General terms and conditions
Table of contents
- Scope of General Terms and Conditions of Business and Delivery
- Offer, conclusion of contract and subject terms of contract
- Prices and terms of payment
- Default of payment, deterioration of asset, deferral
- Delivery time, default in delivery, impossibility
- Delivery, dispatch, passing of risk, insurance and acceptance, packing
- Default of Acceptance, release order
- Retention of title, assignment of claim
- Warranty, liability, secondary obligations, limitation
- Industrial property rights, tools
- Legal effect, Place of fulfilment, applicable law, court of jurisdiction
1. Scope of General Terms and Conditions of Business and Delivery
1.1 All offers, order confirmations, deliveries and services are subject to these General Terms and Conditions of Business and Delivery. The below given Terms of Sale shall apply to all contracts concluded with Mystim GmbH The purchaser constitutes his agreement to follow these terms for the duration of the business connexion by placing his order with Mystim GmbH or accepting the first delivery.
1.2 No assurances, additional agreements, alterations of contract requested by the purchaser or Terms and Conditions of Purchase which differ in wording from these Terms of Sale shall be binding, unless explicitly agreed in writing by Mystim GmbH
2. Offer, conclusion of contract and subject terms of contract
2.1 Mystim GmbH offers are without obligation. "§ 145 German Civil Code (BGB) shall not apply". The contract shall only be brought about by written confirmation on the part of Mystim GmbH and according to its contents or by delivery. If prompt delivery is taking place without prior confirmation of order, the invoice shall be considered as confirmation of order as well.
2.2 Mystim GmbH hereby reserves the right, to effect changes to the design of the subject of agreement during delivery time without prior notice, inasmuch as the subject of agreement in its functions will only be modified within the specified tolerance range and insofar as the purchaser can reasonably be expected to tolerate the same. The DIN standard of apparatus engineering will apply to the range of tolerance for all quality characteristics. If the purchaser is a merchant, deviations from the purchase order quantity up to 5 % shall be allowed.
2.3 Partial deliveries shall be allowed.
3. Prices and terms of payment
3.1 Mystim GmbH prices are charged in Euro unless otherwise agreed. They are ex works including packing and loading plus the applicable value added tax. Prices will be charged according to agreement, based on the expense factors as currently applicable. Should these expense factors change between conclusion of contract and agreed date of delivery (particularly material, wages, freight, duties etc.), Mystim GmbH shall have the right to alter prices accordingly. If the purchaser is not a merchant or the agreement is not related to the business of a commercial trade, this shall only apply if a period of more than 4 months has passed between conclusion of contract and agreed date of delivery.
3.2 The terms of payment as currently stipulated by Mystim GmbH shall apply to all payments. If not otherwise agreed, all payments have to be effected due net, free paying office within 30 days from date of invoice at the latest. Payments by cheques or bills shall not be deemed to have been made until the amount on the cheque or bill has been unconditionally credited to Mystim's account. Payments by bill may not be effected without the prior written consent of Mystim GmbH All bank charges and other fees shall be for the account of the purchaser and be paid by him immediately.
3.3 The purchaser may only set off claims which are undisputed by Mystim GmbH or have been finally determined in a legally binding manner. The purchaser may only claim a lien due to counter claims in connexion with the same contract.
4. Default of payment, deterioration of asset, deferral
4.1 In case of default of payment within the stipulated time period or deferral, default interests on arrears of 8% above the ECB base rate are due and payable. If Mystim GmbH can prove evidence of a higher interest charge, default interests will be increased accordingly.
4.2 In the event that the purchaser is in default with payments or given a concrete indication for the impending illiquidity of the purchaser, Mystim GmbH shall not be obliged to render any performance for the duration of the default and claim adequate securities for the completion of the contract. If the purchaser does not provide such a security in the short term, Mystim GmbH shall have the right to withdraw from the contract (or the contracts) and to debit the purchaser with all lost profits and costs incurred by Mystim GmbH until then. Furthermore, Mystim GmbH shall have the right to accelerate maturity of all receivables and to demand payment.
5. Delivery time, default in delivery, impossibility
5.1 The agreed delivery time starts with conclusion of the contract, however compliance with the agreed delivery time requires the timely receipt of all documents, necessary permissions and releases, to be provided by the purchaser as well as receipt of the down payment, if agreed upon. In any case, compliance with the delivery time by Mystim GmbH is subject to the observance of the contractual obligations by the purchaser. Any delivery is under reserve of self supply.
5.2 The delivery date shall be met, if the purchaser has been informed in writing that goods are ready for shipment before the delivery time has expired. Subsequent modifications or amendments by the purchaser will extend the delivery time appropriately. The same applies in case of unforeseeable events which are beyond the control of Mystim GmbH, like e.g. force majeure, industrial actions, strikes, lock-outs, delays in the supply of essential raw materials, materials or parts. The same applies if the mentioned circumstances occur at sub-suppliers of Mystim GmbH Mystim GmbH will also not be responsible for the before mentioned circumstances if they occur while there is already a delay.
5.3 Should Mystim GmbH be responsible for a delay in delivery, the purchaser may set an appropriate time deadline and refuse acceptance of the object of agreement upon its expiry. After the deadline has unsuccessfully expired, the purchaser may withdraw from the contract by written statement or claim compensation if he can substantiate gross negligence or intent. Any further claims for compensation which are beyond the limits of 5.3, shall be excluded.
5.4 If the purchaser is not a merchant and if defaults in delivery are due to slight negligence on the part of Mystim GmbH, the purchaser may claim compensation for each complete week of delay caused by Mystim GmbH amounting to at most 0.5 percent of the value of the consignment / performance which could not be used in time or as per agreement due to the delay. This does not apply, if the purchaser substantiates a lower loss.
6. Delivery, dispatch, passing of risk, insurance and acceptance, packing
6.1 Mystim GmbH delivers freight collect, uninsured and Ex Works.
6.2 The risk of loss by accident or damage shall pass to the purchaser as soon as a shipment has been handed over to the carrier. The same applies if partial deliveries are effected and and Mystim GmbH is responsible for other services (e.g. freight costs or delivery and erection). At the purchaser's request and expense, supplies can be insured by Mystim GmbH against the ordinary risks of transport. If not otherwise agreed in written, the purchaser is free to effect any transport or other insurances at his own expense.
6.3 The passing of the risk onto the purchaser shall take place at the moment it has been indicated that the dispatch is delayed due to reasons caused by the purchaser.
6.4 The purchaser may not refuse acceptance of deliveries on account of minor defects. The purchaser's warranty claims according to paragraph 9 of these General Terms and Conditions of Business and Delivery remain unchanged.
6.5 Mystim GmbH will provide for an appropriate and careful packing of the goods. Special requests with regard to the packing will be charged separately.
7. Default of Acceptance, release order
7.1 If the purchaser does not accept the object of agreement or not accept in due time, Mystim GmbH shall either have the right to set an adequate additional time limit and after its expiration dispose of the object of agreement and re-supply the purchaser within a reasonably extended period of time, or to charge him at once for the object of agreement and stock it at purchaser's risk and expense. In the latter case, commencing 1 month after readiness for shipment has been noticed, the purchaser will be charged for storage costs, if stored in the warehouse of Mystim GmbH however at least 1 % of the invoice value for each month or fraction. This does not affect the right of Mystim GmbH to withdraw from the contract or claim compensation according to §§ 280, 281 und 323 of the German Civil Code (BGB). If Mystim GmbH claims compensation, 25 % of the invoice value can be demanded as compensation without evidence, unless the purchaser proofs a verifiable lower actual loss sustained. The assertion of verifiable higher damage claims remains inviolate.
7.2 In the absence of other agreements, purchase orders which have been confirmed as release orders by Mystim GmbH, have to be released at least within one year after date of purchase. This does also apply to deadline shifts or subsequent conversions to release orders. If goods are not released within the stipulated period of time, the regulations of point 7.1 shall apply accordingly.
8. Retention of title, assignment of claim
8.1 Mystim GmbH shall retain ownership of the object of agreement until each and every claim against the purchaser to which Mystim GmbH is entitled under this business relationship has been duly satisfied in full, particularly until encashment of all cheques and bills traded in. Mystim GmbH's ownership of the object of agreement shall also remain valid during the processing of the object of agreement, which shall always be carried out for Mystim GmbH as manufacturer (§ 950 of the German Civil Code - BGB). If the object of agreement has been processed, combined or admixed with other goods, Mystim GmbH shall obtain common ownership in proportion of the invoice value of the object of agreement to the total value of these other goods at the time of processing, combination or mixture.
8.2. The purchaser may only re-sell the reserved goods within the scope of normal business operations and under the condition that the purchaser meets his payment commitments. The purchaser shall not be entitled to other disposals of the reserved goods (e.g. assignment for security, pledging). When the contract is concluded, trade accounts or wages receivable from the resale of the reserved goods will be assigned by the purchaser to Mystim GmbH in the amount of the Mystim GmbH invoice values until all outstanding debits of Mystim GmbH, including bills of exchange, have been balanced. The purchaser is authorized to collect these outstanding debits, until cancelled.
8.3 When required by the purchaser, Mystim GmbH is obligated to release securities of its own choice inasmuch as they exceed the accounts receivable to be ensured by more than 20 %.
8.4 In case of default of payment, impending cessation of payment as well as dissatisfactory information about the creditworthiness of the purchaser or in case of legal compulsory execution or bill protests against the purchaser, Mystim GmbH will be authorised to take possession of the goods under reserve and to withdraw the approval for resale. The purchaser is liable for their restitution. All costs of retraction and realisation of the goods under reserve have to be borne by the purchaser. Costs of realisation without evidence are 10% of realisation proceeds including value added tax, they have to be fixed higher or lower, if Mystim GmbH can prove verifiable higher or the purchaser can prove verifiable lower costs. Mystim GmbH will credit the purchaser for the proceeds after deduction of all costs and other receivables related to the contract.
8.5 The purchaser is obliged to inform Mystim GmbH without delay of any garnishment or other impairment of the goods under reserve by a third party. In these cases, any costs incurred by Mystim GmbH shall be borne by the purchaser.
8.6 The purchaser is obliged to insure the goods under reserve adequately against all common risks and handle them carefully. When the contract is concluded, the purchaser shall transfer the title to insurance benefits in the amount of the value of goods under reserve to Mystim GmbH in case of damage.
8.7. If the assignment of goods under reserve is subject matter of financed contracts (e.g. leasing), such contract conclusions are subject to prior acceptance in writing by Mystim GmbH, unless the financing institution is bound by a contract to immediately pay to Mystim GmbH the share of the purchase price to which Mystim ltd is entitled.
9. Warranty, liability, secondary obligations, limitation
9.1. In case of recognisable defects Mystim GmbH has to be notified in written immediately after receipt of the subject matter of the contract, in case of hidden defects immediately after they have been ascertained. If the purchaser is not a merchant, he is only obliged to immediately notify apparent defects.
9.2. In case of justified claims, the purchaser may withhold payment only on proportional scale to the defects.
9.3. Mystim GmbH shall be liable for duly claimed defects, as well as for the absence of warranted characteristics, as follows:
a) Parts which prove to be defective or not insubstantial affected in their usability due to circumstances before transfer of perils, especially because of faulty design, defective materials or performance will be repaired or newly supplied free of cost by Mystim GmbH at their own option. Two rectification attempts or new supplies are permitted. Replaced parts become property of Mystim GmbH.
b) The purchaser is obliged, to grant Mystim GmbH time and opportunity required for all repairs and replacement deliveries which seem to be necessary to Mystim ltd, otherwise Mystim GmbH will be released from warranty.
c) No warranty will be assumed for damages due to improper or inappropriate use, incorrect installation or commissioning by the purchaser or third party, due to natural wear, incorrect or careless treatment or maintenance, unsuitable equipment or replacement material, faulty assembly, chemical, electrochemical or electrical impacts. Warranty will also expire in case of repairs, damages or amendments carried out by the purchaser or third party without the prior approval of Mystim GmbH and which are in causal connexion with the claimed defect.
9.4 The purchaser may demand the cancellation of contract or the reduction of the purchase price, if repairs or replacement deliveries are impossible, have failed or been delayed unacceptably. All other contractual and non-contractual claims of the purchaser against Mystim GmbH and their vicarious agents, especially claims for damages due to direct or indirect damages, lost gains as well as the execution of warranty shall be excluded, unless Mystim GmbH has acted from intention or gross negligence or is liable for compulsory contractual reasons.
9.5 The application consulting on the part of Mystim GmbH in wording and writing as well as proposals, calculations, projections etc. serve merely to explain the best possible use of Mystim GmbH products to the purchaser. They do not release the purchaser from his obligation to assure himself by own testing of the suitability of the Mystim GmbH products for the intended purpose und use. If the object of agreement cannot be used according to contract due to the culpably breach of secondary obligations incumbent on Mystim GmbH also before conclusion of contract (e.g. by neglected or incorrect consulting or wrong instruction) the regulations according to paragraph 9.1 - 9.4 of these GTC, excluding further claims of the purchaser, shall apply for the liability of Mystim GmbH accordingly.
9.6. The legal limitation regulations for warranty claims shall also apply for all other claims of the purchaser, including contractual and non-contractual claims for damages. All such claims are subject to a limitation period of 12 months after transfer of perils.
9.7 The limitation of liability on the part of Mystim GmbH is limited to the assignment of claims from the product liability insurance concluded by Mystim GmbH to EUR 50,000.00.
10. Industrial property rights, tools
10.1 All proposals and quotations submitted by Mystim GmbH are and remain intellectual property and may not be made available to any third party without the prior written consent of Mystim GmbH.
10.2. All equipment produced by Mystim GmbH for the manufacture of the objects of agreement by order of the purchaser, particularly tooling, appliances etc., remain property of Mystim ltd, even if they were charged separately or in case of cost sharing on the part of the purchaser. There is no right of restitution, even in case of the termination of business connexion.
10.3. If rights, particularly industrial property rights of a third party, are breached as a result of the execution of its purchase order, the purchaser will solely be liable.
11. Legal effect, Place of fulfilment, applicable law, court of jurisdiction
11.1 If any term or phrase of these General Terms and Conditions should not or no longer be effective or practicable, all other terms and phrases remain in full force and effect, nevertheless. Legally allowed regulations shall apply instead of invalid terms.
11.2. The place of fulfilment for both contractual partners shall be the registered office of Mystim GmbH in Mömbris.
11.3 German law is applicable. The United Nations Convention on Contracts for the International Sale of Goods - CISG shall be excluded.
11.4 At Mystim GmbH's sole discretion, Mömbris is the court of jurisdiction for disputes arising from this agreement, if the purchaser is a merchant entered in the commercial register as merchant, a legal person under public law or a responsible body of a federal special fund under public law. The same court of jurisdiction shall apply, if the purchaser does not have a place of general jurisdiction in Germany or if the purchaser, after conclusion of the agreement, has moved his habitual residence or abode to outside of Germany or whose habitual residence or abode is not known when legal proceedings are instituted. In case of deliveries abroad, Mystim GmbH shall, however, at their sole discretion, also be entitled to assert claims against customer before courts at the state capital of customer's domicile or habitual residence.