JM general terms and conditions (03/2007)
§ 1 Introduction – Area of Application
(1) Our general terms and conditions shall be valid exclusively; we shall not accept any conditions of the Purchaser that contravene or deviate from our terms and conditions, unless we have expressly given our written consent as to their validity. Our terms and conditions shall also be applicable if we effect delivery to the Purchaser without any reservation, even if we are aware of the Purchaser's conditions contravening or deviating from our terms and conditions.
(2) All agreements made between us and the Purchaser for the execution of this contract have been laid down in writing in this contract.
(3) Our terms and conditions shall apply only to companies within the meaning of § 310 German Civil Code (BGB).
§ 2 Offer – Offer Documents
(1) If an order qualifies as an offer pursuant to § 145 BGB, we can accept it within a period of 2 weeks.
(2) We reserve proprietary rights and copyrights in illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are marked "confidential". The Purchaser requires our express written consent prior to passing any such document on to third parties.
§ 3 Prices – Payment Conditions
(1) Unless stated otherwise in the order confirmation, our prices are to be understood "ex works"; special packaging will be invoiced separately.
(2) The statutory value-added tax is not included in our prices; its statutory amount will be shown separately in the invoice on the date on which the invoice is made out.
(3) Deduction of discounts is subject to special written agreement
(4) Unless stated otherwise in the Order Confirmation, the net purchase price (without deduction) shall become due and payable within 30 days of the date of the invoice. The statutory rules concerning the consequences of a delay in payment shall apply.
(5) the Purchaser shall be entitled to offsetting only if his counterclaims have been legally established, found indisputable and been admitted by us. The Purchaser shall have the right of retention only if his counterclaim is based on the same contractual relationship.
(6) For technical reasons, the delivery quantity may differ up to +/- 10 % from the order quantity. The delivered quantity is regarded as performance in accordance with the contract, despite the deviation, and not as partial delivery. A claim to additional delivery does not exist.
§ 4 Period of Delivery
(1) The clarification of all technical matters is a condition precedent for the commencement of the period of delivery stated by us.
(2) A further precondition for the fulfillment of our delivery obligations is the timely and proper fulfillment of the Purchaser's obligation. The defense of the non-discharge of the contract shall remain reserved.
(3) If the Purchaser gets into a default of acceptance or when it culpably infringes other duties to co-operate, we shall have the right to demand compensation for the damage caused to us through such action, including additional expenses, if any. The right to further-reaching claims is reserved.
(4) In the presence of the preconditions of paragraph (3), the risk of an accidental loss or of an accidental deterioration of the object of purchase shall pass to the Purchaser as from the point in time when the same has got into a default of acceptance or into a default of the debtor
(5) We shall be liable pursuant to the statutory provisions if the underlying purchase contract is a fixed date purchase within the meaning of § 286, paragraph 2, No. 4 of the German Civil Code (BGB) or of § 376 of the German Commercial Code (HGB). We shall also be liable pursuant to the statutory provisions if as a consequence of a delay in delivery that is attributable to us the Purchaser has the right to assert that its interest in the continued fulfillment of the contract has lapsed.
(6) Furthermore, we shall be liable pursuant to the statutory provisions if the delay in delivery is caused by an intentional or grossly negligent violation of contract which is attributable to us; a default by our agents or vicarious agents is attributable to us. If the delay in delivery is not caused by an intentional violation of contract which is attributable to us, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable pursuant to the statutory provisions if the delay in delivery that is attributable to us is caused by the culpable violation of a material contractual obligation; in such case, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
(8) Further legal claims and rights of the Purchaser shall remain reserved.
§ 5 Passing of Risks - Packing Charges
(1) Unless stated otherwise in the order confirmation, a delivery "ex works" has been agreed.
(2) Separate agreements apply to the taking back of packaging.
§ 6 Liability for Defects
(1) Claims based on defects which are raised by the Purchaser make it necessary that the same has properly met its obligations of examination and complaint owed pursuant to Section 377 of the German Commercial Code.
(2) If the object of sale has a defect, the Purchaser shall, upon its option, be entitled to a subsequent performance in the form of a removal of the defects or to the delivery of a new item that is free from defects. In the event of the removal of a defect, we shall be obliged to bear all the costs which are required for the purpose of the removal of the defect, in particular transport costs, traveling expenses, labor and material costs provided that the said costs are not increased by the fact that the object of sale was carried to a place other than the place of performance.
(3) If the subsequent performance fails, the Purchaser shall be entitled to demand, at its option, a withdrawal or a reduction of the purchase price.
(4) We shall be liable pursuant to the statutory provisions when the Purchaser asserts claims for damages which are based on intention or gross negligence, including intention or gross negligence on the part of our agents or vicarious agents. Unless we are charged with a deliberate violation of the Contract, the liability for damages shall be limited to the foreseeable, typically occurring damage
(5) We shall be liable pursuant to the statutory provisions if we commit a culpable violation of a material contractual obligation; in such case, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
(6) If the Purchaser is entitled to a claim for damages instead of the performance, our liability is, also within the framework of paragraph (3), limited to the compensation for the foreseeable, typically occurring damage.
(7) The liability for a culpable injury to life, body or health shall remain unaffected; this shall also apply to the mandatory liability pursuant to the Product Liability Act
(8) Unless a deviating provision has been set forth above, the liability is ruled out
(9) The period of limitation for claims based on defects is 12 months, counted from the day of the passage of risk.
(10) The period of limitation in the event of a delivery recourse claim pursuant to §§ 478, 479 German Civil Code shall remain unaffected; the period is five years, counted from the date of handing-in of the defective item.
§ 7 Total Liability
(1) A further-reaching liability for damages other than the liability provided in § 6 is ruled out - irrespective of the legal nature of the claim which is