Terms & Conditions
1.1. All deliveries made by the Vendor shall be exclusively based on these General Terms and Conditions, even then if he/she does not explicitly protest against contradictory Conditions of Purchase. A contract shall be established only upon receipt of our written Confirmation of Order which shall only be valid when bearing two signatures. Only this document shall be relevant with regard to the scope, type and time of our duty to perform. When the Confirmation of Order has been despatched it is deemed to be received.
1.2. In case of repair orders, the Vendor shall reserve the right to despatch the written Confirmation of Order together with the invoice. The conditions specified in the Confirmation of Order shall then be binding for the repair order already completed.
1.3. Even in case of confirmed orders we shall be relieved from our duty to perform if such delivery or partial delivery shall become impossible due to unforeseeable circumstances incurred through no fault of ourselves. Such reasons shall include, but not be limited to: orders by the authorities, Force Majeure or failure of our Suppliers with respect to timely and/or correct delivery of material. Variations concerning delivery and the technical design shall be permissible in so far as the hereby intended success of our duty to perform will not be affected. However, should this lead to any increase in price, such increase shall be agreed with the Purchaser.
1.4. In addition, the provisions of the appropriate commercial term set out in the INCOTERMS 2000 published by the International Chamber of Commerce in Paris shall apply.
1.5. If any provision of these General Terms and Conditions should be or become void, either fully or in part, this shall not affect the validity of the remaining terms or of the other parts of the terms set out in these General Terms and Conditions.
2.1. Unless otherwise agreed upon in written form, our prices shall be subject to change without notice.
2.2. In case of substantial shifts in costs, we reserve the right to increase our prices. In such a case, we shall inform the Purchaser about such increase one month prior to despatch of the merchandise. Within 8 days after receipt of such notice, the Purchaser shall be entitled to withdraw from the Contract.
2.3. Unless otherwise agreed upon in written form, our prices shall be in EURO, in each case ex works, uninsured, duty unpaid and exclusive any packaging costs. The Value Added Tax will be charged in addition at the applicable rate. Upon request of the Purchaser, the Vendor shall take out an insurance covering theft, breakage, transportation, fire and other insurable risks on the cost of the Purchaser. MGB reserves the right to charge flat-rate shipping costs.
2.4. The prices do not include any costs related to the installation of the equipment at the place of destination or the training of the staff.
2.5. Any costs related to the certification or legalization of trade documents that may become required as well as customs and all other excise duties, fees and taxes charged outside the FRG shall be borne by the Purchaser.
2.6. In case of orders with an invoiced value of goods under 100 Euro, we reserve the right to charge a mark-up for small-volume purchases.
3. Terms of Payment
3.1. Unless otherwise agreed upon in writing, our invoices shall be payable net cash within 30 days after the date of invoice. Upon request, the Purchaser shall make a reasonable prepayment when placing the order. We reserve the right to effect delivery only if the goods are paid for in advance or on delivery. In particular, this shall apply in case of first orders and/or when due dates were not met. Any bill charges and/or discount charges shall be borne by the Purchaser. Payment shall be considered accomplished only when the amount due is on our disposal.
3.2. If the above mentioned or otherwise agreed date of payment should not be met, the Purchaser will be automatically on delay, without need for any written demand for payment. Consequently, we shall be entitled to charge interest on defaulted payment at a rate exceeding the current base interest rate (according to Section 1 of the Transitional Law on Discount Rates dated June 09, 1998) by eight per cent.
3.3. The Purchaser shall not be entitled to set off any existing liabilities owed to the Vendor against any counterclaims or shall not withhold any payments, unless such claims of the Purchaser have been acknowledged by us in writing or shall be legally enforceable.
3.4. We shall be entitled to make outstanding deliveries conditional on a timely receipt of amounts due for payment. Should we become aware after signing the contract of any circumstances which would impair the credit rating of the Purchaser, we shall be entitled to withdraw from the contract and to insist on immediate payment (irrespective of any due dates set) or on the return of the goods already delivered.
4. Time of Delivery
4.1. Delivery deadlines shall only be deemed agreed upon if they were confirmed by us after the order was placed. Without such confirmation, the time of delivery shall not be binding.
4.2. A delivery deadline shall be deemed complied with if – before the time of delivery has elapsed – the Purchaser has been informed that the merchandise is ready for dispatch or if the delivery item has left the factory.
4.3. Compliance of the Purchaser with his/her contractual duties are prerequisite for meeting the delivery deadline.
4.4. In case of industrial conflicts as well as in case of the occurrence of unforeseeable impediments which are beyond the reasonable control of the Vendor, the time of delivery shall be extended by a fair and reasonable period, insofar as such impediments can be proved to have an impact on the manufacture or delivery of the delivery item. The same shall apply if the above described circumstances may occur at our suppliers.
4.5. In case the Purchaser should suffer any damage due to delay caused by the own fault of the Vendor, the Purchaser shall be entitled to damages for delay to the exclusion of any further claims for damages. This will amount to 0.5 pc for each full week of delay, however in total to not more than 5 per cent of the value of the complete shipment.
5. Passage of Risk, Shipment, Insurance
5.1. Unless it is agreed upon to deliver the merchandise to the business premises of the Vendor, the risk of loss of or damage to the merchandise shall pass to the Purchaser not later than at the moment when the parts to be delivered are being despatched or handed over to the Vendor. This shall apply also in case of partial deliveries or if the Vendor has committed himself/herself to furnish other services as well. In case of default in accepting the delivery of goods by the Purchaser, the risk will pass to the Purchaser as soon as the Vendor will offer delivery. If the merchandise is delivered to the business premises of the Vendor, the risk will pass to the Purchaser as soon as the Vendor will inform the Purchaser that the merchandise is ready for pick-up (ex works, “INCOTERMS 2000”).
5.2. Unless otherwise agreed upon, the Vendor shall select the shipping route as well as the mode of transportation.
6. Reservation of Ownership
6.1. Irrespective of delivery and the passage of risk or of any other provisions set out in these General Terms and Conditions, the ownership in the merchandise shall not pass to the Purchaser until all liabilities arising from our business relations have been settled. In case of payment by means of a bill of exchange or a cheque, these liabilities will be deemed settled only after the actual payment has been received.
6.2. If the merchandise has been processed and if such processing did include also components in which the Conditional Vendor has no ownership, the Conditional Vendor shall be entitled to an appropriate part ownership. The same shall apply in case of intermingling of merchandise supplied by the Vendor with goods supplied by third parties.
6.3. Until payment has been made in full, the Purchaser may use and/or resell the merchandise within the scope of normal business activities, however, he/she shall keep for the Vendor any consideration received and shall keep these funds separately from his/her assets as well as from the assets of third parties. Now already, the Purchaser agrees to assign any receivables resulting from such resale to the Vendor.
6.4. In case of attachment or other interference by third parties, the Purchaser shall inform the Vendor immediately in order to enable the Vendor to take legal action according to Section 771 ZPO (German Code of Civil Procedure). If the Purchaser should not comply with this duty, he/she will be liable for any resulting damage.
6.5. Upon request by the Purchaser, the Vendor agrees to release any securities he/she should be entitled to to such extent as their realizable value will exceed the receivables the Vendor is entitled to. The Vendor shall select the securities to be released.
7.1. Acceptance tests shall only be performed if this was agreed upon in advance. However, in any case the Purchaser shall bear all related costs.
7.2. Should the Purchaser waive such an acceptance test previously agreed upon or if he/she should be absent during the test despite timely notification was given, the test performed by the Vendor shall be considered acceptance. Should such tests be delayed for reasons beyond the control of the Vendor, any extra costs incurred shall be borne by the Purchaser. In any case the merchandise shall be deemed accepted as soon as the Purchaser has started to use the goods.
7.3. Acceptance must not be refused due to minor defects, however, the Vendor shall be obliged to rectify such defects.
7.4. Should the Purchaser, after he/she has previously agreed to take delivery after despatch, lag behind with regard to taking delivery of the object sold or meeting his/her payments for more than 14 days, we shall be entitled to withdraw from this contract or to claim pecuniary damages for non-performance after having granted 14 days of grace.
8. Warranty of and Liability for Merchantable Quality
8.1. The Purchaser shall inspect the merchandise as provided for by Subjects 377 and 378 HGB (German Commercial Code) and shall lodge a complaint, if need be.
8.2. Warranty shall cover for disposables 36 months, for electronic devices 12 months, for video lenses 24 months, for telescopes 60 months, starting with the day the risk has passed to the Purchaser and 6 months for accessories. In case of essential purchased components the liability of the Vendor shall be limited to the assignment of such liability claims as he/she may be entitled to from the supplier of such purchased components.
8.3. The Vendor shall give warranty that the merchandise is free from any material and/or manufacturing defects. In case the Purchaser should notify the Vendor about such defect within the warranty period, the Vendor shall agree to remedy such defect at his/her option at no cost for the Purchaser either by rectification or by delivery of faultless merchandise. The Vendor shall decide whether rectification be performed at the place where the merchandise is normally used, at one of his/her representations or subsidiaries or at his/her factory. Should the Vendor decide to perform rectification in any other than the place where the merchandise is used, the Purchaser shall arrange for professional and safe packaging of the defective merchandise at his/her expense and shall forward it to the address specified by the Vendor. In case the Vendor should fail to remedy such defect even after a reasonable period allotted by the Purchaser in written form has elapsed, the Purchaser then shall be entitled to a refund of the purchase price against return of the merchandise.
8.4. The Vendor shall only be obliged to remedy such defects if the Purchaser complies with his/her contractual obligations. In particular, this shall apply to the payments agreed upon.
8.5. No warranty shall be given by the Vendor for any defects caused by ordinary wear and tear (in particular in case of wearing parts) or by improper use. The warranty obligation of the Vendor shall lapse if the merchandise is being modified or repaired by either the Purchaser or by third party not explicitly authorized by the Vendor.
8.6. For devices made by other manufacturers but delivered together with the merchandise by the Vendor, the warranties of such other manufacturers shall apply accordingly. For wearing parts made by other manufacturers but delivered together with the merchandise by the Vendor, the warranties agreed upon with such other manufacturers shall apply.
8.7. Any other or further claims no matter whether these may arise either from the contract or from the applicable Law, shall be excluded; in particular this shall apply to claims to pay compensation for such damage that was not caused to the merchandise itself (consequential damage). However, this shall not apply to cases of intention, gross negligence or to lack of warranted quality, where warranty is mandatory by operation of the Law.
9. Industrial Property Rights and Copyrights
9.1. Unless otherwise agreed upon, the Vendor shall be responsible to effect delivery free from industrial property rights and copyrights of third parties (hereafter: protective rights) in the country where the place of delivery is located only. In case any third party should bring forward to the Purchaser any legitimate claim arising from the infringement of protective rights caused by merchandise supplied by the Vendor and used within the framework of this contract, the Vendor shall be liable towards the Purchaser to the following, within the time limit specified in Section 8.1:
a) The Vendor shall, at his/her option and expense, either secure the right on further use of the merchandise concerned, modify the goods in such way that the protective right will no longer be infringed or replace the merchandise. Should the Vendor not be able to do this in terms of reasonable conditions, the Purchaser will be entitled to use the legal rights to claim rescission of contract or reduction of purchase price.
b) The liability of the Vendor to pay damages shall be guided by Section 11. c) The obligations of the Vendor listed above shall only apply, if the Purchaser has informed the Vendor immediately and in writing about the existence of such claims brought forward by third parties, if he/she does not acknowledge such infringement and if the right to defensive measures and out-ofcourt settlement will be reserved to the Vendor. Should the Purchaser discontinue use of the merchandise for reasons of avoidable consequences or other substantial reason, he/she shall be responsible to inform the third party that this fact shall not represent acknowledgement of any infringement of protective rights.
9.2. Any claims made by the Purchaser shall be excluded, if he/she should be responsible for infringement of the property right.
9.3. Moreover, claims made by the Purchaser shall also be excluded, if the infringement of property rights has been caused by certain specifications required by the Purchaser, a type of use that was not foreseeable by the Vendor or by the fact that the merchandise has been modified by the Purchaser or that it is used in combination with such products which were not supplied by the Vendor.
9.4. In case of any other legal infirmity, the provisions of Section 8 shall apply accordingly.
9.5. Any further or other claims arising out of legal infirmity brought forward by the Purchaser towards the Vendor and/or his/her assistants which are not mentioned in this Section shall be excluded.
10. Rights to the Software
For programs, pertinent documentation as well as subsequent updates, the Purchaser shall be granted a non-exclusive and non-transferable right of use for the purpose of internal operation of such merchandise for which these programs were provided. Beyond that, the Purchaser shall not be granted any other rights to the programs, other documentation as well as to the subsequent updates; in particular this shall apply to the fact that the Vendor shall remain the sole owner of the copyrights. The Purchaser shall not make available such programs, other documentation and subsequent updates to third parties without having obtained the prior written consent of the Vendor and shall not copy or duplicate those in any other way, not even for his/her own purposes. Source programs shall be made available only if this has been agreed upon in form of a separate written contract.
11. Liability and Claims for Damages
Liability of the Vendor shall be based exclusively on the arrangements set out in these General Terms and Conditions. Any claims not explicitly granted to the Purchaser herein shall be excluded. In particular, this shall apply to any claims against the Vendor and his/her staff arising out of the violation of contractual duties, out of the violation of legal obligations in relation with contractual negotiations, out of unlawful act as well as out of the impossibility of contractual performance due to the fault of the Vendor; namely with regard to both direct as well as indirect damage (consequential damage). In relation with the delivery of software, the Vendor shall not be made liable for any loss or alteration of data caused by program errors and therefore shall not be responsible for any consequential recovery of such data. The above shall not apply to cases of intention or gross negligence where liability is mandatory by operation of the Law.
12. Place of Performance, Place of Jurisdiction, Storage of Data
12.1. If the Purchaser is a registered trader, in case of any disputes arising from this contract, legal proceedings shall be instituted at the court in charge for the main place of business of the Vendor or the relevant branch office that was responsible for delivery. The Vendor shall also be entitled to take legal action at the Purchaser’s place of business.
12.2. The Law of the FRG shall apply, however except for the CISG (United Nations convention on Contracts for the International Sale of Goods).
12.3. The Vendor shall be entitled to process and store any data gathered in the course of the business relations with the Purchaser in compliance with the Federal Data Protection Law, regardless whether such data should originate from the Purchaser himself/herself or from third party.
13. Scope of Validity
The above mentioned terms shall be applicable to all orders placed after August 1, 2012. Our General Terms and Conditions shall also apply to any future contracts signed with MGB. Unless otherwise provided for by the above conditions, normally the ”Allgemeinen Lieferbedingungen fuer Erzeugnisse und Leistungen der Elektroindustrie” (Terms and Conditions of Sale for Products and Services provided by the Electrical Industry) shall apply, as recommended (last revised in June 1997) by the Zentralverband der Elektrotechnik- und Elektronikindustrie e.V. (Central Association of the Electrical and Electronic Industry – Registered Association).
Done in Berlin in July of 2012.