The following conditions apply to all deliveries and services of the company. MKL Solid Technology GmbH, hereinafter also referred to as “seller” or “we”, and for all our offers and contracts for deliveries to be delivered by us (hereinafter also referred to as “goods”, “product” or “product”) and services, unless expressly and in writing (if applicable also binding in our company framework agreements between manufacturers and wholesalers and retailers) have been concluded. These terms and conditions also apply to all our future declarations, offers and contracts. Own terms and conditions of business or purchase of the customer (= “customer”, “customer”, “buyer”), which we do not expressly acknowledge in writing, are completely non-binding for us and do not become part of the contract, even if we do not expressly contradict them.
1. Offer, conclusion of contract, determination of contractual obligations, etc.
1.1 Our offers are always subject to change. Each offer or cost estimate is a closed whole, the removal of individual items or a change in varieties, quantities or delivery locations requires our consent; Freight costs mentioned by us are always non-binding.
1.2 For the determination of our contractual obligations and/or of characteristics of our deliveries or services, only the information and declarations that have become the content of the contractual relationship expressly and in writing are decisive. Information in prospectuses or offers, advertising statements, statements in other publications and statements of third parties does not give rise to contractual claims for performance, warranty or damages against us for any consideration. If the manufacturer or a third party has made a declaration for a product offered or sold by us, that it can be used directly by the buyer if the product is defective or certain properties are present or missing and/or certain conditions are met (guarantee declaration), we are only a messenger of the explainer with regard to this warranty declaration, without us ourselves having checked the content, value or enforceability of claims arising from the warranty declaration and without our customer from or because of this warranty declaration of the manufacturer or the third party asserting claims of any kind against us. We ourselves only make representations or guarantees for the quality of deliveries and services and for the risk of their procurement only if and to the extent that this has been expressly agreed in writing between us and the customer.
1.3 Contracts and service calls as well as their amendments and additions and all other agreements relating to a contract or its winding-up must in principle be in writing. However, we are entitled to use the electronic form or the text form instead of the written form in general or for individual explanations; in this case, the customer is also entitled to make his declarations to us in the form we have chosen towards him. Orally, agreements are only effective if they are confirmed by either party immediately in writing or in the form chosen by us for this contractual relationship. If a contract document is not established in writing, an order placed with us will not become binding on us until it has been confirmed by us in writing or in text form (telefax). If we begin to execute a delivery or service without express written agreement or confirmation, a contractual relationship is only established by our complete delivery or service. The contract document signed by both parties or, if it does not exist, the content of our order confirmation finally describes our contractual obligation.
1.4 Our obligations are subject to the proviso that we are properly and timely supplied from a kongruent cover transaction concluded by us, including for supply and subcontracting products as well as for raw materials, auxiliary materials and supplies or services of third parties that we require for our production or readiness to deliver. (= trade clause: “Right and timely self-supply is reserved”).
1.5 Insofar as we purchase goods or services that we use for the fulfilment of our contractual obligations towards our customer, we carry out initial investigations or other checks only in our own interest and according to our own needs. 1.6 If and to the extent that this does not affect the intended use or usability, the value is maintained or increased and the changes are reasonable for the customer, we have the right to change the subject matter of our delivery or service in relation to the design, offer or description of the contract in order to improve our delivery or performance in the sense of production or technical progress or because this is due to commercial deviations in weight. , quantities, dimensions, material composition, material structure, structure, surface and colour or is due to the nature of the materials used.
2.1 Our prices are in EURO from D-94532 Aussernzell without VAT and without other public charges levied on the levy or the movement of goods, without packaging, without insurance and without freight, unless expressly agreed otherwise.
2.2 Insofar as a quantified price is not expressly agreed as fixed, our list price valid on the day of delivery will be charged.
2.3 Subject to an express other contractual provision, even if a quantified price is agreed, if our delivery or service or our partial delivery or partial service is not due within 4 months of the conclusion of the contract and material, wage, energy and/or freight costs and/or public charges are increased or are newly introduced, we shall be entitled to charge a surcharge corresponding to the change that has occurred.
2.4 Unless another agreement has been expressly concluded, we are entitled to demand advance payments for products that are not ready from stock at the time of conclusion of the contract, i.e. one third of the order amount after receipt of the order confirmation and another third after notification of readiness for dispatch.
2.5 We may always calculate the delivery or service already provided by us and make the payment claim due.
3. Delivery, performance
3.1 Delivery or performance periods are only binding if they have been agreed in writing. In case of doubt, the delivery periods specified in the order confirmation shall apply. The period begins with the conclusion of the contract, but not before the fulfilment of existing obligations to cooperate by the customer, in particular the provision of the documents to be procured by the customer, its additions, approvals, releases or agreed down payments or the provision of other collateral for the fulfilment of his contractual obligations. The agreed dates shall also be deemed to have been met upon notification of readiness for dispatch if deliveries or services cannot be made on time without our fault.
3.2 If the non-compliance with the delivery or performance deadlines is due to force majeure and other disturbances for which we are not responsible, e.g. war, terrorist attacks, import and export restrictions, industrial disputes, including those concerning suppliers, the agreed deadlines shall be extended appropriately, even if we are in arrears at the time.
3.3 If we do not comply with a binding delivery or performance period in breach of a binding delivery or performance period for reasons other than those specified in clause 3.2, the customer may withdraw from the contract after he has set us a reasonable period of time in writing and we have not respected it.
3.4 Further rights of the customer due to delay, in particular on further damages, are excluded to the extent specified in clause 7., Liability.
3.5 We are entitled to perform our contractual obligations also in partial services, provided that this is a divisible liability and that the respective partial service is not associated with unreasonable or uncompensated charges for the customer.
3.6 If the customer has to assert a right to vote, performance, supplementary performance, rescission, and/or compensation of damages or expenses due to a breach of contract by us, we may ask him to exercise his rights within a reasonable period of time. If the customer does not declare himself if he is not able to claim damages instead of the performance and/or declare a withdrawal only after a reasonable period of time to be determined by him has expired without success.
4. Transfer of risk; Dispatch, duties of investigation and reprimand
4.1 We owe our customer the handover or service provision in our commercial branch (= “from point of sale”) from which we have concluded the contract. Upon handover, the risk of accidental loss and accidental deterioration of the goods passes to the customer.
4.2 If the goods are dispatched to another location at the request of the customer, unless otherwise specified by the customer, the shipping method is at our discretion. Transport insurance is only taken out at the direction and cost of the customer. The risk passes upon delivery to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment.
4.3 If the handover or dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer from the day of notification of readiness for delivery or dispatch.
4.4 The goods must be inspected by the customer immediately upon receipt, even if the delivery is not to him, but to a third party designated by him. Complaints of defects, missing quantities, incorrect deliveries or other complaints must be reported immediately after gaining knowledge and in advance by telephone or fax, so that we can carry out our own inspection and preservation of evidence. Obvious defects and deviations must be notified no later than 72 hours after receipt. Further obsolesmism of the merchant according to Section 377 of the German Commercial Code (HGB) to us and the obligation to notify the carrier of obvious transport damage and missing quantities upon delivery remain unaffected.
5. Defects, supplementary performance (guarantee), limitation period
5.1 If the goods delivered by us or the service provided are defective and the customer demands from us for supplementary performance, we can choose whether we remedy the defect (repair) or deliver a defect-free item or service (replacement delivery). We will inform the customer of our decision without delay. If we choose the repair, the complained goods must be sent to us for repair. The costs of the cheapest return shipment to/from/to the delivery address of the customer in Germany, which has been agreed for the original delivery of the products, shall be borne by us, if the complaint proves to be justified; this rule applies by analogy when we arrive for repairs. The customer shall give us or a third party selected by us the appropriate time and opportunity to carry out the warranty work. Except in the cases of Section 637 of the German Civil Code (BGB), he is only entitled to carry out such work with our consent. If we provide replacements, we can demand that, at our discretion and on our behalf, the customer either disposes of or utilises the defective goods, settles with us and returns a proceeds minus its recovery costs, provided that the customer himself trades in such or similar goods or that he is reasonable for the recovery or disposal for other reasons.
5.2 Claims for defects do not exist in the event of only insignificant deviation from the agreed quality or in the case of only insignificant impairment of usability.
5.3 Our warranty obligation and liability shall expire if our goods are changed, including through the installation of parts of third origin, unless the defect or damage is not causally related to the changes, as well as if regulations for shipping, packaging, installation, treatment, use or maintenance are not followed, or if there is incorrect assembly or commissioning or modification or repair work by the customer or third parties.
5.4 Natural wear and tear is excluded from the warranty. We also have no pay for changes in the condition or characteristics of our products due to improper use or processing, incorrect combination with other objects, incorrect storage, unsuitable equipment and climatic or other effects which are not required by the contract.
5.5 If the subsequent performance fails, the customer may demand the cancellation of the contract (withdrawal) or the reduction of the remuneration (reduction) in accordance with the statutory provisions; clause 6 applies to claims for damages.
5.6 Further or other rights due to a defect than the claims stipulated in this clause 5 are excluded, subject to contractual or non-contractual claims for damages in accordance with clause 7. However, insofar as a defect is irrelevant, the customer’s claim for damages in this respect does not include the purchase price paid, but only the damage suffered by his property as a result of the fact that the item is not free of defect.
5.7 If a notification of defects proves to be unjustified, we shall be entitled to charge the customer for all expenses incurred by us as a result of such adefect.
5.8 The provisions of this clause 5 shall apply accordingly to defects of title that are not caused by the infringement of third party intellectual property rights or copyrights.
5.9 The statutory limitation periods for claims against us arising from or in connection with defects in our delivery or performance or the breach of a contractual obligation begins to run with the delivery of purchased goods, in other cases with the acceptance of our service.
5.10 The limitation period shall be held for the duration of the time necessary for subsequent performance. It does not start again.
5.11 The provisions of this clause shall apply accordingly even if we have delivered or paid anything other than due.
6.1 We shall be liable without limitation for damages and compensation for futile expenses within the meaning of Section 284 of the German Civil Code (BGB( hereinafter referred to only as “Compensation”) for breach of contractual or non-contractual obligations, and in the event of intent or gross negligence on the part of our vicarious agents. In the event of liability due to slight negligence on the part of our vicarious agents, our liability shall be limited to the typical damage foreseeable at the time of conclusion of the contract. Predictable damage typical of the contract is the damage that we foresaw at the time of conclusion of the contract as a possible consequence of the realized breach of contract or should have foreseen taking into account the circumstances we knew or had to know. In the event of damage caused by slight negligence, our liability is limited to 5 of the agreed fee.
6.2 We shall not be liable in accordance with 6.1 but in accordance with the statutory provisions if and to the extent that claims for injury to life, body or health, from the assumption of a guarantee or a procurement risk, from the breach of essential contractual obligations (“cardinal obligations”), to damages instead of performance, due to mandatory liability under the Product Liability Act or other mandatory liability are asserted.
6.3 Insofar as our liability is excluded or limited, this also applies equally to the personal liability of all persons who have contributed to the initiation, conclusion and/or execution of the contractual relationship for us, i.e. in particular for personal liability of all persons who are in a service or employment relationship with us, our legal representatives and our vicarious agents.
6.4 A change in the burden of proof to the detriment of the customer is not connected with the above regulations.
6.5 The provisions of this clause 6 shall apply unless otherwise specified in these terms and conditions or in the contract itself.
7. Retention of title
7.1 The goods remain our property until all our own claims, which are necessarily or conditionally due to us at the time of the due date of their (purchase) price against the customer, paid and/or all bills of exchange, cheques or other documents given to us by the customer for payment have been redeemed and such amounts are finally credited to us. In the case of an ongoing invoice, the reserved property shall be deemed to be the security for our balance claim. The posting of individual receivables in a current account as well as the balancing and recognition of such claims do not affect the retention of title. The transfer of ownership from us to the customer is in no case dependent on the customer fulfilling claims of a third party, which we may assert against him or offset.
7.2 Until full payment has been made, the customer is obliged to treat our goods in such a way that they are recognizable as our property. The customer shall keep the property for us free of charge. The same applies to items in which we have co-ownership. The customer is obligated to insure our property in his possession against damage to the extent that he has insured his property and to provide us with all information and documents necessary for the enforcement of our rights.
7.3 The customer is only entitled to resell, to further process or to install the goods, which are still our property or in which we have co-ownership, in accordance with the following provisions and only if the aforementioned claims actually pass to us: The customer is entitled to resell the reserved goods in the ordinary course of business, but he is not permitted to pledge or transfer title of security. Processing or conversion of reserved goods always takes place for us as a manufacturer and we acquire ownership of the new item, but without obligation for us. If our property expires by processing, connecting, mixing or mixing with items that do not belong to us, it is already agreed that at this moment we will acquire co-ownership of the new united item to the share at which the invoice value of our reserved goods is at the invoice value of the entire new item. The buyer’s powers granted above shall end if the buyer fails to fulfil his obligations to us within the prescribed period, falls into a forfeiture of assets, ceases his payments or is requested to open insolvency proceedings against his assets.
7.4 The customer assigns to us the claims of the customer aresult from a resale of the reserved goods or the item in which we have (co-)ownership, we accept these assignments. These assignments of receivables cover the entire claim in so far as its amount is smaller or as high as our open receivable; otherwise, this assignment only covers the first-class portion of this claim by the customer in the amount of our outstanding claim. Notwithstanding our own right of collection, the customer is conditionally authorized to collect the claims assigned to us on his behalf from the debtors. This authorization of the customer ends automatically (condition entry) if he realizes that he is over-indebted or that he ceases his payments or he or a third party requests the opening of insolvency proceedings over the assets of the customer. At our request, the customer shall provide the information required for recovery of the assigned claims, to provide us with all documents relating to these claims in the original or for inspection, in particular to name the debtors, by name, with full address, stating the amount and reason of their debt and informing the debtors of the assignment.
7.5 Without prejudice to other rights, we shall be entitled to revoke all powers of the customer, as stated in this clause, to determine our property or our rights if the customer culpably violates contractual obligations despite a reminder or if we have any indications that the customer has fallen into a state of decline or threatens to default and that the customer does not demonstrate his continued solvency.
7.6 The customer must inform us immediately of the enforcement measures taken by third parties in the goods subject to retention of title or in the claims assigned to us in advance by handing over the documents necessary for intervention.
7.7 We are entitled to withdraw from the contract in accordance with the statutory provisions in the event of a delay in payment or any other culpable breach of the customer’s contractual obligations and to demand the return of the goods in our reservation or co-ownership.
7.8 We undertake to release the safeguards to which we are entitled in accordance with the above provisions at the request of the customer at our discretion to the extent that their value is in accordance with their our list prices applicable to this customer at that time exceeds the claims to be secured by 15 or more.
8. Payments, set-off, maturity
8.1 Unless otherwise agreed in writing or a case of clause 2.4 exists, we will invoice us with the delivery, and the customer owes us the payment without deduction on delivery, clause 2.4 remains unaffected.
8.2 Payments must be made in cash with us or by bank transfer to the account indicated by us in the invoice. Discounts granted by us are calculated from the invoice date.
8.3 Invoice regulation by bill of exchange or cheque is only effected for performance and requires a separate agreement. Discount fees, bills of exchange and costs are calculated from the date of the due date of the invoice amount and are to be borne by the customer. The risks and costs associated with the transmission of the invoice amount shall be borne by the customer.
8.4 If the customer is culpably in default of payment, we are entitled to charge default interest in the amount of the borrowing costs to be paid by us or in the amount of 8 points above the respective base interest rate. Our right to assert a further or statutory claim for damages remains unaffected. In the event of a culpable delay in payment by the customer, we are always entitled to cancel any payment terms granted and to pay the entire remaining debt from the business relationship and to demand immediate cash payment as well as discounts, even if these are not openly stated in the order/contract or on the invoice and to revoke other agreed advantages. This right is not excluded by deferring or accepting cheques or bills of exchange. Furthermore, we are entitled to carry out outstanding deliveries only against advance payment or against the provision of collateral. Our rights under Section 321 of the German Civil Code (uncertainty) remain unaffected in any case and they are already available to us if the customer from this or another transaction culpably defaults on payment to us.
8.5 A set-off against our claims is only permissible with the customer’s own claims, which are undisputed or legally established or which, according to his conclusive substantiated assertion, are entitled to the customer precisely from the business for which we assert our respective claim. A right of retention alike from past or other transactions than the contractual relationship in the present cannot be asserted. The assignment of claims requires our written consent.
8.6 We are entitled to offset payments against the oldest due claim.
8.7 If the customer is liable to forfeiture of assets (= over-indebtedness, insolvency or imminent insolvency) and is therefore requested to open insolvency proceedings over his assets, all our claims against him shall be deemed due and unconditionally payable at the time of filing an insolvency application, including, insofar as they are old, dissolving or suspensively conditional claims. Insofar as we have at this time claims against the customer, which are not directed at money or whose amount of money is indeterminate or uncertain, we are entitled to quantify at our reasonable discretion the amount of money owed and to demand it.
8.8 If insolvency proceedings are opened concerning the assets of the customer, we shall be entitled to set off against his claims also against claims to which we are due, which are still conditional or not yet due and/or which are due to a third party in which we are directly or indirectly involved at that time or who is then involved in us. Insofar as claims against the customer are not directed at money at this time or their amount of money is indeterminate or uncertain, we are entitled to quantify at our reasonable discretion the amount of money owed.
9. Place of jurisdiction; applicable law
9.1 The place of jurisdiction is D-94469 Deggendorf if the customer is a merchant or legal entity under public law or a special fund under public law. We are also entitled to bring an action before the court, which is responsible for the registered office or branch of the customer.
9.2 German law applies to all legal relationships between us and the customer.
9.3 If individual provisions of these terms and conditions of delivery are ineffective, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a provision which corresponds to the economic purpose of the expired provision. This applies accordingly if these conditions are ineffective as a whole.