I. General – Field of Application
Our Terms of Sale and Delivery apply to this and every future contract concluded between you and us. We do not accept any contradictory conditions from the customer, deviating from our Terms of Sale and Delivery, unless we give our explicit written approval.
Our Terms of Sale also apply in the case that we carry out the delivery to the customer without reservations, well knowing that the customer’s Terms of Sale and Delivery are contradictory and deviating from ours.
We explicitly contradict any opposing buying conditions.
II. Offer and Confirmation of Order
Our offers are without engagement. Delivery agreements become binding by our confirmation of order, unless a written contract has been concluded.
If the order is to be qualified as an offer according to §154 BGB, we can accept it within four weeks.
All additional agreements and commitments become valid by insertion into the confirmation of order, or by a written confirmation. If the VAT is not explicitly shown in the offer, the offer price is plus statutory VAT.
We reserve all proprietary and copy rights to cost estimates, drawings, and other documents. Such documents may not be used for other purposes, copied, or made available to third parties, even if no legal copyright exists.
The documents being attached to the offer, such as pictures, drawings, weights and dimensions, are only approximate unless they were explicitly declared binding. In principle, our offers are free of charge, unless otherwise agreed in writing.
III. Prices and Terms of Payment
Unless otherwise agreed, the prices are ex works plus transportation and packaging and plus statutory VAT.
If a delivery or part of it is carried out after March 31 of the current year although it has been announced by confirmation of order before this date, we reserve the right to pass on possible cost increases of wages and material accordingly.
On principle, payments have to be received by us within 30 days after the date of invoice.
The payment of pure wagework is due within 8 days after date of invoice.
Please note that we have introduced a two-step extrajudicial default action.
If the customer has caused the delayed delivery, for example when ordering material, the due date is the declaration of readiness of dispatch.
If the customer is in default in accordance with items 3 or 4, MK Technology GmbH has the right to charge default interest of 6.5 percent per year to the amount owed. The default interests are charged from the start of delay. It will be invoiced after the principal debt has been settled. This invoice has to be settled immediately and without deductions.
If an order, which has already been placed and confirmed by us, is cancelled, a cancellation fee of 30% of the order value will be charged, payable immediately and without deductions.
Holding back payments or placing set-offs due to any counterclaims of the customer, which are not acknowledged by us, are not allowed.
Deliveries abroad in the amount of more than 2,500.00 € shall only be made against an irrevocable letter of credit, which has to be confirmed by our principal bank.
IV. Title Retention
The delivered goods remain our property until all claims resulting from our mutual business relation and additional claims occurring in connection with the ordered item have been fully paid. If the customer breaches the contract, especially in the case of failure in payment, we are authorised to reclaim the purchased item. Reclaiming the purchased item from our side does not mean a withdrawal from the contract, unless we gave our explicit written confirmation. After having reclaimed the purchased item, we are authorised to utilise it. The proceeds from the utilisation have to be settled against the liabilities of the customer after deducting the appropriate utilisation costs.
The customer is obliged to treat the purchased item with care. He is particularly obliged to insure it adequately at his own expense against fire, water and theft in the amount of the original value. In the case of seizure or other interventions of third parties, the customer has to inform us immediately in writing, so that we are able to raise a third-party objection.
The customer has the right to resell the purchased item properly. However, he assigns to us already now all claims against the buyer or third parties in the total amount of our invoice, resulting from this transaction, regardless of whether the purchased order was resold without or after having been processed. We engage ourselves not to call in the claims as long as the customer meets his payment obligations, there is no failure in payment, particularly no institution of bankruptcy or settlement proceedings, and no stoppage of payment has been applied for. In this case, the customer is obliged to provide all details about the third party, which are necessary to call in the claim, and to inform them about this assignment.
If the purchased item will be processed together with other goods which are not in our property, we acquire the co-ownership of the new product in relation to the value of the goods at the time of processing.
In the case of enforcement of proprietary rights, the customer agrees to tolerate our entrance into the premises to pick up the item subject to reservation.
V. Transfer of Risk
Delivery is ex works Grafschaft. It is fulfilled as soon as the goods are taken over or ready for dispatch.
The risk will be transferred to the customer as soon as the goods are ready for dispatch or picked up, even if freight-free delivery has been agreed.
We reserve the right to choose the route and means of transportation in default of clear instructions by the customer. We are not obliged to choose the cheapest way of transportation.
Packing is charged by us at cost price only. If possible, we will agree upon a cost-effective return packaging.
If requested by the customer, the shipment can be covered by transport insurance. The incurring costs are to be taken over by the customer.
VI. Delivery and Acceptance Times
Unless otherwise agreed, all statements about delivery times are approximate and not binding.
The observance of delivery times is subject to the punctual receipt of all necessary documents and information from the customer, permissions required, clearances, auxiliary parts, as well as to the fulfilment of the agreed payment conditions and other obligations. When auxiliary parts are needed, agreed delivery times can only be observed if the auxiliary parts are in our facility at least four weeks before the expiry of the delivery time.
Any kind of breakdown, force majeure, or unpredictable obstacles beyond our control lead to an adequate extension of the delivery time. If, in such cases, it becomes unreasonable for the customer or for us to adhere to the contract, both parties have the right to withdraw from it.
As most of the products are customer-specific machines and as lot of components are delivered by sub-suppliers, the indicated delivery times are not binding. If the agreed delivery time has to be exceeded the customer will be informed in time about the delay to be expected.
The customer has to accept part shipments if the rest will be supplied in maximally two subsequent deliveries.
The customer has to accept minor deviations of the quantity delivered compared to the quantity indicated in the order confirmation provided that the deviation is reasonable. Reasonable means a surplus or default of up to 5% of the quantity ordered.
VII. Skeleton Agreements
If a skeleton agreement has been concluded, the acceptance period for the customer is 12 months from the date of order confirmation, unless any other written agreements were made.
After the acceptance of the first part delivery, a skeleton agreement for the remaining part deliveries will be scheduled for the period of 12 months.
After expiration of the acceptance period, we have the right either to invoice the remaining items or to sue the customer for indemnification.
The flat amount of indemnification is 25% of the order value, unless the customer furnishes proof of a lower loss or we furnish proof of a higher loss.
Unless otherwise agreed, we have the right to pass on increases in material costs and wages to the customer if the skeleton agreement exceeds the period of 12 months.
VIII. Ordering Material
We do not assume any liability for the functionality and quality of auxiliary parts from the customer. We reserve the right to refuse the installation of auxiliary equipment and half-finished products, unless they meet the quality requirements of our company.
If auxiliary material is delivered on the grounds of a skeleton agreement after expiration of the extension period according to 7.1, the customer is obliged to accept the products provided by us without the installation of the auxiliary material.
IX. Warranty, Liability
We grant the highest possible standard of reliability and quality of our products by an internal quality control system. In the case of single defaults, the following will apply:
The customer’s rights with regard to liability are subject to the complete fulfilment of his owed liabilities of investigation and obligation according to §§ 377, 378 HGB.
There is no warranty for any purchased items of which the customer was given samples or which were tested by the customer before the purchase, provided these parts were not tested adequately and under real-life conditions with respect to performance and service life.
In the case of any defect of the purchased item for which we are responsible, we have the right to either repair it or replace the item in question by a substitute-delivery. Whichever option is chosen is entirely up to us. When we choose to repair the defect, we take over all necessary costs, especially those for transport, travelling, manpower, and material, unless the costs are increased by the fact that the item was brought to a location other than the place of performance.
In the case that we are not willing or able to repair the defect or to supply a replacement, especially if there is a delay which we have to answer for and which exceeds the appropriate term, or in the case that the attempt to repair the damage or to supply a replacement fails, the customer has the right to demand change or price-reduction.
Further claims by the customer – irrespective of the legal arguments – are excluded. Therefore, we are not liable for damages which have not affected the item itself. In particular, we are not liable for any lost profits or other financial losses of the customer, unless the damage is based on intent or gross negligence.
The limitation of liability does also not apply if the customer claims for damage due to non-performance according to §§ 463, 480 item 2 BGB because of a quality default. In any case, the liability is limited to the foreseeable damage.
The warranty period is 12 months from the transfer of risk.
Qualified complaints do not affect the fulfilment of other parts of the contract, particularly concerning part deliveries and the terms of payment. There is no right to hold back any payment in such cases, unless the payments already made exceed the value of the purchased item already delivered.
In the case of improper changes and maintenance work or application by the customer or third parties our warranty commitment become void.
X. Severability Clause
If any of the above clauses becomes void, this will not affect any other clauses. The General Terms and Conditions of MK Technology GmbH remain unaffected and the void clause will be replaced by another admissible clause which meets the basis of the contract as closely as possible.
XI. Place of Jurisdiction and Applicable Right
Place of performance for the two parties and place of jurisdiction for any litigation between the parties is Koblenz. The contract between the customer and us is exclusively subject to German right.
Grafschaft, 1st January 2012