Swoop

Processing and Laboratory Systems - General Conditions - MOCON® GmbH (Neuwied/Germany)

Swoop

 

General Terms and Conditions of MOCON GmbH


1. Scope of Application


1.1 Any sales, deliveries, services and offers of MOCON GmbH (hereinafter "we" or "Seller" or "Supplier") shall be subject to and made based on these Terms and Conditions. These Terms and Conditions shall be part of any orders addressed to or agreements entered into by MOCON GmbH from or with any counterparty (hereinafter "Customer") with respect products and services offered by MOCON GmbH. These Terms and Conditions shall furthermore apply to any future sales, deliveries, services or offers to or by the Customer without their application being expressly agreed on.

 

1.2 Any terms and conditions of the Customer or third party shall not apply, even if the Supplier does not expressly object to their application in the individual instance, and the application of any such terms is hereby expressly excluded. Even if we make reference to any letter, order or other document containing terms and conditions of the Customer or a third party, such reference shall not be construed to contain or deemed to be our consent to such terms and conditions. Any terms and conditions other than these terms and conditions, in particular of the Customer, shall only apply if we have expressly consented to their application in writing. Any conflicting terms and conditions of Customers shall in no event apply.

 

2. Offer and conclusion of contract


2.1 Our offers are non-binding. Orders issued require our confirmation in written form to become legally binding. Verbal agreements, promises and guarantees, which have been agreed to before or during the conclusion of contract, also require our confirmation in written form to become legally binding. Our employees are neither entitled to make nor written commitments of any kind to customers, unless such employee is a managing director or authorized representative (Prokurist)

 

2.2 Any measurements, weights, illustrations, drawings and any supporting other documents contained in an offer are shall only be binding of expressly so designated.

 

2.3 Any ownership rights and copyrights pertaining to any cost estimates, drawings or other documents remain with us, they shall be returned to us upon our request and third parties shall not be given access to them.

 

3. Prices and Payment


3.1 Unless otherwise agreed in writing, our general price list (service and pricing conditions) shall apply.

 

3.2 Prices are ex works and excluding any applicable statutory VAT. Additional costs for packaging, freight, insurance or custom duties and charges shall be borne by the Customer and are add-on. To the extent that goods are delivered within the European Union, prices include any applicable customs duties and charges.

 

3.3 Any invoice amount shall be due and payable without any deduction 30 days from receipt of the respective invoice.

 

3.4 If the Customer fully or partially defaults on payment, the Customer shall – without prejudice to any further claims, rights or remedies we may be entitled to – obligated to pay default interest in the amount of 9% p.a. above the applicable base interest rate of the European Central Bank, unless we can demonstrate higher damages.

 

3.5 The Customer's rights to setoff and retention rights shall be excluded to the extent the respective Customer's alleged claim is undisputed or res iudicata. We shall be entitled to avoid the enforcement of retention rights by providing adequate collateral – also by way of guarantee (Bürgschaft).

 

4. Dates


4.1 Delivery periods are approximate estimates only, unless expressly designated as fixed dates.

 

4.2 Delivery periods shall not commence before the Customer has provided us with all required documents, authorizations, approvals and before any agreed deposit or purchase orders of the Customer has been received. Compliance with the delivery period requires that the Customer fulfills his contractual obligations. Goods shall be deemed timely delivered, if such goods have left storage/production before expiry of the applicable delivery period.

 

4.3 In case of force majeure – including, but not limited to restrictions under public law, strikes and lockouts – we are entitled to a reasonable extension of the delivery time. The same applies if we have not been timely supplied ourselves by our pre-supplier, unless we were responsible for the delay. The parties shall inform each other without undue delay upon such force majeure event coming to their attention. In the event that such an event continues for more than two months or our pre-supplier defaults and does not supply us within two months, each party shall be entitled to rescind (zurücktreten) the agreement.

 

4.4 If we default on our delivery or performance obligations, the Customer shall be obligated to reasonably request an additional adequate period to perform the respective obligation or to cure the respective default and shall only be entitled to rescind (zurücktreten) the agreement to the extend we have failed to perform the respective obligation or cure the respective default within such extension.-

 

5. Delivery / passing of risk


5.1 The risk passes to the Customer upon delivery to the freight forwarder, carrier or collector of the delivery goods, but at the latest when the goods leave our site (ex works). This shall also apply if the parties have agreed to a freight-paid delivery or free delivery (Lieferung frei Haus) (CPT, FCA). At the Customer's request and expense, we will insure the delivery goods against breakage, transport, fire and water damages.

 

5.2 If the dispatch or delivery of any goods is delayed due to reasons the Customer is responsible for or if the Customer otherwise is in delay with the acceptance of the goods (im Annahmeverzug), the risk passes to the Customer upon notification of readiness for dispatch.

 

5.3 If the dispatch is delayed due to reasons the Customer is responsible for we shall be entitled to charge storage costs in the amount of 0.5% of the invoice amount per month beginning one month after announcement of readiness for dispatch. The aggregate amount of such damages shall not exceed 5% of the invoice amount, unless we can demonstrate higher damages.

 

5.4 Partial deliveries are permitted to the extent reasonable.

 

6. Retention of Title


6.1 Until the fulfillment of all claims, including future claims, arising from the business relationship with the Customer, the following collateral shall be granted to us and which shall hereby be automatically released to the extent the aggregate value of such collateral exceeds the amount of the claims by more than 10%.

 

6.2 We shall retain full title to any goods and products delivered. Processing and transformation of the delivered goods shall always be performed for us as producer of such newly produced product but without creating any obligation for us. In the event that our title to any goods or products ceases and transfers by virtue of the processing, modification or combination with other products of the goods or products delivered, (partial) title (Miteigentum) shall remain with and/or is hereby transferred to us to the extent (invoice value) of co-ownership of the Customer in such newly created product. The Customer shall assume custody of such product (co-)owned by us free of charge. Any product or goods to which we have or retain title or co-ownership are hereinafter referred to as "Retention Goods".

 

6.3 The Customer shall be entitled to dispose of and modify the Retention Goods in the ordinary course of business, to the extent the Customer has not defaulted (delay) on its obligations. Retention Goods may not be pledged or transferred as security (sicherungsübereignet). Any claims for payment resulting from the sale and disposal or any other legal basis (e.g. insurance or tort claims) relating to the Retention Goods are hereby assigned as security (sicherungsabgetreten) to us by the Customer in full. Such security shall be automatically released to the extent the assigned claims exceed the outstandings under the customer relationship with the Customer by more than 10%. Until revoked by us, we hereby authorize the Customer to enforce and collect on any such claims from third parties on our behalf.

 

6.4 In the event that any Retention Goods are seized by third parties, the Customer shall notify such third party of our title to the Retention Goods and notify us without undue delay of our title to the Retention Goods in order to enable us to pursue and enforce our ownership rights. The Customer shall be liable for any costs incurred (in and out of court) by us in pursuance of these rights to the extent such third party is unable to reimburse us for any such costs.

 

7. Warranty, Duty to Inspection and Objection


7.1 If the purchased product is defective, the Customer is entitled to the following rights:

 

7.1.1 We shall be obliged to cure any defect (Nacherfüllung) and we will, in our sole discretion, do so by remedying the defect (Nachbesserung) or supplying a product free of defects (Nachlieferung). The Customer shall set a reasonable time for curing any defect.

 

7.1.2 If the cure has failed after two unsuccessful attempts to remedy any defect, the Customer shall be entitled to rescind the agreement or reduce the purchase price (Minderung), to the extent the breach of our obligation is material.

 

7.1.3 Defects due to damaging, incorrect installation or incorrect or inappropriate use by the Customer, damages, which are caused by a force majeure event, e.g. by lightning and defects caused by mechanical or electromechanical overuse of parts due to incorrect use or pollution or extraordinary, mechanical, chemical or atmospherical factors shall not constitute a defect of the product or goods

 

7.2 Any warranty claims is excluded if the Customer or a third person modifies or improperly repairs the delivered goods.

 

7.3 Any warranty claim shall be time-barred one year after delivery.

 

7.4 The purchaser shall inspect the goods and packaging immediately upon delivery according to the usual commercial customs and practice. If the Customer notices an apparent defect (offener Mangel) during inspection, the Customer shall immediately, in any event within two weeks, inform us in written form ofsuch defect. If the Customer does not inspect the delivered goods or if it does not immediately inform us of any noticed or noticeable defects, the delivered products shall be deemed approved. In case of hidden defects (versteckte Mängel), the Customer shall inform us immediately after having noticed the defect. Otherwise, the products shall be deemed approved.

 

7.5 Any of the aforementioned limitations of liability shall only apply to the extent that (i) damages do not result from intentional or grossly negligent conduct of us, our statutory representatives or vicarious agents (Erfüllungsgehilfen) and/or (ii) the damages result from injury to life, body or health. In the event any damages fall within no. (i) and/or (ii) of the preceding sentence, the statutory warranty provisions shall apply.

 

8. Liability for Damagess


8.1 In the event of damages from injury to life, body or health, we are liable pursuant to the statutory provisions. The provisions of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected by the following terms.

 

8.2 For other damages the following applies:

 

For damages caused by intentional or grossly negligent breach of duties by us, our legal representatives or our vicarious agents (Erfüllungsgehilfe), we shall be liable pursuant to the legal provisions.

 

For damages which caused by negligent breach of material obligations by us, our legal representatives or our vicarious agents (Erfüllungsgehilfe), our liability shall be limited to the foreseeable damage typical for the type of agreement up to the maximum amount of twice the value of the delivered product. Damage claims due to the breach of ancillary obligations (Nebenpflichten) or the slightly negligent breach of immaterial obligations shall be excluded. Damage claims due to delay (Verzug) which has been caused slightly negligently are excluded; any statutory rights of the Customer after expiration of a set reasonable time period shall remain unaffected.

 

8.3 We shall not be liable for the suitability of the product use intended by the Customer, unless the respective concrete use was expressly agreed in the agreement in written form. To the extent we provide advice about applications or information or recommendations, we shall only be liable for any grossly negligent misleading advice, provision of information or recommendation provided that the advice, information or recommendation has been given in written form.

 

9. Software


To the extent that any of the products sold and/or delivered contain Software, the Customer shall be granted a nonexclusive right to use the respective software and supporting documentation only in connection with the sold/delivered product. The use of any such software in connection with another and/or a second product/system is impermissible. The Customer shall only copy, reproduce, modify, translate or transform from its object code to the source code to the extent permitted by law (secs. 69a et seq. German Copyright Act (UrhG)). The Customer undertakes not to remove any developer's specifications, including any copyright notice, or to modify any such specifications without our prior express consent. Any other rights with respect to the software remain with us or the developer. Sub-licensing shall not be permitted.

 

10. Place of Jurisdiction


10.1 Place of jurisdiction is our business seat.

 

10.2 The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

 

11. Confidentiality


Any business and trade secrets of MOCON or any of its affiliates (verbundene Unternehmen) revealed in an agreement between the parties or throughout the term of a an agreement or life of a customer relationship shall not be disclosed by the Customer to a third party, unless such information is already publicly known or its disclosure required by law or final and binding administrative or court order.

 

12. Form


Any declarations made under or in connection with this agreement, including any amendments, supplements or terminations, shall only be valid if made in writing. The preceding sentence shall also apply to the amendment of this section.

 

13. Severability


The present or future invalidity of any of these Terms and Conditions shall not affect the validity of the remaining Terms and Conditions. Any such invalid provision shall be deemed replaced by the respective statutory provision.

 

14. Language


These Terms and Conditions exist in a German and an English language version. In the event of any conflicts between the English and the German language version, the German language version shall prevail.

 

Version of 01.09.2016