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General terms and conditions

General Terms and Conditions for the sales, deliveries, and payments made by miControl GmbH (hereinafter referred to as miControl)

1. Scope of application
1.1 All supplies of miControl, including such resulting from future businesses, are exclusively subject to the subsequent Terms and Conditions. Other terms and conditions, particularly terms and conditions for purchase have no binding effect with respect to miControl, even if miControl does not explicitly contradict their application. General terms and conditions of business partners of miControl only apply if miControl has previously consented to their application in writing.
1.2 miControl reserves any and all property rights with respect to quotations, designs, and other documents. These documents may only be made available to third parties after previous approval by miControl and have to be returned to miControl immediately in case miControl ist not contracted.
1.3 The Customer has the non-exclusive right to use standard software, provided that it remains unchanged, is used within the agreed performance parameters, and on the agreed equipment. The Customer may make a backup copy of the standard software without the need for an express agreement.
1.4 Partial deliveries are permissible as long as they are still commercially acceptable for the Customer.
1.5 In the event that any provision of these Terms and Conditions shall be found to be invalid, the validity of the remaining conditions shall remain unaffected.

2. Conclusion of Contract
2.1 The acceptance of an order is only binding for miControl, if an order confirmation is issued in writing.
2.2 The acceptance of orders declared by agents or other mandates is only binding for miControl if they are confirmed in writing by miControl or if a letter of authorization was presented to miControl at the time the contract was concluded. The same applies to other declarations of will.

3. Offers
All offers of miControl are always without obligation and subject to confirmation, unless the contrary is expressly stated in writing.

4. Contractual Content, form requirement
4.1 Any and all agreements must be made in writing. This applies particularly to such agreements which modify or supplement these Terms and Conditions.
4.2 Weights and measures shall be valid within the framework of the approximate margins customary within the industry, while circuit diagrams shall not prove decisive in terms of power supply. miControl reserves the right to modify their lists, particularly the technical information.

5. Scope of performance
5.1 Binding delivery dates and periods must be agreed expressly as binding. miControl shall make every endeavour to meet delivery dates and periods that ar not binding or approximate (ca.).
5.2 The scope of performance is defined by the signed contract and the confirmation of receipt of contract.
5.3 miControl reserves the right to modify the quantity and the kind of services during the performance period provided that these modifications result from an improvement of technology or legislation and that these modifications are reasonably acceptable for the Customer and that the object of performance is not essentially altered by these modifications.
5.4 The compliance with a performance period requires the timely receipt of any and all documents to be provided by the Customer, necessary approvals, particularly of plans, the strict observation of payment conditions, and any and all further obligations by the Customer. If these requirements are not fulfilled timely, the performance period is extended appropriately provided that miControl cannot be blamed for the delay.
5.5 In case of force majeure, such as strike or lock-out as well as in case of unforeseeable impediments beyond miControl´s control, e.g. disruption in business and traffic, difficulties in the contracting of transport vehicles, delayed deliveries of materials by the subcontractor, lack of energy and acts of state insofar such impediments essentially and provably affect the productivity; also in the event of war, riots, explosions, fire, natural disasters (e.g. earthquakes, tsunamis, floods, lightning strikes, storms), air pollution, political or economic sanctions, accidents, boycotts, sabotage, epidemics, pandemics, plagues, compliance with applicable (mandatory) law or Compliance with decisions of courts or state institutions such as courts, authorities and similar institutions, unless the respective party could have prevented or mitigated such an event or its consequences with an appropriate emergency or disaster preparedness plan; the respective term of delivery respectively term of performance shall be extended. The same applies if supplier or other subcontractors suffer from such impediments.
The extension of the performance period corresponds to the time between the commencement and the cessation of such impediment.
miControl cannot be blamed for such impediments even if they appear during an already existing delay in performance.
The begin and the end of such impediments are communicated to the Customer as soon as possible. The right to partial delivery is explicitly reserved provided that there are no disadvantages for the Customer.

6. Samples and Tools
6.1 Samples and tools that are necessary for the performance of orders, remain property of miControl, even if they are individually manufactured according to the specifications of the Customer and if the costs for their production are partly or entirely renumerated by the client, except as expressly provided otherwise.
6.2 The costs of the said tools and models must be reimbursed, this strictly net and free of costs, after the conclusion of contract.

7. Prices and Payments
7.1 All prices are ex work and plus the value added tax (VAT) as applicable, however excluding packaging, installation and commissioning, in principle quoted in euros.
7.2 Invoicing will be made in accordance with the prices valid on the day of delivery.
7.3 All invoices of miControl shall be paid within 14 days following the date of invoice, at the latest 30 days after delivery, except as expressly provided otherwise. All extra charges have to be borne by the Customer.
7.4 In the case of payments by cheque, payment is deemed to have been made once the cheque is cashed and credited.
7.5 Default interest is 9 basis points in case of commercial transactions and 5 basis points above the base rate in case of all other kinds of transaction. The interest shall be higher if miControl can prove that a higher interest rate applies and lower if the Customer succeeds in proving that a lower interest rate applies.
7.6 miControl is entitled to charge an additional fine of EUR 40.00 in case of commercial transactions and EUR 5.00 in case of all other kinds of transactions. The fine accrues as soon as the reminder is posted. miControl reserves the right to claim further damages.
7.7 In case the conditions for payment are ot complied with by the Customer or miControl is made aware of any significant deterioration of the Customer´s financial circumstances form a reasonable commercial point of view (objections to bills of exchange and cheques, enforcement proceedings, suspension of payments, arrangement of debts, filling of a petition for institution of bankruptcy) our demands for payment shall be due immediately. In this case, miControl is entitled to request either anticipated payment or provision of securities. If the Customer fails to comply with miControl´s request, miControl is not obliged to make any further deliveries and is entitled to terminate the contract and to claim for damages for non-performance. In the latter case, the claim for damages shall be 20 % of the outstanding remuneration as contractually agreed upon provided that the Customer succeeds in proving that no loss has been incurred or that the loss incurred is significantly lower. The right to claim for higher damages is reserved.
If the Customer is a merchant, a legal person under public law or a public law special fund, the holding back of payments because of any counterclaim by the Customer not recognized by miControl is not admissible.
Customer may only assert rights of retention with respect to counterclaims that are based on the same contractual relationship.
The Customer may not set off counterclaims provided that such counterclaims are uncontested by miControl or are final and absolute under a court judgment.
7.9 Payments first redeem the oldest debt. Incoming payments are first set off against interest incurred, then against costs and finally against the principal claim.

8. Cancellation Charges
If Customer cancels the order without reason miControl is entitled to claim compensation for sustained damage in the amount of 25% of the value of the order to cover the costs for the order processing and the loss of profit. miControl´s right to claim for higher damages remains unaffected. The Customer is free to furnish proof of minor damage.

9. Terms of delivery
9.1 Delivery shall be made at the costs and expense of the Customer, this ex works from the delivering party´s premises or warehouse, excluding packaging and instalment but plus pro-rata prior carrier charges in the event of ex warehouse delivery. Costs for packaging and installation will be invoiced. The Customer bears the risk of delivery even if the installation is made by miControl. At the request and expense of the Customer deliveries shall be insured by miControl against the normal transportation risks.
9.2 In the absence of any other agreement, miControl will only take back packaging on the basis of and to the extent of a legal obligation.
9.3 In the event of storage for which miControl is not responsible, the Customer has to pay a storage fee of 0.5% of the net fee per week for the stored goods. The Customer reserves the right to prove that significantly lower costs have been incurred.

10. Different forms of delivery
When purchasing on demand, the Customer is committed to purchase the total quantity of the items ordered within twelve months from the date of order, if not expressly provided otherwise.

11. Acceptance
The Customer is not entitled to refuse the acceptance of deliveries due to minor defects.

12. Intellectual Property Rights; Indemnification
miControl is not obliged to check with respect to orders places with miControl whether miControl would infringe Patent and other Intellectual Property Rights. The Customer is solely responsible for the compliance with such rights and any and all claims for damages in case of noncompliance.

13. Liability for defects
13.1 In case of a commercial transaction the Customer shall inspect the goods immediately after delivery for defects and guaranteed characteristics of the goods. Apparent defects have to be communicated by the Customer immediately in writing, at the latest within seven days after receipt of the delivery, concealed defects within seven days of their discovery. Otherwise, the delivery is deemed to be accepted.
13.2 The Customer must give miControl an occasion to verify the objection, in particular by making the damaged good and its packaging available for inspection by miControl If the Customer refuses such an inspection by miControl, miControl is exempted from any liability for defects.
13.3 At first, miControl must always be given the opportunity to post-perform within a reasonable time-limit.
13.4 If the Customer requests subsequent performance on the grounds of a defect miControl may choose whether to remedy the defect himself or to supply defect-free goods in replacement. Replaced goods have to be returned to miControl. When rework or substitute delivery is impossible or refused or for other reasons for which miControl is responsible does not take place or fails within a reasonable period of time, the Customer shall, at his own discretion, be entitled to terminate the contract or to reduce the purchase price in agreement with miControl
13.5 If the item delivered is later taken to a place other than the agreed place of delivery and if, as a result, the expenses required for the purposes of subsequent performance – in particular transport, tolls, material and labour costs – increase, these shall be borne by the Customer. This restriction shall not apply if the taking of the delivered item is in accordance with its intended and contractually agreed use.
13.6 The Customer also has to bear any and all costs incurred by an unfounded complaint for defects.
13.7 miControl shall not be liable for damages or defects occurring in the goods as a result of faulty operation, incorrect storage, negligent maintenance, natural wear and tear, maintenance carried out by third-party suppliers and similar concerns not authorized by miControl, provided that these damages are not caused by any negligence on part of miControl. The same applies to defects that can be traced back to the product design or specifications provided by the Customer.
13.8 miControl shall not assume any liability that the delivery item is suitable for a particular use unless such liability is explicitly agreed upon.
13.9 Any claims for liability for defects shall become time-barred within one year from the date when the Customer obtained knowledge of the debtor and the fact that the legal criteria for his claim are fulfilled. With respect to replacements and repair, the time limit is six months but not shorter than the original time limit for the prescription of claims for defective goods with respect to the object of delivery. The liability period for defects in goods supplied shall be extended by the time for which operation was suspended due to the repair work.

14. Claims for damages
14.1 miControl is liable for damages in case of intent or gross negligence – even for his executive employees and other auxiliary persons. For damages negligently committed by his owners, representatives or auxiliary persons miControl is only liable insofar as they are incurred by the violation of essential contractual obligations, except in cases of personal injuries.
14.2 The preceding limitation of liability does not apply to liabilities under the Product Liability Act.
14.3 Claims for compensation resulting from defective performance in case of supplies are limited to the purchase price of the affected supplies.
14.4 In case of commercial transactions, miControl´s liability for damages shall be limited to foreseeable damages for miControl or his legal representatives. Furthermore, miControl´s liability for financial and material damage is limited in each case to the maximum reimbursement amount of the legal liability insurance of miControl. This amount is actually 10 Mio. Euros for personal injuries and property damages, and 1 Mio. Euros for pecuniary losses per case. Beyond this limit, miControl will assume liability only insofar as there exists insurance coverage exceeding the before-mentioned amount. These limitations shall not apply in cases of intentional or grossly negligent behaviour or personal harm.
14.5 If miControl or his insurance company refuses to regulate the damages, the claim for compensation extinguishes if the claim is not pursued by judicial process within three months provided that the Customer has been informed about this consequence in writing. If the liability according to the preceding paragraphs also incurred by the Customer´s breach of safety duties, the Customer has to indemnify and hold miControl entirely harmless.
14.6 Advice is given according to the best of miControl´s knowledge and according to the actual state of technology. miControl cannot be held liable for any and all information which does not arise from miControl´s own experience.

14.7 Insofar as the Customer is entitled to compensation claims, such claims shall lapse upon the expiry of the limitation period applicable to material defects. In the case of compensation claims pursuant to the Product Liability Act, the prevailing statutory limitation provisions shall apply.

15. Reservation of Title
15.1 The delivered goods remain miControl´s property without reservation until full payment of all of miControl´s claims from the business relationship with the Customer.
15.2 In the case of application with regard to businessmen, a legal person under public law or a public law special fund the following applies in addition:
The Customer is entitled to sell the items delivered in the proper course of business; he now already, however, assigns to miControl all claims to the amount of the sales price agreed between miControl and the Customer (including VAT), which accrue to the Customer from further disposal, and indeed irrespective of whether the items delivered are sold further without or after processing. miControl accepts this assignment. The Customer is empowered to collect these claims after they are assigned. miControl´s right to collect the claims itself remains unaffected, but miControl undertakes not to collect the claims, as long as the Customer properly meets his payment obligations and as long as he is not in default of payment. If this is the case, miControl may require the Customer to reveal any and all assigned claims and the respective debtors, and to provide miControl with any and all necessary information to collect the money, to hand over the relevant documents, and to inform the debtors (third parties) of the assignment.
15.3 the processing or transformation oft he goods by the Customer shall be deemed to be carried out on behalf of miControl. If the items delivered are processed with other items not belonging to miControl, miControl acquires the co-ownership of the new item in proportion to the invoice value of the items delivered compared with the invoice value fo the other items processed at the time of processing. If the items delivered are mixed with other items not belonging to miControl, miControl acquires the co-ownership of the new item in proportion to the invoice value of the item delivered compared with the other items mixed. The Customer keeps the co-ownership for miControl.
15.4 In the event the Customer is in breach of contract, in particular in case of delay in payment or acceptance, miControl is entitled to take back the items covered by the present reservation of title, even without terminating the contract, and the Customer shall be obliged to return the concerned items. For this case, the Customer already explicitly and irrevocably allows miControl to pick up the goods covered by the reservation of title immediately and to enter the Customer´s business premises and storage facilities for the purpose of picking up the goods. After taking back the goods, miControl is allowed to sell them on the open market. The proceeds of the exploitation are to be set off against the obligations of the Customer – less appropriate exploitation costs.
15.5 Neither exercise of reservation of title nor a lien taken by miControl on the goods delivered shall be deemed to be a withdrawal form contract, provided that the rules on consumer contracts do not apply or that miControl declares withdrawal from contract in writing.
15.6 the Customer is not entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain miControl´s property. In the event of attachments and seizures or other third-party dispositions, the Customer has to notify miControl immediately and has to make available all information and documents required for safeguarding miControl´s rights. Any bailiff or third party is to be informed of miControl´s ownership. If the Customer fails to do so in due time, he will be held liable for the damages caused.
15.7 miControl engages to release securities miControl is entitled to the business partner upon demand, in so far as the realizable value of miControl´s securities exceed the value of all secured claims by 20%. The selection of the securities to release is incumbent on miControl.

16. Place of Performance and Jurisdiction
16.1 Place of performance for deliveries is the respective delivery point. The place of performance for payments or other services is Berlin, Germany, as far as admissible.
16.2 In all disputes arising from this contractual relationship, if the Customer is a merchant, a legal person under public law or a public law special fund, a complaint has to be submitted at the courts in Berlin, Germany.
16.3 In the case of deliveries abroad, the Parties consent to the application of the laws of the Federal Republic of Germany with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG) dated 11/04/1980.
16.4 In case that commercial clauses according to the International Commercial Terms (INCOTERMS) have been agreed, the INCOTERMS 2020 shall apply.

17. Note on data protection
In accordance with the provisions of the Bundesdatenschutzgesetz (BDSG) [Federal Date Protection Act] and the General Data Protection Regulation (GDPR), miControl draws attention to the fact that its accounting is maintained on EDP equipment and miControl also in this context stores data received as a result of the business relationship with the Customer. miControl complies with data protection regulations. Customer data are used exclusively for the purpose of implementing the contract/purchase order.

Release 06/29/2022 - V02

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