Standard Terms & Conditions

Standard Terms & Conditions

§ 1 General scope of application

  1. All goods delivered and services provided by MBM innovations GmbH (hereafter referred to as MBM) are subject solely to the following Standard Terms and Conditions (hereafter STC).

  2. The Customer’s complimentary or contrary terms and conditions or such that differ from these STC will under no circumstances form part of the contract, even when not expressly rejected, unless MBM expressly consents to their application.

  3. The STC will also apply should MBM, although aware of the Customer’s contrary, complementary or differing terms and conditions, deliver the goods or provide the service to the Customer without reservation.

  4. All agreements between MBM and the Customer made in order to implement the contract must be recorded in writing. Should agreements between the parties include provisions differing from the STC, individually agreed contractual clauses will have precedence over these STC.

  5. The STC only apply to entrepreneurs within the meaning of § 14 paragraph 1 of the German Civil Code (“BGB”), public law legal entities and public law special funds. An entrepreneur is an individual or a legal entity or a partnership capable of carrying out legal transactions, exercising its commercial or independent professional activity in concluding a legal transaction.

  6. The STC also apply to all future transactions with the Customer provided legal transactions are involved that are covered by the general scope of application of the STC referred to in section 1.

§ 2 Conclusion of a contract

  1. The contract will come into effect when MBM confirms the order by the dispatch of an order confirmation and this has been received by the Customer. MBM is entitled to accept the order by sending an order confirmation within 14 days of having received the order.

  2. Should MBM’s order confirmation contain typographical or printing errors or should the pricing be based on technically induced transmission errors, MBM is entitled to annul the order. Any payments already received will be reimbursed to the Customer.

  3. Quotations, even when issued in the name of MBM, are subject to change and non-binding.

  4. Should MBM be bound by a quotation for a certain period of time and acceptance within a certain deadline, the quotation will apply as long as MBM has not issued an order confirmation during the period of commitment.

  5. Agreements on amendments and additions as well as supplementary undertakings must be confirmed by MBM in writing.

  6. Any information on quality beyond the contents of the order confirmation must be confirmed by MBM in writing. Public declarations, promotional statements or advertising on the other hand do not constitute information on quality forming part of the contract.

§ 3 Documents provided

  1. Documents forming part of the quotation such as leaflets, diagrams, drawings, information on weights and dimensions are only intended as approximations unless expressly referred to as binding.

  2. MBM retains all rights of ownership and copyright to diagrams, drawings, calculations and other documents.

  3. Each party is required to return immediately to the other party documents provided should a contract not be concluded between the parties or at the end of their business relationship.

§ 4 Delivery

  1. Goods will be delivered and services provided in accordance with the terms stated in the order confirmation..

  2. Information on delivery times is not binding unless expressly confirmed by MBM in writing in the order confirmation.

  3. As soon as MBM becomes aware of foreseeable delays in agreed dates, it is required to notify the Customer immediately and automatically. The Customer is also required to notify MBM in good time of delays in its area of operations that might impinge compliance with agreed deadlines so that MBM may take appropriate and necessary measures and precautions.

  4. Should delivery periods have been agreed instead of delivery dates, this will begin with the dispatch of the order confirmation. Should a prepayment or provision of security have been agreed between MBM and the Customer, the delivery period will not begin until the prepayment is made or security is provided.

  5. Should account be taken of subsequent changes requested by the Customer, the delivery period will be extended at least by the time that elapses between the order confirmation and the written confirmation of the amendment to the contract unless consideration of the change requested does not cause any delay.

  6. The above provisions concerning delivery periods also apply to delivery dates.

  7. Force majeure, strikes, lockouts as well as other impediments to MBM’s performance for which it is not responsible will lengthen agreed delivery dates and deadlines at most by the duration of the hindrance provided that such hindrances can be proved to have a considerable impact on completion or delivery. The same will apply should the impediments to performance referred to above by incurred by MBM’s suppliers. The circumstances referred to above will also not be the fault of MBM should they arise during a delay that has already occurred. MBM will notify the Customer immediately as soon as such impediments occur and as soon as they end.

  8. Should the delivery be delayed at the Customer’s request, the costs incurred as a result of storage will be invoiced with effect from a month after MBM has given notice that the goods are ready to be delivered; should the goods be stored in its factory, MBM may charge storage costs in accordance with usual local rates. MBM is however entitled, having set a deadline and this deadline having expired, to dispose of the goods elsewhere and to deliver equivalent goods to the Customer with a new delivery period.

  9. MBM may withhold the delivery and the service should the Customer have failed to make payments already due prior to the delivery or, in the case of an ongoing business relationship, should the Customer be in arrears with payments of other deliveries.

§ 5 Dispatch and transfer of risk

Risk will pass to the Customer as soon as deliveries are ready for shipment or have been picked up. Should dispatch be delayed or not carried out at the Customer’s request, risk will pass to the Customer on notification that the goods are ready for dispatch.

§ 6 Prices, price changes

  1. A fixed price will be agreed for the goods and services ordered. The fixed price covers all goods and services ordered.

  2. Prices are to be understood as excluding value added tax. This will be shown separately with the valid tax rate in accordance with the tax regulations in force at the time.

  3. Prices are to be understood as excluding the costs of packaging and freight.

  4. MBM is entitled to renegotiate the fixed price agreed with the Customer in the event of price increases by his suppliers, increases in wage and transport costs or other unanticipated cost increases. Should a period in excess of six months elapse between the conclusion of the contract and the agreed and/or actual delivery date, MBM’s prices at the time of the delivery or the time the goods are ready will apply.

§ 7 Payment conditions/ due date

  1. The fixed price is due for payment immediately and without any deductions as soon as the invoice is issued and received.

  2. The parties may agree different payment terms in individual cases.

  3. In the event of payment by instalments, subject to a separate agreement, the individual instalments are due for payment at the latest on the dates referred to in section 1.

§ 8 Arrears/ netting of claims and the right to withhold payment

  1. The Customer will be in arrears with his payment should he not have paid on the date referred to in § 7. Notwithstanding any other claims, MBM is entitled to charge interest at the rate of 9% p.a. above base rate from the time the payment is in arrears.

  2. Should payment by instalments have been agreed, notwithstanding any other payment terms that might have been agreed, MBM is entitled to declare its whole receivable due for payment once the Customer is in arrears with a single instalment.

  3. In such cases, MBM is also entitled only to make outstanding deliveries in return for payment in advance or the provision of security.

  4. The Customer may only net claims that are undisputed or have been established in law with MBM’s claims. This does not apply to claims that are closely linked with the primary obligation to perform.

  5. The Customer may only exercise a right to withhold payment with respect to the same contractual relationship. Moreover, all rights to withhold payment are excluded unless these rights are closely linked with the primary obligation to perform.

§ 9 Warranty

  1. Should the Customer report defects subject to warranty, MBM is entitled at its own option to remedy the defect or to provide replacement goods.

  2. Should MBM decide to provide subsequent fulfilment by remedying the defect, the Customer will not have additional warranty rights until MBM has twice failed to remedy the defect.

  3. Obvious defects must be reported immediately, at the latest within 14 days of the receipt of the goods, including an exact description of the defect. Hidden defects and such defects as only become evident once machinery and tools are operating must be reported as soon as they are discovered, including an exact description of the defect. Otherwise, the provisions of § 377 of the German Commercial Code (“HGB”) will apply.

  4. Minor suspected variances in dimensions and execution – particularly in the case of follow-up orders – will not constitute a defect unless absolute compliance has been expressly agreed. Technical improvements as well as necessary technical changes will also be deemed according to contract provided that they are reasonable and do not constitute an impairment of the product’s fitness for purpose.

  5. The Customer’s attention is hereby drawn to the fact that information on quality included in the description of the product does not constitute guarantees in the legal sense of the term.

  6. Express guarantee declarations must be sent to the Customer and confirmed by MBM in writing.

  7. Moreover, any warranty liability is excluded should the Customer have failed to comply with rules on the treatment, maintenance and care of the goods delivered notified by MBM.

  8. Warranty liability is also excluded in the event of any intervention by third parties (outside companies etc.) as well as changes not carried out by MBM.

  9. Used goods sold are delivered without any warranty whatsoever.

  10. Should MBM provide the Customer with information on the use of the product in excess of what is required by law and contract, MBM will only be liable in accordance with § 10 should a separate fee have been agreed for this additional information.

§ 10 Liability

  1. Unless MBM or its vicarious agents have infringed essential contractual obligations intentionally, with gross negligence of at least through minor negligence, all claims for compensation against MBM, no matter what their legal grounds, are excluded irrespective of their legal basis. Essential contractual obligations are those obligations that protect the Customer’s essential legal status, which the contract, due to its content and purpose, is expressly intended to safeguard; essential contractual obligations are also such obligations the fulfilment of which makes the proper implementation of the contract possible in the first place and on whose compliance the Customer relies and may rely.

  2. In the event of gross negligence or negligence in infringing an essential contractual obligation, compensation is limited to the damage typical for this kind of contract that was foreseeable at the time the contract was concluded.

  3. Liability for injury to life, limb or health, for the absence of a quality for which MBM has assumed a guarantee as well as for liability in accordance with the German Product Liability Law is not affected.

  4. MBM is not liable for faulty handling, improper use, unsuitable operating supplies or defective construction work by the Customer or third parties, unusual external influences, non-reproducible software errors, changes or refurbishment carried out by third parties or connection or combination with third party parts not authorised by MBM.

  5. Nor is any warranty assumed for damage incurred for the following reasons: unsuitable or improper use, incorrect assembly or commissioning by the Customer or by third parties, natural wear and tear, improper operation, or careless handling of the goods by the Customer, unsuitable operating supplies or replacement materials, defective construction work, or an unsuitable construction site on the Customer’s premises, chemical, electronic influences unless all this is the fault of MBM, also incorrect information provided by the Customer or his advisers on operating or technical conditions as well as the chemical and physical conditions in which the goods are used.

  6. MBM is also not liable for damage due to force majeure, civil unrest, war, terror or natural disasters or that occur as a result of other events for which it is not responsible; these include, for example, strikes, lockouts, traffic disturbances or acts of sovereign authorities, whether domestic or foreign.

§ 11 Time limitation

  1. The limitation period for defects of quality and title is 12 months from the time that risk passes unless the law stipulates a longer limitation period.

  2. The limitation period will however expire prematurely should the Customer attempt to make repairs or carry out changes or should operating instructions not be complied with.

  3. The limitation period in the event of suppliers’ recourse in accordance with §§ 478, 479 BGB is not affected

  4. A limitation period of two years will however apply to all claims for compensation or reimbursement of expenses incurred needlessly in the case of contractual or extra-contractual liability pursued against MBM – except in cases of deliberate intent, gross negligence or injury to life, limb, health or personal freedom. The period will begin at the time stipulated in § 199 BGB. It will occur at the latest on the expiry of the maximum deadlines stipulated in § 199 paragraphs 3 and 4 BGB. This will not affect other limitation periods in these STC.

§ 12 Reservation of title

  1. MBM will reserve title to the goods delivered (reserved goods) until all claims it has against the Customer on every legal ground have been completely fulfilled.

  2. The Customer is required to notify MBM immediately in writing of any attachment of the reserved goods and to inform the pledgees of the reservation of title. The Customer is not entitled to sell, donate or encumber the goods delivered subject to reservation of title or to transfer ownership as security for a debt apart from in the cases listed below.

  3. Should the delivery be made to a business operation run by the Customer, the goods may be re-sold as part of normal business activity. In this case, the Customer’s claims against the purchaser arising from the sale are assigned to MBM with immediately effect. Should the goods be re-sold on credit, the Customer for his part will be required to reserve title vis-à-vis his customer. The Customer hereby assigns to MBM the rights and claims against the purchaser derived from this reservation of title. MBM hereby accepts this assignment.

  4. The Customer will carry out at no expense any processing or alteration of the reserved goods on behalf of MBM. Should the reserved goods be processed, combined or mixed with other goods not belonging to MBM, MBM will be entitled to co-ownership of the new goods thereby produced in proportion to the factor-value of the reserved goods to the other processed goods at the time of the processing, combination or mixing.
    Should the Customer acquire sole ownership of a new product, the contractual partners are agreed that the Customer will grant MBM co-ownership of the new product in proportion to the factor-value processed, combined or mixed reserved goods and will store this product on behalf of MBM at no expense. Should the reserved goods be re-sold together with other goods, irrespective of whether without or after processing, combining or mixing (the goods), the advance assignment agreed above in section 3 will only apply to the extent of the factor-value of the reserved goods that have been re-sold together with the other goods.

  5. Should the reserved goods be integrated as an essential element by the Customer or on his behalf into land owned by a third party, the Customer assigns any claims to remuneration against the third party or the party concerned thereby created, together with any ancillary claims, including the grant of a mortgage, to MBM with immediate effect.

  6. Should the reserved goods be integrated into the Customer’s land as an essential element, the Customer assigns to MBM with immediate effect any claims together with all ancillary rights arising from a sale of the land or of rights to the land.

  7. Should the value of the security held on MBM’s behalf in accordance with the above provisions exceed the value of its claims, not only temporarily, by more than 20% in total, MBM will be required, on an appropriate request by the Customer, to release securities that he may select.

  8. Should the Customer act in breach of contract, particularly in the event of payment arrears, MBM will be entitled to recover the goods delivered, and the Customer required to return them, after a reminder and declaration rescinding the transaction has been issued. MBM will be required to return the goods should the Customer have fulfilled the contract.

§ 13 Confidentiality

  1. The customer undertakes to keep secret all information transmitted in carrying out the contract. The Customer will not disclose, pass on, use or exploit information and data, neither directly nor indirectly, for its own purposes or those of a third party. The Customer undertakes only to allow such employees and sub-contractors access to the information and data transmitted to him as require it for the purposes of the contract and, as far as legally permitted, to commit these employees to secrecy, also after they have left the service of the company.

  2. The above obligations do not apply to information and data that - were already public knowledge at the time it was transmitted; - were already known to the customer at the time it was transmitted; - became public knowledge after they were transmitted without any blame on the part of the customer; - were legally disclosed to the Customer by a third party after transmission and made accessible without any restriction as regards secrecy or use; - had to be disclosed due to provisions of the law, by order of a public authority or judgement of a court of law.

  3. The Customer acknowledges that, with regard to the information and data transmitted by MBM, MBM remains the sole holder, owner and authorised beneficiary of associated intellectual property rights and commercial proprietary rights, particularly the right to know-how and patent rights throughout the world for all types of use.

  4. Information and data is transmitted solely in order to implement the contract. The Customer does not receive this information and data for the purpose of his own independent use or use by third parties. MBM does not grant the Customer any kind of licence whatsoever.

  5. The information and data transmitted must be stored safely. They must be transmitted back to MBM or returned to the bearer of this information and data whenever this is requested by MBM. The Customer undertakes not to withhold any copies or duplicates or other documentation of the information and data transmitted. The restitution obligation does not apply to such information and data as the Customer requires in order to install or operate the goods delivered.

  6. The unauthorised passing on (of information and data) to third parties or use by third parties will entitle MBM to rescind all current contracts and to demand compensation.

§ 14 Severability clause

Should one or more clauses in these terms and conditions be or become wholly or partially invalid, be incomplete or there be omissions that require to be remedied, this will not affect the validity of the remaining clauses. In this case, the parties undertake to agree a provision that most closely approximates to what was intended commercially. The same procedure is to be applied in the event of omissions.

§ 15 Applicable law, place of jurisdiction

  1. The business relationship between MBM and the Customer is subject solely to German law, even if the Customer is domiciled or has his place of business in another country. The application of UN purchasing law (CISG) is excluded.

  2. The sole place of jurisdiction for all legal disputes in connection with the business relationship is MBM’s place of business provided the Customer is a registered trader, a public law legal entity, public law special assets or should he not have a domestic place of jurisdiction. MBM is also entitled to lodge claims at the Customer’s general place of jurisdiction.