General Conditions of Delivery
I. General
These Conditions shall apply unless otherwise agreed in writing
by the contracting parties. These General Conditions of Delivery
shall prevail over any contradictory or conflicting terms or
conditions.
II. Offers and Conclusion of Contract
1. All offers shall be subject to confirmation.
2. Technical particulars and data on weights, performance,
operating cost, etc. shall not be binding unless expressly
stated. MABEG Systems GmbH (MABEG) shall retain
owner-ship of and copyright on offers, drawings and other
documents. Such offers, drawings and documents shall
not be disclosed to third parties and shall be returned
immediately if so requested, or if no order is placed.
3. These Conditions shall also be deemed accepted by the
Purchaser when he accepts deliveries and services of
MABEG or renders services himself.
4. Other terms and conditions shall not become part of the
contract without the written consent of MABEG, even if
they are cited as contrary to these Conditions.
III. Extent of Supply
1. The written order confirmation by MABEG shall be
conclusive for the extent of supply. Additional
understandings shall be subject to the written confirmation
of MABEG. MABEG reserves the right to apply changes in
technical design in so far as such changes are to be
considered standard equipment at the time the machinery
is delivered.
2. Electro-technical material shall be subject to the conditions
issued by the Verband Deutscher Elektrotechniker.
3. lf the supplied goods are to be used outside the Federal
Republic of Germany, safety devices shall be supplied as
agreed upon.
4. In the event of commercial terms being agreed on the
method of delivery, they shall be interpreted in accordance
with the Incoterms issued by the International Chamber of
Commerce, Paris, in the wording as valid on the date of
signature of the contract.
5. Any taxes or other dues or charges payable in the
Purchaser's country or in the country of destination in
connection with the deliveries made, shall be borne by the
Purchaser.
6. MABEG grants the Purchaser the right to use the software
which is part of the goods supplied hereunder by MABEG,
according to the contract. This right shall be unlimited in
time, non exclusive, transferable in case Purchaser sells
the equipment and non sub-licensable. Unauthorized
modifications to the software programmes may disable
built-in safety functions. MABEG shall not be responsible
for hazards or damages resulting from such unauthorized
modifications. The Purchases shall hold MABEG harmless
from any possible claims by third parties pertaining to this
subject.
IV. Prices
1. Unless otherwise agreed, the prices for deliveries to
customers inside the Federal Republic of Germany shall
be valid for delivery ex works inclusive of loading at the
works, but exclusive of packing, freight, and installation,
plus value added tax as fixed by law.
For deliveries to customers in foreign countries the prices
shall, unless otherwise agreed, be valid for delivery free
German border or f.o.b. German port inclusive of packing,
but exclusive of transport insurance and installation.
2. The prices are calculated on the basis of the costs
prevailing on the date of the offer. The right of price
adjustment shall be reserved in the event of changes in
the material prices, wages, freight costs, or other cost
factors.
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V. Terms of Payment
1. All payments shall be made in cash, without any deduction
whatsoever and payment shall be effected on the agreed
dates to the bank named by MABEG. The value added tax
shall be payable upon receipt of invoice unless the
advance payments are liable to tax, in which case it shall
be payable pro rata on the dates of payment agreed upon.
lf payment by bills of exchange has been agreed upon,
such bills of exchange will only be accepted subject to
cash payment.
2. The Purchaser shall not be entitled to make any
deductions from the purchase price or to withhold any part
of the purchase price by way of set off or otherwise save in
respect of claims awarded by a court of law or undisputed
claims .
3. In the event that payment of any part of the price is not
made to MABEG by the due date – without prejudice to
other rights – MABEG shall be entitled to charge interest
on the amount unpaid. Interest will be charged at the rate
of 7 per cent per annum above the European Central Bank
interest rate for main refinancing operations applicable on
the first day of the calendar half-year that banks are open
for business, plus value added tax, if any, for the time
being until the date the amount outstanding is paid. The
sending of a reminder is not required.
4. lf the Purchaser makes default in his obligations of
payment or his obligations arising out of the reservation of
title or if there is any substantial deterioration in his
financial situation or if he should suspend payments, the
entire balance shall become due immediately, inclusive of
bills of exchange having a later maturity.
VI. Reservation of Title
1. The supplied goods shall remain the property of MABEG
until all claims arising in connection with the contract have
been fully settled. This shall also apply if such claims are
included in a current account.
a) Any processing or converting of supplied goods the
title of which is reserved, or the combination of such
supplied goods with third party material performed by
the Purchaser or a third party, shall be performed on
behalf of MABEG. MABEG shall be the co-owner of
the altered supplied goods arising out of such
processing or converting or combination in proportion
to the value of the supplied goods.
b) As security for the claims of MABEG the Purchaser
shall, as early as on the conclusion of this contract,
assign to MABEG his claims from the resale of the
supplied goods up to the amount arising from such
claims.
c) The Purchaser shall be authorized to collect his
claims. The right of collection by MABEG is
reserved.
d) lf the Purchaser falls to comply with the contract,
particularly if he makes default in payment, MABEG
shall, subsequent to having sent a reminder, be
entitled to withdraw and the Purchaser shall be liable
to restitute the supplied goods. The Purchaser shall
be liable for any damage arising in connection with
the return of the supplied goods. In the event of the
supplied goods having been used, MABEG shall be
entitled to charge the Purchaser a depreciation of
25% for the first half year of use and 5% for any
further half year commenced, without having to prove
the damage sustained, unless the actual depreciation
was lower.
lf the law of the country to which the goods are supplied
does not permit a reservation of title but allows the supplier
to reserve other comparable rights, MABEG shall be at
liberty to exercise all such rights. The Purchaser shall
undertake at his cost, all such measures as are necessary
to render effective and maintain these rights to the
supplied goods.
2. During the period of reservation of title or any other right in
accordance with subsection 1 above, the Purchaser shall
insure the supplied goods against all relevant risks, with
the proviso that MABEG shall be entitled to all rights
arising out of the insurance contract. The policy and the
receipts for the premiums shall be presented to MABEG
upon request.
3. The Purchaser shall advise MABEG immediately of any
seizure or other impairment of the owner's interests.
VII. Delivery Period
1. The delivery period shall not begin before the receipt and
clarification of the documents and approvals to be
furnished by the Purchaser and not before the receipt of
an agreed advance payment. The delivery period shall
have been met whenever the advice of readiness for
shipment is sent to the Purchaser prior to the expiration of
the delivery period.
2. The delivery date shall be reasonably extended in cases of
force majeure and unforeseen events arising from
circumstances beyond the control of MABEG such as
strikes, lockouts, stoppages, rejects, mismachining leading
to rejection, delayed delivery on the part of subcontractors
or other delays beyond the control of MABEG, provided
that such events affect the timely performance of the
contract. This extension shall also apply if there is already
default in delivery. In important cases MABEG will notify
the Purchaser of the beginning and presumable duration of
such events. The delivery date shall also be reasonably
extended if the Purchaser is in arrears with his payments
and other obligations, or if technical and commercial
questions are not clarified within a reasonable period of
time.
3. lf a delay is proved to be due to reasons other than those
specified in subsection 2 and the Purchaser has suffered a
loss on account of such delay, he shall, to the exclusion of
any other claims, be entitled to claim a compensation for
the delay at a maximum rate of 1/2 per cent for each full
week of delay, but not exceeding 5 per cent of the contract
price of that portion of the total supply which by reason of
such delay cannot be used in time or put to the use
intended. Any compensation payable by MABEG under
this section shall be balanced at the time of final
settlement.
4. In the event of despatch being delayed for reasons beyond
the control of MABEG, the costs arising from the storage of
the equipment will be charged to the Purchaser. lf stored at
the works of MABEG a minimum of 1/2 per cent of the
invoice amount will be charged for each month, beginning
one month after notification of readiness for despatch,
unless the actual costs were lower.
VIII. Passing of Risk
Risk shall pass to the Purchaser when the consignment has left
the supplier's works. lf shipment is delayed for reasons beyond
MABEG's control, risk shall pass to the Purchaser upon
notification of readiness for despatch.
IX. Performance of Contract
1. Delivery shall be considered as having been completed
when the risk passes to the Purchaser pursuant to section
VIII.
2. Partial deliveries shall be allowed.
3. From the date of completion MABEG shall be liable only in
accordance with the provisions of section XI of these
Conditions (Warranty).
4. All supplies, even those showing immaterial defects, shall
be accepted by the Purchaser, without prejudice to the
rights under section XI.
X. Installation and set-up
lf the supplied goods are to be installed on site by MABEG
this shall be explicitly agreed.
XI. Warranty
1. a) MABEG warrants, subject to and in accordance with
the applicable legal requirements, that the supplied
goods will be free of defects in material and
workmanship. Parts (including software) which by
reason of defects have become unserviceable or the
serviceability of which has been substantially
impaired shall, at the option of MABEG, be
reconditioned or MABEG shall supply new parts.
b.) MABEG warrants any subsequent adjustments and
replacement parts installed to the same extent as the
original equipment. Parts that have been replaced
shall become the property of MABEG.
2. a) The period of warranty shall commence on the date
on which the supplied goods are ready for operation.
Readiness for operation shall be considered as
having been achieved, if the handing over report
enclosed to the contract has been signed by the
Purchaser. In case that the supplied goods should
be put into operation without the handing over report
having been signed, the period of warranty shall
commence on the day the supplied goods are put
into operation. If the handing over report should not
be signed within 14 days after it has been given to
the Purchaser, the warranty period shall commence
at the end of this 14 day period.
If the supplied goods are not operated by the
Purchaser but by a third party (Operator) and if the
Purchaser has notified MABEG of the Operator in
writing when ordering the supplied goods, then the
relevant dates for the beginning of the warranty
period according to the foregoing shall be the day
the handing over report is given to the Operator or
signed by the Operator.
b) The warranty period shall terminate after 12 months.
c) In any case the warranty period shall terminate 18
months after notification of readiness for shipment
has been given.
d) All Claims related to defects falling under the
warranty which have been duly notified to MABEG in
writing within the warranty period shall become
barred within 12 months from the date on which
MABEG has received the notice of the defect.
The warranty period for subsequent adjustments and
replacement parts shall terminate at the same time
as that of the original supplied goods.
3. For the execution of necessary subsequent adjustments
the Purchaser shall
a) grant the required time and opportunity and
b) supply at his own expense auxiliary labour and
equipment and perform any incidental work.
The removal of defective parts as well as the fitting of
supplied new parts shall be carried out by MABEG or by
MABEG-authorized personnel at the cost and risk of
MABEG, if and as far as the removal and fitting by the
Purchaser should not be appropriate or reasonable.
Extra costs for airfreight, express deliveries and the cost of
any work carried out beyond regular working hours shall in
any case be borne by the Purchaser.
4. The warranty shall not cover normal wear and parts which,
owing to their inherent material properties or the use they
are intended for, are subject to premature wear. Damage
caused by improper storage, handling or treatment,
overloading, the use of unsuitable fuels, oils etc., faulty
construction work or foundations, unsuitable building
grounds, chemical, electrochemical or electrical influences
or any other circumstances which may arise through no
fault of MABEG, after the passing of the risk, shall also be
excluded from the warranty.
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5. The Purchaser may only claim MABEG warranty if
a) the supplied goods were installed and put into
operation by MABEG-authorized personnel,
b) MABEG have been advised in writing of the claimed
defect immediately,
c) the Purchaser has observed the instructions issued
by MABEG, in respect of the handling and
maintenance of the supplied goods and, in particular,
has duly carried out any specified checks,
d) no repairs have been carried out without the approval
of MABEG,
e) no spare parts other than those manufactured by
MABEG have been used,
f) no unauthorized modifications of the supplied goods
have been made.
6. In addition section XIV shall apply.
XII. Right of Purchaser to Terminate the Contract
The Purchaser may terminate the contract subject to and in
accordance with legal requirements, by giving notice in writing,
provided that:
1. the performance of the contract by MABEG has become
entirely impossible. In the event of partial impossibility the
right of termination shall be subject to the Purchaser
proving that the partial delivery is of no interest to him,
failing which the Purchaser shall be obliged to pay the
proportionate purchase price for the partial delivery.
Otherwise the Purchaser may claim a reasonable
reduction of the purchase price. lf the impossibility occurs
while there is default in accepting delivery or owing to a
fault on the part of the Purchaser, the Purchaser's
obligations under the contract shall remain. lf the
impossibility is beyond the control of either of the
contracting parties, MABEG shall be entitled to a part of
the purchase price corresponding to the work done.
2. the Purchaser is entitled to claim penalties in accordance
with section VII, subsection 3, in full and has thereafter
granted in writing a reasonable period of grace to MABEG
with the express statement that he would terminate the
contract after the fruitless expiration of this period and can
prove that the set period of grace has been exceeded for
reasons other than those mentioned in section VII,
subsection 2.
3. the Purchaser has granted in writing a reasonable period
of grace for remedying a defect recognized by MABEG
and for which MABEG is at fault, in accordance with
section X[, with the express statement that he would refuse
to accept the delivery after the expiration of the set period
of grace and MABEG has made default in observing this
period.
4. in the case of section XII, subsection 2 the Purchaser may
terminate the contract only if he can prove that his interest
in the delivery is substantially impaired as a result of the
delay.
5. In addition section XIV shall apply.
XIII. Right of Supplier to Terminate the Contract
Without prejudice to MABEG’s other rights and remedies
MABEG may terminate the contract in part or in whole if
unforeseeable events considerably change the commercial
importance or the scope of the services, or materially affect the
operations of MABEG and if the contract cannot be adapted,
giving due consideration to the principle of good faith, or if the
economic situation of the Purchaser should undergo substantial
deterioration. This shall also apply if an extension of the
delivery period has previously been agreed with the Purchaser.
In the event of MABEG desiring to exercise the right of
termination, MABEG shall notify the Purchaser immediately after
the significance of the circumstances has been ascertained.
XIV. Extent of Purchaser’s Claims
1. MABEG shall be liable in cases of
a) damage caused by their officers and executive
employees either intentionally or through gross
negligence,
b) the violation of principal contractual obligations due
to MABEG’s negligence,
c) death or personal injury arising from MABEG’s
negligence,
d) the fraudulent non-disclosure of a defect,
e) the compliance with a guarantee specifically
assumed by MABEG in the contract,
f) death or personal injury or damage to property used
for private purposes under the provisions of the
German Product Liability Act .
Guarantees are only those which are expressly specified
as such in writing.
2. Irrespective thereof MABEG shall be liable in all those
cases covered by the manufacturer's liability insurance
maintained by MABEG, and to the extent indemnity is paid
under this insurance. This manufacturer's liability
insurance is governed by the German General Conditions
of Liability Insurance (AHB).
3. To the extent MABEG are liable for gross negligence or for
the intentional or grossly negligent violation of principal
contractual obligations under section XIV, subsections 1 a)
and b), the extent of this liability shall be limited to any
damage directly caused to the supplied goods themselves.
4. Any further claims except those specified in these
Conditions or covered by the text of the contract shall be
excluded. This shall particularly apply to more extensive
contractual or statutory claims for damages.
XV. Contractual Rights not to be assigned
The Purchaser shall not assign his contractual rights to a third
party without the express consent of MABEG.
XVI. Jurisdiction and Arbitration
1. The place of jurisdiction for all disputes arising out of the
contract - including actions on negotiable legal instruments
and documents - shall be Darmstadt. MABEG may also
bring an action at the place of the Purchaser's registered
office.
2. In the event arbitration proceedings being agreed with a
Purchaser having his registered office outside the Federal
Republic of Germany, any disputes arising out of the
contract or in respect of its validity or the validity of the
arbitration agreement, shall be finally settled, to the
exclusion of legal proceedings, under the Rules of
Conciliation and Arbitration of the International Chamber of
Commerce in Paris, by a court of arbitration, composed of
three arbitrators, appointed under such Rules. As long as
no recourse to arbitration has been made, the contracting
parties shall be free to bring an action at the competent
court of law at the place of the defendant party's registered
office.
XVII. Law Applicable and Binding Force of Contract
1. The contract shall be governed by German Law. The
United Nations Convention on Contracts for the
International Sale of Goods shall not be applicable.
2. In the event of part of the contract being invalid, the validity
of the remaining portions shall not be affected provided
such invalidity is without prejudice to the essential features
of the contract.
MABEG Systems GmbH
Gewerbegebiet Mörfelden-Süd
Opelstraße 17-19
64546 Mörfelden-Walldorf
Germany