General Terms and Conditions
MODI Modular Digits GmbH
An der Hoehe 20
D-51674 Wiehl
01.05.2005
§ 1 Scope of Application
(1) These Terms and Conditions only apply vis-à-vis entrepreneurs, public sector corporations or public authorities pursuant to section 310, paragraph 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).Purchaser terms and conditions which contradict or deviate from our Terms and Conditions of Sale are only effective if we explicitly consent to them in writing.
(2) These Terms and Conditions of Sale apply to all future transactions with the Purchaser insofar as they are legal transactions of a similar nature.
§ 2 Offer and Contract Conclusion
Offer validity: our offers are subject to change and non-binding.If an order constitutes an offer according to section 145 BGB, we can accept the order within a period of two weeks.
§ 3 Relinquished Documents
We reserve all ownership rights and copyright to any documents (e.g., calculations, drawings, etc.) relinquished to the Purchaser in connection with the placement of an order.Such documents may not be made available to third parties unless the Purchaser has obtained our explicit written permission.If we do not accept the Purchaser’s offer within the time period stated in section 2, the documents must be returned to us immediately.
§ 4 Prices and Payment
(1) Unless an agreement to the contrary is drawn up in writing, all prices are ex-works prices excluding packaging and value added tax at the currently effective rate.Packaging costs are charged separately.
(2) The purchase price must be paid exclusively to the account stated on our invoice.Deduction of early payment discounts is subject to a separate written agreement.
(3) Unless otherwise agreed, the purchase price must be paid within 10 days of delivery.Default interest will be charged at 8% above the current interest base rate per year. We reserve the right to assert a claim for higher damages due to default.
(4) Unless a fixed price has been agreed upon, we reserve the right to appropriately adjust our prices as a result of increased costs for wages, materials and sales when deliveries are effected 3 months or more after conclusion of the contract.
§ 5 Offsetting and Retention Rights
The Purchaser is only entitled to offsetting if the Purchaser’s counterclaims are legally binding or undisputed.The Purchaser may only exercise a right of retention if the counterclaim arises from the same contractual relationship.
§ 6 Delivery Period
(1) The commencement of the delivery period stated by us is subject to the Purchaser’s timely and proper fulfilment of obligations. We reserve the right to the defence of contractual non-performance.
(2) If the Purchaser refuses to take acceptance of the goods or is culpably in breach of other duties to cooperate, we are entitled to demand reimbursement of any damages incurred by us up to that point in time, including any resulting additional expenses.We also reserve the right to assert further claims.Provided that the above requirements are met, the risk of accidental loss or deterioration passes to the Purchaser at the time when the Purchaser refuses acceptance or fails to take acceptance by the agreed date.
§ 7 Transfer of Risk Upon Shipment
If the goods are shipped to the Purchaser at the Purchaser’s request, the risk of accidental loss or deterioration of the goods passes to the Purchaser at the time of shipment and, at latest, when the goods leave the factory or warehouse.This applies regardless of whether shipment is effected from the place of performance and regardless of who pays the shipping costs.
§ 8 Retention of Title
(1) We retain title to the delivered goods until any and all receivables arising from the delivery contract have been paid in full.This also applies to all future deliveries, even without express reference to this clause.We reserve the right to reclaim the goods if the Purchaser contravenes contractual obligations.
(2) The Purchaser is under obligation to handle the goods to which title has been retained with due care.In particular, the Purchaser undertakes to take out adequate insurance against theft, fire and water damages covering the new value of the products. (Note:only admissible when high priced products are purchased).If repairs or inspections are necessary, the Purchaser is required to perform them in a timely manner at own expense.Until transfer of ownership has taken place, the Purchaser is required to inform us in writing without undue delay in the event of attachments or other third party interventions involving the reserved-title goods. If the third party is not able to reimburse the costs of legal proceedings or extra-judicial negotiations in connection with legal action pursuant to section 771 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO), the Customer shall reimburse such costs to us.
(3) The Purchaser is entitled to dispose of the goods to which title has been retained within the scope of the normal course of business.The Purchaser herewith assigns henceforth to us all receivables from customers arising from the onward sale of the goods to which title has been retained in the amount of the agreed final invoice (including value added tax).This assignment is effective irrespectively of whether the purchased goods are resold before or after processing.The Purchaser remains entitled to collect customer receivables, even after the assignment.This does not affect our right to collect the receivable ourselves.However, we undertake to refrain from collecting the receivable for as long as the Purchaser meets the payment obligations from the collected revenues, is not in default of payment or, in particular, has not filed an application to open composition or insolvency proceedings, or has not ceased to make payments.
(4) The processing or modification of the goods by Purchaser is always performed on our behalf.The Purchaser’s expectant right to the goods continues to apply to the processed or modified items.If the purchased product is combined with objects which are not owned by us, we acquire proportional co-ownership to the new item at the ratio of the objective value of the item to which title is retained to the combined objects at the time of processing.The same appliesif the goods are combined in such a way that the Purchaser’s item is viewed as the principle object. In such cases it is agreed that the Purchaser shall accord proportionate co-ownership to us and safe keep the thus created exclusively owned or co-owned object for us.In order to secure our claims vis-à-vis the Purchaser, the Purchaser herewith assigns henceforth to us all claims vis-à-vis third parties arising from the combination of the reserved-title product with a piece of land. We hereby accept the assignment.
(5) We undertake to release the securities to which the Purchaser is entitled at the Purchaser’s request when the realisable value exceeds the receivables secured by more than 20%.
§ 9 Warranty, Notice of Defects and Recourse
(1) Purchaser warranty claims are subject to the Purchaser having ensured proper compliance with the inspection and notice requirements pursuant to section 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
(2) Defect claims are subject to a limitation period of 12 months commencing upon our delivery of the goods to the Purchaser.Our permission must be obtained before the goods are returned.
(3) If, despite all due diligence, the supplied product has a defect which already existed at the time when the risk was transferred, we are entitled on a discretionary basis to either remedy the defect or supply a replacement item.Initially, we must always be given the opportunity to render subsequent performance within a reasonable period of time.Recourse claims are in no way affected by the above provisions.
(4) If subsequent performance fails, the Purchaser is entitled to either cancel the contract or demand a reduction in price, without prejudice to any claims for damages.
(5) Claims in respect of defects may not be asserted when there are only insignificant deviations from the agreed quality, or only a minor impairment of serviceability, or natural wear and tear and damages arising after the passing of the risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment or external influences not assumed under the contract.Claims for defects attributable to improper maintenance work or modifications carried out by the Purchaser or third parties and the consequences thereof are likewise excluded.
(6) Purchaser claims for the costs associated with subsequent performance, in particular transport, travelling, work and material costs, are excluded insofar as these costs are increased because the item was taken to another of the Purchaser’s business premises after delivery and the product’s transfer there is in conformity with its use for the intended purpose.
(7) The Purchaser’s right of recourse against us exists only to the extent that the Purchaser has not agreed any warranty over and above the statutory warranty with its customers.Section 6 also applies with regard to the scope of the Purchaser’s right of recourse.
§10 Miscellaneous Provisions
(1) These Terms and Conditions and all legal relationships between the parties are governed by the law of the Federal Republic of Germany but not by the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) Place of performance and exclusive legal venue for all disputes arising in connection with these Terms and Conditions is our business domicile, unless otherwise specified in the order confirmation.
(3) All agreements concluded between the parties pertaining to the execution of these Terms and Conditions are specified in writing herein.
(4) Should any provision or provisions of these Terms and Conditions be found to be wholly or partially invalid, unenforceable or omitted, this shall not affect the validity of the remaining provisions.Rather, the parties hereto have agreed that any invalid provision will be replaced by a legally admissible provision that comes closest to the commercial intent of the invalid provision or omission.