General terms of sale, delivery and payment

Multigear GmbH
Last updated: 29/05/2013 Rev: 2.0

Applicable in business dealings with entrepreneurs, legal entities under public law and special funds under public law.

1. General provisions

1.1  Our terms and conditions of delivery and payment shall apply exclusively. Conflicting or deviating general terms and conditions of the Client are accepted by us only if we have expressly consented to them in writing.

1.2  The acceptance of goods or services of the Client or their payment does not constitute agreement to the Client's terms and conditions.

1.3  All our offers are subject to confirmation. Supply agreements and all other agreements (including side agreements), as well as explanatory statements made by our representatives, are legally binding on us only after written confirmation.

1.4  Unless expressly agreed otherwise, the goods delivered are approved for use in Germany. In case of export by the Client, it is the sole responsibility of the Client to obtain the necessary documents and approvals for the country of destination. 

1.5  The contractual relationship shall be governed exclusively by German law, exclusive of the law of conflicts rules and the UN Convention on the International Sale of Goods (CISG).

2. Delivery

2.1  If delivery has been agreed, delivery is made ex works or ex warehouse at the expense of the Client, and more specifically, in the case of shipping by rail, from the railway station that is most closely located to the point of use, in the case of shipping by truck up to the point of use - not unloaded - provided the point of use is accessible for trucks by roads that are navigable regardless of the weather. 

2.2  The transport route, shipping and packaging or other forms of securing shall be selected by us The Client always bears the risk of transport. We are entitled but not obliged, to insure deliveries in the name and for the account of the Client.

2.3  Any damage or loss must be confirmed in writing immediately upon receipt of the goods by the carrier on the waybill, stating the claims.

3. Delivery times and obstacles to delivery

3.1  Delivery times specified by us are not binding until the order is accepted;

We reserve the right to sell the goods until such time of acceptance.

3.2  Delivery periods start on the date of our order confirmation, however not before all details of the performance have been clarified and all other prerequisites to be created for the Client for the proper processing of the contract. The same applies to delivery dates. 

3.3  We are entitled to make early delivery and partial deliveries. 

3.4  he delivery period shall be deemed to have been met if the delivered item leaves our factory upon expiry of the delivery period or if we have given notice of readiness for dispatch.

3.5  Events of force majeure reasonably extend the delivery period and entitle us to withdraw from the contract in whole or in part. Strikes, lock-outs, business disruptions or any other unforeseen incidents outside our sphere of responsibility are deemed equivalent to force majeure. The same applies if the aforementioned incidents occur during default or at a subsupplier's facilities.

3.6  For delivered items that we do not manufacture ourselves, our delivery obligation is subject to timely and correct delivery to us, unless the delivery delay or the erroneous delivery or non-delivery is attributable to us.

3.7  In the case of an excess of the delivery period or any agreed delivery date, the Client shall be entitled to require us to state within two weeks if we withdraw from the contract or make delivery within a reasonable period. If we do not make such declaration, the Client is entitled to withdraw from the contract, provided the performance is of no interest to them.

3.8  If the Client has incurred damage due to a delay caused by a fault on our part, the Client is entitled to demand compensation for the delay, subject to the exclusion of any further claims. The compensation amounts to 0.5% for each full week of delay, limited, however, to 5% of the value of the part of the performance which has not been delivered in time due to the delay or which cannot be used in accordance with the contract.

3.9  If the acceptance is not made, or is not made in time or completely, we shall be entitled to store or ship the delivered item at the expense and risk of the Client; the delivered item is then deemed to have been accepted.

10.3  If the Client breaches his obligations of cooperation (e.g. if the goods are not called off in time or if acceptance is refused), we shall be entitled, in the event of a fruitless period of grace, to take the necessary measures ourselves and to deliver the goods or withdraw from the part of the delivery contract not yet performed. This does not affect our right to claim damages for breach of duty or damages in lieu of performance.

4. Pricing

4.1  Our prices do not include packaging and VAT at the applicable rate. They apply ex works or ex warehouse. 

4.2  If changes in the basis for our prices occur before the date of delivery, we reserve the right to adjust our prices accordingly. However, this applies only in case of delivery periods of more than four months and price adjustments of up to 10%. In the event of higher rates, a new price must be negotiated. If no such agreement is concluded, we have the right to withdraw from the contract within 14 days by written notice.

4.3  For orders, for which no prices have been agreed, our prices applicable on the date of delivery apply.

4.4  Confirmed prices apply only in case of acceptance of the confirmed quantity.

4.5  Unless expressly agreed otherwise, partial deliveries will be calculated separately.

5. Payments

5.1  Our invoices are payable net and without deductions within 14 calendar days after the date of invoice. Payments are deemed to have been received only on the day on which we are able to dispose of the amount.

5.2  Bills of exchange are accepted only on the basis of an express agreement. Like checks, they are deemed to be only an undertaking to pay and are subject to our acceptance in each specific case. Interest and other costs shall be borne by the Client and are immediately payable.

5.3  Notwithstanding any deviating payment instructions of the Client, payments will be credited first to interest and costs and only thereafter to our oldest outstanding claims.

5.4  In case of payment default, we charge default interest at the statutory rate. The right to assert further damages remains reserved.

5.5  In case of payment default, failure to honour checks or bills of exchange, suspension of payments, commencement of proceedings aiming at the settlement of debts, non-compliance with payment terms or circumstances that are likely to impair the creditworthiness of the Client, all our claims, even claims deferred, become immediately due for payment. Furthermore, we are then entitled to carry out outstanding deliveries only against advance payment or to withdraw from the contract after setting a reasonable grace and demand damages in lieu of performance.

5.6  The Client may only set off claims that are undisputed or confirmed by a final and binding judgment.

6. Retention of title

All our deliveries are subject to retention of title (goods subject to retention of title). Title is transferred to the Client only if all liabilities (including any ancillary claims) resulting from delivery of our goods have been settled. In case of a current account, the retained title serves to secure our claim to the balance, even if payments are made to settle specifically designated claims.

6.2  Processing and reworking of goods delivered by us subject to retention of title is always done on our behalf, without giving rise to any obligations on our part.

6.3  If the goods delivered by us are mixed or combined with other objects, the Client assigns the (co-)ownership rights created in the new object at the ratio of the invoice value of our goods subject to retention of title to the invoice value of the other goods used.

6.4  The Client may only sell or use (e.g. as part of a contract for works or a contract for material and labour) and only in the normal course of business, if the Client's buyer has not excluded the right to assign the claim based on the resale contract or the works contract. The Client is obliged to ensure that its buyer grants any consent reserved for the assignment of the claim to us in the required form.

6.5  The Client is not permitted to transfer ownership in or pledge the goods subject to retention of title by way of security.

6.6  The Client is obliged to inform us without undue delay about any attachment, even if it is only imminent, or any other impairment of our title in the goods by third parties, in particular about the existence of blanket assignments and factoring agreements; furthermore, the Client is obliged to confirm our title in writing to us as well as vis-à-vis third parties. In the event of attachment, the Client is obliged to transmit a copy of the attachment certificate to us. 

6.7  If the Client is in default of payment, we are entitled to demand return of the goods delivered subject to retention of title and to obtain immediate possession of the goods ourselves or by an authorised representatives, irrespective of the location of the goods. The Client is obliged to hand over the goods to us, to provide the information required to assert our rights to us and to hand over the related documents. The demand for a return of the goods shall not be deemed to be a withdrawal from the contract. The same applies to pursuant to the redemption of the goods subject to retention of title.

6.8  To secure all our claims, including claims arising in future from the business relationship, the Client assigns already now all claims (including claims in connection with a current account) and ancillary rights accruing to the Client as a result of the resale or other use of the goods delivered subject to retention of title (e.g. combination, processing, installation).

6.9  If the resale or other use of our goods delivered subject to retention of title is made - irrespective of the condition of the goods - in conjunction with the resale or other use of objects that are subject to the rights of third parties and/or in conjunction with the performance of third parties, the advance assignment is limited to the amount invoiced by us.

6.10  The Client is entitled to collect the claims assigned to us. We are entitled to revoke the authorisation to collect claims in the event that the Client defaults on payments, suspends payments, files or commences insolvency proceedings or other extrajudicial settlement proceedings or suffers any other loss of assets. Upon request, the Client shall disclose the assigned claim and its debtor to us and provide all necessary information, hand over the related documents and inform the debtor about the assignment. We are likewise entitled to inform the Client's debtors about the assignment and to require them to make payment to us.

7. Release

If the realisable value of the securities to which we are entitled according to the preceding provisions exceeds the value of our claims by more than 10 %, we will release the excess security at the request of the Client. If applicable, the security released shall be determined by us.

8. Claims for defects

8.1  The delivered item is free from defects if it corresponds to the product description or, in the absence of a product description, if it corresponds to the state of the art.

8.2  Modifications in the design and/or execution that do not have an impact on the functionality or the value of the delivered item remain reserved and do not entitle the Client to any claim for defect.

8.3  The Client is not entitle to claim for defects in case of defects that do not affect or only marginally affect the value and/or functionality of the goods delivered.

8.4  Warantees regarding the quality and storage life of the delivered items shall only be deemed to have been given if we have confirmed the warantee expressly as such and in writing.

8.5  We shall only be liable for public statements if we have issued them. Claims for defects based on such statements shall be entertained only if the statement has actually affected the purchasing decision of the Client.

8.6  Warantees which our suppliers make in warantee certificates, advertising or in other product documents shall not be attributed to us. They only bind the supplier who has assumed such warantee. Paragraph 1 of this section remains unaffected.

8.7  Claims for defects must be asserted without undue delay and are time-barred if we do not receive them within two weeks after receipt of the delivery. Defects that cannot be detected even with careful inspection within this period must be reported to us without undue delay, however, not later than two weeks after their discovery.

8.8  If the delivered item shows defects or does not comply with a waranteed quality, we shall remedy the defect at our expense free of charge, either by repairing the item or by delivery of a fault-free item (cure). The Client is obliged to give us or our authorised representative the time and opportunity to make such cure. Our liability under the warranty for defects ceases if we are not given such opportunity or if modifications or repairs have been made to the item concerned.

8.9  If the cure fails twice or if the cure is not made within a reasonable grace period set by the client, the Client may demand a reduction of the remuneration or withdraw from the contract.

8.10  Claims of the Client pertaining to necessary expenses incurred in connection with the cure or restitution after withdrawal from the contract - in particular costs for shipping, road transport, labour and material - are excluded if the expenses are increased by reason of the fact that the delivered item was installed in a hard-to-reach location. The same applies if the delivered item has been installed in a location outside the territory of the Federal Republic of Germany.

8.11  Damage resulting from non-compliance with our instructions or the manufacturer's instructions and/or conditions for installation, assembly, commissioning, handling, operation or maintenance does not give rise to claims for defects. The same applies to wear and tear, excess usage or corrosion, unless we have assumed liability for such damage in terms of section 9.

8.12  In all other respects, claims for damages are governed by section 9. Any further claims of the Client based on defects are excluded.

8.13  In cases where we have provided planning assistance in addition to the delivery obligation at the special request of the Client, we assume liability for such services only in the form of correcting any demonstrably faulty planning assistance or by providing new assistance. Any further liability for planning assistance is excluded, unless we are liable in terms of section 9.

8.14  Definition of "warranty":

Claims for defects within the meaning of the agreed warranty shall only be considered justified if Multigear is responsible for the defects reported.

9. Liability

9.1  We shall only be liable for damages and compensation of futile expenses (Section 284 of the German Civil Code [BGB]) based on a breach of contractual or delictual obligations (e.g. for default or delict)
- in case of intent or gross negligence,
- in case of a culpable injury to life, limb or impairment of health,
- based on fraudulent concealment of a defect or assumption of a quality warantee or
- for personal injury or material damage to privately used objects in terms of the German Product Liability Act (Produkthaftungsgesetz).

9.2  Furthermore, we assume liability for a breach of cardinal contractual obligations even in the case of slight negligence. However, in this case our liability is limited to the contract-typical damage reasonably foreseeable at the time of conclusion of the contract.

9.3  Claims of the Client for damage that is not manifested in the delivered item itself are excluded.

9.4  Liability for damage resulting from business interruptions and/or loss of profit or a loss of feed-in compensation is excluded unless caused by intentional action.

9.5  The Client shall indemnify us for and our authorised representatives from claims of third parties that are asserted in connection with the order. This applies likewise to cases where we are liable for recourse.

9.6  The above provisions apply to the same extent to vicarious agents and persons used by us to fulfil our obligations.

10. Place of jurisdiction

The place of jurisdiction is Mendig. However, we shall be entitled to sue the Client at the court competent for the Client.

11. Partial invalidity

If a provision in these General Terms and Conditions of Sale, Delivery and Payment or a provision as part of other agreements between the Client and us is or becomes invalid, the validity of any other provision is not affected thereby.