Terms and Conditions
§ 1 General/scope of application
(1) Contracts between MIVEG GmbH (hereafter referred to as MIVEG) and its customers are concluded solely on the basis of these Standard Terms and Conditions. Contrary standard terms and conditions or conditions of Customer that differ from these Standard Terms and Conditions will not be recognised unless MIVEG expressly consents to their application. These Standard Terms and Conditions will also apply should MIVEG, although aware of contrary or different conditions of Customer, carry out the delivery to Customer without any reservation.
(2) These Standard Terms and Conditions will also apply to future businesswith Customer, even if explicit reference is not made to them.
§ 2 Quotation
(1) Advertisements, catalogues and particularly the description of the machine as well as documents attached to a quotation, such as diagrams, drawings or dimensions, are only binding provided they are expressly described as such.
(2) MIVEG’s quotations are always subject to change and non-binding.
(3) The prices stated are without the value added tax applicable at the respective time and “ex works” in which the machine is constructed and excluding packaging. Unless agreed otherwise, packaging must be paid by Customer.
(4) Unless agreed otherwise, the costs of loading and dispatch are also payable by the Customer. Unless anything different is specified, MIVEG will choose a suitable method of transport.
(5) In the case of orders from outside the Federal Republic of Germany, any additional public costs such as customs duties, import and export levies etc. are also payable by Customer.
(6) The EURO is established as the price in which the purchase price is payable. All prices refer to the EURO. A change in currency parities in the case of orders from abroad will not affect the purchase price due. Customer will therefore bear the currency risk.
§ 3 Place of fulfilment/transfer of risk
(1) The place of fulfilment for Customer’s payment obligations is MIVEG’s registered office at the time the relevant payment obligation is fulfilled. The place of fulfilment for MIVEG’s obligation to deliver is agreed place where the machine is to be assembled.
(2) The risk of accidental destruction, damage, loss during transportation and/or a delay in transporting the machine will pass to Customer at the time the machine is handed over to the freight forwarder. Should it not be possible to ship the machine for reasons for which MIVEG is not responsible, risk will pass to Customer at the time MIVEG reports that the machine is ready for delivery. MIVEG will only insure the machine against normal transport damage at the express request and in accordance with specifications of Customer and at its expense.
§ 4 Delivery
(1) Scope and time of delivery are governed solely by the information in MIVEG’s order confirmation or a contractual document. The delivery deadline is deemed to have been met, provided the machine has left the factory in which it has been assembled or MIVEG has given notice that the machine is ready for delivery, by the end of the delivery deadline.
(2) Compliance with the obligation to deliver and the agreed deadlines are conditional on Customer having fulfilled its obligations on time and properly and having made a pre-payment. These obligations include in particular Customer having provided, for example, the required official permits, attestations, technical drawings, components and materials to be supplied by Customer, programmes, deployment plans etc. on time and correctly. These obligations further include Customer having provided the correct conditions in time notified by MIVEG relating to construction (e.g. grounding at the assembly location) and/or technical matters (e.g. availability of electricity, water and technical equipment) and/or organisation of the work (e.g. compliance with safety regulations, provision of required premises for MIVEG’s assembly team) at the assembly location. MIVEG reserves the defence of lack of performance of the contract.
(3) Should Customer fall into default of acceptance or negligently infringe other obligations to cooperate, MIVEG will be entitled to demand compensation for any resulting damages, including additional costs. This will not affect any additional claims, nor will it affect the due dates of MIVEG’s claims to payment.
(4) Should the conditions of paragraph (3) be fulfilled, the risk of accidental destruction, damage, loss during transportation, a delay in transportation and/or accidental deterioration of the machine will pass to the Customer at the latest from the time it falls into default of acceptance or into debtor’s delay.
(5) MIVEG is entitled to carry out partial deliveries to the extent that this is reasonable from Customer’s point of view. These are separate deliveries and may be invoiced separately.
§ 5 Rescission
Customer may only rescind the contract subject to the conditions in statutory law law provided MIVEG is responsible for the infringement of liabilities that caused the exercise of the right of rescission. In the case of defects moreover, only statutory law will apply.
§ 6 Payment conditions
(1) Payment conditions will be governed solely by MIVEG’s order confirmation or a contractual document.
(2) Customer consents to MIVEG issuing electronic invoices sent by e-mail.
(3) Should Customer fail to pay invoices that have become due, have exceeded the time allowed for payment or should legitimate doubts arise after the contract has been concluded regarding its ability to pay or creditworthiness, MIVEG will be entitled to further perform only in return for cash in advance. This applies particularly should the opening of insolvency proceedings be applied for.
(4) Customer is only entitled to set off its claims against MIVEG’s claims or withhold payment provided its counter-claims have been established as final and absolute, are ready for decision or are undisputed. Moreover, the right to withhold payment is conditional on its counter-claim being part of the same contractual relationship.
§ 7 Reservation of title
The machine delivered will remain MIVEG’s property until paid for in full.
Should Customer be in arrears with its payments or should it become clear that MIVEG’s payment claims are endangered by the Customer’s inability to pay, MIVEG will be entitled to demand the return of the machine on account of reservation of title. MIVEG may enter Customer’s business premises and dismantle the machine in order to enforce this right. Rescission of the contract is not conditional for the demand to return the machine, nor does this demand for the return of the machine signify a rescission of the contract.
Should the reserved goods be seized by third parties, particularly attachment, the Customer will draw attention to MIVEG’s title and notify MIVEG immediately so that MIVEG can enforce its rights of ownership. Customer will pay all expenses incurred in lifting the seizure and recovering the object delivered unless these costs are actually reimbursed by a third party.
Customer is required to treat the reserved goods with care, in particular to insure them at their value as new at its own expense against fire and water damage as well as theft.
§ 8 Obligation to report defects
(1) Claims by Customer that the goods are defective it is a condition for such claims Customer having properly fulfilled its obligations under § 377 of the German Commercial Code (HGB) to examine the goods and to report defects. Defects once identified must be reported immediately in writing.
(2) Should delivery have been made at MIVEG’s risk, Customer is required, on accepting delivery, to report obvious transport damage to the freight forwarder.
In the event of transport damage, the Customer is also required to retain the original packaging and to document any defects in the packaging, as long as the work involved is not unreasonable.
Should MIVEG not be able to enforce claims for compensation against the freight forwarder due to Customer having failed to comply with these obligations, Customer will be required to pay compensation should it negligently have failed to comply with these obligations.
§ 9 Warranty rights
(1) Customer will not be entitled to assert warranty rights in the event of only minor deviations from the agreed quality or should the effect of such defects on the usefulness of the machine be only minor.
(2) Should the object purchased be defective, Customer may initially demand only that the defect be eliminated.
(3) Should subsequent fulfilment fail or not be reasonable for Customer, Customer is entitled either to rescind the Contract or to demand a price reduction in accordance with the provisions of the law.
§ 10 MIVEG’s liability
(1) MIVEG is liable in the event of intent or gross negligence by its representative or vicarious agent within the meaning of the law. Beyond this MIVEG is only liable subject to the following provisions stipulated by the German Law on Product Liability on account of injury to life, limb and health or due to culpable infringement of essential contractual or cardinal obligations.
(2) Damage due to gross negligence and the infringement of essential contractual obligations that are not committed intentionally is limited to foreseeable damage typical for this type of contract, provided no injury to life, limb and health has occurred.
(3) Damage to other legal interests of Customer are completely excluded, unless due to intent, gross negligence or injury to life, limb and health.
(4) The provisions of paragraphs (1) to (3) refer to compensation in addition to performance and compensation instead of performance, irrespective of the legal reason, particularly claims arising from tortious acts. They also apply to claims for compensation on account of expenses incurred in vain.
§ 11 Statute of limitation
(1) The limitation period for compensation claims on account of defects, irrespective of the legal reason, is one year.
(2) The limitation period in accordance with paragraph (1) also applies to other claims for compensation against MIVEG, irrespective of their legal grounds. They also apply should the claims be unrelated to defects.
(3) The limitation period for warranty claims on account of defects is also one year.
(4) Moreover, the rules on limitation periods in paragraphs (1) to (3) only apply subject to the following conditions:
a. The limitation periods generally do not apply in cases of intent.
b. The limitation periods do not apply should MIVEG have fraudulently concealed a defect.
c. The limitation periods do not apply to compensation claims in cases of injury to life, limb and health or freedom and to claims under the Germany Product Liability Law, a gross negligent infringement of obligations or should essential contractual obligations have been culpably infringed.
§12 Place of jurisdiction – place of fulfilment
(1) Should Customer be an entrepreneur within the meaning of HGB, a public-law legal entity or a public-law special fund, the place of jurisdiction for all disputes arising from or in connection with contracts between Customer and MIVEG is the business premises of MIVEG at the time the action is initiated; MIVEG is however entitled to sue Customer at the place of jurisdiction of Customer’s registered office.
(2) The substantive law of the Federal of Germany will apply; the application of UN purchasing law (CISG) is excluded.