General Terms and Conditions
I. Offer, Conclusion of Contract, Object of Contract
All declarations of intent on the part of the seller must be put in writing by the seller. The seller reserves the right to undertake changes to the object of purchase. Unless otherwise specified in the contract, the deliverables and services provided by the seller shall be ready for connection. Delivery shall be made free of charge to the purchaser's address. The prices for replacement part orders and accessories are ex factory, unpackaged. The purchaser is responsible for unloading the object of sale. The purchaser is responsible for all costs associated with installing, connecting and operating the object, such as building a suitable foundation, and ensuring connections for electricity, oil/natural gas, and exhaust and vapour emissions stacks. If the sales contract stipulates that the seller must undertake the start-up and an orientation for the object of sale, this work shall be carried out immediately following the assembly. The purchaser must ensure that this assembly work can be carried out promptly. Among other things, the conditions must be free of draft and frost, and there must be adequate lighting. When used equipment is to be returned, these must be disconnected from all utility and supply lines. The required hoisting devices (lift truck, crane) must be available on-site.
II. Prices and Terms of Payment
The seller reserves the right to adjust pricing accordingly when costs increase after the conclusion of the contract, particularly when due to wage agreements or changes in materials prices. These will be documented for the purchaser on request. All prices are additionally subject to the statutory VAT. The seller is not obligated to accept checks or bills of exchange. These shall be accepted as conditional payment only. Assemblers and representatives are not authorised to collect payment unless expressly instructed to by the seller. If the purchaser defaults on payment (or on partial payment), the seller may assess interest at the prevailing bank rate. In case of default on payment or when the agreed payment conditions are not fulfilled, the seller may revoke the terms of payment and refuse the remaining performance of contract. The purchaser is only entitled to offsetting or withholding of payments if his counter claim is legally valid, uncontested or acknowledged by the seller. If a written agreement on financing by the purchaser is a contractual element of the contract, the seller is entitled to self-financing.
III. Delivery Conditions
Units ready for shipping and delivery must be taken over/accepted by the purchaser within 14 days of corresponding notice. If shipping is delayed at the purchaser's request, the purchaser will be assessed the costs of storage, in an amount no less than 0.5% of the total invoice amount, per month, beginning 1 month after notification of readiness for shipment. After setting an appropriate deadline, and after said deadline has passed, the seller is entitled to dispose of the object of delivery elsewhere and undertake delivery to the purchaser with an appropriate extension of deadline. In addition, the fulfilment of the delivery period/delivery deadline by the seller presumes that the purchaser has fulfilled the contractual obligations. The seller is entitled to make partial deliveries. The purchaser shall bear the costs for such deliveries. Delivery periods/delivery deadlines are not binding unless otherwise specified in the contract. The delivery period begins when all technical and business aspects have been resolved. The seller assumes no liability for force majeure. This includes operational malfunctions, machine failure, destruction or damage to the object of purchase. In this case, the seller may rescind the contract in whole or in part, without claims for compensation on the part of the purchaser. If the purchaser fails to meet his contractual obligations, for example by failing to make a due payment or by failing to make a due payment as agreed, the seller shall set an appropriate deadline for the rectification of such, and may withdraw from the contract if this deadline is not met. No deadline is required if the purchaser has seriously and finally refused to fulfil the contract. If the seller rescinds a contract with justified cause, the purchaser must compensate the seller for any expenses incurred. The seller is entitled to offset any expenses incurred from any advance payments made by the purchaser. If the purchaser continues to refuse acceptance after the expiry of the appropriate extension of deadline, or expressly declares refusal to accept before said expiry, the seller may rescind the contract and demand a flat-fee of 20% of the agreed purchase price as compensation for costs incurred and loss of profit arising from the failure to meet the terms of the contract. In addition, the seller reserves the right to document and enforce higher damages, and the purchaser reserves the right to document and enforce lower damages.
IV. Transfer of Risk
Risk is transferred to the purchaser at the latest with the shipment of the object of purchase, to include cases of partial delivery and instances in which the seller has assumed responsibility for other services, for example shipping and installation. Should shipping be delayed for reasons which are the fault of the purchaser, the transfer of risk to the purchaser begins on the day in which the order is ready for shipment. The seller assumes no liability for damages during transport.
V. Reservation of Ownership
The seller retains ownership of the object of purchase until all payments stipulated in the contract of purchase have been received. The purchaser may not transfer the object of purchase to a third party before payment has been made in full. If this prohibition is not observed, all demands against the purchaser, secured creditor, and pledgee are transferred to the seller. The purchaser hereby already transfers to the seller claims arising from the onward sale of the goods to buyers or third parties at the final invoice amount (including VAT), irrespective of whether the purchased goods were resold without or after processing. During the period of retention of title, the purchaser shall maintain the object of purchase in proper condition and undertake to carry out any necessary repairs. The purchaser is responsible for insuring the object of purchase against risk at his cost. If the purchaser violates the terms of contract, particularly with respect to delay of payment, the seller is entitled to the return of the goods after a formal warning has been issued, and the purchaser is required to return the goods. The enforcement of retention of title and the seizure of the object of purchase by the seller does not constitute a withdrawal from the contract. If it becomes evident after the conclusion of the contract that the purchaser is in an unfavourable financial position, the seller is authorised to demand security and to rescind the contract if this security is not documented within the specified deadline.
VI. Defects, Warranty and Liability
Claims for defects by the purchaser require that he has duly met his obligation to inspect and report defects as stipulated by Sections 377 et seq. of the German Commercial Code (HGB), in particular by notifying the seller of any defects found without delay. The term of limitations arising from defects shall be in accordance with the statutory provisions. Parts are deemed defective when they are unusable or their use is significantly hindered by a design fault, poor materials or defective workmanship. Parts are not deemed defective if the seller is not responsible for the defect, for example if outside factors such as exhaust conditions, bakery climate, dough feeding issues, operator failure, and the like cannot be excluded. The seller's manufacturer data do not constitute an agreement on the quality of the goods or a guarantee of a particular property as defined under warranty law unless this has been expressly agreed upon in writing by the purchaser and seller. If the purchased item has a defect, the seller is obligated to either remedy said defect or to deliver a new and non-defective replacement, at the seller's discretion. The warranty term for the replacement part or the repair of defect is 12 months, but shall not expire before the date of expiry of the original warranty term for the object of purchase. Provided the complaint is justified, the seller is responsible for the direct costs associated with the repair or the delivery of replacement parts and the cost of measures required for subsequent fulfilment, including shipping, road, work and material costs. The purchaser is responsible for the remaining costs. If the subsequent performance fails, the purchaser is authorised to choose whether to withdraw from the contract or obtain a reduction of purchase price. Replaced parts shall become the seller's property. Further claims by the purchaser, in particular claims for compensation for damages that did not arise on the actual object of purchase, are excluded unless
a) the damages arise from injury to life, limb or health, which are due to a deliberate or negligent violation of duty by the seller, the seller's legal representative or vicarious agents of the seller.
b) they are other damages arising from a deliberate or grossly negligent violation of duty by the seller, the seller's legal representative, or vicarious agents of the seller.
With the exception of cases of intent and gross negligence on the part of the seller's owner and management, in the event of a culpable breach of fundamental contractual obligations, the seller's liability shall be limited to typical contractual, foreseeable damage. Modifications or repairs carried out improperly by the purchaser or by third parties without prior consent of the seller shall invalidate any liability for the resulting consequences. Notices of defects do not entitle the purchaser to refuse timely payment of the agreed purchase price. If the seller has assured specific features or made warranty pledges, the failure to fulfil key contractual obligations or to fulfil key warranty pledges entitles the purchaser to withdraw from the contract, not to compensation for damages. The provisions of the German Product Liability Act shall not be affected. The MIWE warranty terms also apply; the MIWE bakery refrigeration systems conditions apply for MIWE cooling units.
VII. Special Provisions for Used Purchases
Used units must be collected by the purchaser on site at his own cost. Otherwise Section III applies. The transfer of risk passes to the purchaser when notification is made that the goods are ready for collection. Used goods, including those which have been tested for functionality, are sold under the exclusion of any warranty. All liability is excluded for both obvious and hidden defects, as is any other warranty claim, including obligations for payment of damages due to defects and damages arising from defects, as defined by Section VI. The purchaser is entitled to view and examine the object of purchase before the conclusion of contract. The seller provides a 6-month warranty for used, factory-refurbished MIWE systems. These systems are also subject to the warranty provisions under Section VI and the MIWE warranty conditions.
VIII. Licences and Permits
Building permits and other legally required permits (including private permits) must be obtained by the builder directly. If the purchaser calls the units/agrees to delivery and commencement of assembly, the seller may assume that the purchaser has obtained all necessary permits and that the conditions for delivery and installation have been met.
IX. Place of Performance, Jurisdiction, Other Provisions
The place of performance for delivery and payment is the registered office of the seller. If the purchaser is a registered tradesman, the business headquarters of the seller is the only place of jurisdiction; however, the seller is entitled to file suit at the court in the purchaser's place of business. The law of the Federal Republic of Germany applies exclusively. The UN Convention on Contracts for the International Sale of Goods shall not be applicable. The purchaser grants the seller the right to make or commission video or photographic recordings of the units produced by the seller during or after delivery or installation, and to use these recordings for advertising purposes.
IX. If any provisions of these General Terms and Conditions become invalid in whole or in part, the remaining provisions shall be unaffected.