General terms and conditions

General Terms and Conditions for Delivery of MEPATRONIK Elektronische Bauelemente Vertriebs GmbH

1. Scope of Application

All current and future deliveries and any performance by MEPATRONIK Elektronische Bauelemente Vertriebs GmbH (hereinafter MEPATRONIK) are made exclusively on the basis of these General Terms and Conditions of Delivery. Any deviating terms and conditions of the contracting partner shall apply only if expressly confirmed in writing by MEPATRONIK.

2. Prices

Unless agreed otherwise, all quotations of prices, including those contained in order confirmations, apply ex work Remscheid, exclusively freight- and packing-charges. Prices are subject to change without notice. Prices are effective at the day of delivery.

3. Obligation of Delivery

The obligation of delivery is intended for the contents of the written order confirmation by MEPATRONIK. All orders by customer are accepted not before a written confirmation. Any Modifications and appendices of the terms require a written confirmation. MEPATRONIK has always the right to terminate the contract at an occurred degradation by the customer’s circumstances. This fact absolved MEPATRONIK from further obligations of delivery.

4. Delivery Period

The terms of delivery begin when the agreement of the order is present between the customer and MEPATRONIK. Delivery shall be effected, subject to due and timely receipt of supplies by MEPATRONIK, on the agreed dates. This shall apply also after order confirmations. Notwithstanding the above the customer acknowledges that the delivery dates provided by MEPATRONIK are estimates only. For force majeure, acts of or omissions by third parties, changes of law, shortage of materials, terrorist attacks, delays in transport, insurrection, war or events for which MEPATRONIK shall not be deemed responsible, MEPATRONIK is entitled to postpone performance properly. The customer has no right for damages against MEPATRONIK.

5. Delivery / Return

The risk for the delivery is transferred to the customer, when the shipment left the warehouse of MEPATRONIK. This applies, even if the shipping takes place by own means of transport. At customer’s request and costs the shipment is insured against breakage and damages by transport and fire. If the shipment is delayed by the request of the customer, the risk is proceeded to the customer from the date the shipment is made ready.
Product returns shall follow only MEPATRONIK’s RMA-procedure. No return of products shall be accepted without RMA-Number (Return Material Authorisation) issued by MEPATRONIK. Returned products must be packaged in proper form and returned carriage paid by the customer. If products are claimed to be defective, a complete and detailed description of the defect must be included at the RMA-procedure. Products not eligible for return shall be returned to the customer, freight collect.

6. Terms of Payment

Deliveries and performances of MEPATRONIK are to be paid net within 30 days from date of invoice. If the payment takes place by approved bill, cheque, etc., the outstanding interest and bank charges are debited to the customer. In default of payment MEPATRONIK shall be entitled to demand default interest in accordance §288 Abs.2 BGB, to the cancellation of the contract and to the reclaim of already delivered goods. If the credit evaluation of the customer has not yet been completed or the customer is in arrears with respect to payments due to MEPATRONIK or third parties or is there any other reason, in the reasonable discretion of Mepatronik, to doubt the customer’s ability or willingness to pay, MEPATRONIK shall be entitled to effect the agreed delivery or any future deliveries only against cash on delivery or payment in advance. In the event that a customer does not pay the amount to be collected on delivery, MEPATRONIK shall be entitled to sell the goods –without prejudice to other rights- to another buyer and to charge to the customer’s account the difference between the price agreed and the price realised from such distress sale. Any further rights in connection with a default in payment by the customer shall remain unaffected.

7. Warranty

a) The customer shall be obliged to inspect the goods in accordance with §377 HGB and to notify in writing MEPATRONIK of any open defects/other deviations (RMA-procedure) within 10 days after receipt of the goods.
b) If the goods, at the time of the passing risk, are defective and MEPATRONIK has been notified of such defect in due time, MEPATRONIK shall be obliged, at its option, only to either rectify the defect goods or to deliver goods free of defect.
c) The customer is entitled to rescind the contract or to demand a reduction of the price in the event that MEPATRONIK is not willing or able to do so within a reasonable period of time or for any other reason fails to effect the subsequent performance
d) No warranty is given with respect to the suitability of the goods for particular purpose, unless such suitability was expressly agreed in writing. The customer shall be obliged to verify the goods in advance and in any event.
e) Mepatronik gives no warranty for defects which occurred after the passing of risk due to faulty or careless handling, improper alteration, non-compliance with the prescribed specifications or conditions of use, damage or external chemical, electrochemical or electrical influences.
f) MEPATRONIK grants a 12 months product warranty period to its customers. The limitation period shall commence upon delivery to the customer or upon a delay in acceptance by the customer.

8. General Liability

a) Mepatronik shall be liable only for acts of wilful misconduct and gross negligence by its legal representatives, employees and proxies for damages which occurs in the context of the warranty because of injury of contractual secondary obligation, misinformation at tort, culpable breach of the obligation of amendment or subsequent delivery. An indemnity claim is excluded also at missing assured characteristics if the assurance did not have the signification for avoiding consequential damages. MEPATRONIK shall not be liable for a loss of profits of the customer or unforeseeable indirect consequential damages.
b) In all cases - also in cases of figure 8a – the liability is always limited to the proven, foreseeable at the signing of the contract, damage, but at most to the sales price of the product delivered by MEPATRONIK, to which the claims for damage refer or result. This shall apply at commercial transactions with and without gross negligence or at non-commercial transactions without gross negligence where the liability is not excluded.

9. Retention of Title

Until all claims (including all claims from balances in current accounts) which MEPATRONIK may currently or in future have against the customer, irrespective of the legal basis thereof, are satisfied, the following security shall be granted to MEPATRONIK: MEPATRONIK shall retain title to the goods. Any processing or modification of the goods shall in all cases be effected for MEPATRONIK as manufacturer but without any obligation on the part of MEPATRONIK. In the event that the (co-)ownership of MEPATRONIK expires due to product integration or mixing, it is herewith agreed that the (co-)ownership of the customer in the integrated or mixed product shall pass to MEPATRONIK pro rata (in proportion to the invoice value). All goods in which MEPATRONIK holds (co-)ownership rights are hereinafter referred to as reserved goods. The customer shall be entitled to process and sell reserved goods within the ordinary course of business as long as it is not in default. Pledges or transfers by way of security shall not be permitted. The customer herewith assigns all receivables replacing the received goods and arising from their resale or on any other legal basis (insurance, tort) (including all claims from balances in current accounts) in full to MEPATRONIK. MEPATRONIK accepts such assignment. MEPATRONIK grants to the customer revocable authorisation to collect the receivables assigned to MEPATRONIK for MEPATRONIK’s account in the customer’s own name. This authorisation may be revoked only if the customer fails to duly meet his payment obligations. In the event of any seizure of the reserved goods by third parties, the customer shall inform such third party of the fact that MEPATRONIK holds title to the goods and shall notify MEPATRONIK immediately. In the event or a breach of contract -in particular any delay in payment- as well as in the event that a bankruptcy petitions is filed against the customer MEPATRONIK shall be entitled to retrieve the reserved goods and, if appropriate, to demand the assignment of the claims of surrender which the customer may have against third parties. The customer shall be obliged in this event to deliver MEPATRONIK with the details necessary to collect the assigned claims and to hand over the relevant documentation. In the event that the value of the securities to which MEPATRONIK is entitled hereunder exceed not only temporarily the outstanding amount of MEPATRONIK’s claims towards the customer by more than 20%, MEPATRONIK will, at the customer’s request, release at its opinion.

10. Place of Performance, Place of Jurisdiction, Others

Place of performance for all obligations arising from the business relationship with MEPATRONIK shall be the seat of the place of operations. Remscheid, Germany, shall be the place of jurisdiction for all disputes between MEPATRONIK and the customer, including disputes in connection with claims from bills of exchange or cheques. The laws of the Federal Republic of Germany shall apply exclusively. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Should any regulation of these General Terms and Conditions or any regulation made in the context of other agreements with the customer be or become invalid, this shall not affect the validity of the remaining regulations or agreements. Personal data used in connection with the business relationship are stored and processed by MEPATRONIK, to the extent necessary for business purposes in accordance with the legal requirements.

Stand: Mai 2005