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General Terms of Business of
MIK INTERNATIONAL AG
Mutual confidence and good cooperation are the basic
elements of a lasting business relationship. Nonetheless, we cannot refrain
from negotiating general sales and delivery conditions with our customers
for the sake of a uniform and prompt business handling, thus declaring
null and void any other purchasing or sales conditions.
A. Contracts between MIK INTERNATIONAL AG and business people or consumers
I. Range of application and definitions
1. The following General Terms of Business of MIK INTERNATIONAL AG (called
MIK hereafter) are always the basis of any contract; with the conclusion
of a contract you confirm and acknowledge that you know them and that
they are incorporated in the contract.
2. We herewith explicitly declare null and void the buyer's own terms
of business, also for future business. That means that only the General
Terms of Business of MIK are to be applied. This is also valid if the
customer refers to any other deviating conditions of his own in a letter
of confirmation.
3. Any deviating agreements are only binding when MIK has confirmed them
in writing. Such deviations are only valid for the particular business
agreed upon.
4. For the purposes of these General Terms of Business, business people
is to be understood as any natural or legal entity or a personal society
with legal capacity, which acts in fulfilment of his/her commercial or
free-lance activities when concluding the contract.
5. For the purposes of these General Terms of Business, consumer is to
be understood as any natural person, who concludes a legal transaction
with an object that can neither be ascribed to his/her commercial nor
to his/her free-lance activity.
II. Offer
1. Our offers are without obligation unless a deviating agreement has
been made in writing.
2. Technical details, advice or recommendations as well as assurance
of qualities by our staff are only binding for us when they have been
confirmed in writing.
3. Assurances only exist when they have been described as such in writing
by MIK.
4. General product descriptions, drawings, samples, models, illustrations,
dimensions or other details of performance are only approximate illustrative
pieces. They are only binding when this fact has been explicitly confirmed
in writing.
5. We reserve the right of modifications in construction or forms and
the like, as long as this does not represent a considerable change of
the article to be purchased.
III. Acceptance
Binding orders which have been received by the MIK staff by phone, electronic
data transfer (e-mail), by fax or in writing are only to be considered
as accepted when the order has been confirmed by MIK in writing.
IV. Prices
1. The prices agreed upon are to be understood ex MIK forwarding department
without any installation, training or other additional services. Packing
costs as well as the value-added tax which is valid at the date of the
invoice have to be added. The value-added tax is at the buyer's expense.
In the case of repeat orders, the prices of the first order are only to
be applied after a special agreement in writing.
2. The prices quoted are no longer binding for MIK when a delivery period
of more than 3 months has been agreed upon. In such a case, the prices
which are valid at the date of the delivery are to be invoiced. If our
outside suppliers increase their prices considerably after this period
of 3 months, MIK may raise its prices accordingly and even withdraw from
the contract if the buyer refuses to accept the new prices.
V. Deliveries
1. MIK is anxious to meet the performance dates and delivery deadlines
which have been quoted. But without any written guarantee the information
given is to be understood as merely approximate. In addition, these statements
are given with the proviso of a punctual, sufficient and proper outside
supply.
2. Changes of orders lead to the cancellation of dates and deadlines
agreed upon, unless a new delivery date has been given in writing. This
also applies for the case that the changes are withdrawn again.
3. Delivery and performance deadlines are postponed by an appropriate
period in the case of force majeure (particularly with strikes or lockouts
at the suppliers) and any other circumstances that we do not have to take
the responsibility for.
4. We are free to choose the mode of dispatch. We use standard packaging;
any special packaging which might be required (e.g. seaworthy packaging)
is payable by the buyer. This also includes the extra costs arising for
special packaging, e.g. for the use of antiseptic gases prescribed for
container packaging. We are entitled but not obliged to insure the goods
at the buyer's expense. A delivery with the freight prepaid and free of
costs is only effected after prior written agreement. Individual agreements
are not subject to the guidelines mentioned above. A condition for prices
with the freight prepaid is an unhindered traffic flow.
5. If MIK is to blame for not meeting a binding delivery date or delivery
period, steps can be taken. 4 weeks after the buyer's written request
to produce results, the buyer is entitled to withdraw from the contract.
6. 6 weeks after exceeding a non-binding delivery date or a non-binding
delivery period, the buyer can ask MIK to deliver within an appropriate
period of time. With this reminder MIK gets behind. Apart from the delivery,
the buyer can only demand indemnification for the damages caused by the
default if MIK is guilty of acting with intent or gross negligence. At
the end of the extension the buyer is entitled to withdraw from the contract
by means of a written declaration to MIK or to demand indemnification
for the non-fulfilment of the contract.
7. In the case of non-fulfilment as per clauses 5 and 6, the buyer can
only demand indemnification when MIK is guilty of acting with intent or
gross negligence. In the case of carelessness liability is limited to
10 % of the purchasing price. If the buyer is a public legal entity or
a trader for whom the contract is part of his trade, the demand for indemnification
is only justified when MIK is guilty of acting with intent or gross negligence.
But this does not apply, if liability is compelling due to intent or gross
negligence. The demand for delivery is excluded in the cases of clauses
5 and 6.
8. If the buyer is a businessman, MIK is entitled to partial deliveries
as long as this is not disadvantageous for the use of the material.
VI. Maturity and payment
1. Net payments have to be effected within 30 days after the date of
the invoice without any cash or other discounts.
2. The acceptance of cheques or drafts is only a matter of fulfilment,
i.e. the payment is only to be regarded as effected when the amount of
the cheque or the draft has been credited to one of MIK's bank accounts.
3. If the buyer falls into arrears with payments, MIK charges default
interest amounting to 8 % over the current base interest rate of the Deutsche
Bundesbank (German Central Bank) plus VAT. The default interest amounts
to 5 % over the current base interest rate of the German Central Bank
when the buyer is a consumer. MIK reserves the right of assertion of further
damages. It is left to the buyer to prove minor damage.
4. If the buyer does not fully or punctually comply with his liability
to pay or with the obligations resulting from the ownership reservation,
the total remaining debt - including extended payments - becomes payable
at once, also when drafts with a later maturity are concerned. The same
applies to cases where MIK has been informed about the buyer's unfavourable
financial situation.
5. The buyer is only entitled to balance the costs, if the demands are
uncontested or have been declared legally binding. The right of the buyer,
who is a businessman, to withhold goods is excluded. If the buyer is a
consumer, he is only given the right to withhold goods as far as it concerns
demands from this individual, concrete business relationship, which these
General Terms of Business are part of.
VII. Notice of defects, warranty and liability
1. Traders have to inform MIK in writing about any visible defects, shortages,
wrong deliveries or the absence of assured qualities without any delay,
within 5 working days after delivery at the latest and by all means before
any resale, use, processing, connection or mixture of the material. Businessmen
have to assert hidden defects in writing immediately after detecting them,
but within 4 weeks after the delivery at the latest. If the buyer does
not comply with this obligation the goods are considered to be approved.
2. In the case of a justified notice of defects within the agreed time
limit, MIK carry out some repairs or a compensating delivery at their
expenses and according to their choice, any other claims to warranty being
excluded. If the repairs or the compensating deliveries come to nothing,
MIK is entitled to touch up or deliver once more. If the second repairs
or compensating delivery come to nothing, the buyer can - according to
his choice - demand a price reduction (depreciation) or his withdrawal
from the contract. Claims for damages due to the absence of an assured
quality remain untouched.
3. The above-mentioned restrictions of liability also apply for the legal
representatives, executives and fulfilment assistants of MIK.
4. The cession of claims to warranty to third parties is excluded.
5. If the buyer is a consumer, he immediately has to notify the person
who delivered the article of any goods with visible defects, which also
include transport damages. For any other defects arising within the legal
period of warranty, the legal demands for re-fulfilment, correction of
faults or additional deliveries can be applied according to the consumer's
choice, or - when the particular legal conditions are given - the more
far-reaching claims to depreciation and withdrawal, or to indemnification,
including the compensation of the damage as well as the compensation for
wasted efforts.
VIII. Reservation of property
1. MIK reserves the right of property for goods delivered by them until
the buyer has settled all claims resulting from the business relationship
with MIK, in particular until he has balanced the accounts. With consumers,
the reservation of property is only valid until all liabilities from the
legal transaction concerned have been balanced.
2. If the buyer behaves contrary to the terms of contract, especially
in the case of default of payment, MIK is entitled to take back the delivered
article/s, the buyer being obliged to give them back. Taking back the
delivered articles does not represent a withdrawal from the contract,
unless the terms of the consumers' credit law are to be applied or if
MIK have explicitly declared their withdrawal in writing. In the case
of seizures or any other encroachments of third parties, MIK has to be
informed in writing without delay, so that a suit can be filed as per
§ 771 ZPO. If a third party is not able to compensate MIK for the
court and out-of-court costs within the scope of a file as per §
771 ZPO, the buyer is liable for the losses arising from it for MIK.
3. The buyer has to separately store and mark the articles reserved for
MIK. On condition of a proper business management, the buyer is entitled
to dispose of the delivered articles, to mount or to sell them. But this
right of the buyer becomes void, when he falls into arrears with payments.
Extraordinary decrees, such as seizure or preventive transference, are
only valid with MIK's approval. The buyer has to inform MIK without delay
of any approach of third parties to the articles subject to the reservation
of property.
4. The processing or reshaping of the delivered articles by the buyer
is done in the name of MIK. If MIK processes, mixes or connects the reserved
articles with goods not belonging to them or produces a new article by
reshaping, the buyer herewith at this point already and to save the claims
towards MIK proportionately (according to the amount of the invoice) transfers
his (co-)property of the newly developed article. If the article to be
delivered is inseparably combined with other articles which are not MIK's
and if the new object is to be regarded as the main article, it is herewith
understood that the buyer transfers proportionate co-property to MIK.
The buyer guards the sole or co-property for MIK so that claims on MIK
arising hereof have to be dismissed.
5. Assuming the case that the buyer sells the reserved goods, it is
to be understood as agreed upon by signing the contract of sale, that
the price claim resulting from this selling transaction fully passes into
MIK's possession. Until further notice, the buyer is entitled to sell
the goods, which are MIK's property, within the framework of his ordinary
business, but on the condition that the buyer himself effectively reserves
the right of property towards the new buyer. He is not allowed to pawn
the goods or to assign them as security. The right of re-selling and of
using the reserved goods expires in the case of the buyer's insolvency
or debt overload. In the case of re-selling the goods which are MIK's
property, the buyer now cedes the price claim resulting thereof at the
rate of 120% of the net invoice amount plus any costs which might arise
from § 171 InsO (German insolvency law) to MIK as security. As long
as the buyer meets his liability to pay to MIK, he is also entitled to
demand payment.
If the buyer does not meet his financial obligation, he is bound by
contract to inform MIK upon request about the names of the third debtors
and to notify them of the cession. Irrespective of the above-mentioned
security cession, the buyer herewith passes on to MIK all his claims to
third parties resulting form re-selling reserved goods. He commits himself
to send lists to MIK - upon their first request and without delay - which
give information about the reason and the amount of pawned claims.
6. MIK commit themselves to release the securities that they are legally
entitled to upon the buyer's request in so far as the value of the securities
exceeds the claim to be secured by more than 20 %.
7. If the buyer is a businessman he commits himself to insuring the goods
subject to reservation of property against fire, water, larceny and burglary
at his own expense. The businessman also commits himself to placing a
copy of the insurance contracts at MIK's disposal free of charge. The
rights from this insurance are then ceded to MIK. MIK accepts this cession.
IX. Legal domicile and place of fulfilment, applicable law
1. MIK headquarters is the legal domicile and place of fulfilment for
payments and deliveries, also for draft and cheque matters, provided that
the buyer is a trader, a public legal entity or special means under public
law.
2. This is also applicable when the buyer establishes his residence,
place of business or his usual place of residence outside the Federal
Republic of Germany after the conclusion of the contract or if the buyer's
residence or the usual place of residence is not known at the time of
the filing of an action.
3. German Federal law is to be applied. The regulations of the UN purchasing
laws are not applicable for the relationship between the buyer and MIK.
4. The contractual language is German.
5. Modified General Terms of Business are applicable if the buyer does
not contradict them in writing within a period of 4 weeks.
X. Data protection
1. Data which are necessary for business procedure are saved and treated
confidentially by MIK. As far as creditworthiness is concerned, MIK exchanges
information with companies who give out credit details, always respecting
the interests of the buyer which have to be protected and in accordance
with the prevailing data protection rules.
2. MIK guarantees that any members of staff who are entrusted with order
processing will also keep to the rules mentioned in clause X paragraph
1. But MIK would like to remind you that in the case of online-orders
data protection might be offended against by other people due to the structure
of the Internet; this fact, however, cannot be influenced by MIK.
XI. Salvatory clause
In case that one of the stipulations of these General Terms of Business
is ineffective, this does not impair the effectiveness of the other stipulations.
B. Contracts subject to the use of means of telecommunication
The following General Terms of Business are applicable for the commercial
transactions between MIK INTERNATIONAL AG (called "MIK" hereafter)
and the customer, provided that he is a consumer and as long as the regulations
ruling tele-sales contracts as per §§ 312b ff. BGB (German Civil
Code) and/or the regulations ruling the purchase of consumer goods as
per §§ 474 ff. BGB (German Civil Code) are to be applied. This
is the case when the purchase is concluded without a physical presence
of the two parties to the contract by using means of telecommunication,
e.g. letters, catalogues, phone calls or e-mails.
I. Scope and definitions
1. The following General Terms of Business of MIK INTERNATIONAL AG (called
MIK hereafter) are always the basis of any contract; with the conclusion
of a contract the customer confirms and acknowledges that he knows them
and that they are incorporated in the contract
2. The General Terms of Business as well as their modifications can be
called on the Internet at any time under www.mik-online.de and can be
printed out from that source. With the conclusion of a contract the customer
acknowledges that it is satisfactory to make modifications known on that
site.
3. We herewith explicitly declare null and void the buyer's own terms
of business, also for future business. That means that only MIK's General
Terms of Business are to be applied. This is also valid if the customer
refers to any other deviating conditions of his own in a letter of confirmation.
4. Any deviating agreements are only binding when MIK has confirmed them
in writing. Such deviations are only valid for the particular business
agreed upon.
5. For the purposes of these General Terms of Business, consumer is to
be understood as any natural person, who concludes a legal transaction
with an object that can neither be ascribed to his/her commercial nor
to his/her free-lance activity.
II. General description of performance features
1. When some information from MIK's online offer (mik-online.de) is downloaded,
this may only be used for private purposes. Any use exceeding this purpose,
especially the marketing of the content, is inadmissible.
2. If any contents of the MIK-site are protected by the rights of third
parties, the use of the information concerned is not subject to MIK's
liability. It is the user's obligation to make sure for each individual
case that outside data are free of protection.
3. Where so-called links are offered to other sites, MIK is not responsible
for their content and rejects any liability for the content of these sites.
4. For suggestions, questions, wishes or critique the customer may kindly
contact the following address:
MIK INTERNATIONAL AG
Berggarten 1
56427 Siershahn
info@mik-online.de
III. Terms of Delivery
1. All prices are quoted in Euros. Price quotations are not binding and
the compulsory VAT is included.
2. Deliveries will be effected to the address given by the customer or
the customer can come and collect the goods at MIK after prior written
confirmation. MIK is entitled to send the goods in partial deliveries
as long as it is not unreasonable for the customer.
3. Dispatch is effected at MIK's risk.
4. MIK grants the right of return within a period of 14 days after receipt
of the goods. A return does not require any justification and is free
of charge for the customer. To meet the deadline it is sufficient for
the customer to send the article back to MIK in time. For goods which
cannot be sent back by parcel post it is sufficient to send a request
for return to MIK by letter, e-mail, phone or fax within the agreed time
limit of 14 days. Sending and taking back goods is at MIK's costs and
risk. If the customer makes use of his right of return, the contract for
sale and possibly the contract for hire purchase become void.
5. This right of return is not applicable if the goods have been manufactured
according to the customer's special wishes or have undoubtedly been designed
to his individual requirements. The same applies if the goods have been
used.
IV. Warranty
1. If the customer is a consumer, he has to notify the person who has
delivered the articles of any visible defects, including transport damages,
without any delay. For any other defects arising within the period of
warranty the consumer can choose from the legal demands for later fulfilment,
correction of faults or later delivery, and also - the special legal requirements
provided - the more far-reaching demands for depreciation or withdrawal
and apart from these the claim for damages including the indemnification
of the damage instead of fulfilment as well as a compensation for wasted
efforts.
2. If MIK grants its customers a seller's guarantee, irrespective of
these legal demands, the details thereof are laid down in the guarantee
regulations enclosed with each article.
V. Reservation of property clause
1. MIK reserves the right of property for goods delivered by them until
the buyer has settled all claims resulting from the business relationship
with MIK.
2. If the buyer behaves contrary to the terms of contract, especially
in the case of default of payment, MIK is entitled to take back the delivered
article/s, the buyer being obliged to give them back. Taking back the
delivered articles does not represent a withdrawal from the contract,
unless the terms of the consumers' credit law are to be applied or if
MIK have explicitly declared their withdrawal in writing
3. MIK commit themselves to release the securities that they are legally
entitled to upon the buyer's request in so far as the value of the securities
granted to MIK exceeds the claim to be secured by more than 20 %.
VI. Payment
1. Invoices from MIK are payable without any deductions within 30 days
after receipt of the invoice.
2. With respect to accounts receivable, the customer falls into arrears
30 days after receipt of the invoice. From this date onwards, MIK will
charge interest on arrears amounting to 5 % over the current base interest
rate of the Deutsche Bundesbank (German Central Bank).
VII. Data protection
1. Data which are necessary for business procedure are saved by MIK.
As far as creditworthiness is concerned, MIK exchanges information with
companies who give out credit details, always respecting the interests
of the buyer which have to be protected and in accordance with the prevailing
data protection rules.
2. MIK guarantees that any members of staff who are entrusted with order
processing will also keep to the rules mentioned in paragraph 1. But MIK
would like to remind you that in the case of online-orders data protection
might be offended against by other people due to the structure of the
Internet; this fact, however, cannot be influenced by MIK.
VIII. Miscellaneous
1. MIK is entitled to ask third service providers or fulfilment assistants
to produce the work in parts or completely.
2. Modified General Terms of Business are applicable if the customer
has not contradicted them in writing within a period of 4 weeks.
3. Only German Federal law is applicable, the regulations of the UN purchasing
laws being excluded.
4. If the contract between the customer and MIK has been made by means
of telecommunication, no other form is necessary for the effectiveness
of the contract.
IX. Salvatory clause
In case that one of the stipulations of these General Terms of Business
is ineffective, this does not impair the effectiveness of the other stipulations.
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