General Terms and Conditions
General Terms and Conditions of Business
MultiChannelTrade GmbH –
General Terms and Conditions of Business and Delivery
All goods delivered, services and offers by MCT MultiChannelTrade GmbH are directed exclusively to merchants (Unternehmer) within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch) (BGB) and not to consumers within the meaning of BGB § 13. Hence, the following General Terms and Conditions of Business and Delivery are also not applicable to consumers.
§ 1 Application
(1) All goods delivered, services and offers by the seller to a merchant shall take place solely on the basis of these General Terms and Conditions of Delivery. These shall be a component of all agreements concluded by MCT MultiChannelTrade GmbH (hereinafter referred to as the “Seller”) with parties to agreements with the latter (hereinafter also referred to as “Buyers”) relating to the goods or services it offers, except as involving consumers. They shall also apply to all future deliveries, services or offers to the Buyer, even when not separately re-agreed to.
(2) The Buyer's or a third party's terms and conditions of business shall not apply even if the Seller has not separately objected to their application in an individual case. Even if the Seller makes reference to a writing that contains or makes reference to the Buyer's or a third party's terms and conditions of business, this shall not constitute consent to the application of those terms and conditions. Divergent terms and conditions of purchase shall only be binding if confirmed by us in a writing with a legally valid signature.
§ 2 Offers and contract formation
(1) All offers by the Seller are non-binding and subject to change, unless they are expressly designated as binding or contain a specific time period for acceptance. The Seller may accept orders or assignments within fourteen days of receipt.
(2) A contract is formed only by the Seller's issuing a statement of acceptance, sent with a separate order confirmation by e-mail, fax or mail, or by shipment of the goods. Automated e-mail receipts merely provide information regarding our receipt of the order and do not represent an acceptance of the offer to buy.
(3) The legal relations between the Seller and the Buyer are controlled solely by the purchase agreement concluded in accordance with the foregoing paragraphs, including these General Terms and Conditions of Business and Delivery. This fully reflects all agreements between the parties with respect to the subject matter of the agreement. Oral assurances by the Seller prior to the conclusion of such agreement shall not be legally binding, and oral agreements by the parties shall be superseded by the agreement, except as the latter in either case expressly indicates that they continue to be valid and binding.
(4) Addenda and amendments to agreements made, including these General Terms and Conditions of Business and Delivery, shall require written form to be valid. Except for managing directors or holders of a commercial power of attorney (Prokuristen), the Seller's employees are not authorized to make oral agreements deviating herefrom.
(5) Indications by the Seller relating to the subject matter of the delivery or service (e.g., weights, measures, values in use, capacity, tolerances, technical data), as well as our representations thereof (e.g., drawings, depictions), are only approximately applicable, except insofar as usability for the contractually contemplated purpose presupposes exact correspondence. They are not warranted quality characteristics but rather descriptions or designations of the goods or service. Normal commercial deviations, and those due to laws and regulations or representing technological improvements, as well as the replacement of components with components of equal value, are allowable insofar as they do not impair usability for the contractually contemplated purpose.
§ 3 Prices and payment
(1) Prices apply to the scope of services and goods listed in any order confirmations sent. Additional or separate services are to be billed separately. Prices are understood to be in Euro, ex warehouse, plus shipment and packaging, statutory value added tax and, for export deliveries, plus customs and fees and other public charges.
(2) Insofar as the agreed prices are based on the Seller's list prices and delivery is not to take place until more than four months from when the agreement was entered into, the Seller's list prices valid at the time of delivery shall apply, absent an agreement otherwise.
(3) Except as otherwise provided in an order confirmation, our claim for the purchase price is due, without deduction, upon handover of the deliverable to the Buyer or a forwarding agent. Unless it is, or has been, otherwise agreed in writing, payment must be made, strictly net, within 30 days of the delivery date. If the Buyer fails to pay by the deadline, outstanding amounts shall bear interest, beginning with the 31st day of when the amount was due, at a minimum of 9 % p.a.; this is without prejudice to claims for higher interest and additional damages in the event of default. We are authorized to assign claims arising under our business relationship.
(4) Offsetting of the Buyer's counterclaims, or the withholding of payments due to such claims, is only permitted insofar as the counterclaims are due and undisputed or have been legally determined and are not subject to appeal, as the case may be. In addition, withholding is only permitted for counterclaims arising out of the same contractual relationship.
(5) The Seller may carry out or perform still outstanding deliveries or services only against prepayment or the posting of security if, after the agreement is concluded, circumstances become known to it that are likely to significantly reduce the Buyer's creditworthiness and jeopardize payment by the Buyer of the Seller's outstanding claims arising from the contractual relationship in question (including other individual assignments or assignments to which the same master agreement applies).
§ 4 Deliveries and delivery times
(1) Deliveries are ex warehouse or ex supplying factory.
(2) Time periods and dates indicated by the Seller for deliveries and services are always only approximate unless a fixed time period or date has been promised or agreed to. Insofar as shipment has been agreed to, delivery times and dates relate to the time of handover to the forwarding agent, carrier or other third party engaged for transportation.
(3) Without prejudice to its rights upon default by the Buyer, the Seller may request of the latter an extension of the time periods for delivery or performance, or a postponement of the dates for delivery or performance, by the period of time during which the Buyer is not in compliance with its contractual obligations to the Seller.
(4) The Seller shall not be liable if delivery is impossible or for delays in delivery insofar as these have been caused by force majeure or other circumstances not foreseeable when the agreement was concluded (e.g., business disruptions of every kind, difficulties in materials or energy procurement, transportation delays, strikes, lawful lockouts, lack of workers, energy or raw materials, difficulties in procuring official approvals needed, measures by authorities or non-delivery, incorrect delivery or non-timely delivery by suppliers) for which the Seller is not responsible. Insofar as such occurrences render delivery or performance significantly more onerous or impossible for the Seller and the impediment is not merely transitory, the Seller may withdraw from the agreement. For transitory impediments, the time periods for delivery or performance shall be extended, or the dates of delivery or performance shall be postponed, by the period of impediment plus a reasonable start-up period. If, owing to the delay, the Buyer cannot be expected to accept the delivery or service, it may withdraw from the agreement by written statement to the Seller without undue delay.
(5) The Seller may only make partial deliveries if this has been agreed to or
• the partial delivery is usable by the Buyer within the scope of the intended contractual purpose,
• delivery of the remaining ordered goods is ensured and
• the Buyer does not hereby incur significant increased expenditures or added costs (unless the Seller declares that it is prepared to assume such costs).
(6) If the Seller falls behind with a delivery or service, or if a delivery or service becomes impossible for it on whatever basis, the Seller's liability shall be limited to compensatory damages in accordance with § 7 of these General Terms and Conditions of Business and Delivery.
§ 5 Place of performance, shipment, packaging, passage of risk, acceptance
(1) Except as otherwise agreed, the place of performance for all obligations under the contractual relationship is the registered office of the Seller.
(2) The type of shipment and the packaging are subject to the Seller's proper exercise of discretion.
(3) Risk of loss passes to the Buyer no later than upon handover of the deliverable – with the start of the loading process being controlling – to the forwarding agent, carrier or other third party specified to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has undertaken other additional services (e.g., shipment). If shipment or handover is delayed due to a circumstance caused by the Buyer, the risk of loss passes to the Buyer from the date on which the deliverable is ready for shipment and/or the Seller has so notified the Buyer. Notice of readiness for shipment occurs by dispatch, with notification by e-mail, fax or mail.
(4) The Buyer shall bear storage costs after the passage of risk. In the event of storage by the Seller, per diem storage costs shall amount to 0.05% of the invoice amount of the deliverables to be stored. The right to assert and prove additional or lower storage costs is reserved.
(5) Only upon the Buyer's express request and at its expense shall the shipment be insured by the Seller against theft, breakage, transportation, fire and water damages or other insurable risks.
§ 6 Warranty, material defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance.
(2) The items delivered are to be carefully inspected, without undue delay, upon delivery to the Buyer or a third party appointed by the latter. With regard to patent defects or other defects that would have been ascertainable upon careful inspection without undue delay, they shall be deemed to have been approved by the Buyer if no written notice of defect reaches the Seller within seven storage days (Lagertage) of delivery. With regard to other defects, the items delivered shall be deemed approved by the Buyer if the notice of defect fails to reach the Seller within seven storage days of the time at which the defect appeared; if upon normal use the defect was already ascertainable to the Buyer at an earlier time, however, such earlier time shall be dispositive for commencement of the period for giving notice of defects. At the Seller's request, a delivered item that has been rejected shall be sent back to the Seller free of freight charges. If the notice of defect is justified, the Seller shall reimburse the costs of the most favorable shipment method; this shall not apply if the costs are higher because the item delivered is located at a place other than that of its intended use.
(3) For material defects in items delivered, the Seller, at its election to be made within a reasonable time, shall initially be obligated and entitled to repair or make a replacement delivery. In the event of failure, i.e., impossibility, unreasonableness, refusal or inappropriate delay in the repair or replacement, the Seller may withdraw from the agreement or reduce the purchase price appropriately.
(4) If the defect is based on the Seller's fault, the Buyer may seek damages under the conditions specified in § 7.
(5) For defects in components of other manufacturers that the Seller cannot eliminate for licensing or factual reasons, the Seller, at its election, will assert its warranty claims against the manufacturers and suppliers on the Buyer's behalf or assign them to the Buyer. For defects of this type, warranty claims against the Seller shall only exist, under the other conditions and in accordance with these General Terms and Conditions of Delivery, if judicial enforcement of the above-mentioned claims against the manufacturers and suppliers was unsuccessful or is pointless, e.g., due to insolvency. While the litigation is under way, the limitations period for the Buyer's respective warranty claims against the Seller is tolled.
(6) The warranty is lost if the Buyer alters the item delivered, or has it altered by third parties, without the Seller's consent and elimination of the defect is thereby rendered impossible or unreasonably difficult. The Buyer shall in all cases bear the increased costs for removal of the defect that arose because of the alteration.
(7) Deliveries of used or declassified items (e.g., B-grade goods, returns, display and demonstration items) agreed to with the Buyer on an individual basis shall be made with all warranties for material defects excluded.
§ 7 Liability for damages based on fault
(1) The Seller's liability for damages, regardless of legal basis, in particular owing to impossibility, delay, defective or mistaken deliveries, breach of contract, culpa in contrahendo and tort – insofar as each of these comes down to a matter of fault – shall be limited in accordance with this §7.
(2) The Seller shall not be liable in the event of ordinary negligence by its executive bodies, legal representatives, employees or other agents insofar as this does not involve a breach of essential contractual obligations. The following are of the essence of the contract: the obligation to make timely delivery of the deliverable, the latter's freedom from defects that impair its functionality or usability to a more than merely insignificant degree, and advisory, protective and custodial obligations intended to enable the Buyer's use of the item delivered in accordance with the agreement or aimed at protecting the lives and physical well-being of the Buyer's personnel or protecting its property against significant loss.
(3) Insofar as the Seller, on the merits, is liable for damages in accordance with § 7 (2), this liability is limited to damages that the Seller, at the conclusion of the agreement, foresaw as a possible consequence of breach of contract or that it would necessarily have foreseen in the exercise of due care. Furthermore, indirect damages and consequential damages that are a consequence of defects in the item delivered shall only be compensable insofar as such damages are typically to be expected upon use of the item delivered in the intended manner.
(4) In the event of liability for ordinary negligence, the Seller's obligation to provide compensation for property damages and other pecuniary damages resulting therefrom shall be limited to an amount of EUR 50,0000 per event of loss, even when involving breach of an essential contractual obligation.
(5) The above exclusions and limitations of liability shall apply to the same extent in favor of the executive bodies, legal representatives, employees and other agents of the Seller.
(6) Insofar as the Seller gives technical information or acts in an advisory capacity and this information or advice does not come within the contractual scope of service owed by it, this shall be at no charge and shall come with all liability excluded.
(7) The limitations of this § 7 shall not apply to the Seller's liability for intentional misconduct, quality characteristics guaranteed in writing, injury to life, body or health, or pursuant to the German Product Liability Act (Produkthaftungsgesetz) (ProdHaftG).
§ 8 Reservation of title
(1) Until payment in full, items delivered shall remain the property of the Seller.
(2) The Buyer assigns to the Seller, ex ante and by way of security, all claims from resale of the goods or other transactions therewith, and the Buyer accepts such assignment. If the goods are sold together with others, the assignment shall be valid only to the extent of the value of the goods subject to the reservation. The Buyer is authorized to sell the goods and to collect the assigned claim. The Seller shall not collect the claim as long as the Buyer is in compliance with its payment obligations. For as long as the Seller's claims have not been met, the Buyer shall keep the collected amounts separate and shall pay them to the Seller. Upon request, the Buyer shall announce the amount of the claim, advise third-party debtors of the assignment and deliver the necessary documents to the Seller.
(3) The reservation of title extends to products arising from the processing, commingling or combination of the goods delivered, in the full value thereof, with the Seller deemed to be the manufacturer. If ownership rights of third parties continue to exist upon processing, commingling or combination with third-party goods, the Seller shall acquire co-ownership in proportion to the invoiced values of the processed, commingled or combined goods. In other respects, what applies to goods delivered subject to a reservation of title also applies to the resulting products.
(4) At the Buyer's request, the Seller shall release fully paid up collateral of its choice if the value of the securities given exceeds the value of the Seller's claims by more than 10 %. Rescission of the agreement is not necessary for enforcement of the reservation of title.
(5) If third parties proceed against goods subject to the reservation of title – particularly through court officers – the Seller shall advise them of the Seller's title and notify the latter without undue delay so that it may enforce its ownership rights.
§ 9 Rights
All texts, pictures and other information or data/files published or relayed by the Seller (e.g., pictures, item master data) are subject to copyright insofar as no third-party copyrights exist. In any event, reproduction, dissemination or public disclosure is permitted solely with the Seller's revocable, non-transferable and written consent.
§ 10 Concluding provisions
(1) If the Buyer is a merchant, a legal person governed by public law or a special fund under public law, or if it has no place of general jurisdiction in the Federal Republic of Germany, the venue for any and all disputes arising out of the business relationship between the Seller and the Buyer shall, at the Seller's election, be the place of its registered office or the registered office of the Buyer. For actions against the Seller, however, the place of its registered office shall be the exclusive place of jurisdiction in such cases. This is without prejudice to mandatory provisions of law regarding places of exclusive jurisdiction.
(2) The relations between the Seller and the Buyer are exclusively subject to the law of the Federal Republic of Germany. The United Nations Convention on the International Sale of Goods of April 11, 1980 (CISG) does not apply.
(3) If the agreement or these General Terms and Conditions of Delivery contain gaps in their provisions, to fill in those gaps, agreement is deemed to have been given to those legally valid provisions on which the contracting parties would have agreed, in keeping with the economic objectives of the agreement and the purpose of the General Terms and Conditions of Delivery, had they been aware of the gap in the provisions. The same is true, mutatis mutandis, in the event of a provision that is invalid or unenforceable in whole or in part.
The Buyer takes note that the Seller stores data from the contractual relationship in accordance with § 28 of the German Federal Data Protection Act (Bundesdatenschutzgesetz) (BDSG) and reserves the right to convey the data to business partners required for purposes of performing the agreement and to third parties subject to data protection obligations (e.g., insurers, banks and the like).
Version: October 6, 2014