These are the general terms and conditions of Minitüb GmbH:
1. The General Terms and Conditions stipulated hereunder shall apply exclusively to all deliveries and other services provided to or rendered by entrepreneurs (each natural/legal entity or joint partnership acting with legal capacity to execute its commercial or self-employed business activity at the time of signing the contract). Any other terms or conditions of customers/suppliers shall in no way become part of the contract. That shall apply even if we are aware of them or have not rejected them explicitly, unless we explicitly agreed to their application in writing.
2. The invalidity of specific conditions hereunder shall not affect the validity of its remainder. The same shall apply in case that individual conditions do not become part of the contract.
1. Delivery periods shall be agreed in writing. The delivery period shall not commence, unless customer has furnished all required documents, permits and authorisations and made the agreed advance payment. The delivery period shall be deemed met upon dispatch of the goods.
2. Partial deliveries are permitted, insofar as a delivery in parts and in timely intervals is reasonable to the customer.
3. In the event that delivery is temporarily impossible or excessively difficult due to unforeseen events, in particular due to acts of god, official measures, factory shutdown, strikes, national or international foreign trade requirements or embargo and/or other sanctions or similar circumstances (including with suppliers), that are outside of our sphere of influence, we shall be released from our obligation to delivery for the time such event and its effects are prevailing. If the contractually agreed service becomes finally impossible due to unforeseen events, in particular due to acts of god, official measures, factory shutdown, strikes, national or international foreign trade requirements or embargo and/or other sanctions or similar circumstances (including with suppliers), that are outside of our sphere of influence, we shall be entitled to withdraw from the contract. In case of non-performance, late or defective delivery by subcontractors, we shall be exempted, in part or in whole, from our delivery obligation. The aforementioned shall apply only in case that we have taken all necessary measures to procure the goods to be delivered by us. We shall be obliged to notify any unavailability of goods without undue delay, and reimburse any payments made for such goods.
4. Shipping - including within the same site and/or in case of freight-free delivery - shall be at the cost and risk of customer. Unless we have received special instructions by customer, we shall choose the type of shipping. We will only take out transport insurances to the extent and at the cost of customer, if requested so by the latter. We exclude any type of liability for delays during transport.
5. The minimum order quantity for deliveries within the EU amounts to EUR 40.00, after deduction of any discounts, for deliveries outside of the EU to EUR 80.00 after deduction of any discounts. If the quantity of any purchase order is below the quantity specified above, we shall be entitled to charge a minimum quantity surcharge of EUR 12.00.
III. Buyer’s Obligations
1. Customer shall be obliged to accept the acceptable purchase object when delivered.
2. In case that customer fails to accept the goods in due time, we shall be entitled to store the goods at the cost and risk of customer at our warehouse or with third parties, or to dispose of the same in such way we consider to be appropriate on account of the customer without giving prior notice.
3. In case that customer terminates the contract without justification prior to delivery or return of flawless goods by customer, we shall be entitled to claim damages. Such claim shall be limited to EUR 12.00 for the return of flawless goods, or to 10% of the purchase value, if the purchase price exceeds EUR 120.00 net, or to EUR 5.00 for an unauthorised termination of an order, or to 5 % of the purchase value, if the purchase price exceeds EUR 100.00 net. Such damage claim shall be subject to adjustment according to higher or lower damage for which either party provided evidence.
IV. Liability for Defects
1. The subject matter of the contract shall exclusively be the sold goods with the qualities as described in the product specification sheet. Any different quality or any further warranted quality shall be deemed agreed only if such warranted quality was explicitly confirmed by us in writing.
2. Customer shall inspect the delivered goods for obvious defects immediately upon transfer of risk. Any claims for obvious defects shall be made immediately, however, within 10 days from receipt of the goods at the latest. Hidden defects shall be notified within 10 days after having been detected, however, within one year from arrival of the goods at the latest. Complaints and notifications of defects must at least be made in writing.
3. Failure to inspect the goods or notify any defects shall be deemed acceptance of the defective goods.
4. We shall assume warranty, at our option, by rectification of defects or replacement delivery. If we are not able to rectify or replace the defective goods, customer may, at their option, either claim for reduced purchase price (reduction) or withdraw from the contract. Rectification shall be deemed to have failed if we fail to rectify the defect after having been granted a minimum of two opportunities for rectification or replacement delivery. In the context of any non-performance or defective performance of the service, any withdrawal shall be excluded if the violation of our duty is insignificant.
5. Any loss or damage caused during transport shall be notified by the recipient to the shipping agent, and sufficiently documented prior to acceptance of the delivered goods. Any damage caused during transport shall not constitute a reason to reject delivery. The same shall apply in case of transportation of goods by third parties.
6. Any warranty claims of the customer will become statute barred within one year from the date of arrival of the goods with the customer. The foregoing shall not apply in case that we are liable for compensation of the costs incurred by customer to the consumer for the sale of new goods in respect of subsequent performance. Furthermore, the above mentioned limitation periods shall not apply to claims for damages arising from liability for material defects, where this includes, inter alia, also claims for the violation of a duty for subsequent fulfilment; the statutory limitation periods and the provisions in section VII. hereof shall apply to those claims and all other claims for damages.
1. Notwithstanding other agreements, the customer’s payment shall be made net cash within 10 days from the date of the invoice, without deduction.
2. If the customer is in default of payment of any invoice amount, we shall be entitled to request interest in the amount of the legally stipulated default interest rate from the start of the default. Our right to assert further claims for default shall remain unaffected thereby.
3. Customer shall not have the right to set-off or retention, unless their counterclaim is undisputed, legally established or disputed but ready for decision-making.
VI. Reservation of Title
1. We shall reserve title to the delivered goods until customer has made full payment of the purchase price and settled all claims existing or arising later from the business relationship with customer (hereinafter goods subject to reservation of title).
2. If goods subject to reservation of title are inseparably combined, mixed or blended with other goods, we shall become co-owners of the combined product to the proportion equivalent to the value of the goods subject to reservation of title at the time of combination, mixing or blending.
3. We shall become co-owners of the new product created by treatment or processing of the goods subject to reservation of title to the proportion equivalent to the value of the goods subject to reservation of title.
4. Customer shall keep the goods subject to reservation of title for us, and shall take out appropriate insurance covering the common risks on their account, and assign to us any and all insurance claims, if we request so. We shall also be entitled to pay insurance premiums on account of customer.
5. Customer shall be entitled to re-sell the goods, including the goods created by combination, mixing or blending, only for the purpose of their ordinary business activity. Any other disposal over the goods, in particular pledging or cession by security, shall not be permitted.
6. Customer shall herewith assign to us any and all claims from the resale of goods subject to reservation of title or goods created by treatment or processing of such goods subject to reservation of title. We shall accept such assignment. Customer herewith agrees to assign to us a priority share of any claims for the sale of goods of which we have become co-owners due to combination, mixing or blending, equivalent to our co-ownership proportion to the goods sold, and we shall accept such assignment. If customer sells goods of which we are owners or co-owners, together with other goods, which do not belong to us, at a lump sum price, customer herewith agrees to assign to us a priority share of such lump sum claim equivalent to the proportion to the goods subject to reservation of title, and we shall accept such assignment.
7. Customer shall be authorised to collect any claims from the resale subject to revocation at any time. They shall tell us the names of the debtors of the claims assigned to us, inform the same about the assignment of such claims, or furnish to us the respective notice of assignment, if we request so. We shall keep such assignments confidential as long as customer meets his payment obligation.
8. If the amount of the claims exceeds the value of our securities granted by more than 10%, we shall be obliged to redeem specific securities at our choice, if requested so by customer.
1. We shall only be liable for damage of any type caused to the customer or third party, regardless of the fact or legal basis, in case of intentional or negligent acts under the legal provisions. That shall not apply in case of any personal injury, upon acceptance of a guarantee or violation of essential contractual duties.
2. In case of a violation of essential contractual duties, acceptance of a guarantee or in case of personal injury, we shall also be liable in case of slight negligence.
3. The claim for damages based on a violation of essential contractual duties shall, however, be limited to the foreseeable damage typical for the contract, in case of a delay in delivery to 10 % of the relevant purchase price (including VAT). An essential contractual duty as used above such be deemed to be a duty whose fulfilment only enables the proper performance of the agreement and on the compliance of which the customer regularly relies and may relay.
4. The liability under the Product Liability Act shall remain unaffected.
VIII. Place of Performance, Place of Jurisdiction
The place of performance shall be at the registered office of our company in 84184 Tiefenbach, Hauptstrasse 41. The exclusive place of jurisdiction for all disputes arising under the contractual relationship, including any procedures of cheques and bills, shall be Landshut in the event that customer/supplier is a merchant, legal entity under public law or special fund under public law, or if customer/supplier have their domicile outside the Federal Republic of Germany.
All legal relationships between our company and customer/supplier shall exclusively be governed by the German laws; the German version of all agreements shall prevail. The parties herewith agree that the application of the UN Convention on the International Sale of Goods, CISG, is herewith expressly excluded.
These are the general terms and conditions of Minitube USA: