaser can insist on subsequent performance, reduction in price or withdrawal from the contract in accordance with legal liability regulations. These claims are time barred two years after the commencement of the legal limitation period. A claim for compensation on the grounds of minor negligent conduct which does not consist of infringement of an essential contractual duty (Kardinalpflicht) shall not exist in so far there is no loss of life or damage to the person or health. Claims to compensation on the grounds of non, late or defective performance are time barred one year after the commencement of the legal limitation period.
13.3 In all other cases where there is no consumer sale of goods, the purchaser is entitled to make a claim for subsequent performance, reduction in price or withdrawal from the contract and compensation in accordance with the following conditions:
13.4.1 Where the purchaser accepts a defective product even though he already knows of the defect then he is only entitled to rights of subsequent performance, withdrawal from the contract, reduction of price and compensation if he reserves these rights on the grounds of the defect at the time of taking delivery.
13.4.2 Should the product lack an agreed quality or should any other defect be present within the meaning of § 434 I S. 2 / § 633 II S. 2 German Civil Code (BGB) then provided a complaint has been lodged in time we shall be obliged for a period of one year at our election either to cure the defect or deliver a product free of defects (Nacherfüllung).
13.4.3 Should a second attempt be made by us to remedy a defect or a subsequent delivery of an object free of defects be undertaken and the defect present could not be remedied or an attempt at improvement was refused by us then the purchaser can instead of the removal of the defect or delivery of a product free of defects demand either reduction of the purchase price or after reasonable notice has been given rescission of the contract concluded with us.
13.4.4 Should performance due to be made on our part be either non-existent, delayed or defective then the purchaser for a period of one year from transfer or risk can only demand compensation:
22.214.171.124 for damages for loss of life, injury to the person or health which are caused by our deliberate or negligent breach of duty or by the deliberate or negligent breach of duty of one of our legal representatives or persons employed by us in the performance of our obligations;
126.96.36.199 for other damages which are caused by deliberate or grossly negligent breach of duty on our part or by deliberate or grossly negligent breach of duty of one of our legal representatives, managers or persons employed by us in the performance of our obligations or by the deliberate or negligent breach of fundamental contractual duties (Kardinalpflichten) on our part or by the deliberate or negligent breach of duty of one of our legal representative, managers or persons employed by us in the performance of our obligations;
188.8.131.52 For damages which fall within the scope of a guarantee given by us (Zusicherung) or a guarantee of a specific quality or durability
Any further or other liability on our part for deliberate deception remains unaffected.
In the event of negligent breach of an essential contractual duty liability is limited to the amount of damage and loss which would be expected to arise in the ordinary course of events. This does not include damages arising from loss of life, injury to the person or health.
In so far as the contrary is not agreed in these conditions all claims of the purchaser for making good damages of whatever description particularly damages which do not arise from the goods delivered themselves as well as claims of a delictual nature are excluded. This applies also for claims arising as a result of the acts and omissions of and against our persons employed by us in the performance of our obligations. This limitation of liability shall not apply where it is shown that we or our persons employed by us in the performance of our obligations are guilty of deliberate wrongdoing or gross negligence or loss of life, injury to the person or health occur.
13.4.5 Should the initiation or execution of the contractual relationship between the parties include or involve third parties instructed by us then the above described limitations on warranty obligations and liability apply in favour of such third parties.
14.0 Place of Performance
The place of performance for all obligations is Leutkirch, even if delivery is carriage paid, CIF, FOB or is made under similar clauses as per INCOTERMS.
15.0 Forum and proper law
Forum for all differences between the parties arising from the contractual relationship is Ravensburg in so far as the purchaser is a businessman (Kaufmann), legal person in public law or other specific public body (Sondervermögen) or if the purchaser does not have any place of jurisdiction in the Federal Republic of Germany or has transferred his place of jurisdiction abroad. We are however entitled to enforce our rights against the purchaser before any other competent court. The legal relationship between the parties is subject to German law but shall exclude the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.