GENERAL TERMS AND CONDITIONS
m&h Inprocess Messtechnik GmbH
m&h Inprocess Messtechnik GmbH
- Area of application and entering into the contract
- The following General Terms and Conditions of m&h Inprocess Messtechnik GmbH (hereinafter referred to as "GTC") exclusively apply to all contracts regarding the delivery of goods and the provision os services (hereinafter referred to as "goods") via our web shop (hereinafter referred to as "web shop"). The purchase of goods in any other way than via the web shop, such as for example via phone, mail or fax, is not the subject matter of these General Terms and Conditions.
- The customer accepts our GTC by placing the order and by accepting the delivery. Our GTC apply exclusively. Amending or deviating conditions of the customer are not recognized, unless we expressly agree to their validity in writing. Our GTC also apply to all future purchase and software license agreements even if we, in knowledge of amending or deviating conditions of the customer, execute delivery or the provision of services to the customer without reservation and without having pointed out again our GTC.
- Quotes prepared by us are non-binding and do not present an offer in a legal sense, but are solely understood as a request for the customer to make a binding order. The order of the customer is a binding offer. The order is deemed accepted in a binding fashion if it is confirmed by us in writing or if it such order is delivered by us directly and exclusively complies with the content of our order confirmation and these GTC.
- Dimension, weight, pictures and drawings are only binding for execution is such are expressly confirmed in writing. Gross weight is indicated in an approximate but non-binding fashion to the best of our knowledge.
- Terms of payment
- The prices for products are the prices indicated in the web shop.
- The prices are applicable in the currency indicated in the web shop ex works m&h Inprocess Messtechnik GmbH, plus statutory value-added tax, transport costs,
transport insurance, packaging, customs duties, taxes, dues and fees collected on the basis of foreign regulations, to be borne by the customer.
- The prices indicated in the web shop are only available via this platform and may deviate from other offers, platforms, distribution channels and countries.
- As means of payment available in the web shop are payment on invoice or payment via credit card.
- All invoices for orders via the web shop must be paid net within 30 days after receipt of the invoice regardless of potential other agreements.
- Payment is to be made free our payment point.
- In order to reduce risk, the order value may be limited for orders on invoice basis.
- If the customer is in default regarding payment, we are authorized to request statutory default interest in the amount of 9% p.a. abve the respective base rate and a lump-sum payment in the amount of EUR 40.00. Claiming additional damage caused by default remains unaffected.
- Retaining of payments or offsetting due to potential counterclaims of the customer are excluded, unless such counterclaims are undisputed and legally binding.
- If we become aware of any major deterioration of the financial circumstances of the customer after the contract is entered into, we are authorized to exclude the customer from the purchase made via the web shop, in a finite or infinite fashion.
- Delivery is carried out, unless otherwise agreed upon, via UPS Standard delivery ex works m&h Inprocess Messtechnik GmbH, according to Incoterms 2010.
- Delivery begins as soon as all details of the execution are clarified, and both parties agree on all conditions of the business transaction and refers to completion at works. Compliance with the delivery time requires the fulfillment of the contractual duties of the customer, in particular the agreed upon terms of payment.
- For orders via the web shop we carry out shipment of the goods on behalf of and at the risk of the customer. Insurance against the usual transport risks is taken out by us at the expense of the customer.
- Unforeseen events outside of our area of influence, e.g. disruption of operations, labor dispute, strike, lockout, natural disasters, extend the delivery period for the duration of the disruption, even if such occurs while there is a delay in delivery. The customer cannot assert any claims for damages from such events against us. If delivery is not possible due to force majeure on a permanent basis, however, at the least for a period of three (3) months, each party is authorized to withdraw from the contract. The agreed upon delivery time is also extended without the customer being able to assert claims for damages against us if official permits and permits of third parties required for the execution and documents or information of the customer required for the execution of the delivery are not submitted to us in due time, also in the event of a retroactive change to the order.
- Excess or short delivery by us of +/- 10% is deemed accepted by the customer.
- We aim to provide the goods according to the indicated availability; however, we cannot accept any claims that are derived from non-delivery or delayed delivery. Subject to availability, goods are usually shipped within 30 days (unless the product is labeled "currently not available"). Accordingly, information provided regarding availability is an approximate value.
- Delivery times refer to the point in time the order was accepted until the order is handed over to the carrier.
- Deliveries are only made to countries approved by m&h Inprocess Messtechnik GmbH. The billing and shipping address must be in the same country.
- Return of goods
- M&h accepts return of goods ordered via the web shop only in exceptional cases.
- Return of goods is only accepted after coordination and with the written approval of m&h.
- To cover any additional costs, a handling surcharge of 30% of the goods value or EUR 30.00 is charged, whichever is higher.
- We only accept undamaged goods in the original packaging (or equivalent). The goods will be checked by us for defects and wear and tear after receipt; such can lead to a reduction in the value of the goods.
- Creation of a customer account in the web shop
- The customer confirms that he is the authorized representative and buyer of the company for which he makes purchases via the web shop.
- In line with registration, the customer confirms that his personal information is correct.
- The customer is fully liable for any and all consequences of potentially incorrect information.
- Together with the registration, the customer confirms that he is not a private person but that he acts on behalf of a properly registered company, having the corresponding authorization to do so.
- Cancelation of orders
- Due to the nature of a digital distribution channel, the customer may make edits, cancelations and changes during the selection process in the web shop. After having made an order against pay in the web shop, cancelation is no longer possible.
- Accepting returns of ordered goods is done in the manner described in these GTC (amongst others, see "4. Return of goods").
- Compliance, confidentiality
- The customer is obligated not to disclose to third parties any information labeled as confidential or information that is confidential on the basis of its nature regarding us or the contractual relationship with the customer. Confidential documents, in particular all technical and commercial documents regarding the contractual products, must be locked and stored separately.
- Our delivery according to these GTC and the contract with the customer may depend on the issuance of legally required export licenses and other official permits. If such licenses and permits are not issued by the responsible authorities or not on a regular basis, we are authorized to withdraw from the contract, and no claims can be asserted against us by the customer. The customer must comply with all applicable laws and provisions regarding export control, economic sanctions and anti-corruption measures. Afterwards, the customer shall not export or resell the goods, including software and technical data, if the intended purpose is prohibited according to applicable export control law, in particular US law or Dual Use Regulation of the European Union, or if the end customer is listed on a banned list ("denied parties / denied entities list").
- Guarantee, liability
- Unless otherwise agreed upon, we guarantee for a period of two (2) years after delivery to the direct customer of m&h that the product upon delivery corresponds to the quality as agreed upon in the contract, meaning that the product corresponds to the operations instructions or the instructions for use. For used products such a period of guarantee, deviating from the previous paragraph, is six (6) months after delivery to the direct customer of m&h or until the end of the original period of guarantee, whichever is longer. For (partial) products that were repaired or replaced in line with the guarantee such a period of guarantee is 12 months or is valid until the end of the original period of guarantee, whichever is longer. For defects expressly cited at the time the contract was entered into or for products provided free of charge we do not assume any guarantee or liability.
- The description of the goods, explanations regarding functioning, advertising materials as well as information provided in the instructions for use do not constitute a special guarantee, a guarantee of features.
- Guarantees for defective goods are limited at our discretion to rectification of defects or replacement delivery. If such rectification of defects or replacement delivery should fail three times, the customer at his own discretion may choose to reverse the purchase or receive a pro-rated discount in regard to the purchase price.
- Goods delivered by us must be inspected immediately. For defects that are not reported immediately, however at the latest within three working days after inspection upon receipt by the customer, or for hidden defects, immediately, and in any case within three working days after having noticed such hidden defects and in any event within the period of guarantee we shall provide no such guarantee. This also applies if goods other than agreed upon or a quantity of goods other than agreed upon were delivered. Transport defects or missing parts noticeable at the time of delivery must be listed on the notice of receipt of the carrier. If the customer fails to carry out an inspection in due time, the goods are deemed accepted and free of guarantee claims.
- Transport of goods to and from our location that contrary to the claim of the customer do not fall under the guarantee in the sense of Article 9, are carried out at the risk and expense of the customer.
- We assume unlimited liability for fault of our own and the fault of our legal respresentatives and vicarious agents in the event of intent, gross negligence and malice as well as in the event of harm to body and life, in the event that product liability law applies and also if a guaranteed event has occurred. Apart from that, we assume liability independent of the (contractual or legal) reason for simple negligence only (i) if material contractual obligations are violated and (ii) limited to typical contractual foreseeable damage at the time the contract was entered into.
- To the extent that it is permissible by law, m&h is not liable for indirect collateral damage, consequential damage and/or punishable damage, in particular not for lost profit, independent of the contractual, quasi-contractual or legal basis.
- The customer is obligated to take any and all appropriate measures regarding the mitigation and prevention of damage.
- M&h is not responsible for the production selection of the customer. If the customer ordered a product that is not suitable for the intended application, m&h Inprocess Messtechnick GmbH cannot be held responsible for such.
- The customer has no rights of guarantee for such defects or damage caused by the customer or by third parties, for example due to misuse, inappropriate or incorrect use, operating or application errors, incorrect installation or assembly, insufficient maintenance, unauthorized modification, regular wear and tear, unauthorized opening, repair or changes, accident or fire.
- If third parties assert claims against us due to the handling of our goods by the customer as described under Article 5 i) or due to the otherwise unauthorized handling of our goods, for example claims arising from product liability, the customer must hold us harmless against any and all claims.
- A guarantee or liability other than intended in these GTC is excluded independent of the legal reason.
- Industrial property rights, software
- We reserve all intangible property rights or industrial property rights, in particular copyright, patents, utility patents and design patents, trademark and design rights in our products and modifications thereof as well as our software, user documentation, drafts, samples and other product and sales documents. The stated products and documents may only be disclosed to third parties with our prior written consent.
- For the use of software, updates and releases installed in our goods or delivered separately or to be downloaded we grant the customer a non-exclusive, non-transferrable license for the agreed upon use typical for the product in line with the user documentation. For the use of any software, besides these GTC, m&h's software license agreement shall apply, which is available at http://mh-support.com/LB as well as http://mh-support.com/AGB, which we are happy to provide to the customer at his request also in print form. To the extent that the GTC and the software license agreement have different provisions, the software license agreement takes precedence, for example regarding the rights of guarantee granted by m&h for software. All industrial property rights in the software remain in our possession and may not be copied, modified, reset, decompiled, may not be converted into a form that is readable for humans, may not be disclosed to third parties, may not be linked to hardware or software products of third parties without our written consent; furthermore, our copyright information may not be removed from such. To the extent that our goods contain software of third parties, the software license provisions of the third-party manufacturers must be complied with while using the software. To the extent that the customer would like to enter into a software maintenace contract, this must be entered into separately with us.
- All logos, trademarks, proprietary notices as well as safety indications and warning notices must not be changed, covered or removed by the customer.
- If a third party asserts undisputed and legally valid claims against the customer on the basis of infringement of an industrial property caused by products manufactured by us and used in accordance with the contract, we shall at our discretion and at our expense either acquire the right of exploitation for the respective products, change the products in a way that the industrial property rights of third parties are no longer infringed upon or shall exchange the products. Additional claims for damages shall follow Article 8 of these GTC.
- M&h's obligations according to Article 9 d) are only applicable if that the customer is not responsible himself for the infringement of the industrial property, in particular due to unforeseen use, unauthorized modification or the coupling of the product with products of a third party. The customer must inform us immediately in writing regarding claims asserted by any third parties. We reserve the right to take defense measures and carry out settlement negotiations. In consultation with the customer, stopping the use of the product is to be carried out for reasons of mitigation of damage or for other important reasons.
- Retention of title, passing of the risk
- Ownership in the goods remains with us until full payment is made.
- For a potential resale of our delivery prior to full payment of the purchase price, the purchase price claim against a third party is transferred to us.
- In the event that our delivery is processed or mixed prior to full payment of the purchase price, we acquire co-ownership in the new item according to the value of the processed goods.
- During the duration of the retention of title, the customer must insure the delivery item against fire, water and breakage.
- The customer is not authorized to pledge the reserved property, assign such by way of security or make other decisions that endanger the property of m&h. If a third party also acquires rights in the reserved property, the customer already now assigns all rights arising from such in the reserved property to us.
- The risk of accidental loss or deterioration of the goods is transferred to the customer with shipping of the goods ex works, even if freight-paid delivery was agreed upon. If shipping is delayed due to the customer's fault, the risk is transferred to the customer already on the day such goods are ready for shipping.
- Applicable law, place of jurisdiction, other provisions
- For the legal relationship between us and the customer the laws of the Federal Republic of Germany apply exclusively while excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- Exclusive place of jurisdiction for all disputes, disagreements or claims arising from or in connection with the contractual relationship is Ravensburg, Germany. This also applies if the customer does not have a general place of jurisdiction in the Federal Republic of Germany or if he has moved his habitual residence abroad after having entered into the contract. We reserve the right to bring an action against the customer in any other place of jurisdiction.
- The exclusive place of fulfillment for all obligations arising from the contractual relationship is Ravensburg, Gemrany.
- These GTC are valid for an indefinite period of time. The individual contracts/orders can only be terminated by the respective party to the contract for good cause, and claims for damages connected to the reason for termination shall remain reserved. Good cause for termination is given in particular if
(i) the customer violates his contractual or legal obligations and if such violations are not remedied by the customer within thirty (30) days after written warning,
(ii) if the ability to pay of the customer is significantly impaired, for example if insolvencey proceedings regarding the assets of the customer are initiated,
(iii) the shareholding of the customer in the company changes in a way that it is acquired by one of our competitors or
(iv) our good reputation is threatened to be damaged as a result of the behavior of the customer.
- Assigning of claims of the customer against us from contract or on the basis of laws requires our preior written consent in order to take effect; such consent will not be unfairly withheld if legitimate interest is given.
- Should invididual provisions of these GTC or parts thereof be or become invalid in part or as a whole, the validity of the remaining GTC is not affected by such. Valid regulations are to replace the invalid provisions that come as close as possible to the GTC as a whole as well as the other contractual agreements in a factual, legal and economic regard. The same approach applies in the event that there is a gap in the GTC.
- Additional agreements and deviating agreements must be made in writing. This also applies to waiving the written form requirement.