General terms and conditions of business
General delivery conditions
of the MTH Ultraschalltechnologie GmbH & Co. KG
§ 1 Validity
(1) All deliveries, services and offers of MTH Ultraschalltechnologie GmbH & Co. KG (hereinafter referred to as “Seller”) are made exclusively on the basis of these General Terms and Conditions of delivery. These are an integral part of all contracts that the Seller concludes with his contractual partners (hereinafter also referred to as “Customer”) for the deliveries or services offered by him. They shall also apply to all future deliveries, services or offers to the client, even if they are not separately agreed again.
(2) Terms and conditions of the customer or third parties shall not apply, even if the seller does not separately object to their validity in individual cases. Even if the seller refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute agreement with the validity of those terms and conditions.
§ 2 Offer and conclusion of contract
(1) The seller concludes contracts exclusively with entrepreneurs within the meaning of § 14 BGB. No contracts are expressly concluded with consumers within the meaning of § 13 BGB..
(2) All offers of the seller are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The seller can accept orders or commissions within 14 days of receipt.
(3) The legal relationship between the seller and the customer shall be governed solely by the purchase contract concluded in writing, including these General Terms and Conditions of Delivery. This fully reflects all agreements between the contracting parties on the subject matter of the contract. Verbal promises made by the seller prior to the conclusion of this contract are not legally binding and verbal agreements between the contracting parties are replaced by the written contract, unless it is expressly stated in each case that they continue to be binding.
(4) Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective. With the exception of managing directors or authorized signatories, the seller’s employees are not entitled to make verbal agreements that deviate from the written agreement. To comply with the written form requirement, transmission by telecommunication, in particular by fax or e-mail, is sufficient, provided that a copy of the signed declaration is transmitted.
(5) Information provided by the seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations of MTH Ultraschalltechnologie GmbH & Co. KG of the same (e.g. drawings and illustrations) are only approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible provided that they do not impair the usability for the contractually intended purpose.
(6) The Seller reserves the right of ownership and/or copyright to all offers and cost estimates submitted by him as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the Client. The customer may not make these items accessible to third parties, disclose them, use them himself or through third parties or reproduce them without the express consent of the seller. At the request of the seller, he must return these items in full to the seller and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of standard data backup.
§ 3 Prices and payment
(1) The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are quoted in EUR ex works plus packaging, statutory VAT, customs duties for export deliveries as well as fees and other public charges.
(2) If the agreed prices are based on the seller’s list prices and delivery is only to take place more than four months after the conclusion of the contract, the seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
(3) Invoice amounts are to be paid within thirty days without any deductions, unless otherwise agreed in writing. The date of receipt by the seller is decisive for the date of payment. Payment by cheque is excluded unless agreed separately in individual cases. If the client fails to pay by the due date, the outstanding amounts shall bear interest at 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected.
(4) Offsetting against counterclaims of the client or the withholding of payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
(5) The Seller is entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the Client and which jeopardise the payment of the Seller’s outstanding claims by the Client from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
§ 4 Delivery and delivery time
(1) Deliveries are ex works.
(2) Deadlines and dates for deliveries and services promised by the seller are always only approximate, unless a fixed deadline or a fixed date has been expressly promised or agreed. If despatch has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Client – demand from the Client an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Client fails to fulfil its contractual obligations to the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of suppliers to deliver or to deliver correctly or on time) for which the Seller is not responsible. If such events make delivery or performance significantly more difficult or impossible for the seller and the hindrance is not only of a temporary nature, the seller is entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance deadlines shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he may withdraw from the contract by immediate written declaration to the seller.
(5) The Seller shall only be entitled to make partial deliveries if
- the partial delivery can be used by the Customer within the scope of the contractual purpose,
- the delivery of the remaining ordered goods is ensured and
- this does not result in significant additional work or costs for the Client (unless the Seller agrees to bear these costs).
(6) If the Seller is in default with a delivery or service or if a delivery or service becomes impossible for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.
§ 5 Place of fulfilment, dispatch, packaging, transfer of risk, acceptance
(1) The place of fulfilment for all obligations arising from the contractual relationship is Henstedt-Ulzburg, unless otherwise agreed. If the seller is also responsible for the installation, the place of fulfilment is the place where the installation is to take place.
(2) The mode of dispatch and packaging are subject to the dutiful discretion of the seller.
(3) The risk shall pass to the customer at the latest when the delivery item is handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if the seller has taken on other services (e.g. dispatch or installation). If dispatch or handover is delayed due to a circumstance caused by the customer, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and the seller has notified the customer of this.
(4) Storage costs after the transfer of risk shall be borne by the client. In the case of storage by the seller, the storage costs shall amount to 0.25 % of the invoice amount of the delivery items to be stored per week elapsed. We reserve the right to assert and prove further or lower storage costs.
(5) The seller shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at the customer’s expense.
(6) If acceptance is to take place, the purchased item shall be deemed to have been accepted if
- the delivery and installation have been completed, provided that the seller is also responsible for the installation,
- the seller has informed the client of this with reference to the fictitious acceptance in accordance with this § 5 Para. 6 and has requested acceptance,
- twelve working days have passed since delivery or installation or if the client has started using the purchased item (e.g. has put the delivered system into operation) and in this case six working days have passed since delivery or installation and
- the customer has failed to accept the item within this period for a reason other than a defect notified to the seller which makes the use of the purchased item impossible or significantly impairs it.
§ 6 Warranty, defectsl
(1) The warranty period shall be one year from delivery or, if acceptance is required, from acceptance. This period shall not apply to claims for damages by the customer arising from injury to life, limb or health or from intentional or grossly negligent breaches of duty by the seller or its vicarious agents, which shall in each case become time-barred in accordance with the statutory provisions.
(2) The delivered items must be carefully inspected immediately after delivery to the client or to the third party designated by the client. With regard to obvious defects or other defects that would have been recognisable during an immediate, careful inspection, they shall be deemed to have been approved by the Buyer if the Seller does not receive a written notice of defects within seven working days of delivery. With regard to other defects, the delivery items shall be deemed to have been approved by the Buyer if the notice of defects is not received by the Seller within seven working days of the time at which the defect became apparent; however, if the defect was already apparent at an earlier time under normal use, this earlier time shall be decisive for the start of the notice period. At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified complaint, the seller shall reimburse the costs of the most favourable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
(3) In the event of material defects in the delivered items, the Seller shall initially be obliged and entitled, at its discretion and within a reasonable period of time, to rectify the defect or supply a replacement. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the client may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the seller, the client can demand compensation under the conditions specified in § 8.
(5) In the event of defects in components from other manufacturers which the Seller cannot remedy for reasons of licence law or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the Client’s account or assign them to the Client. Warranty claims against the seller for such defects shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Client against the Seller shall be suspended.
(6) The warranty shall not apply if the customer modifies the delivery item or has it modified by a third party without the seller’s consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the client shall bear the additional costs of remedying the defect resulting from the change.
(7) Any delivery of used items agreed with the client in individual cases shall be made to the exclusion of any warranty for material defects.
§ 7 Proprietary rights
(1) The Seller warrants in accordance with this § 7 that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it due to the infringement of such rights.
(2) In the event that the delivery item infringes an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, but the delivery item continues to fulfil the contractually agreed functions, or procure the right of use for the Customer by concluding a licence agreement with the third party.. If the seller fails to do so within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the Client are subject to the limitations of § 8 of these General Terms and Conditions of Delivery.
(3) In the event of infringements of rights by products of other manufacturers supplied by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Client or assign them to the Client. In such cases, claims against the seller shall only exist in accordance with this § 7 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or has no prospect of success, e.g. due to insolvency.
§ 8 Liability for damages due to fault
(1) The Seller’s liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorised action, is limited in accordance with this § 8, insofar as fault is involved in each case.
(2) The Seller shall not be liable in the event of simple negligence on the part of its executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations. Essential to the contract are the obligation to deliver and install the delivery item on time, its freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, as well as obligations to provide advice, protection and care that are intended to enable the client to use the delivery item in accordance with the contract or to protect the life and limb of the client’s personnel or to protect the client’s property from significant damage.
(3) Insofar as the seller is liable for damages in accordance with § 8 para. 2, this liability is limited to damages which the seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which he should have foreseen if he had exercised due care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended.
(4) In the event of liability for simple negligence, the Seller’s obligation to pay compensation for material damage and any further financial losses resulting therefrom shall be limited to an amount of EUR 10,000.00 per claim, even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability shall apply to the same extent in favour of the executive bodies, legal representatives, employees and other vicarious agents of the seller
(6) Insofar as the seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the seller, this is done free of charge and to the exclusion of any liability.
(7) The limitations of this § 8 do not apply to the Seller’s liability for intentional behaviour, for guaranteed characteristics, for injury to life, limb or health or under the Product Liability Act.
§ 9 Retention of title
(1) The retention of title agreed below serves to secure all existing current and future claims of the seller against the customer arising from the service and/or supply relationship existing between the contracting parties, including balance claims from a current account relationship limited to this service and/or supply relationship.
(2) The goods delivered by the seller to the customer shall remain the property of the seller until all secured claims have been paid in full. The goods and the goods covered by the retention of title which take their place in accordance with the following provisions are hereinafter referred to as “goods subject to retention of title”.
(3) The customer shall store the reserved goods free of charge for the seller.
(4) The client is entitled to process and sell the reserved goods in the ordinary course of business until the realisation event (§ 9 para. 9) occurs. Pledges and transfers of ownership by way of security are not permitted.
(5) If the reserved goods are processed by the customer, it is agreed that the processing is carried out in the name and for the account of the seller as manufacturer and the seller directly acquires ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur for the seller, the client hereby transfers his future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to the seller as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, the seller shall transfer to the customer the co-ownership of the uniform item in the proportion stated in sentence 1, insofar as the main item belongs to him.
(6) In the event of the resale of the reserved goods, the customer hereby assigns to the seller by way of security the resulting claim against the purchaser – in the case of co-ownership of the seller in the reserved goods in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from unauthorised action in the event of loss or destruction. The seller revocably authorises the customer to collect the claims assigned to the seller in his own name. The seller may only revoke this direct debit authorisation in the event of realisation.
(7) If third parties seize the goods subject to retention of title, in particular by attachment, the customer shall immediately inform them of the seller’s ownership and inform the seller of this in order to enable him to enforce his ownership rights. If the third party is not in a position to reimburse the seller for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to the seller for these costs.
(8) The seller shall release the reserved goods and the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50 %. The selection of the items to be released thereafter lies with the seller.
(9) If the seller withdraws from the contract in the event of behaviour contrary to the contract on the part of the customer – in particular default of payment – (enforcement event), he shall be entitled to demand the return of the reserved goods.
§ 10 Final provisions
(1) If the customer is a merchant, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the seller and the customer shall be Hamburg or the customer’s registered office, at the seller’s discretion. However, Hamburg shall be the exclusive place of jurisdiction for legal action against the seller in such cases. Mandatory statutory provisions on exclusive places of jurisdiction remain unaffected by this provision.
(2) The relationship between the Seller and the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, the contracting parties shall agree those legally effective provisions to fill these loopholes which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the loophole.
Status: 15th July 2021