Terms and Conditions
1.1 All deliveries, services and offers of MBK are made exclusively on the basis of these General Terms and Conditions of Delivery. These are part of all contracts concluded by MBK with its contractual partners (hereinafter also referred to as "customers") for the deliveries and services offered by MBK. They also apply to all future deliveries, services or offers to the customer, even if they are not agreed separately again.
1.2 Terms and conditions of the customer or third parties shall not apply, even if MBK does not contradict their validity separately in individual cases. Even if MBK refers to a letter containing or referring to terms and conditions of the customer or a third party, there is no agreement with the validity of those terms and conditions.
2. Offer and conclusion of contract
2.1 All offers by MBK are subject to change and are non-binding unless they are expressly marked as binding or contain a specific acceptance period. MBK may accept orders or orders within 14 days of receipt.
2.2 the written purchase contract including these General Terms and Conditions of Delivery shall be solely decisive for the legal relations between MBK and the customer. This shall fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Oral commitments made by MBK prior to the conclusion of this contract are legally non-binding and oral agreements of the contracting parties are replaced by the written contract, unless it is explicitly stated in each case that they continue to apply in a binding manner.
2.3 Amendments and modifications to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective. With the exception of managing directors and/or authorized signatories, MBK's employees are not entitled to make any verbal agreements that deviate from this. Transmission by fax is sufficient to preserve the written form. In addition, the telecommunication transmission, in particular by email, is not sufficient.
2.4 Information provided by MBK on the subject matter of the delivery or service (for example, dimensions and weights) and representations thereof (for example, in drawings or illustrations) are only approximate, unless the use for the contractually intended purpose requires an exact agreement. They are not guaranteed characteristics, but descriptions or markings of the delivery or service. Standard commercial deviations and deviations that are made on the basis of legal regulations or represent technical improvements are permitted, provided that they do not impair the usability for the contractually intended purpose.
3. Prices and figures
3.1 The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. Prices are in EUROS ex works plus packaging plus statutory value added tax, in the case of export deliveries plus customs and other public charges.
3.2 Insofar as the agreed prices are based on the list prices of MBK and the delivery is to take place more than four months after the conclusion of the contract, the list prices of MBK valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).
3.3 Invoices are to be paid within 30 days without any deduction, unless otherwise agreed in writing. The date of payment is determined by receipt by MBK. Cheques are considered payment only after they have been cashed. If the customer fails to pay on due date, the outstanding amounts shall be subject to interest at a rate of five percent p.a. from the date of due date. The assertion of higher interest and further damages in the event of delay remains unaffected.
3.4 Offsetting against counter-claims of the customer or the retention of payments due to such claims is only permissible if the counter-claims are undisputed or have been legally established.
3.5 MBK is entitled to carry out or provide outstanding deliveries or services only against advance payment or the provision of security, If, after the conclusion of the contract, it becomes aware of circumstances which are substantially liable to reduce the creditworthiness of the customer and by which the payment of the outstanding claims of MBK by the customer from the respective contractual relationship is endangered.
4. Delivery and Delivery Time
4.1 Deliveries are ex works.
4.2 Deadlines and deadlines for deliveries and services provided by MBK shall always apply only approximate unless a fixed deadline or a fixed date has been expressly promised or agreed. If dispatch has been agreed, delivery periods and delivery dates refer to the time of handover to the freight forwarder, carrier or other third parties commissioned with the transport.
4.3 MBK may – without prejudice to its rights arising from the customer's default – demand from the customer an extension of delivery and performance periods or a postponement of delivery and performance dates by the period in which the customer fails to fulfil its contractual obligations toward MBK.
4.4 MBK shall not be liable for the impossibility of delivery or for delivery delays, insofar as these were caused by force majeure or other unforeseeable events (e.g. business disruption or strike) at the time of conclusion of the contract, for which MBK is not responsible. If such events make delivery or service considerably more difficult or impossible or the impediment is not only of a temporary duration, MBK is entitled to withdraw from the contract. In the event of obstacles of a temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus an appropriate start-up period. Insofar as the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to MBK.
4.5 MKB is only entitled to partial deliveries, If
- the partial delivery is usable for the customer within the scope of the contractual intended purpose,
- the delivery of the remaining ordered goods is ensured and
- the customer does not incur any significant additional expenditure or additional costs (unless MBK agrees to assume these costs).
4.6 If MBK is in default with its delivery or service or if a delivery or service becomes impossible for him for any reason, the liability of MBK is limited to compensation in accordance with section 8. Of these General Terms and Conditions of Delivery.
5. Place of performance, dispatch, packaging, transfer of risk, acceptance
5.1 the place of performance for all obligations arising from the contractual relationship is Kamen, Germany, unless otherwise specified.
5.2 the method of dispatch and packaging are subject to MBK's dutiful discretion.
5.3 the risk shall pass to the customer at the latest upon the handover of the delivery item to the freight forwarder, carrier or other third parties intended to carry out the shipment. This also applies if partial deliveries are made. If dispatch or handover is delayed as a result of a circumstance which is the cause of which lies with the customer, the risk shall pass to the customer from the day on which the delivery item is ready for dispatch and MBK has notified the customer of this.
5.4 Storage costs after transfer of risk shall be borne by the customer. In the case of storage by MBK, the storage costs are 0.25% of the invoice amount of the delivered items to be stored per expired week. The right to assert and prove further or lower storage costs remains reserved.
5.5 MBK shall only insure the consignment against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the customer and at its expense.
6. Warranty, material defects
6.1 The warranty period is one year from delivery.
6.2 The delivered items must be carefully examined immediately after delivery to the customer or to the third party designated by him. They shall be deemed to have been approved if MBK has not received a written notice of defects within seven working days of delivery of the delivery item or otherwise within seven working days of discovery of the defect. At the request of MBK, the rejected delivery item must be returned to MBK carriage paid. In the event of a justified notification of defects, MBK shall reimburse the cost of the most favourable shipping route.
6.3 In the event of material defects in the delivered items, MBK shall be obliged and entitled, at its discretion within a reasonable period of time, to rectify the defect or to deliver a replacement. In the event of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the customer can withdraw from the contract or reduce the purchase price appropriately.
6.4 If the defect is due to a fault of MBK, the customer can claim compensation under the conditions specified in section 8.
6.5 The warranty shall lapse if the customer changes the delivery item without the consent of MBK or has it changed by third parties and the elimination of defects is thereby made impossible or unreasonably difficult. In any case, the customer shall bear the additional costs of rectifying defects arising from the change.
7. Liability for damages due to fault
7.1 MBK's liability for damages, regardless of the legal reason, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, insofar as fault is involved in each case, is restricted in accordance with this clause 7.
7.2 MBK is not liable in the event of simple negligence on the part of its organs, employees or other vicarious agents, unless there is a breach of essential contractual obligations. The obligation to deliver the delivery item free of essential defects in a timely manner as well as consulting, protection and care obligations, which are intended to enable the customer to use the delivery item in accordance with the contract, are essential to the contract.
7.3 Insofar as MBK is fundamentally liable for damages, this liability is limited to damage that MBK foresaw as a possible consequence of a breach of contract when the contract was concluded or that MBK should have foreseen if it had exercised due diligence. Indirect damage and consequential damage resulting from defects in the delivery item can only be compensated if such damage is typically to be expected when the delivery item is used as intended.
7.4 In the event of simple negligence, MBK's liability to pay compensation for damage to property and the resulting further financial losses is limited to an amount of ………10,000 euros per claim (corresponding to the current coverage amount of product liability insurance or liability insurance from MBK), even if it is a violation of essential contractual obligations.
8. Retention of ownership
8.1 Retention of title agreed below serves to secure all existing and future claims of MBK against the customer from the supply relationship existing between the contracting parties.
8.2 Goods delivered by MBK to the customer remain the property of MBK until all secured claims have been paid in full. The goods as well as the goods covered by the retention of title according to this clause to their representatives are hereinafter referred to as reserved goods.
8.3 The customer shall store the reserved goods free of charge for MBK.
8.4 The client is entitled to process and sell the reserved goods in the ordinary course of business until the event of enforcement occurs. Pledges and security pledges are prohibited.
8.5 In the event of the resale of the reserved goods, the customer hereby assigns the resulting claim against the purchaser to MBK as security. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims from tort in the event of loss or destruction. MBK revocably authorises the client to collect the claims assigned to MBK in its own name. MBK may only revoke this direct debit authorisation in the event of realisation.
8.6 If third parties access the goods subject to retention of title, in particular through seizure, the client will immediately point out MBK's ownership and inform MBK about this in order to enable MBK to enforce its property rights. If the third party is not in a position to reimburse MBK for the court or out-of-court costs incurred in this context, the customer shall be liable in relation to MBK.
8.7 If MBK withdraws from the contract in the event of breach of contract by the customer - in particular default in payment - MBK is entitled to demand the return of the reserved goods.
9. Property Rights
9.1 If deliveries are made in accordance with drawings or other information provided by the customer and if third-party property rights are thereby infringed, the customer shall indemnify MBK from all third-party claims.
9.2 Licence claims of the customer on the basis of industrial property rights on models submitted or manufactured or procured on his behalf are excluded, insofar as they are used by MBK in accordance with the contract.
9.3. Sketches, drafts and drawings prepared by MBK shall remain the property of MBK unless expressly agreed otherwise. The customer has no right of retention in these documents.
10. Final provisions
10.1 The place of jurisdiction for all possible disputes arising from the business relationship between MBK and the customer is MBK's registered office. Mandatory statutory provisions on exclusive jurisdiction shall remain unaffected by this provision.
10.2 Insofar as the contract or these General Terms and Conditions of Delivery contain loopholes, those legally effective provisions which the contractual partners 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 known the loophole, shall be deemed to have been agreed to fill these loopholes.
10.3 The relationship between MBK and the customer is exclusively subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) does not apply.
10.4 Should individual provisions of the contract or these general terms and conditions be invalid, the validity of the contract or the other general terms and conditions shall not be affected thereby.