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General terms and conditions

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

1. Scope of application

 

1.1 All our supplies, 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 us, even if we do not explicitly contradict their application. General terms and conditions of our business partners only apply if we have previously consented to their application in writing.  

1.2 We reserve 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 us and have to be returned to us immediately in case we are 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 this 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 us, if an order confirmation is issued in writing.  

2.2 The acceptance of orders declared by agents or other mandatees is only binding for us if they are confirmed in writing by us or if a letter of authorization was presented to us at the time the contract was concluded.  The same applies to other declarations of will.  

 

3. Offers

 

All our offers 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. we reserve the right to modify our lists, particularly the technical information. 

 

5. Scope of performance

 

5.1 The scope of performance is defined by the signed contract and the confirmation of receipt of contract. 

5.2 We reserve 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. 

5.3 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 we cannot be blamed for the delay.

5.4 In case of force majeure, such as strike or lock-out as well as in case of unforeseeable impediments beyond our 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, 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.

We 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 our property, even if they are individually manufactured according to the specifications of the customer and if the costs for their production are partly or entirely remunerated 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 as applicable from time to time, however excluding packaging, installation and commissioning. 

7.2 Invoicing will be made in accordance with the prices valid on the day of delivery. 

7.3 All our invoices shall be paid within 14 days following the date of invoice, at the latest 30 days after delivery. 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 8 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 we can prove that a higher interest rate applies and lower if the customer succeeds in proving that a lower interest rate applies. 

7.6 If the customer receives a second payment reminder, we are entitled to charge an additional fine of EUR 5,00. The fine accrues as soon as the reminder is posted. We reserve the right to claim further damages.  

7.7 In case the conditions for payment are not complied with by the customer or if we are made aware of any significant deterioration of the Customer's financial circumstances from a reasonable commercial point of view (objections to bills of exchange and cheques, enforcement proceedings, suspension of payments, arrangement of debts, filing of a petition for institution of bankruptcy) our demands for payment shall be due immediately. In this case, we are entitled to request either payment in cash, anticipated payment or provision of securities. If the customer fails to comply with our request, we are not obliged to make any further deliveries and we are 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.    

7.8 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 us 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 us 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 we are 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. Our 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 installment 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 us. At the request and expense of the customer deliveries shall be insured by us against the normal transportation risks. 

9.2 We strictly apply the Packaging Regulation as in force since December, 1, 1991 and use recyclable packaging materials with the eco-label „RESY“. The ordering party shall be obliged to commission a local waste disposal organization to dispose of transport packaging in accordance with prevailing packaging regulations. We will only accept return deliveries of transport packaging in the event that the said delivery is exempt from charges or carriage paid. We will not reimburse clients for returned transport packaging.

 

10. Different forms of delivery

 

When purchasing on demand, the customer is committed to purchase the total quantity of the items ordered within six months from the date of order. Deviating agreements require explicit confirmation by us.

 

11. Acceptance

 

The customer is not entitled to refuse the acceptance of deliveries due to minor defects.

 

12. Intellectual Property Rights, Indemnification

 

We are not obliged to check with respect to orders placed with us whether we 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 non compliance.

 

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. 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 us an occasion to verify the objection, in particular by making the damaged good and its packaging available for inspection by us. If the customer refuses such an inspection by us, we are exempted from any liability for defects.

13.3 At first, we 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 we may choose whether to remedy the defect ourselves or to supply defect-free goods in replacement. Replaced goods have to be returned to us. When rework or substitute delivery is impossible or refused or for other reasons for which we are 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 us. 

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 We shall not be liable for damages or defects occurring in the goods as a result of faulty operation, negligent maintenance, natural wear and tear, maintenance carried out by third-party suppliers and similar concerns not authorized by us, provided that these damages are not caused by any negligence on our part. The same applies to defects that can be traced back to the product design or specifications provided by the customer.  

13.8 We 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 We are liable for damages in case of intent or gross negligence - even for our executive employees and other auxiliary persons. For damages negligently committed by our owners, representatives or auxiliary persons we are 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 resulting from product liability. 

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, our liability for damages shall be limited to foreseeable damages for us or our legal representatives. Furthermore, our liability for financial and material damage is limited in each case to the maximum reimbursement amount of our legal liability insurance. This amount is actually 3 mio. EUR per case. Beyond this limit, we will assume liabilities only insofar as there exists insurance coverage exceeding the before-mentioned amount. These limitations shall not apply in cases of intentional or grossly negligent behavior or personal harm.

14.5 If we or our insurance company refuse 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 our liability according to the preceding paragraphs also incurred by the customer‘s breach of safety duties, the customer has to indemnify and hold us entirely harmless. 

14.6 Advice is given according to the best of our knowledge and according to the actual state of technology. We cannot be held liable for any and all information which does not arise from our 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 our property without reservation until full payment of all of our 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 us all claims to the amount of the sales price agreed between us and the buyer (including value added tax), which accrue to the Customer from further disposal, and indeed irrespective of whether the items delivered are sold further without or after processing. We accept this assignment. The buyer is empowered to collect these claims after they are assigned. Our right to collect the claims itself remains unaffected, but we undertake 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, we may require the Customer to reveal any and all assigned claims and the respective debtors, and to provide us 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 of the goods by the Customer shall be deemed to be carried out on behalf of us. If the items delivered are processed with other items not belonging to us, we acquire the co-ownership of the new item in proportion to the invoice value of the items delivered compared with the invoice value of the other items processed at the time of processing. If the items delivered are mixed with other items not belonging to us, we acquire the co-ownership of the new item in proportion to the invoice value of the items delivered compared with the other items mixed. The buyer keeps the co-ownership for us.

15.4 In the event the customer is in breach of the contract, in particular in case of delay in payment or acceptance, we are 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 allow us 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, we are allowed to sell them on the open market. The proceeds of the exploitation is 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 us on the goods delivered shall be deemed to be a withdrawal from contract, provided that the rules on consumer contracts do not apply or that we declare 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 our property. In the event of attachments and seizures or other third party dispositions, the Customer has to notify us immediately and has to make available all information and documents required for safeguarding our rights. Any bailiff or third party is to be informed of our ownership. If the buyer fails to do so in due time he will be held liable for the damages caused.

15.7 We engage to release securities we are entitled to the business partner upon demand, in so far as the realizable value of our securities exceeds the value of all secured claims by 20%. The selection of the securities to release are incumbent on us.

 

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, as far as admissible.

16.2 In all disputes arising from this contractual relationship, if the buyer 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. 

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. 

 

17. Information according to the Federal Data Protection Act

 

In the regular course of business with customers, personal data can also be recorded by delivering entities or by our subcontractors. 

 

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