General Terms and Conditions of Trade (GTCT)

MEKRUPHY GMBH
Naturwissenschaftliche Experimentiergeräte
Schäfflerstraße 9
85276 Pfaffenhofen an der Ilm
GERMANY
Phone: ++49 (0)8441 50420 – 0
Fax: ++49 (0)8441 50420 – 29
Email: info@mekruphy.com
Website: www.mekruphy.com

§ 1 Applicability

These sales and delivery terms and conditions apply exclusively. The customer’s terms and conditions shall only become part of the contract without the written consent of the user to the extent that they do not contradict these sales and delivery terms and conditions, even if they are used by the customer at a later time. They are then only binding for the individual case. Conflicting terms and conditions do not affect the validity of the concluded contract. In the case of conflicting conditions, the legal regulations apply. The user’s terms and conditions also apply if the user executes the delivery without reservation, even if the user is aware of conditions that contradict or deviate from these business conditions of the customer.

§ 2 Offer, Conclusion of Contract, Offer Documents

1. The customer’s order constitutes a binding offer that the user can accept by sending an order confirmation or commencing order execution. Offers previously made by the user are non-binding and free of charge unless otherwise agreed.
2. The content and scope of the contract are determined by the user’s written order confirmation, provided it is issued. Changes are reserved as long as they do not endanger the purpose of the contract and the changes are not of a fundamental nature.
3. The assignment or other transfer of all rights and claims of the customer against the user is excluded. This also applies to all future claims and rights. § 354a of the Commercial Code remains unaffected.
4. All agreements, whether made before or after conclusion of the contract, require written form to be effective. This also applies to verbal collateral agreements.
5. The customer is also the contracting party and client of the user if a delivery to third parties is agreed upon.
6. The user reserves ownership and copyright of texts, images, drawings, workbooks, calculations, and other documents. Before passing them on to third parties, the customer requires the explicit written consent of the user, unless the documents themselves indicate otherwise.

§ 3 Delivery times, delivery

1. Information about delivery times is non-binding unless a delivery date has been explicitly promised. Agreed delivery times begin with the sending of the order confirmation, but not before the necessary documents, approvals, clearances, required information, or an agreed-upon down payment has been provided by the customer or all cooperation obligations have been fulfilled.
2. The delivery time is considered met when the goods are made available for handover or shipping at the factory. If delivery cannot begin due to reasons within the customer’s sphere, particularly due to neglected cooperation obligations, notification of readiness for shipment is sufficient. In such cases, the delivery time is reasonably extended. An appropriate extension of the delivery time also occurs in the event of operational disruptions – both in the user’s operation and that of a supplier – such as strikes, lockouts, natural disasters, disturbances of public peace, traffic, and all other cases of force majeure.
3. If the user is in default with an obligation to perform, the delay damage is limited to 5% of the agreed net price of the delayed delivery if the damage is due to simple negligence of the user.
4. If the delivery time is unreasonably extended, but no earlier than four weeks after the occurrence of a circumstance that extends the delivery time in accordance with paragraph 2, the customer is entitled to withdraw from the contract after a fruitless expiration of a reasonable deadline set by the customer. Total cancellation of the entire contract after the start of contract performance is only possible if the customer no longer has any interest in the partial services already provided, which must be proven. In such cases, the user’s liability is excluded. § 7 of these terms and conditions remain unaffected.
5. Unless otherwise agreed, delivery is “ex works.”
6. If the user is in default with an obligation to perform, the customer can only exercise the rights under § 323 of the German Civil Code if the delay is caused by the user. This provision does not involve a shift in the burden of proof.
7. Partial deliveries are permissible within the delivery period indicated by the user, provided that this does not result in any disadvantages for use. Complaints about partial deliveries do not release the customer from the obligation to accept the remaining quantity of ordered products or additional partial services in accordance with the contract.
8. If the customer is in default of acceptance or violates other cooperation obligations, the user can demand a lump sum compensation for delay of 3% of the delivery value per week of delay, but not exceeding 15% of the delivery value. The user is not prevented from proving a higher damage, while the customer reserves the right to prove that no or significantly less damage has been caused to the user as a result of the default of acceptance.
9. If shipping is delayed at the customer’s request, the user is entitled to dispose of the delivery item elsewhere after setting a reasonable deadline that has expired without result and to deliver to the customer with an appropriate extended deadline.
10. If the provided services or products are not accepted by the agreed delivery date or within the delivery period, they are deemed approved or accepted with the expiration of three weeks after the delivery/provision date or the deadline at the latest, but no later than when put into use.

§ 4 Prices, transfer of risk, payment terms

1. Prices are net for delivery ex works. The statutory value-added tax is not included in the prices and will be separately shown on the day of invoicing. All prices are understood to be plus any additional costs, particularly the costs of freight, packaging, delivery, insurance expenses, customs duties, banking and payment transactions. Delivery is free of charge within the European Union. However, for goods valued at up to €150.00, a small quantity surcharge of €6.00 will be levied. The method of shipment and packaging is at the discretion of the provider. Discounts or other deductions require separate agreement. The agreed price shall generally apply. If the price has increased by a change in the market price or an increase in the fees charged by third parties involved in the provision of services at the time of performance, the higher price shall apply. If this is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be exercised immediately after notification of the increased price. Deliveries to foreign customers are made only against advance payment.
2. The risk passes exclusively to the customer upon delivery of the delivered goods to the carrier, even if the provider transports or has the goods transported himself. If dispatch is delayed for reasons within the customer’s sphere, the risk shall already pass with the notification pursuant to § 3 Paragraph 2 Sentence 2.
3. The entire fee is due for payment immediately upon receipt of invoice at the provider’s registered office, without any discount, unless otherwise agreed. The customer shall be in default no later than 30 days after the due date, unless an earlier default has occurred.
4. The claim shall bear interest from the date of default at an annual rate of 8 percentage points above the respective base rate pursuant to § 247 of the German Civil Code. Upon default, any payment deadlines and deductions granted shall lapse. In the case of claims arising from several deliveries or services, the provider may decide which debts the incoming payments shall be credited against.
5. In the event of payment arrears by the customer, the provider is entitled to make the further provision of services dependent on the settlement of all outstanding claims.
6. The customer’s right of retention is excluded, unless the customer’s counterclaim arises from the same contractual relationship and is undisputed or has been legally established. The customer shall only have the right of set-off if his counterclaims have been legally established, are undisputed or have been acknowledged by the provider. An agreed current account relationship remains unaffected thereby.
7. If the customer exercises a legal right of retention due to actual or alleged defects, this is limited to the part of the amount owed whose retention, taking into account the costs for the elimination of the alleged defects in relation to the total amount owed, does not violate good faith.
8. If the provider’s entitlement to counter-performance is endangered, outstanding services may only be provided against advance payment or provision of security, and the provider may withdraw from the contract free of charge after a reasonable grace period has elapsed or demand damages for non-performance. An endangerment exists in particular if the customer has filed an application for the opening of insolvency proceedings, has made an affidavit (§ 807 of the Code of Civil Procedure) or if insolvency proceedings have been opened over his assets or have been rejected for lack of assets. These rights also apply to the provider if the customer is in default of payment for deliveries based on the same legal relationship. § 321 para. 2 of the German Civil Code remains unaffected.
9. In case of extraordinary advances, the user may demand reasonable advance payment from the customer.
10. If the customer withdraws from the contract without the fault of the user, the user is entitled to charge a flat fee of 10% of the order value for the technical and commercial processing, without prejudice to other claims. The customer reserves the right to prove that the user has incurred no or significantly lower costs as a result of the withdrawal.
11. In case of non-compliance with the payment terms or circumstances known to the user after the conclusion of the contract that are capable of impairing the customer’s creditworthiness, all claims of the user become due immediately. § 4 clause 9 shall apply accordingly. Without prejudice to the aforementioned rights, the user is entitled to take back the goods delivered under reservation of title at the customer’s expense. This shall not apply if the customer’s payment default is based on a legitimate complaint about the delivery.

§ 5 Security rights, retention of ownership

1. The supplier (Verwender) retains ownership of the delivered goods (Vorbehaltsware) until the customer has fully paid all outstanding debts arising from their business relationship.
2. The customer is not authorized to dispose of the reserved goods, particularly to pledge them, without the express prior written approval of the supplier. However, this does not apply to further sales.
3. The customer hereby assigns to the supplier all claims resulting from the further sale or processing or utilization of the reserved goods as collateral, in the case of co-ownership of the reserved goods, up to the amount of the co-ownership share due to the supplier.
4. The customer is authorized to collect the assigned claims revocably in the ordinary course of business. The right of revocation exists if the customer fails to meet their payment obligations properly or if there is a reason according to section 4 number 9. In the event of a breach of contract by the customer, the supplier is entitled, after setting a reasonable deadline and the deadline having passed without success, to withdraw from the contract and take possession of the reserved goods. The supplier is also entitled to inform the customer’s customers of the existing rights to the reserved goods.
5. If the value of the security exceeds the supplier’s claims against the customer by more than 20 percent, the supplier may, at their option and at the customer’s request, release securities in proportion to the excess amount.
6. The customer must immediately inform the supplier of any enforcement measures by third parties against the reserved goods or other impairments, and hand over the necessary documents for intervention. The customer must also inform the third party of the existing security rights. The customer bears the costs of intervention if the third party is unable to reimburse them.

§ 6 Obligation to give notice of defects, liability for defects

1. The customer shall examine the goods immediately upon delivery by the user and shall report any recognizable defects within 5 working days. If an agent of the user is present during the examination of the goods, the notice of defects must be given immediately upon discovery of the defect. If the defect was not recognizable during the examination, the notice of defects must be given immediately upon discovery, but at the latest before the expiration of the defect liability period pursuant to § 6, Paragraph 6. Failure to give notice of defects shall result in the loss of claims for defects, unless the user has fraudulently concealed the defect. Otherwise, § 377 of the Commercial Code shall apply.
2. Information on the suitability, processing, and use of the products of the user, technical advice, and other information is provided to the best of the user’s knowledge, but does not relieve the customer of their own tests and experiments. The customer shall examine the delivered goods immediately upon receipt for defects regarding quality and intended use.
3. The user shall be given the opportunity to have the defect examined by itself and/or by experts appointed by it; it shall be entitled to these rights unless the customer credibly demonstrates that immediate measures had to be taken due to imminent danger. The assumption of costs for third-party experts requires a written agreement in individual cases.
4. The customer may only return contested goods to the user with the express consent of the user and using proper packaging.
5. The warranty period begins upon transfer of risk and is one year for all cases under § 438 Paragraph 1 No. 3 of the Civil Code. The limitation period in the event of delivery recourse pursuant to §§ 478, 479 of the Civil Code remains unaffected. This does not apply if there are claims for damages due to defects; § 7, Paragraph 2 shall apply to such claims.
6. The user does not provide any guarantees in the legal sense.
7. Claims for damages to other goods than the delivered goods due to defects of the purchased item that arise in the event of simple negligence on the part of the customer are excluded, unless this endangers the purpose of the contract and is otherwise limited to the regularly foreseeable damage that usually occurs. The customer’s right of rescission remains unaffected.
8. Otherwise, § 7 shall apply accordingly to claims for damages due to a defect.
9. Defects in a part of the delivered goods shall not entitle the customer to contest the entire delivery, unless the partial delivery is of no interest to the customer.
10. The user is only liable for deviations in the quality of the materials used up to the amount of the order value.
11. The customer’s claims for defects also do not exist for damages that occur after the transfer of risk due to improper or negligent treatment as well as improper use and modifications to the product. The same applies to errors that result from non-compliant maintenance by the customer or third parties. Furthermore, the user shall not be liable for non-compliant operation outside the specifications or accidents in the customer’s sphere, loss or damage during transport, or non-compliant preparation of the installation location by the customer.
12. The customer’s statutory recourse claims against the user exist only to the extent that the customer has not made any agreements with its customer that go beyond the statutory claims for defects. § 6, Paragraph 8 shall apply accordingly to the extent of the customer’s recourse claims against the user.
13. Claims by the customer for necessary expenses incurred for the purpose of subsequent performance, in particular travel, transport, labor, and material costs, are excluded.

§ 7 Liability

In the case of claims for damages, the following applies:

1. 1a) Claims for damages and reimbursement of expenses by the customer, regardless of the legal basis, in particular due to breaches of contractual obligations as well as torts, are excluded. This does not apply in cases of willful intent or gross negligence by the user, including its representatives and agents, in cases of injury to life, body, and health of the customer, claims arising from the breach of cardinal obligations and compensation for delay damages according to §§ 286, 280 para. 2 of the German Civil Code. This also does not apply in cases of intentionally concealed defects and assumed quality guarantees. In these cases, the user is liable for any degree of fault.
   
   b) The user is not liable, particularly within the limits specified under letter a), for lost profits, indirect or consequential damages – e.g. processing damages – including costs for downtime, data loss, restoration costs, or cover costs.
   
   c) In the event of a breach of cardinal obligations due to slight negligence, the claim for damages is limited to foreseeable, typically occurring direct damages, unless liability is assumed for injury to life, body or health. The allocation of the burden of proof is not affected by the above provisions. In the case of delivery delays, liability is limited to a lump sum compensation of 0.5% of the delivery value for each completed week of delay, but not exceeding 5% of the delivery value.
2. Insofar as liability for damages not resulting from injury to life, body, or health is not excluded for slight negligence, such claims become time-barred within one year from the date on which the claim arose, or in the case of claims for damages due to a defect, from the date of delivery of the goods.
3. To the extent that the user’s liability for damages is limited or excluded, this also applies with regard to the personal liability of employees, agents, and representatives of the user.
4. The liability under the Product Liability Act is not limited by these delivery terms.

§ 8 Impossibility, Contract Adjustment, Contractual Penalties

1. Soweit die Lieferung unmöglich ist, ist der Kunde berechtigt, Schadenersatz zu verlangen, es sei denn, dass der Verwender die Unmöglichkeit nicht zu vertreten hat. Jedoch beschränkt sich der Schadenersatzanspruch des Kunden auf 10% des Wertes desjenigen Teils der Lieferung bzw. Leistung, der wegen der Unmöglichkeit nicht zweckdienlich verwendet werden kann. Diese Beschränkung gilt nicht, soweit in Fällen des Vorsatzes oder grober Fahrlässigkeit einschließlich der Vertreter und Erfüllungsgehilfen des Verwenders oder wegen der Verletzung des Lebens, des Körpers oder der Gesundheit zwingend gehaftet wird; eine Änderung der Beweislast zum Nachteil des Kunden ist hiermit nicht verbunden. Das Recht des Kunden zum Rücktritt vom Vertrag bleibt unberührt. 
2. Sofern unvorhergesehene Ereignisse im Sinne von § 3 Ziffer 2 diese Bedingungen, die wirtschaftliche Bedeutung oder den Inhalt der Lieferung/Leistung erheblich verändern oder auf den Betriebsablauf des Verwenders erheblich einwirken, wird der Vertrag unter Beachtung von Treu und Glauben angemessen angepasst. Soweit dies wirtschaftlich nicht vertretbar ist, steht dem Verwender das Recht zu, von dem Vertrag zurückzutreten. Will der Verwender von diesem Rücktrittsrecht Gebrauch machen, hat er dieses nach Erkenntnis der Tragweite des Ereignisses dem Kunden unverzüglich mitzuteilen, und zwar auch dann, wenn zunächst mit dem Kunden eine Verlängerung der Lieferzeit vereinbart war.

§ 9 Industrial Property Rights/Copyrights

The customer alone is liable if the execution of his order violates the rights of third parties, in particular copyrights. The customer shall indemnify the user from all claims of third parties due to such an infringement of rights.

§ 10 Statute of Limitations for Own Claims

The claims of the user expire, contrary to § 195 of the German Civil Code, after 5 years. Section 199 of the German Civil Code applies to the commencement of the limitation period.

§ 11 Place of performance, choice of law, jurisdiction

1. The place of jurisdiction, including for proceedings relating to bills of exchange, cheques and documents, shall be agreed as the registered office of the user, provided that the customer is a merchant, legal entity under public law or public-law special fund. The user is also entitled to sue at the customer’s registered office.
2. The place of performance for all claims, in particular for delivery and payment, is the registered office of the user, provided that the customer is a merchant, legal entity under public law or public-law special fund.
3. The law of the Federal Republic of Germany shall apply exclusively, with the exclusion of the laws on the international sale of goods, even if the customer has its registered office abroad.

§ 12 Form of declarations

Legally relevant declarations and notifications that the customer has to make to the user or to a third party must be in writing.

§ 13 Amendments

The goods of the user are subject to constant adaptation to pedagogical, scientific and technical developments. For this reason, the illustrations and descriptions shown in the catalogs are not binding in all respects. Changes in design, execution and composition are reserved.

§ 14 Transport damages

Goods with obvious damage to the packaging or contents delivered to the customer must be complained about to the carrier/freight service. Acceptance must be refused. In addition, the user must be contacted immediately by e-mail, fax or post. This does not result in a shortening of the limitation periods.

§ 15 Data protection

All personal data necessary for the execution of the order will be stored in machine-readable form and treated confidentially. The data necessary for processing an order, such as name and address, will be passed on to the companies commissioned with storage, accounting, packaging and shipment or delivery of the purchased item as part of the execution of the delivery.

§ 16 Severability clause

1. To the extent that these terms and conditions do not become or are ineffective in whole or in part, the contract shall remain effective in all other respects.
2. If one or more provisions are ineffective, the effectiveness of the remaining provisions shall not be affected thereby. In this respect, the content of the contract shall be governed by the statutory provisions.