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      ISO 9001
        Quallity
        Management
        System
Terms of Delivery and Payment
of Munich Composites GmbH
 

You (henceforth: purchaser) have acknowledged and accepted the following binding conditions for first and subsequent deliveries by placing an order with Munich Composites GmbH (henceforth MC). Changes and additions to these terms need to be in writing. Other general terms will not be accepted even if we do not explicitly object them.

 

1. Delivery

Delivery of the goods shall be ex-factory, risks at the account of the purchaser. The purchaser shall bear the shipping costs. The goods shall be shipped uninsured. Should the agreed delivery deadlines not be kept, the purchaser shall grant a reasonable extra time, which must be at least 4 weeks.

 

2. Notifications about Defects

Upon receipt of the goods, the purchaser is obliged to inspect the quantity, quality, and the condition of the products delivered immediately. Both parties agree to a certain method of inspection in the purchase contract.

Obvious defects must be reported in writing immediately, at latest within 3 calendar days. Any other defects (hidden defects) that were not determinable by the above method of inspection upon receipt of the goods after the 3 days must be reported to MC by the purchaser immediately when they have been detected. In all cases, the receipt of the report of the defect by MC is decisive.

The goods are considered free of defects according to contractual and legal claims if complaints are not made in time. This does not apply to damage claims which are due to intentional behavior or that are justified according to the Product Liability Law.

Our consent is required before returning any merchandise to us.

 

3. Payment

Invoices can be sent either per email or in paper form. Payments must be made by the purchaser within 14 days net after completion of service and receipt of the invoice unless otherwise agreed by contract.

Payment of the oldest due invoice generally should be settled first. Should the purchaser be in default of payment, all open invoices will be due. Payment in advance will be used for any further deliveries.

After due dates of invoices, MC id entitled to charge the purchaser customary interest rate.

 

4. Mode of Payment

Transfers must be made to our bank (Münchner Bank eG, Richard-Strauss-Str. 82, 80939 Munich, Germany; IBAN: DE86 7019 0000 0001 3026 71; BIC: GENODEF1M01), Bill of Exchange within a maximum of 90 days, but only within 10 days from invoice date and according to MC´s discount options, discount charges always to be paid by the purchaser; Deductions to invoice amount are not permitted in any case.

 

5. Retention Clause

All goods will remain property of MC until full payment of all claims have been paid to safeguard all existing and future claims to MC against the purchaser according to the delivery conditions as stated in the contract.

The purchaser is obliged to treat the reserved goods with care and to insure them against fire, water, and theft at purchaser’s own cost at the current purchase price of the purchased item value.  Should the reserved goods be seized by a third party, the purchaser is obliged to declare that the goods are property of MC and must immediately inform MC in written form about the seizure.

The purchaser is entitled to process and sell the reserved goods or newly processed goods in an ordinary course of business. In case of resale, in order to secure the purchase price claims at this point the purchaser will assign any resulting claims against the acquirer to MC. MC is entitled to notify the assignment to the acquirer and to demand payment to the account of MC if the purchaser is in default on payment.

Should the purchaser process the reserved goods, the processing is done in the name and for the account of MC as a manufacturer and MC acquires immediate ownership of the new product.

If the processing material comes from several owners, MC shall acquire co-ownership of the new item equivalent to the value of the reserved goods.

Should MC acquire ownership or co-ownership of the new item, MC will transfer its ownership or its co-ownership to the purchaser of the new item fully or proportionally subject to the suspensive condition of complete purchase price payment.

If the goods subject to retention of title are mixed or combined with other goods used by the purchaser and should the purchasers goods be considered to be the main item, the purchaser shall transfer a share of co-ownership to MC of the main item corresponding to the value of the goods subject to the resolutive condition of complete purchase price payment.

If the purchaser sells the new mixed or combined item to a third party, the purchaser transfers its claims against the third party to MC in order to guarantee any claims of the item.  In case MC has acquired a co-ownership in this item, the purchaser transfers the claim to MC at a pro rata basis according to the value of the undivided share.

In case of non-payment, or insolvency, the purchaser is no longer authorized to resell or process the reserved goods. In such a case the purchaser is obliged to surrender the reserved goods to MC at its first request.

If a third party debtor insists on the approval of assignment of authority, MC must be notified in writing prior to delivery. If this consent is denied, MC is authorized to collect their claim by placing an order to collect its debt in the name and on behalf of the purchaser.

With proper handling of payments, the purchaser is entitled to collect the assigned claims for MC on a trust basis. The proceeds shall be immediately transferred to MC directly even for installment payments. In case of disagreement MC is entitled to collect its claim directly from the third party debtor. In such a case, the purchaser is obliged to draw up an accurate list of debtors for MC.

 

6. Liability

MC shall at its own discretion rectify material defects and defects of title in the goods by rework or by making a replacement delivery. The purchaser retains the right to demand a reduction of charges in case the remedial work or replacement fails.

MC is not liable for any damages incurred by the purchaser under this contract or in performance of the contract. This limitation shall not apply to:

a) Injuries to life, body, and health.

b) For damages that have been caused by intent or gross negligence by MC.

c) For damages caused by the breach of standing mutual obligations which are necessary for the proper performance of the contract and their fulfilment the purchaser could trust in (cardinal obligations).

d) For cases where the product liability law applies.

For damages caused by slight negligence by MC and relating to a breach of a cardinal obligation, MC´s liability shall be limited to a sum equal to the typical damage.

For damages caused by agents of MC, MC will be liable in accordance with the above principles

By way of derogation, MC is liable for the grossly negligent conduct of its agents only to a limited amount of damage which typically occurs on a regular basis in case it is not an essential contractual obligation. In case of cardinal obligations, MC is liable under the statutory provisions.

 

7. Confidentiality

The parties agree, also extending beyond the end of the contract (independent of its outcome), to treat  the knowledge gained in the context of executing the contract on all information and documents as confidential, whether in written, verbal or in any other form.

Confidential information must be kept secret and in particular may not be disclosed or otherwise made available to third parties, be published, made accessible to the public, or be used or exploited in some other way beyond the contractual relationship – unless they are known to the general public, intended for the public by the other party, drawn up or legally obtained by the other party independently and outside the contractual relationship or the other party must disclose them as a result of legal provisions, an enforceable judicial decision or by official decree.

Each party shall only disclose confidential information to their employees where required to implement the contractual relationship. Each party shall ensure by means of suitable written agreements with all employees and representatives, to whom confidential information has been made available, that they are bound to the obligation of confidentiality to the extent legally permitted by the employment law, even after they are no longer employed. The parties will give each other proof of respective evidence. This also applies to complying with data protection.
 

8. Final Provisions

Place of Performance is Taufkirchen close München, Germany. The Court of Jurisdiction is Munich, regional Court Munich I – Landgericht München I.

Unless otherwise agreed, this agreement shall be governed exclusively by the Laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.

Should individual provisions of these purchasing conditions prove wholly or partially legally invalid, or unenforceable  because of legal reasons, the validity of the remaining provisions shall not be affected. The contracting parties undertake to replace the invalid or unenforceable provision in  short term by such valid provisions which reflects the intended meaning and purpose of the agreement so to be close to it’s actual, legal, and economic context. The same shall apply in case there is a loophole in the rules. This clause applies to all annexes if those are available. Any amendments and additions to those provisions require our consent and must be in written form.

We also refer to the EXW Incoterms 2010, unless our Terms and Conditions deviate.