Deliveries and services of MIBGATE GmbH in business transactions are exclusively subject to the following GTC.
Other terms and conditions – even if they are not specified and/or mentioned in these GTC – do not apply. Changes and additions to these GTC and/or the underlying contract must be made in writing. This also applies to the cancellation of the written form requirement.
Supplementary reference is made to the license conditions of the manufacturer enclosed with the contractual products. They shall also be deemed to be agreed.
2. Supplies and Services
Offers of MIBGATE GmbH are always subject to change and non-binding. A contract is only concluded with the written order confirmation of MIBGATE GmbH.
The customer reserves the right to reasonable technical and creative deviations from information in brochures, catalogs and written documents as well as model, construction and material changes in the course of technical progress and further development, without any rights against MIBGATE GmbH can be derived from this. The reservation of change also applies with regard to deviations from the quantity and quality of the contractual items.
MIBGATE GmbH expressly reserves the right to reasonable partial deliveries and their invoicing.
Agreed delivery dates are considered to be met if the contractual product has been handed over to the person or institution commissioned to execute the contract on the agreed date. Delivery dates are always subject to the timely and correct self-delivery by the concretely engaged of MIBGATE GmbH.
If the shipment of goods ready for dispatch is delayed for reasons that are not the responsibility of MIBGATE GmbH, the contractual items can be stored at the expense and risk of the customer.
The customer is obligated to inspect the contractual items. If a complaint is not made within six days, the goods shall be deemed to have been delivered properly and in full, unless the defect was not apparent during the inspection. Insignificant defects that do not impair the functionality of the delivery items do not entitle the customer to refuse acceptance and/or acceptance of the goods.
3. Transfer of Risk and Place of Performance
- The transfer of risk to the customer takes place with the handover of the contractual items to the person or institution commissioned to carry out the shipment. If the shipment is delayed or becomes impossible for reasons that are not the fault of MIBGATE GmbH, the risk is transferred with the notification of readiness for shipment.
- Place of performance for the services of MIBGATE GmbH is 47877 Willich.
4. Prices and Terms of Payment
The current specialized trade price list applies ex delivery warehouse 47877 Willich plus the ancillary costs specified in the specialized trade price list, in particular the statutory value added tax, packaging, transport costs incl. insurance, environmental and handling flat rate.
Payments are due within 14 days after invoicing without any deductions. Invoices shall be issued upon delivery. Cheques are only accepted on account of performance. The customer’s right of redemption according to § 366 para. 1 lit. I BGB is excluded. Only §§ 366 para. II, 367 BGB shall apply.
Offsetting or assertion of a right of retention with claims not recognized by MIBGATE GmbH or not legally established is excluded. Any delay in payment by the customer entitles MIBGATE GmbH to provide deliveries and services not yet executed but confirmed only against advance performance by the customer.
5. Retention of Title
Until payment of all claims arising from the business relationship, MIBGATE GmbH retains ownership of the delivery of goods. Goods, to which MIBGATE GmbH is entitled to ownership, WILL hereinafter be referred to as reserved goods. The customer is obligated to adequately insure the goods subject to retention of title at his own expense against all common risks, in particular fire and burglary risks, and to provide proof of this upon request.
In case of processing of goods subject to retention of title with goods that are owned by the customer or third parties, MIBGATE GmbH acquires co-ownership of the resulting goods. The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledges or transfers of ownership by way of security are not permitted. The customer hereby assigns the claim from a resale of the reserved goods to MIBGATE GmbH, also insofar as the goods are processed. MIBGATE GmbH authorizes the customer in a manner that is always revocable to collect the assigned claims for his account in his own name. Upon request of MIBGATE GmbH, the customer WILL disclose the assignment and provide information and documents for settlement.
If the value of the securities exceeds the payment claims of MIBGATE GmbH by more than 20%, this is on demand of the customer the exceeding part of the securities free. In case of access of third parties to goods subject to retention of title, in particular in case of seizure, THE CUSTOMER SHALL be informed about the ownership of MIBGATE GmbH and shall notify MIBGATE GmbH immediately. Costs associated with this shall be borne by the customer.
In case of behavior contrary to the contract of the customer, especially in case of default of payment, MIBGATE GmbH is entitled to take back the reserved goods at the expense of the customer or, if necessary, to demand assignment of the customer’s claim for return against the customer. In the repossession as well as the seizure of the goods subject to retention of title by MIBGATE GmbH, a withdrawal from the contract is only present in legally compelling cases.
6. Liability for Material Defects
MIBGATE GmbH guarantees that the products provided are free of defects at the time of transfer of risk, which significantly reduce or cancel the value or the suitability for the usual or assumed use. However, the parties are aware that it is not possible according to the state of the art to exclude software errors under all application conditions.
The liability for material defects is 12 months and begins with the transfer of risk. The liability for material defects is initially limited to the entire delivery or also of individual parts at the discretion of MIBGATE GmbH to rectification or replacement.
As long as the obligation to remedy the defects WILL be fulfilled, the customer does not have the right to demand reduction of the remuneration (reduction), cancellation of the contract (withdrawal) or compensation for damages, unless there is a definite failure of the remedy.
A failure of the rectification or replacement delivery is only to be assumed IF MIBGATE GmbH has been given the opportunity for rectification or replacement delivery, IF IT IS IMPOSSIBLE, IF IT IS REFUSED or unreasonably delayed by MIBGATE GmbH, IF there are reasonable doubts about the chances of success or IF there is unreasonableness for other reasons. As long as MIBGATE GmbH is not in delay with the rectification of defects and this has not finally failed, the customer is also not entitled to have defects rectified by third parties.
Liability for material defects is not assumed if:
- The defects on the delivery items occurred due to improper transport or improper processing by the customer or by third parties commissioned by the customer.
- If the customer does not comply with the specifications. Care and cleaning instructions held hat.
- Wear parts and wear materials are affected.
- The defects have arisen due to poor storage or improper use.
- The delivery items have been processed or combined with third party products without this being covered by the intended use stated in the specification.
- The instructions in the operating manual have not been followed.
- Serial numbers die on the delivery item or die references to the date of manufacture have been removed.
- The defects are due to insufficient cooperation of the trusted customer. The claim arising from liability for material defects shall not lapse if the customer furnishes proof that the defects have no causal connection with the aforementioned conditions.
If the examination of a notice of defect on the part of the customer shows that there is no case of warranty, MIBGATE GmbH can charge the customer for the costs of examination and repair.
If the manufacturer of the goods provides a – usually dependent – warranty on his products, MIBGATE GmbH passes this on to the customer.
Claims from material defect liability against MIBGATE GmbH are only entitled to the direct customer and are not transferable.
7. Industrial Property Rights and Copyrights of Third Parties
MIBGATE GmbH does not assume any liability that the contractual products do not violate any industrial property rights or copyrights of third parties. The customer has to inform die MIBGATE GmbH of all claims raised against this reason after him.
If the delivered products have been manufactured according to designs or orders of the customer, the customer has to exempt MIBGATE GmbH from all claims, which are made by third parties due to the violation of industrial property rights and copyrights. Any legal costs are to be advanced appropriately.
For personal injuries as well as for claims from the product liability law, MIBGATE GmbH is bound within the scope of the legal regulations.
For other damages MIBGATE GmbH is only liable as far as it, its legal representatives or vicarious agents are guilty of intent or gross negligence. Furthermore, MIBGATE GmbH remains liable even in the case of explicit slight negligence in the case of explicit assumption of a guarantee and in the case of contractual obligations, on the fulfillment of which the customer may rely to a special degree.
In case of slightly negligent violation of contractual obligations as well as gross negligence of such vicarious agents who are not executives, MIBGATE GmbH is only liable to the amount of the foreseeable damage.
Apart from that, MIBGATE GmbH is not liable for cases of slight negligence, regardless of the legal reason.
Liability for consequential damages such as lost profits, lost savings and other indirect damages is excluded, unless the purpose of the contract is endangered.
The limitations of liability also apply to the employees of MIBGATE GmbH.
9. Export and Import Licenses
The export of the delivered products requires the written consent of MIBGATE GmbH, regardless of the fact that the customer is responsible for obtaining any official import and export permits. The customer is furthermore responsible for the compliance with the license conditions.
Any onward delivery of contractual products by customers to a third party requires the transfer of the export license conditions. The customer is liable for the proper observance of these conditions towards MIBGATE GmbH.
10. Electric Scrap
MIBGATE GmbH endeavors to sell only products from manufacturers that meet the requirements of the ElektroG. This does not imply the assumption of any further responsibility.
11. Impediments to Performance Through No Fault of Our Own
If due to the effect of force majeure, e.g. war or unrest, natural disasters or fire, epidemics or quarantine, strike or lockout, measures of the government or due to other, events, events can be fulfilled, MIBGATE GmbH is released from the compliance with this obligation to the extent of the effect and the customer is released from the obligation to counter-performance. This also applies if the events occur during a delay that has already occurred. Any delivery dates are extended by the duration of the unforeseen event, as far as reasonable.
12. Right of Withdrawal for Consumers
You have the right to revoke this contract within fourteen days without giving any reason. The withdrawal period is fourteen days from the day on which you or a third party named by you, who is not the carrier, have taken possession of the goods. To exercise your right of withdrawal, When & YOU the MIBGATE GmbH (Alte Poststraße 38, 47877 Willich) by means of a clear statement (eg a letter sent by mail, fax or e-mail) about your decision to revoke this contract. To meet the revocation deadline, it is sufficient that. YOU send the notice of exercise of the right of withdrawal before the expiry of the withdrawal period.
13. General Provisions
The customer is not entitled to assign his claims from the contract, if MIBGATE GmbH has not agreed in writing beforehand.
The place of jurisdiction is Düsseldorf. The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
The order processing takes place within MIBGATE GmbH with the help of automatic data processing. The customer has herewith his explicit consent to the processing of the data, which have become known to and are necessary for MIBGATE GmbH in the context of the order relations. The customer agrees that. die MIBGATE GmbH die from the business relationship data for business purposes of MIBGATE GmbH, in particular also for advertising purposes used.
Should individual provisions be or become void, ineffective or contestable, the remaining provisions remain unaffected and are then to be interpreted or acquire. supplemented in such a way that the intended economic purpose is achieved as closely as possible in a legally permissible manner. This also applies to any gaps that may require supplementation. The validity of the remaining provisions shall remain unaffected.