Preamble:
All deliveries, services and offers of MCT MultiChannelTrade GmbH are aimed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB) and not at consumers within the meaning of Section 13 BGB. The following General Terms and Conditions of Business and Delivery therefore do not apply to consumers.
§ 1 Validity
(1) All deliveries, services and offers of the seller to the entrepreneur are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts that MCT MultiChannelTrade GmbH (hereinafter referred to as “Seller”) concludes with its contractual partners (hereinafter also referred to as “Buyer”) for the deliveries or services offered by it, unless the Buyer is a consumer. They shall also apply to all future deliveries, services or offers to the Buyer, even if they are not separately agreed again.
(2) Terms and conditions of the Buyer 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 Buyer or a third party, this shall not constitute agreement with the validity of those terms and conditions. Deviating terms and conditions of purchase shall only be binding if they are confirmed by us in writing and with a legally binding signature.
§ 2 Offer and conclusion of contract
(1) 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 may accept orders or commissions within fourteen days of receipt.
(2) A contract is only concluded when the seller submits a declaration of acceptance, which is sent with a separate order confirmation by email, fax or post, or when the goods are dispatched. Automated receipt emails merely inform us of the receipt of the order and do not constitute acceptance of the purchase offer.
(3) The legal relationship between the Seller and the Buyer shall be governed solely by the purchase contract concluded in accordance with the above paragraphs, including these General Terms and Conditions of Business and Delivery. This contract fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal commitments 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 contract, unless it is expressly stated in the contract that they continue to be binding.
(4) Additions and amendments to the agreements made, including these General Terms and Conditions of Business and 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 any verbal agreements deviating from this.
(5) Information provided by the Seller on the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances, technical data) as well as our representations of the same (e.g. drawings, 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. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability for the contractually intended purpose.
§ 3 Prices and payment
(1) The prices shall apply to the scope of services and deliveries listed in the order confirmations, if such have been sent. Additional or special services shall be invoiced separately. The prices are quoted in euros ex warehouse plus shipping costs and packaging, statutory VAT and, in the case of export deliveries, plus customs duties, fees and other public charges.
(2) If the agreed prices are based on the Seller’s list prices and delivery is to take place more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply, unless otherwise agreed.
(3) Unless otherwise stipulated in an order confirmation, our purchase price claim shall be due for payment without any deduction upon delivery of the goods to the Buyer or to a forwarding agent. Unless otherwise agreed in writing, payment must be made net within 30 days of the delivery date. If the Buyer fails to pay within this period, the outstanding amounts shall bear interest of at least 9% p.a. from the 31st day of the due date; the assertion of higher interest and further damages in the event of default shall remain unaffected. We are entitled to assign claims arising from our business relationship.
(4) Offsetting against counterclaims of the Buyer or the retention of payments due to such claims is only permitted if the counterclaims are due and undisputed or have been legally established. Furthermore, retention is only permissible on account of counterclaims arising from the same contractual relationship.
(5) The Seller shall be 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 Buyer and which jeopardize the payment of the Seller’s outstanding claims by the Buyer from the respective contractual relationship (including from other individual orders or for orders to which the same framework agreement applies).
§ 4 Delivery and delivery time
(1) Deliveries are made ex warehouse or ex works.
(2) Deadlines and dates for deliveries and services promised by the seller are always approximate only, unless a fixed deadline or a fixed date has been expressly promised or agreed. If shipment 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 transportation.
(3) The Seller may – without prejudice to its rights arising from default on the part of the Buyer – demand from the Buyer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the period in which the Buyer fails to meet 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. disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, 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 shall be entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer 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 is only entitled to make partial deliveries if this has been agreed or
– the partial delivery can be used by the Buyer within the scope of the contractual purpose,
– the delivery of the remaining ordered goods is ensured and
– the Buyer does not incur any significant additional expenses or additional costs as a result (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 him, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 7 of these General Terms and Conditions of Business and Delivery.
§ 5 Place of performance, dispatch, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is the registered office of the seller, unless otherwise specified.
(2) The mode of dispatch and packaging are subject to the dutiful discretion of the seller.
(3) The risk shall pass to the buyer at the latest when the delivery item is handed over (whereby the start of the loading process is decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or if the seller has assumed other services (e.g. shipping). If the shipment or handover is delayed due to a circumstance caused by the Buyer, the risk shall pass to the Buyer from the day on which the delivery item is ready for shipment and/or the Seller has notified the Buyer of this. The notification of readiness for dispatch shall be sent by e-mail, fax or post.
(4) Storage costs after the transfer of risk shall be borne by the Buyer. In the case of storage by the Seller, the storage costs shall amount to 0.05% of the invoice amount of the delivery items to be stored per day. We reserve the right to claim and prove further or lower storage costs.
(5) The shipment shall only be insured by the Seller against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Buyer and at the Buyer’s expense.
§ 6 Warranty, material defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) The delivered items must be carefully inspected immediately after delivery to the Buyer or to the third party designated by the Buyer. With regard to obvious defects or other defects that would have been recognizable 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 storage days after 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 storage days of the time at which the defect became apparent; however, if the defect was already recognizable to the Buyer at an earlier time under normal use, this earlier time shall be decisive for the commencement of the period for giving notice of defects. At the Seller’s request, a rejected delivery item shall be returned to the Seller carriage paid. In the event of a justified notice of defects, the Seller shall reimburse the costs of the most favorable 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 to rectify the defect or make a replacement delivery at its discretion within a reasonable period of time. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the Buyer may withdraw from the contract or reduce the purchase price appropriately.
(4) If a defect is due to the fault of the seller, the buyer can demand compensation under the conditions specified in § 7.
(5) In the event of defects in components from other manufacturers which the Seller cannot remedy for licensing or factual reasons, the Seller shall, at its discretion, assert its warranty claims against the manufacturers and suppliers for the account of the Buyer or assign them to the Buyer. 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, for example due to insolvency. For the duration of the legal dispute, the limitation period for the Buyer’s relevant warranty claims against the Seller shall be suspended.
(6) The warranty shall not apply if the Buyer 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 Buyer shall bear the additional costs of remedying the defect resulting from the modification.
(7) Any delivery of used or declassified items agreed with the Buyer in individual cases (e.g. B-goods, returns, exhibition and demonstration goods) shall be made to the exclusion of any warranty for material defects.
§ Section 7 Liability for damages due to fault
(1) The Seller’s liability for damages, regardless of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this Section 7, insofar as fault is involved.
(2) The Seller shall not be liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless it is a breach of material contractual obligations. Material contractual obligations are the obligation to deliver the delivery item on time, its freedom from 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 Buyer to use the delivery item in accordance with the contract or to protect the life and limb of the Buyer’s personnel or to protect the Buyer’s property from significant damage.
(3) Insofar as the Seller is liable for damages in accordance with § 7 (2), this liability shall be 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 shall only be 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 50,000.00 per claim, even if this involves a breach of material contractual obligations.
(5) The above exclusions and limitations of liability apply to the same extent in favor of the organs, 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 § 7 shall not apply to the Seller’s liability for willful conduct, for characteristics guaranteed in writing, for injury to life, body or health or under the Product Liability Act.
§ 8 Retention of title
(1) The delivered goods shall remain the property of the Seller until full payment has been made.
(2) The Buyer assigns to the Seller in advance all claims arising from a resale of the goods or other transactions with the goods by way of security. The Buyer accepts this assignment. If the goods are sold together with other goods, the assignment of the claim shall only apply to the value of the reserved goods. The buyer is authorized to sell the goods and to collect the assigned claim. The seller will not collect the claim as long as the buyer fulfills his payment obligations. As long as the seller’s claims have not been fulfilled, the buyer must keep the collected amounts separately and transfer them to the seller. Upon request, the Buyer shall disclose the amount of the claim, notify the third-party debtors of the assignment and hand over the necessary documents to the Seller.
(3) The retention of title shall extend to the full value of the products created by processing, mixing or combining the delivered goods, whereby the Seller shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(4) At the Buyer’s request, the Seller shall release fully paid collateral at its discretion if the value of the collateral provided exceeds the Seller’s claims by more than 10%. It is not necessary to withdraw from the contract in order to assert the retention of title.
(5) In the event of seizure of the reserved goods by third parties – in particular by bailiffs – the Buyer shall draw attention to the Seller’s ownership and inform the Seller immediately so that the Seller can enforce its ownership rights.
§ 9 Rights
All texts, images and other information or data or files (e.g. images, article master data) published or passed on by the seller are subject to copyright, unless copyrights of third parties exist. In any case, duplication, distribution or public reproduction is only permitted with the revocable, non-transferable and written consent of the seller.
§ 10 Final provisions
(1) If the Buyer is a merchant, a legal entity under public law or a special fund under public law or 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 Buyer shall be the Seller’s registered office or the Buyer’s registered office, at the Seller’s discretion. In such cases, however, the Seller’s registered office shall be the exclusive place of jurisdiction for legal action against the Seller. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relationship between the Seller and the Buyer 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 April 11, 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions shall be deemed to have been agreed 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. The same shall apply mutatis mutandis in the event of a wholly or partially invalid or unenforceable provision.
Note:
The buyer acknowledges that the seller stores data from the contractual relationship in accordance with § 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to the business partners required to fulfill the contract and to third parties obliged to protect data (e.g. insurance companies, banks, etc.).
Status: October 06, 2014