Terms and Conditions

Standard Terms and Conditions for the Sale of Export Products of MÜPRO Services GmbH (= Seller)

1. Scope of Application

These Standard Terms and Conditions for the Sale of Export Products shall exclusively apply.

The offer, order acknowledgment, order acceptance of sale by the Seller of any products covered herein is conditioned upon the terms contained in this instrument. Any diverging terms and conditions of purchase of the Buyer shall not form a part of the Agreement unless accepted in writing by the Seller.

These conditions shall govern any future individual contracts of sale between the Seller and the Buyer to the exclusion of any other terms and conditions of the Buyer.

Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

2. Acceptance of Orders and Specifications

No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller or the Seller’s representative within 10 days after submission.

The quantity, quality and description of and any specification for the products shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller). The documentation and brochures belonging to the offer, such as illustrations, drawings and article descriptions are only approximations, if they are not explicitly described as binding. Weight and size details as well as details concerning the technical equipping are non-binding. Details concerning the product’s stability can only be accepted as a non-binding guideline which have been calculated from static loading tests which have been conducted by the Seller.

The Seller reserves all rights of ownership and copyright for all cost estimates, drawings and other documentation. Any such specification, sales literature, quotation, cost estimates, drawings, etc. shall be treated by the Buyer as strictly confidential and may not be made available to third parties by the Buyer. This applies in the same manner if and when the Buyer submits such data to the Seller.

The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order submitted by the Buyer, and for giving the Seller any necessary information relating to the products within a sufficient time to enable the Seller to perform the contract in accordance with its terms.

If the products are to be manufactured or any process is to applied to the products by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from the Seller’s use of the Buyer’s specification.

The Seller reserves the right to make any changes in the specification of the products which are required to conform with any applicable statutory requirements or, where the products are to be supplied to the Seller’s specification, which do not materially affect their quality of performance.

In no case the Seller shall be responsible for the compliance of the products with any local rules and regulations that may apply in the Buyer’s country.

3. Price of the Products

The price of the products shall be the Seller’s quoted price or, where no price has been quoted, the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the products are supplied for export from Germany, the Seller’s published catalogue price list shall apply.

The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the products to reflect increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as foreign exchange fluctuations, currency regulations, alterations of duties, significant increases in the costs of materials or other costs of manufacture) or any change in delivery dates.

Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis (INCOTERMS 2000), and where the Seller agrees to deliver the products otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

4. Terms of Payment

The Buyer shall pay the price of the products in advance or according to the terms of payment as arranged. Payments in the e-shop are to realise according to the possible and specified terms of payment.

Payment shall be effected by interbank payment transfer only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.

It may be agreed between the parties that the Buyer has to deliver a letter of credit issued by his bank (or any bank acceptable to the Seller). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 2007 Revision, ICC Publication No. 600.

If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall at his discretion be entitled to:

• cancel the Agreement after the Seller has fixed an additional period of time of reasonable length for payment and the Buyer has failed to make payment within the additional period of time, or suspend any further deliveries to the Buyer; and/or
• charge the Buyer interest on the amount unpaid, at the rate of 8 % per annum above European Central Bank reference rate from then being valid, until payment in full is made.

The Buyer shall only have the right to withhold payments or set payments off in the event that his counterclaims are undisputed or have been declared final.

5. Delivery

Delivery of the products shall be made to the Buyer collecting the products at the Seller’s premises at any time after the Seller has notified the Buyer that the products are ready for collecting or, if some other place for delivery is agreed by the Seller, by the Seller delivering the products to that place.

If for any reason whatsoever the Seller fails to make delivery within the fixed time for delivery the Buyer shall be entitled to fix a new deadline in writing which must be reasonable after the expiry of which the Buyer shall be entitled to terminate the Agreement. He may also recover from the Seller any loss suffered by the Buyer by reason of the failure of the Seller. Damages may only be claimed for by the Buyer if the Seller by intent or gross negligence failed to fulfill the Agreement. The Seller shall nevertheless be responsible for not fulfilling any obligations deemed to be essential for the performance of the Agreement.

If the Buyer fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the products had been delivered. The Seller shall arrange for the storage of the products at the risk and cost of the Buyer.

The Seller is not obligated to deliver the products (fulfillment of the contract), if national or international law, in particular export control regulations, embargoes or other sanctions imposed, prevents delivery. The same applies, in case a required permit for delivery is not issued. In such cases the contract is demeed to not have been concluded insofar as it does not oblige the Seller to deliver the products.

6. Further Delivery Conditions

Costs for express deliveries are made at Buyer’s cost.

Any special packaging will be invoiced at self-cost. Upon the commissioning of special production and non-storable articles it must be noted that production conditional divergences of +/- 10 can occur, which must then lead to an adjustment of the contract by the Seller. Products on stock will always be delivered in their original packaging.

Exceptionally agreed upon partial deliveries will be invoiced with an additional charge of 30 %, as a minimum however with 8.00 Euro. The Seller is authorized to make partial deliveries. Where delivery of the products is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 3 % more or 3 % less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be in the quantity ordered.

7. Transfer of Risks

Risk of damage or loss of the products shall pass to the Buyer as follows:

• in the case of products to be delivered other than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the products, the time when the Seller has tendered delivery of the products;
• in the case of products to be delivered at the Seller’s premises (“ex works”, Incoterms 2000) at the time of delivery or if he does not do so in due time, from the time when the products are placed at his disposal and he commits a breach of contract by failing to take delivery.

8. Retention of Title 

Notwithstanding delivery and the passing of risk in the products, or any other provision of these conditions, the property in the products shall not pass to the Buyer until the Seller has received payment in full of the price of the products and all other products agreed to be sold by the Seller to the Buyer for which payment is then due.

The Seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the products in which title remains vested in the Seller.

Until such time as the property in the products passes to the Buyer, the Buyer shall hold the products as the Seller’s fiduciary agent, and shall keep the products properly stored, protected and insured.

Until that time the Buyer shall be entitled to resell or use the products in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the products including insurance proceeds, and shall keep all such proceeds separate form any moneys or properties of the Buyer and third parties.

If the products are processed or reshaped by the Buyer and if processing is done with products that the Seller has no property in, the Seller shall become co-owner of the products. The same shall apply if the Seller’s products are completely reshaped and mixed with other products.

If third parties take up steps to otherwise dispose of the products, the Buyer shall immediately notify the Seller. If the Buyer fails to do so in due time he will be held liable for any damages caused.

The Seller shall on demand of the Buyer release any part of the collateral if the value of the collateral held in favour of the Seller exceeds the value of the claims being secured by 150 %. It is to the Seller’s decision to release those parts of the collateral suitable for him.

9. Examination and Notice

The Buyer shall examine the products without undue delay after delivery and in doing so check every delivery in any respect.

Obvious defects must be notified to the Seller in writing within eight days from the date of delivery. Following this deadline the delivery is deemed as examined or accepted. Defects which cannot be discovered even following an in depth examination of the products must be immediately reported in writing, at the latest eight days following the discovery of the defect.

After the completion of one year from the date of delivery of the products the Buyer cannot make any further claims of defects.

10. Warranties and Exclusion of Liability

The Seller warrants that all products delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by the Buyer, will be free from design defects.

The Seller shall not be liable for the products being fit for a particular purpose unless otherwise agreed upon, to which the Buyer intends to put them.

The above warranty is given by the Seller subject to the following conditions:

• the Seller shall not be liable in respect of any defect in the products arising from any design or specification supplied by the Buyer;
• the Seller shall not be liable under the above warranty if the total price for the products has not been paid by the due date for payment;
• the above warranty does not extend to parts, materials or equipment manufactured by or on behalf of the Buyer unless such warranty is given by the manufacturer to the Seller.

This warranty does not cover defects in or damage to the products which are due to improper installation or maintenance, misuse, neclect or any cause other than ordinary commercial application.

All parts which prove to be defective as a result of a circumstance existing prior to the transfer of risk shall at the Seller’s option be repaired or replaced free of charge.

After the Seller has been notified of the defect, the Buyer is obliged to allow for the necessary time and opportunity for the Seller to carry out repair or replacement, otherwise the Seller shall be released from any liability for the consequences.

To the extent that the complaint proves to be justified the Seller shall assume the costs of the repair parts, including shipment.

In the event that the Seller is unable to remedy a material defect within a reasonable period of time set for repair or replacement, or if the Seller is unable to cure the material defect after having tried to do so two times without success, then the Buyer shall be entitled to rescind the contract. In the even of a minor defect the Buyer shall only have the right to a reduction of the purchase price.

The Seller shall be liable for damages only and only for such damages not caused to the product itself in the event of

• intent,
  
• gross negligence including gross negligence of legal representatives or employees,
• injury, loss of life or damage to health caused by negligence.

In the case of a negligent breach of essential contractual duties, the Seller shall also be liable for simple negligence, including simple negligence of legal representatives or employees.

Further claims for damages shall be excluded.

11. Force Majeure

The Seller shall not be liable for a failure to perform any of his obligations if the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the Agreement.

12. Compliance with Export Control Regulations

The Buyer shall ensure and guarantee that the applicable national or international laws, all applicable judicial or regulatory orders including UN resolutions, embargoes, customs regulations, EU/US or state sanction lists or other relevant regulations regarding the control of the export, transfer, trade or transit of dual-use goods (hereinafter referred to as "Export Control Regulations") are complied with if the Buyer sells and/or ships Products delivered by the Seller.

The Buyer shall ensure by regular spot checks and other reasonable measures that (i) applicable export control regulations are not violated also taking into account any relevant restrictions on domestic business and any relevant bans on circumvention (ii) products from the Seller are not intended for use related to armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorization, unless the necessary authorizations have been received and that (iii) all relevant sanctions lists relating to the trading with the entities, persons and organizations listed therein are considered.

Where it is required for the performance of export control inspections by authorities or the Seller, the Buyer shall, upon request, immediately provide the Seller with all information regarding the end customer, the final destination and the intended use of the products provided by the Seller as well as any existing export control restrictions.

Buyer shall indemnify and hold harmless the Seller from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any non-compliance with export control regulations by the Buyer, and the Buyer shall compensate the Seller for all losses and expenses resulting thereof.

13. Miscellaneous Clauses

The Seller reserves the right to improve or modify any of the products without prior notice, provided that such improvement or modification shall not affect the form and function of the product.

This Agreement supersedes and invalidates all other commitments and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior to the date hereof, and which shall become null and void from the date of the Agreement is signed.

This Agreement shall not be assigned or transferred by either party except with the written consent of the other.

Each party shall be responsible for all its legal or other costs and expenses incurred in the performance of its obligation hereunder.

14. Data Protection

The Seller saves and processes personal details of the Buyer required for the transaction of business. The Seller reserves the right to have these details processed and stored by third parties within a contractual relationship.

15. Validity

If any stipulation in these Standard Terms and Conditions for the Sale of Products should be invalid or becomes so, this will not affect the validity of the other stipulations. The parties then shall agree on a replacement stipulation that comes as close as possible to the commercial meaning and purpose of the invalid stipulation.

16. Choice of Law; Place of Jurisdiction; Place of Performance

This Agreement shall be governed by and construed in accordance with the U.N. Convention on Contracts for the International Sale of Goods and regarding any remaining issues with German law and each party agrees to submit to the jurisdiction of the courts having jurisdiction for the Seller. This is Wiesbaden.

The Seller shall have the right to bring a claim before a court at the Buyer’s principal place of business or at his discretion before any other court being competent according to any national or international law.

Place of performance for all obligations under this Agreement shall be at the Seller’s place of business.

Status as of February 2020