GTC

1. general
We are only prepared to accept orders and make deliveries on the basis of the following general terms and conditions of delivery.

General terms and conditions of the buyer which deviate from ours shall only apply if this has been expressly recognized by us in writing. Our General Terms and Conditions shall also apply if we carry out deliveries to the customer without reservation in the knowledge of conflicting or deviating terms and conditions of the customer. Our offers are always subject to change. All contracts and agreements, even if they are concluded by travelers and representatives, shall only become binding for us once we have confirmed the order in writing. Subsidiary agreements and amendments shall only become effective upon our written confirmation.

2. prices
The prices resulting from our price list valid at the time of conclusion of the contract shall be deemed agreed. The prices listed in the price list apply net ex warehouse Krefeld plus the legally applicable value added tax.

3. payment
In the absence of special agreements, payment shall be made 14 days after the invoice date without any deduction and free of charge for us. In the case of a scope of delivery of EUR 10,000.00 or more, one third of the order value is due as a down payment after receipt of the order confirmation, a further third when the goods are ready for dispatch and the remaining amount 14 days after the invoice date. If the term of payment is exceeded, interest on arrears shall be charged in accordance with the respective bank rates for short-term loans, but at least 2% above the respective discount rate of the European Central Bank. We reserve the right to assert further claims for damages caused by default. If the financial circumstances of the purchaser deteriorate after the conclusion of the contract to such an extent that our claim for payment appears to be jeopardized, the outstanding invoice amounts shall become due for payment immediately. In this case, we shall only be obliged to further execute the contract and to deliver the goods after payment of the total price. The Buyer shall not be entitled to offset any counterclaims against the purchase price and to retain the purchase price due unless the counterclaim is undisputed or has been legally established. MBS GmbH is entitled to offset payments against the customer's older debts first, despite any provisions of the customer to the contrary. If costs and interest have already been incurred as a result of default, MBS GmbH is entitled to offset the payment first against the costs, then against the interest and finally against the main services.

4. delivery times and delivery periods
The delivery period begins with the dispatch of the order confirmation, but not before the documents to be procured by the buyer have been provided and the agreed down payment has been received. The delivery period shall be deemed to have been met if the delivery item has left the factory or the distribution center or the buyer has been notified of readiness for dispatch by the time the delivery period expires. Force majeure, late delivery by our suppliers as well as strikes, lockouts and disruptions in our operations for which we are not responsible shall entitle us, at our discretion, to withdraw from the contract or to reasonably extend the delivery period, even in the event of the aforementioned delay after the occurrence of default, to the exclusion of any claims for damages by the Buyer.

We shall retain the right to withdraw from the contract even if an extension of the delivery period was initially agreed.

We shall only be in default with our delivery obligations after the buyer has sent us a written reminder and set a reasonable grace period of at least 21 days and we have culpably failed to deliver within the grace period set for us. In this case, the buyer shall have the right to withdraw from the contract after expiry of the extension of the delivery period caused by the circumstances for which we are not responsible and after prior warning to this effect. The purchaser shall not be entitled to any claims for compensation for any damage caused by delay or non-performance, irrespective of the legal grounds, unless the delay in delivery is due to gross negligence on our part and the statutory requirements for a claim for damages are otherwise fulfilled. In this case, the damage shall be limited to a maximum of 0.5% per week, but a total of 5% of the value of that part of the delivery which cannot be used on time or in accordance with the contract as a result of the delay. If the execution of the order subsequently becomes impossible, the buyer shall be entitled to withdraw from the contract. Claims for damages, irrespective of the legal grounds, are generally excluded, unless we are at least grossly at fault for the impossibility.  

5. place of performance, shipment and transfer of risk
The place of performance for our delivery obligation is Krefeld. At the buyer's request, we will arrange shipment at the buyer's expense. The risk shall pass to the Buyer at the latest when the delivery parts are handed over to the shipping company. This shall also apply if we have assumed the shipping costs, delivery or installation. The goods are generally shipped uninsured. Only at the express request of the buyer will the shipment be insured against transport, breakage, fire and water damage at the buyer's expense. If dispatch is delayed due to circumstances for which we are not responsible, the risk shall pass to the buyer from the day of readiness for dispatch; however, we shall be obliged to take out the insurance requested by the buyer at the buyer's expense. Delivered items must also be accepted by the Buyer first if they have significant defects, without prejudice to the rights arising from the section on liability for defects.

We are permitted to make partial deliveries.

We reserve the right to make reasonable technical and design deviations from information in brochures, catalogs and written documents as well as model, design and material changes in the course of technical progress and further development without any rights against MBS GmbH being derived from this.

6. retention of title and trusteeship
The delivered goods remain our property until full payment of all claims - including future claims - arising from the business relationship between MBS GmbH and the Buyer until settlement of any resulting current account balance at the Buyer's expense. Rights arising from the retention of title apply until full release from contingent liabilities including bill of exchange liability. Any processing or treatment of the goods subject to retention of title shall be carried out by the purchaser on our behalf, without this giving rise to any liability on our part. The processing, combination, mixing or blending of the reserved goods with other processed, mixed, blended or combined items shall only take place on the condition that the purchaser shall store the new item for us free of charge. The purchaser is entitled to resell the reserved goods in the ordinary course of business; seizure or transfer by way of security is not permitted under any circumstances. Access by third parties to the goods or assigned claims must be notified immediately, handing over the documents necessary for an intervention. The buyer hereby assigns to us the claims against his customers arising from the sale of the reserved goods, including all ancillary rights, and we accept the assignment. As our trustee, the buyer is entitled to collect the assigned claim as long as he fulfills his payment obligations to us or does not fall into financial collapse.

If the reserved goods are resold together with other goods, regardless of whether without or after processing, mixing, combining or blending, the above agreed advance assignment shall only apply to the value of the reserved goods that have been resold together with the other goods. If the value of the security to which we are entitled exceeds our claim by more than 20%, we shall be obliged, at the request of the purchaser, to release the security to this extent at our discretion.

7 Warranty
MBS GmbH warrants that the contractual products are free from material defects, including the absence of warranted characteristics. The contractual products are manufactured with due care. However, the parties are aware that it is not possible to exclude hardware and software errors under all conditions of use in accordance with the state of the art.

MBS GmbH warrants that the contractual products are described in the product information in a generally accurate manner and are generally fit for use within this framework. The technical data and descriptions in the product information alone do not constitute a guarantee of specific properties. An assurance of properties in the legal sense is only given if the respective information has been confirmed in writing by MBS GmbH. MBS GmbH does not guarantee that the program functions will meet the customer's requirements or that they will work together as selected by the customer.

Excluded from the warranty are, in particular, defects or damage attributable to operational wear and tear and normal wear and tear/ improper use/ operating errors and negligent behavior on the part of the customer/ operation with the wrong type of current or voltage and connection to unsuitable power sources/ fire, lightning, explosion or mains-related overvoltage/ moisture of any kind/ incorrect or faulty program, software and/or processing data and any consumable parts, unless the customer can prove that these circumstances are not the cause of the defect complained of.

The warranty is also void if the serial number, type designation or similar markings are removed or made illegible.

The warranty period for new devices is twenty-four (24) months, for used devices twelve (12) months and begins with the transfer of risk. This period is a limitation period and also applies to compensation for consequential damage caused by a defect, provided that no claims in tort are asserted. Warranty claims are not transferable.

Irrespective of this, MBS GmbH shall pass on any further guarantee and warranty commitments of the manufacturer to the customer in full, without itself being liable for them.

In the event of a warranty claim, MBS GmbH may choose between repair or replacement. Replaced parts become the property of MBS GmbH. If MBS GmbH fails to remedy defects within a reasonable period of grace set in writing, the customer is entitled to demand either rescission of the contract or a reasonable reduction in the purchase price.

In the event of rectification, MBS GmbH will bear the labor costs. The customer shall bear all other costs of rectification and the ancillary costs associated with a replacement delivery, in particular the transportation costs for the replacement item, insofar as these other costs are not disproportionate to the order value.

If the examination of a notice of defects reveals that there is no warranty case, MBS GmbH is entitled to demand reimbursement of all expenses. The costs of inspection and repair will be charged at the applicable service prices of MBS GmbH.

All further claims of the customer or claims other than those provided for in these provisions, irrespective of their legal basis, are excluded, unless otherwise provided for in these provisions.

When claiming warranty/guarantee as well as in the case of chargeable repair orders and returns of any kind, the customer must observe the processing guidelines of the customer service department in the respectively valid version or the corresponding procedures in the respectively valid MBS price list.

8. software
Only a right of use can be acquired for all software products distributed by us. The manufacturer remains the owner of the software in all cases. This applies both to the original and to every copy.

The program may only be used on one computer system. Multiple use of the program (or its copy), e.g. on several computers of the purchaser, is not permitted.

Our software may not be sold, lent, exchanged or made accessible to third parties in any other way. Any violation of these provisions shall result in a contractual penalty of EUR 50,000. In addition, claims for damages and consequential damages will be asserted. These provisions shall not apply if another contractual provision has been made in a project contract.

Before opening the data carrier seal, the number of the data carrier must be checked for equality with the corresponding number on the invoice. By removing the data carrier envelope at the latest, all provisions of these Terms and Conditions of Delivery are recognized as legally binding and the identity of the numbers is confirmed.

Reproduction of programs - including printouts - from data carriers or in any other form is not permitted. Copies for data backup purposes for personal use are excepted.

9. applicable law
The legal relationship between us and the Buyer shall be governed exclusively by German law. The exclusion extends to the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods.

10. partial invalidity
Should individual provisions of the contractual relationship prove to be inapplicable or invalid, this shall not affect the validity of the contract and the remaining provisions.

11. place of jurisdiction
is Krefeld for both parties to the contract. However, we are also entitled to bring an action at the buyer's head office.

12. data protection
Order processing within MBS GmbH is carried out with the aid of automatic data processing. The customer hereby gives his express consent to the processing of the data disclosed to MBS GmbH in the context of contractual relationships and necessary for order processing.

Krefeld , January 2015 

MBS GmbH