All General Terms and Conditions
1. general - scope
1.1 All contracts, deliveries and other services (in particular planning, construction, assembly work and program compilations) including consulting services shall be performed exclusively on the basis of the following terms and conditions. Our terms and conditions shall also apply to current and future transactions, even if they are not expressly agreed again in individual cases, unless they are amended or excluded with the express consent of MEBIKON GmbH. Terms and conditions of the contractual partner shall not become part of the contract as a whole even if MEBIKON GmbH has not expressly objected to them.
1.2 Changes to the order are only possible in exceptional cases and only if production of the object of purchase has not yet commenced. Any costs for the order changes requested by the Purchaser shall be borne by the Purchaser.
2. offers and offer documents
2.1 Our offers are always subject to change and non-binding. If goods are sold out, no contract shall be concluded. Conclusions of contracts (e.g. orders and purchase orders) and other agreements shall only become legally binding for us once we have confirmed them in writing or invoiced them. In particular, the prices quoted in offers are subject to change and do not include delivery, assembly and other services, unless otherwise stated in the offer.
3. conclusion and remarks
3.1 Our performance shall be rendered in accordance with the agreed order conditions with regard to quality, condition and scope. We reserve the right to make changes in the interest of technical progress. We reserve the right to make changes and deviations with regard to form, design and coloration, provided that this does not result in a deterioration of quality, performance or function. If changes or deviations become necessary on our side, the customer will be informed. However, a right of withdrawal shall only exist if the customer cannot reasonably be expected to adhere to the contract, taking into account his interests.
3.2 MEBIKON GmbH reserves the right to make minor deviations or deviations due to technical progress in the design, execution and performance of the products compared with the information in the catalogs, brochures or on the Internet, insofar as these are reasonable for the contracting party.
3.3 The order confirmation issued by MEBIKON GmbH alone shall determine the scope of the delivery. Insofar as sales employees or commercial agents make verbal subsidiary agreements or give assurances which go beyond the written order confirmation, these shall always require written confirmation by MEBIKON GmbH.
3.4 The documents belonging to the offer, such as illustrations, drawings, weights and dimensions, are, unless expressly agreed otherwise in writing, only approximate. MEBIKON GmbH reserves the existing copyrights to documents, calculations etc. provided by MEBIKON GmbH. Transfer to third parties is not permitted unless this has been approved in writing by MEBIKON GmbH.
3.5 In the case of natural products (e.g. wood, cork), natural differences in color, structure and other differences/divergences do not constitute any grounds for complaint or liability, as these are part of the properties of a natural product.
3.6 Samples shall not be binding with regard to deviations due to production technology and/or material, i.e. the Customer shall not be entitled to any complaints in the event of insignificant and usual deviations of the delivered goods from the sample in terms of dimensions, color and/or structure.
4. prices and payments
4.1 The prices stated in our order confirmation shall be decisive and shall apply in EURO unless otherwise agreed. Additional deliveries and services shall be charged separately.
4.2 All prices are net prices and do not include the statutory value added tax applicable on the day of delivery.
4.3 Unless expressly agreed otherwise, all prices are ex works Nuremberg excluding packaging, freight, postage and insurance.
4.4 After receipt of the invoice, the customer undertakes to transfer it within the payment period specified in the invoice.
4.5 All payments shall be made in cash. The following shall be recognized as cash payments: Cash, bank transfer; clearing or cash checks shall be recognized as cash payments after cashing by the bank.
4.6 We reserve the right to invoice partial payments in the amount of the value of the respective proven performance in accordance with the contract, including the reported amount of value added tax due thereon, also at the shortest possible intervals. In this context, we shall provide evidence of the services rendered in the form of a verifiable list which must enable a rapid and reliable assessment of the service rendered. In this context, services shall also be deemed to include those parts of the service that have been specially produced and provided for the required service.
4.7 If payment is not made or not made in full within the payment period stated in the invoice, we shall be entitled to charge interest on arrears from the due date at a rate of 5% above the prime rate of the European Central Bank applicable at the time the payment is overdue.
4.8 If, after conclusion of the contract, we become aware of circumstances that allow us to conclude that our claims are at risk, we may make the delivery dependent on advance payments or securities in the amount of our total claims. This shall apply in particular if the customer is in default with other payments to us. If the customer does not comply with the request for advance payment or provision of security, we may demand compensation for non-performance or withdraw from the contract. In this case the
The customer shall not be entitled to any claims, in particular no delivery claim, against us.
4.9 If deductions are made from our invoices, these must be listed individually and duly justified by enclosing appropriate documents.
5. manufacturing and order modification
Our products are usually custom-made according to your wishes and dimensions. Changes after order confirmation, deletions or cancellations as well as returns cannot be made.
For these reasons, changes to the order are only possible in exceptional cases and only if production of the object of purchase has not yet commenced. Any costs for the order changes requested by the Purchaser shall be borne by the Purchaser.
6 Shipping and transfer of risk
6.1 Shipment shall be ex works (EXW) at the expense of the contractual partner. The risk shall thus pass to the customer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. Unless otherwise agreed in writing, MEBIKON GmbH shall charge the contractual partner 0.06% of the net value of the goods for the costs of insuring the transport. Unless otherwise agreed, the shipping route and means of shipment shall be at the discretion of Degen MEBIKON GmbH.
6.2 In the event of a return shipment, the customer shall choose the same form of shipment as for the delivery at its own expense. The customer has to insure the goods sufficiently at his own expense.
6.3 In the event of delivery by our own employees, the risk shall pass to the purchaser as soon as the goods are made available to him. If the goods are taken back for reasons for which we are not responsible, the purchaser shall bear the risk until the goods are received by us.
6.4 If shipment is delayed at the request of the contracting party for reasons for which the contracting party is responsible, the goods shall be stored at the contracting party's expense and risk. In this case, notification of readiness for shipment shall be deemed equivalent to shipment.
6.5 In all other respects, the risk of loss and damage shall pass from MEBIKON GmbH to the contracting party when the goods are made available in the warehouse; in the case of drop shipments, the risk shall pass to the contracting party when the goods are made available in the warehouse or factory of the upstream supplier(s) of Degen MEBIKON GmbH. If the delivery is not made on an ex-works basis according to special agreements, the transfer of risk shall apply according to the agreed Incoterm.
7. delivery, delivery and performance time
7.1 The dates and deadlines stated by us are non-binding unless expressly agreed otherwise in writing. In this case, the delivery deadlines shall depend on whether all technical questions and the details of the execution have been clarified with the Contractual Partner at that time. The delivery obligation of Degen MEBIKON GmbH shall further be conditional upon the timely and proper fulfillment of the obligations of the Contractual Partner (e.g. provision of documents, permits, releases, etc. to be procured by the Contractual Partner).
Partial deliveries are permissible to a reasonable extent.
7.2 If we are prevented from fulfilling our obligations by force majeure or unforeseen circumstances which we are unable to avert despite exercising reasonable care in the circumstances of the case and which are proven to have a significant influence on the delivery of the product, the delivery shall be delayed to a reasonable extent if it does not become impossible. If the delivery or service becomes impossible, we shall be released from the obligation to deliver. This shall also apply if the circumstances occur at the suppliers of MEBIKON GmbH and their sub-suppliers.
7.3 Claims for damages of any kind whatsoever due to delay in delivery or impossibility of delivery shall be excluded in
excluded in these cases, unless we are guilty of gross negligence or intent. With regard to the
In such cases, the statutory provisions shall apply with regard to the customer's right to withdraw from the contract.
7.4 Products deviating from the listed designs as well as all items whose delivery took place more than 6 months ago as well as products taken into use can neither be taken back nor credited.
7.5 If the contracting party is in default of acceptance, MEBIKON GmbH shall be entitled to claim damages instead of performance and, irrespective of the possibility of claiming higher damages, to demand 20% of the sales price as compensation.
8. warranted characteristics, notices of defects
8.1 The customer is obliged to inspect the delivered goods immediately upon arrival for obvious defects that would be readily apparent to an average customer. Obvious defects include, but are not limited to, easily visible damage to the goods and cases in which a different item or an insufficient quantity than ordered is delivered.
8.2 Such obvious defects shall be notified to us in writing within one week after handover of the goods to the customer or the customer's designated purchaser or receipt of the goods by the customer or the customer's designated purchaser and before processing, consumption, use, installation or resale.
8.3 Defects that only become apparent at a later date must be notified to us within two weeks of their discovery by the customer.
8.4 In the event of a breach of the duty to inspect and give notice of defects, the goods shall be deemed to have been approved in view of the defect in question.
9.1 All warranty claims, including for hidden defects, shall become statute-barred at the latest 12 months after receipt of the
goods at the place of destination. In the case of non-merchants, the statutory limitation period of two years (in accordance with § 438 Para.1 No.3 BGB) shall apply from receipt of the goods at the place of destination. The place of destination is the delivery address according to the delivery bill.
9.2 The warranty shall initially be provided at our discretion by rectification of defects or replacement delivery. In the event of a replacement delivery, the customer shall be obliged to return the defective item. If the customer or a third party improperly rectifies the defect itself, all warranty claims shall lapse as a result. The same applies to any changes to the goods without our prior consent.
9.3 If the defect cannot be remedied within a reasonable period of time or if the repair or replacement delivery is deemed to have failed for other reasons, the customer may, at its option, demand a reduction of the remuneration (abatement) or withdraw from the contract. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract.
9.4 Warranty claims shall only exist in the case of intended use of the object of purchase and careful treatment.
9.5 Warranty claims shall not exist in the following cases:
- In case of defects due to improper maintenance and cleaning, damage, overuse, improper use, treatment or repair.
- In case of changes to the object of purchase, unless they have been approved by the seller.
- With natural wear and tear.
- For third-party products or third-party products that are combined with deliveries and services from us or are used together with these products, whereby we assign to the customer those liability claims that we are entitled to against the supplier of the third-party service.
- For the functionality of our deliveries and services, insofar as these are connected by the customer with third-party products or operated together with these.
9.6 If the customer receives defective assembly instructions, we shall only be obligated to deliver assembly instructions that are free of defects and this only if the defect in the assembly instructions prevents proper assembly.
9.7 No rights may be derived from defective partial deliveries with regard to the remaining partial deliveries.
9.8 Warranty claims of any kind beyond free subsequent delivery or rectification, in particular also for consequential damage to the Purchaser or third parties, are expressly excluded with the exception of claims for damages due to the absence of expressly warranted characteristics or insofar as the cause of the damage is based on intent or gross negligence.
9.9 Claims for defects shall not exist if there are only insignificant deviations from the quality or only an insignificant impairment of the usability. Warranty claims for permanently installed products of MEBIKON shall only be limited to the rectification of defective goods or replacement delivery. The contractual partner shall in particular bear installation and removal costs.
9.10 Projector lamps: In this case, replacement is free of charge only within the first 90 days or 200 operating hours (if the manufacturer grants a longer warranty period, this applies under its terms and conditions and is automatically assumed) from the first commissioning according to the operating hours counter in the device; the replacement must be carried out by the MEBIKON specialist workshop or by a service partner authorized by it. In order to be able to claim the fault rectification, the fully completed warranty certificate and/or the proof of purchase must be presented. Fault rectification does not mean an extension or a new start of the warranty period. The claim for fault rectification only refers to the initial purchaser and is not transferable.
9.11 The customer shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of defect.
10. limitations of liability
10.1 We exclude our liability for slightly negligent breaches of duty insofar as these do not affect any material contractual obligations, damages arising from injury to life, body or health or guarantees or claims under the Product Liability Act. The same applies to breaches of duty by our vicarious agents.
10.2 The limitation period for claims against us which are not based on intentional conduct attributable to us shall be one year.
10.3 MEBIKON shall pass on the warranty of the respective manufacturer on data and video projectors and other technical devices. The warranty promise loses its validity if unauthorized persons have tampered with the device, in the event of faults that have occurred due to improper handling, or in the event of damage due to external influences.
Excluded from the warranty are in principle: lamps and other glass parts, batteries and rechargeable batteries.
11.1 In the event of non-acceptance of ordered goods, we may exercise our statutory rights.
11.2 We may also withdraw from the contract without being obliged to do so.
11.3 If we claim damages, these shall amount to 15% of the purchase price. The compensation shall be set higher or lower if we prove a higher damage or the customer proves a lower damage.
12. retention of title
The delivery of the goods is subject to retention of title according to § 455 BGB with the following extensions:
12.1 The goods shall remain the property of the Seller until full payment of all claims of the Seller against the Buyer arising from the business relationship, including claims arising in the future.
12.2 The customer is obliged to treat the reserved goods with care. If maintenance and inspection work is required, the customer shall carry this out regularly and in good time at its own expense.
12.3 The customer is obliged to notify us immediately of any access by third parties to the reserved goods, for example in the event of seizure, as well as any damage to or destruction of the reserved goods.
The customer shall notify us without delay of any change in ownership of the reserved goods and of any change in his own residence or place of business.
12.4 In the event of a breach of contract by the customer, in particular in the event of default in payment or breach of an obligation, we shall be entitled to withdraw from the contract in accordance with the above 12.2 and 12.3 and to demand the return of the reserved goods.
12.5 The customer shall be entitled to resell the reserved goods in the ordinary course of business. He already now assigns to us all claims in the amount of the invoice amount which accrue to him against a third party through the resale.
We accept the assignment. After the assignment, the customer is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer does not duly meet his payment obligations and is in default of payment or / and difficulties.
12.6 The processing of the goods subject to retention of title by the customer shall always be carried out in our name and on our behalf. If processing is carried out with items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the goods delivered by us to the other processed items. The same shall apply if the goods are mixed with other objects not belonging to us.
12.7 We undertake to release the securities to which we are entitled at the customer's request insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released shall be incumbent upon us.
13. set-off, retention
The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship, i.e. does not result from earlier or other transactions of the current business relationship.
If the submission of a cost estimate is desired before repairs are carried out, this must be expressly stated. The costs for the estimate shall be remunerated, insofar as there is an ongoing business relationship between MEBIKON GmbH and the contractual partner to which these General Terms and Conditions apply, if the repair is not commissioned.
It is at the discretion of MEBIKON GmbH whether a repair is carried out in its own or in an external workshop. Costs for shipping and packaging shall be borne by the contractual partner.
15. data protection
MEBIKON GmbH points out in accordance with § 33 of the Federal Data Protection Act that the contract data is stored in a data processing system. It is ensured that these stored data do not come to the knowledge of unauthorized persons.
16 Place of performance, place of jurisdiction, applicable law, severability clause
16.1 The place of performance and jurisdiction shall be exclusively Nuremberg. The agreement on the place of jurisdiction is also expressly agreed for the judicial dunning procedure. The German law of the Federal Republic of Germany shall apply exclusively to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
16.2 Should any provision of our terms and conditions be or become invalid, the validity of the remaining provisions shall not be affected. The Purchaser shall be obliged to reach an agreement with us by which the invalid provision is replaced by another provision which achieves the same economic and legal success as the invalid provision.