General Terms and Conditions of Mocontronic Systems GmbH
The English translation of the Mocontronic Terms and Conditions is provided for the convenience of our non-German-speaking customers.
1. Scope
The following terms and conditions of Mocontronic Systems GmbH, hereinafter referred to Mocontronic apply if nothing to the contrary has been agreed to in writing. These terms and conditions shall apply to all goods and services provided by Mocontronic. Any terms and conditions submitted by the buyer are superseded by the terms and conditions of Mocontronic. The order, receipt and payment of goods and services each stand alone and are without prejudice to earlier objections as acknowledgement of our terms and conditions. Deviations from the effectiveness of the terms and conditions must have our express written agreement for each and every contract. The following conditions as in force from time to time shall be applicable to future supplies and services made by us even if we have not sent them to the customer or made renewed reference to them. Our products are produced exclusively for use by retailers, industrial and commercial users and public authorities, government institutions, schools and universities.
Invalidity of individual provisions is without prejudice to the validity of the rest of the contract and these Terms and Conditions.
2. Offers/orders
All prices are quoted net (excluding VAT) and are subject to change. Patterns and samples are non-binding outline information. Orders are only binding when we have confirmed our acceptance in writing. The item will be delivered with the characteristics and quality which are customary for manufacturer at the time of delivery. For any additional purchases the current list price at the time of delivery will apply. We are entitled to deliver partial deliveries and provide partial services at any time.
3. Terms of Payment
Terms of payment are 30 days from the date of invoice. If the full payment is not received within 30 days, we are entitled without issuing a reminder from day 31 to invoice the customer with additional costs such as interest and administrative charges. In the event that the customer is in default of payment, we are shall only ship orders against receipt of advanced payment or withhold shipments completely. In addition, we reserve the right to change the payment terms for individual customers.
4. Cancellation
In the event of cancellation of an order by the buyer after receiving the order confirmation by the Mocontronic Systems GmbH cancellation costs will be as follows: Method of calculation:
- a) cancellation after 1 / 5 of the total delivery time – 40% of the total contract value
- b) cancellation after 1 / 2 of the total delivery time – 60% of the total contract value
- c) Cancellation after 4 / 5 of the total delivery time – 100% of the total contract value
5. Packaging and Dispatch
We are responsible for the shipment of goods using our best judgment. The mode of shipment, shipping route and freight forwarder will be chosen at our discretion. The customers shipping instructions are only binding on us when we have confirmed them in writing. If nothing prior is agreed, the buyer will bear all costs of shipment and standard packaging. If the buyer requests special packaging then the buyer will bear the extra costs incurred. The regular shipping cost is 8,70 Euros net within Germany. To all other destinations the customer will pay the standard UPS charges plus packaging costs.
6. Deployment and application guidelines
The buyer is committed to proper use and proper application of our products within their specifications. The product regulations and recommendations also apply, as do the general safety rules and technical guidelines.
7. Warranty and defects
The guarantee for goods and services supplied by Mocontronic is valid if nothing to the contrary has been agreed in writing in accordance with statutory provisions. Goods will only be considered as insured if it has been agreed in writing. The buyer shall be obliged to give written notice, (per fax/telex is acceptable) of incorrect deliveries, shortages and damage immediately or within 3 days from receipt. Deviations relating to agreed upon specifications, which are detailed in the relevant technical standards – specified limits – shall not be regarded as shortcomings. The warranty period is unless otherwise agreed in writing 6 months. In the event of lack of conformity of the goods we shall be entitled to remedy such lack of conformity by repair or replacement. Notwithstanding anything to the contrary, we shall not be liable for incidental, indirect or consequential damages. This warranty does not cover damage to any item, if in our opinion; damage has been caused by improper buyer use and/or non-adherence to application guidelines and recommendations. The same applies if any non-conformities were as a result of buyers specifications, other documents or other information transmitted to us. Consumables and deterioration of parts are excluded from the guarantee. To ensure validity of the warranty claim the non-forming parts must be returned in their original packing, carriage free and with a full description of the defect. The description of the defect must be detailed enough for us to reproduce the defect. Claims to provide warranty services outside of our premises will not be acceptable. Additional deviations are the separate conditions agreed for the supply of prototypes and software.
8. Repairs
If a cost estimate is required before a repair is undertaken then the buyer must make this clear in writing. If after providing an estimate the buyer decides not to proceed, or the repair is not technically feasible or economically viable the costs for providing the estimate must be paid for by the buyer. All relevant packaging and transport costs will be invoiced to the buyer. Refer to paragraph 4 of the terms and conditions.
9. Damages and liability
Any claims by the buyer, for whatever legal reasons directly related to the ordering, supply or use of our products may remain excluded, provided that we and our vicarious agents have not been grossly negligent or acted with malice aforethought. In the event of gross negligence and/or a substantial breach of contract duties, Mocontronic’s liability shall be limited to the completion of the contract and limited to typically foreseeable damage up to the purchase price of the goods that gave rise to any such liability. Also excluded are any claims related to misuse of the product or non-compliance of the application guidelines and recommendations.
10. Special delivery conditions for software
For the delivery of software and components the following restrictions and conditions apply: The buyer acknowledges that malfunctions of state of the art software and errors in accompanying documentation cannot be ruled out. The contractual partner acknowledges that malfunctions of software cannot be entirely ruled out according to the state of the art, not even with the greatest of diligence. The subject matter of a software contract is the description of the program to be developed, the development contract and the user manual. When using software or products containing software, the buyer must take appropriate precautions to ensure safety aspects are not compromised and the endangerment of persons is avoided as far as reasonably possible. Within 30 days of the product delivery, the buyer has the right to return incorrect software and request a correct version. If re-work is not possible or if after 3 attempts to rectify the software the problem has not been corrected, the buyer may cancel the contract and any copies are to be destroyed. Further warranty claims are excluded. Mocontronic does not guarantee the program functions meet the requirements of the buyer or co-operate with selecting alternative programs made by the buyer. Likewise, a liability for loss of profit, damage to or loss of stored data and other direct or indirect damages is excluded unless gross negligence was caused deliberately by Mocontronic. Warranty claims for software expire six months after delivery.
11. Special conditions for development services
The restrictions and conditions which are applicable for development orders as agreed in the scope of development and contract between the buyer and Mocontronic are listed below. Relevant here is the extent of information specified in the confirmation of the order. This is also valid in particular for the documentation, including development documents, design documents and any other relevant documentation which are provided. Any form of testing such as TÜV, UL, EMV, VDE, RCA etc. can be arranged but only if this is explicitly requested in the contract. Otherwise it will be assumed for all audits and approvals the buyer will bear the costs. With the awarding of the contract, the buyer accepts that Mocontronic’s general terms and payment conditions will apply unless otherwise agreed in writing. Also, the scope of delivery as defined in the development order or order confirmation will apply. For development contracts in which an advance payment is agreed upon, the obligation to begin order processing for Mocontronic will begin at the earliest with the receipt of the agreed advance payment. Any costs for delayed deliveries resulting from late payment by the buyer will be at the expense of the buyer. All development test results provided to the buyer must be immediately examined. With the placement of an order for a production series of components with Mocontronic and/or foreign suppliers the development service will be considered as completed – without the requirement of separate acceptance inspection. Development services which include software are also subject to the special conditions.
12. Special conditions for prototypes, test patterns and similar assemblies.
For prototypes, experimental models and similar components, the following restrictions and/or conditions will apply: Prototypes, experimental models, pilot samples and similar components show in principle to demonstrate the development and related processes. The specification of such prototypes can deviate from planned development targets and/or production components. In particular, this applies to the conformance of safety regulations, for example RoHS. These products are limited for use in development work and are not in any way suitable for normal production use. Therefore, in principle, it is not possible to guarantee prototypes, experimental models and similar components. For orders which also contain a request for production quantities it is accepted that this also automatic acceptance of any prototypes, experimental models and similar components.
13. Retention of title
The title of the goods supplied by Mocontronic including manufacturing and development arising from this commercial relationship shall only be transferred to the buyer upon completion of all our claims, including claims arising in the future. The buyer hereby assigns to Mocontronic the receivables with all ancillary claims from the resale of the goods subject to retention of the title, including any outstanding claims now or in the future. Mocontronic accepts this assignment.
14. Place of jurisdiction
The place of fulfillment and jurisdiction for supplies, payments and disputes including cheques and actions on a bill of exchange arising from the contractual relationship with the buyer shall be the registered head office of the seller. The right to raise any claim against a merchant at any different venue shall remain unaffected. The applicable language of the contract is German.
15. Disposal and return of used goods
By purchasing the goods the buyer agrees that he will effect the disposal of the goods at the end of their usage at own expense and according to all legal regulations and applicable standards. The buyer shall waive any claim against seller, and hold harmless seller against any claims (also from third parties) in connection with paragraph 10 section 2 of the German ElektroG. The used goods may be returned against a prior agreed cost sharing arrangement.
16. Final provisions
If one provision of the contract or any supplementary agreement is or becomes invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a legal one that most closely reflects the economic purpose of the invalid provision. The same shall apply to deficiencies in the contract. Subsidiary agreements, amendments and supplements to the contract and to all supplementary agreements have to be made in writing and must be signed by correctly authorized representatives of each party. A waiver of the written requirement can only be agreed in writing. The general business, delivery payment terms and conditions apply with effect from 23.01.2007.
These terms and conditions are translated from the German version into English. In case of contradictions between the English and German language versions, the German original version shall prevail.
