General Terms and Conditions

§ 1 General

(1) These General Terms and Conditions (GTC) apply to all our business relationships with our customers (hereinafter: "Buyer"), unless otherwise agreed in writing. The GTC shall only apply if the Buyer is an entrepreneur (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.

(2) The GTC apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as "Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 651 BGB). The GTC shall also apply in their respective version as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Buyer, without us having to refer to them again in each individual case; in this case, we shall inform the Buyer immediately of any changes to our GTC.

(3) Our GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions.

(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. A written contract or our written confirmation shall be authoritative for the content of such agreements.

(5) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. setting of deadlines, notification of defects, declaration of cancellation or reduction) must be made in writing to be effective.

(6) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Conclusion of contract, cancellation

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards), other product descriptions or documents - including in electronic form - to which we reserve ownership rights and copyrights.

(2) The order of the goods by the Buyer shall be deemed a binding contractual offer with regard to all contractual components. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.

(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

(4) Orders can only be cancelled with our consent. In such a case, a cancellation fee of 20% of the value of the goods may be charged, unless the customer can prove that no or only minor damage has been incurred.

§ 3 Delivery period and delay in delivery

(1) The delivery times stated by us are non-binding. The delivery time is only binding if it has been expressly agreed in writing as a "binding delivery time".

(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this immediately and at the same time inform the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense is in particular the non-timely self-delivery by our supplier if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the Buyer is required. If we are in default of delivery, the Buyer may demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the Buyer has suffered no damage at all or only significantly less damage than the above lump sum.

(4) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), shall remain unaffected.

§ 4 Delivery, transfer of risk, acceptance, default of acceptance, returns

(1) Delivery shall be ex warehouse, which is also the place of fulfilment. At the request and expense of the Buyer, the goods shall be dispatched to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or organisation otherwise designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

(3) Partial services and partial deliveries are permissible to a reasonable extent.

(4) If the Buyer is in default of acceptance, we may store the goods at the Buyer's risk and expense.

(5) Return shipments of defect-free goods that are not attributable to our fault shall require our consent. Returns will not be accepted without prior consent. We are entitled to charge a handling fee of up to 20% of the value of the goods for any costs incurred.

§ 5 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.

(2) In the case of sale by despatch (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) in the amount of EUR 12.00 shall be deemed agreed for domestic shipments. For domestic shipments with a value of goods of EUR 500.00 or more, we do not charge any transport costs. For shipments abroad, the actual transport costs incurred will be invoiced. Any customs duties, fees, taxes and other public charges shall be borne by the buyer. We do not take back transport packaging and all other packaging in accordance with the Packaging Ordinance; it becomes the property of the Buyer.

(3) Unless otherwise agreed, the purchase price is due immediately upon invoicing and delivery or acceptance of the goods. We reserve the right to stipulate other terms of payment in individual cases, in particular to demand down payments or advance payment.

(4) If the Buyer is in default of payment, interest shall be charged on the purchase price during the period of default at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim against merchants for commercial maturity interest (§ 353 HGB) remains unaffected.

(5) The Buyer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter-rights shall remain unaffected, in particular pursuant to § 7 (6) sentence 2 of these GTC.

(6) If it becomes apparent after conclusion of the contract that our claim to the purchase price is jeopardised by the Buyer's inability to pay (e.g. by an application for the opening of insolvency proceedings), we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (customised products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

§ 6 Retention of title

(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).

(2) The goods subject to retention of title may not be pledged to third parties or assigned as security until the secured claims have been paid in full. The buyer must inform us immediately in writing if and insofar as third parties have access to the goods belonging to us.

(3) In the event of behaviour by the Buyer in breach of contract, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable according to the statutory provisions.

(4) The Buyer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.

(b) The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in consideration of the assigned claims.

(c) The Buyer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer fulfils his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in his ability to pay. If this is the case, however, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.

§ 7 Claims for defects of the buyer

(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 BGB) remain unaffected. For HPLC and GPC columns, § 8 of the General Terms and Conditions shall take precedence.

(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. The product descriptions designated as such (including those of the manufacturer) which were provided to the Buyer prior to his order or which were included in the contract in the same way as these GTC shall be deemed to be an agreement on the quality of the goods.

(3) Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (§ 434 Para. 1 S 2 and 3 BGB). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

(4) The Buyer's claims for defects presuppose that he has fulfilled his statutory duties of inspection and notification of defects (§§ 377, 381 HGB). If a defect is discovered during the inspection or later, we must be notified immediately in writing. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the buyer must notify us in writing of obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby the timely dispatch of the notification is also sufficient to meet the deadline.

If the Buyer fails to carry out the proper inspection and/or report defects, our liability for the unreported defect shall be excluded.

(5) If the delivered item is defective, the Buyer may initially demand, at his discretion, either rectification of the defect (subsequent improvement) or delivery of a defect-free item (replacement delivery) as subsequent fulfilment. If the buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline for this. If the Buyer does not make the choice within the deadline, the right to choose shall pass to us upon expiry of the deadline.

(6) We are entitled to make the subsequent fulfilment owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

(7) The Buyer shall give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions. Subsequent fulfilment does not include the removal of the defective item or its reinstallation if we were not originally obliged to install it.

(8) We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not: removal and installation costs), if a defect actually exists. However, if the Buyer's request to remedy a defect proves to be unjustified, we may demand reimbursement of the costs incurred from the Buyer.

(9) If the subsequent fulfilment has failed or a reasonable deadline to be set by the Buyer for the subsequent fulfilment has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of cancellation.

(10) Claims of the buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 8 and are otherwise excluded.

§ 8 Special conditions for HPLC and GPC columns

(1) The following conditions shall take precedence for the warranty for HPLC and GPC columns.

(2) The buyer must inspect the column upon receipt and inform us of any defects within 15 days. If a column does not function properly, we will repack or replace the column at no cost to the buyer. In the event of a return, we must first agree to this. Faulty columns must be accompanied by a written explanation of the defect. We provide a questionnaire for this purpose.

(3) The warranty for the properties of the columns is limited to the parameters of the original test chromatogram. If the end fittings of the columns have been removed, no warranty can be accepted. In particular, no warranty is given for damage caused by improper use by the purchaser.

(4) Unless otherwise agreed, the warranty period is limited to a maximum of 90 days. However, a return and a refund of the purchase price or credit note are only possible within 45 days and only with our prior consent.

§ 9 Other liability

(1) Unless otherwise stated in these GTC including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

(2) We shall be liable for damages - irrespective of the legal grounds - in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of a material contractual obligation (obligation whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for foreseeable, typically occurring damages.

(3) The limitations of liability resulting from paragraph 2 shall not apply if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods. The same shall apply to claims of the Buyer under the Product Liability Act.

(4) The Buyer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of cancellation of the Buyer (in particular pursuant to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

§ 10 Statute of limitations

(1) Notwithstanding § 438 Para. 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) This shall not affect special statutory provisions for third-party claims in rem for restitution (§ 438 Para. 1 No. 1 BGB) and in the event of fraudulent intent on the part of the seller (§ 438 Para. 3 BGB).

(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to the Buyer's claims for damages pursuant to § 8.

§ 11 Non-binding advice

We shall advise the buyer on questions of application to the best of our knowledge. However, this advice is non-binding. The buyer is not released from his obligation to check the goods for suitability for the intended purposes on his own responsibility.

§ 12 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these GTC and all legal relationships between us and the Buyer, to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods. The conditions and effects of the retention of title in accordance with § 6 are subject to the law at the respective location of the item, insofar as the choice of law made in favour of German law is inadmissible or ineffective.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Mainz. However, we are also entitled to bring an action at the buyer's general place of jurisdiction.

 

Status: March 2024 MZ-Analysentechnik-GmbH