General Conditions of Sale for Customers resident in Germany
I. Application of the General Conditions of Sale
1. These General Conditions of Sale apply to all current as well as all subsequent contracts with customers of MICROPLEX Printware AG – hereinafter referred to as MICROPLEX – made on or after 1 December 2015 and the preponderant object of which is the supply of goods and/or software to the customer. Additional obligations assumed by MICROPLEX do not affect the application of these General Conditions of sale.
2. Any terms of business of the customer differing from these General Conditions of Sale or any legal regualtions do not bind MICROPLEX, even if MICROPLEX does not object to them, unconditionally renders performance or accepts the customer’s performance.
II. Conclusion of the Contract
1.The customer is under an obligation to give written notice to MICROPLEX prior to the conclusion of a contract if
– the goods to be delivered are to be used for applications deviating from the applications as described in the technical documentation by MICROPLEX, if the goods are to be fit not only for normal use, if the customer assumes their fitness for a particular use or bases his expectations as to the quality of the goods on public statements, advertisements or other circumstances outside the concrete situation of the conclusion of the contract,
– the goods to be delivered will be used in circumstances which are unusual or which present a particular risk to health, safety or the environment, or which require a more demanding use,
– there is a risk of atypical damages or unusual amounts of loss of which the customer is or ought to have been aware or
– the goods to be delivered are to be used outside of Germany or are to be delivered to purchasers of the customer, who are based outside of Germany.
2. Orders of the customer are to be put in writing. If the customer’s order deviates from the proposal or the tender submitted by MICROPLEX, the customer will emphasize the deviations as such.
3. All orders, in particular also those received by employees of MICROPLEX, will take effect exclusively if followed by a written acknowledgement of the order by MICROPLEX. MICROPLEX can dispatch such written acknowledgement of the order up to and including fourteen (14) calendar days after the customer’s order has been received by MICROPLEX.
4. The written acknowledgement of the order by MICROPLEX shall be received in time, if it is received by the customer within seven (7) calendar days after its date of issue. The customer will inform MICROPLEX without delay, if the written acknowledgement of the order is received with some delay.
5. The written acknowledgement of the order by MICROPLEX sets out all the terms of the contract and brings the contract into effect even if – except for the kind and the price of the goods and the quantity to be delivered – the written acknowledgement is not consistent with the declarations of the customer in every respect, especially with reference to the exclusive application of these General Conditions of Sale. The contract will only fail to come into existence if the customer objects in writing that the acknowledgement of the order by MICROPLEX is not completely consistent with the declarations of the customer, the customer specifies the deviations in writing and if the objection is received by MICROPLEX within a short time, at the latest seven (7) calendar days after receipt of the written acknowledgement of the order by the customer.
6. Particular wishes of the customer, namely specific expectations of the customer as to use or quality, guarantees or assurances in respect of the goods or the implementation of the contract as well as any declarations of performance, manuals or safety information required by the customer in electronic or printed form therefore require express written confirmation by MICROPLEX in every case.
III. Obligations of MICROPLEX
1. MICROPLEX shall deliver the goods specified in the written acknowledgement of the order and transfer the property in the goods. MICROPLEX is not obliged to perform obligations not stated in the written acknowledgment of the order by MICROPLEX or in these General Conditions of Sale, in particular MICROPLEX is under no contractual obligation to supply documents, to furnish information or to deliver accessories not explicitly agreed upon in writing, to establish compatibility with performances or products of other suppliers or to advise the customer.
2. MICROPLEX’s obligations under the contract made with the customer are owed only to the customer. The customer’s responsibility to take delivery continues to exist even if he assigns rights to third parties.
3. Taking account of the provisions in sections II.-1. and II.-5. as well as taking account of the tolerances customary in trade concerning the kind, quantity and quality, MICROPLEX undertakes to deliver goods of average kind and quality. If the goods cannot be delivered in the condition offered at the time of the conclusion of the contract because technical improvements to goods of series production were made, MICROPLEX is entitled to deliver the goods with the technical improvements.
4. MICROPLEX undertakes to place the goods packaged as customary at MICROPLEX at disposal for collection by the customer EXW (Incoterms 2010) at the place of delivery indicated in the written acknowledgement of the order or – if no place of delivery is indicated therein – at his premises in D-26316 Varel (Germany) at the agreed time of delivery. MICROPLEX is not obliged to give notice of the goods’ disposability to the customer.
5. Agreed delivery time periods or delivery dates are subject to the customer procuring any required documents, permits or authorizations in sufficient time, making down-payments as agreed and performing all other obligations incumbent on him in good time. Moreover, agreed delivery time-periods begin on the date of the written acknowledgement of the order by MICROPLEX.
6. MICROPLEX is entitled to fulfil contractual obligations after the delivery time agreed upon, if the customer is informed that MICROPLEX will exceed the delivery time limit and of the time period for late performance. Subject to aforesaid conditions, MICROPLEX is entitled to make repeated attempts at late performance. The customer can object to late performance within reasonable time, if the late performance is unreasonable. MICROPLEX will reimburse necessary additional expenditure, proven and incurred by the customer as a result of exceeding the delivery time to the extent that MICROPLEX is liable for this under the provisions laid down in section VII.
7. Irrespective of whether carriage is conducted through MICROPLEX, through the customer or through a third party, risk as to price and performance, even in relation to goods which are not clearly identifiable to the contract, pass to the customer as soon as the goods have been placed at the customer’s disposal in accordance with the provisions laid down in III.-4. of this contract.
8. MICROPLEX is not obliged to procure confirmations or certificates not expressly agreed, or any other documents, and is in no case liable to perform duties associated with the putting of the goods into circulation outside Germany.
9. Without prejudice to his continuing legal rights, MICROPLEX is entitled to the defence of insecurity according to § 321 German Civil Code (BGB) as long as, in the opinion of MICROPLEX, there are grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. Instead of raising a defence, MICROPLEX is entitled to make future deliveries, also those already confirmed, conditional on the customer making an advance payment. MICROPLEX is not required to continue with the performance of his obligations, as long as and to the extent that an assurance given by the customer to avoid the defence does not provide adequate security or could be challenged.
IV. Obligations of the Customer
1. Irrespective of continuing obligations of the customer to guarantee or to enable payment, the agreed price for the goods is due on the date specified in the written acknowledgement of the order or – if no date is indicated therein – upon issuing of the invoice and is to be paid by the customer. The periods granted for payment will cease to apply and outstanding accounts will be due for immediate payment, if insolvency proceedings relating to the assets of the customer are applied for, if the customer does not meet fundamental obligations due towards MICROPLEX or towards third parties without providing a justifiable reason, if the customer has provided inaccurate information regarding his creditworthiness or if the cover given by a credit insurer is reduced on grounds for which MICROPLEX is not responsible.
2. The agreed price covers the performances to be rendered by MICROPLEX including packaging as customary at MICROPLEX. Statutory value-added tax is calculated separately and is to be paid by the customer in addition.
3. In each individual case, assurances of discount shall be indicated in the written acknowledgement of the order by MICROPLEX and are only valid given the complete settlement of all claims incumbent on the customer and due towards MICROPLEX in good time.
4. Payments are to be made in Euro without deduction and free of charges or costs to one of the financial institutions indicated by MICROPLEX. The unreserved credit to the bank account of MICROPLEX is decisive for the timeliness of the payment.
5. Regardless of the jurisdiction of any court, MICROPLEX is entitled at his own discretion to set off incoming payments against claims existing against the customer by virtue of his own or assigned rights at the time of payment.
6. Any statutory rights of the customer to set-off against claims of MICROPLEX are excluded, except where the corresponding claim of the customer against MICROPLEX is founded in the customer’s own right, is due and is either undisputed or has been finally adjudicated. § 215 BGB does not apply.
7. Any statutory rights of the customer to withhold payment or taking delivery of the goods, to suspend the performance of his obligations or to raise defences or counterclaims are excluded, except where despite written warning by the customer, MICROPLEX has committed a fundamental breach of his obligations due and arising out of the same contractual relationship, and has not offered any adequate assurance or if the counter claim is founded in the customer’s own right, is due and is either undisputed or has been finally adjudicated. § 215 BGB does not apply.
8. The customer undertakes to take delivery of the goods and shall fulfil all the duties imposed on him by the contract, by these General Conditions of Sale, by the rules of the ICC for the use of the agreed Incoterms® 2010 and by statutory provisions.
9. With respect to the goods purchased from MICROPLEX, the customer will not enter into or conduct any business which is prohibited according to the relevant provisions, in particular the provisions of foreign trade law including US export control law. To the extent that the customer is unsure whether the elements of an offence are constituted or not, the customer shall put this for coordination with MICROPLEX in writing.
V. Defective goods
1. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods have a material defect if the customer proves that, taking into account the terms in section II.-1., II.-5. or III., at the time the risk passes, the goods significantly differ from the kind, quantity, quality or fitness for the intended purpose, or in the absence of agreed specifications, the goods significantly differ from the quality which is usual in Germany or if they are evidently not fit for the use usual in Germany.
2. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods have a legal defect if the customer proves that, at the time the risk passes, the goods are not free from rights or claims of third parties enforceable in Germany. Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a legal defect only to the extent that the rights are registered, made public and in legal force in Germany and prevent the use of the goods in Germany in conformity with the contract.
3. To the extent that the written acknowledgement of the order by MICROPLEX does not contain an explicit statement to the contrary, MICROPLEX is in particular not liable for the goods being fit for a purpose which is not usual or deviating from the usual quality or complying with further reaching expectations of the customer or for the goods being free from rights or claims of third parties outside of Germany.
4. Any guarantee or assurance required by the customer shall always be agreed to as such in the written acknowledgement of the order, also in subsequent dealings. In particular, designations by way of key-words, reference to generally accepted norms, the use of tradenames or certification marks or the presentation of specimens or samples do not in themselves ground the assumption of a guarantee or assurance.
5. The customer is obliged vis-à-vis MICROPLEX to examine every single delivery, irrespective of a redirecting or forwarding of the shipment, without undue delay and in every respect for recognizable as well as typical variations of a qualitative, quantitative and any other nature, for compliance with any provisions on product law and moreover as required by law.
6. Without prejudice to the statutory obligations of the customer to give notice without undue delay, the customer is obliged vis-à-vis MICROPLEX to give notice to MICROPLEX of any material or legal defect within one (1) year for new goods and within six (6) months for second-hand goods after the goods have factually been handed over to him.
7. Following due notice according to section V.-6., the customer can rely on the remedies provided by these General Conditions of Sale. Subject to differing promises confirmed by MICROPLEX in writing, there are no further claims for the customer because of the breach of the obligation to deliver goods which have no defect, nor does the customer have a claim of a non-contractual nature.
8. The customer is not entitled to remedies for the delivery of defective goods, insofar as the customer is liable for qualities of the goods or their fitness for a use which are not subject of the agreement with MICROPLEX, or insofar as the customer would not be liable for delivery of defective goods within the business relationship with his own customer when the relevant legal provisions apply.
9. To the extent that the customer is entitled to remedies because of the delivery of defective goods in accordance with the terms of these General Conditions of Sale, he is entitled to demand supplementary performance from MICROPLEX in accordance with the statutory provisions within a reasonable period of time after the notice of such defect has been given. The place of pferformance for the supplementary performance shall be the place of delivery as indicated in section III.-4.
10. The involvement of third parties in the remedying of defects generally requires MICROPLEX‘s approval.
11. In the event that attempts to supplementary performance are rejected due to their inefficiency, are finally unsuccessful, impossible or not undertaken within a reasonable period of time, the customer is, notwithstanding other remedies provided for in these General Conditions of Sale, entitled according to statutory provisions to reduce the price or, following the fixing of an additional time and issuing of a warning that attempts to supplementary performance after this period will not be accepted, to rescind the contract within a cut-off period of four (4) weeks. Notwithstanding remedies of the customer, MICROPLEX is always entitled to repair or replace defective goods according to the regulations laid down in section III. 6.
1. In addition to the rule in section V.-11., the customer is entitled to rescind the contract, having regard to the relevant statutory provisions on rescission, if performance of the obligations incumbent on MICROPLEX has become impossible, if MICROPLEX is in default of performance of primary contractual obligations or otherwise has committed a fundamental breach of obligations arising from the contract and the default or the breach is MICROPLEX’s fault according to section VII.-1.-b). To establish default, without prejudice to further reaching statutory requirements, after performance is due, the customer must in any event, even in the event of a fixed date for performance, issue a specific written notice directly addressed to MICROPLEX requiring performance within a reasonable period.
2. Without prejudice to his continuing legal rights, MICROPLEX is entitled to rescind the contract without substitution if the implementation of the contract is or will become illegal, if the customer objects to the application of these General Conditions of Sale, if the special provisions on consumer sales apply (§§ 474 et seq. BGB), if on grounds for which MICROPLEX is not responsible the written acknowledgement of the order by MICROPLEX is received by the customer more than fourteen (14) calendar days after its date of issue, if insolvency proceedings relating to the assets of the customer are applied for, if the customer without providing a justifiable reason does not meet fundamental obligations due towards MICROPLEX or towards third parties, if the customer has provided inaccurate information regarding his creditworthiness, if the cover given by a credit insurer is reduced on grounds for which MICROPLEX is not responsible, if MICROPLEX through no fault of his own does not receive supplies properly or on time or if for other reasons MICROPLEX is not able to perform its obligations of performance with means which would be reasonable with due regard to its own and the customer’s grounded interests which were identifiable at the time of the conclusion of the contract as well as the agreed counterperformance in particular.
1. With the exception of the liability
– according to the German Product Liability Act (Produkthaftungsgesetz),
– due to a fraudulent concealment of a defect,
– due to acknowledgement of a guarantee in respect to the quality of a product or
– for damages resulting from negligent injury to life, body or health,
without waving legal requirements, MICROPLEX is only obliged to pay damages due to the violation of obligations resulting from the contract with the customer and/or by virtue of the contractual negotiations carried on with the customer, in accordance with the following provisions:
a) In the first instance, the customer is obliged according to the provisions in section III.-6. to accept offers of supplementary performance or to rely on the remedies as provided in the according provisions in sections V. and VI., and can only claim damages in the event of continuing disadvantages. Yet, the customer cannot claim damages as an alternative to other remedies.
b) Without prejudice to the exclusion or restriction of the liability according to statutory provisions, MICROPLEX is only liable for a negligent breach of fundamental obligations and for a deliberate or grossly negligent breach of other contractual obligations owed to the customer.
c) In the event of liability, MICROPLEX will compensate the proven losses of the customer to the extent to which these were foreseeable to MICROPLEX at the time of the conclusion of the contract in respect of the occurrence of the loss and its amount as a consequence of the breach of obligation and to the extent it was unavoidable for the customer.
d) Notwithstanding adherence to provisions prescribed by law or within these General Conditions of Sale, the customer can only require damages instead of performance if he has given notice to MICROPLEX within two (2) weeks after the performance was due that it may reject performance and furthermore, if said performance has nonetheless not been forthcoming, has notified MICROPLEX of his final rejection of said performance within one (1) week after issuing the first notice.
2. Irrespective of continuing legal or contractual claims of MICROPLEX, the customer is obliged to pay damages to MICROPLEX as follows:
a) In the event of delay in payment, the customer is obliged to reimburse the adequate costs of judicial and extrajudicial prosecution, or at least to pay a lump sum of € 40.00 plus interest in the amount of nine (9) percentage points above the base rate of the German Federal Bank (Deutsche Bundesbank).
b) In the event of default in taking delivery or the customer’s failure to take delivery as agreed, unless the customer shows that no damage or only damage of a considerably lower amount was in fact sustained, MICROPLEX is entitled – following the fixing of a reasonable period to take delivery which has passed in vain – to flat-rate damages in the amount of 15% of the value of the respective delivery.
3. Within the bounds of what is legally possible as well as usual in trade, the customer is in his commercial relationships with his purchasers obliged to limit his liability both in principle and in amount.
4. § 348 German Commercial Code (HGB) (contractual penalty) does not apply.
VIII. Retention of Title
1. The title of the delivered goods remains with MICROPLEX until the settlement of all claims of MICROPLEX existing against the customer, irrespective of the legal basis on which they are founded and including principal and incidental claims which are payable on a later date. For running accounts, the retention of title applies to the respective balance.
2. During the existence of the retention of title, the customer will grant to the employees of MICROPLEX access to the goods subject to the retention of title at any time during usual business hours. The customer is obliged to insure the goods which are subject to the retention of title against theft, damage and destruction; in addition, the customer is obliged at the request of MICROPLEX to store the goods separately or to clearly separate and designate them as property of MICROPLEX and to take all measures necessary to ensure a complete securing of the retention of title at his own expense. By way of security, all claims arising against the insurer are hereby irrevocably assigned to MICROPLEX in their full amount; MICROPLEX accepts the assignment.
3. During the existence of the retention of title, the customer shall immediately inform MICROPLEX in writing if a third party asserts claims or rights to the goods subject to the retention of title or to the claims assigned to MICROPLEX according to the rules on retention of title, and support MICROPLEX in the protection of his interests free of charge. If a third party acquires rights to the goods subject to the retention of title during the existence of the retention of title, all claims of the customer against the third party and all connected rights are hereby irrevocably assigned to MICROPLEX by way of security; MICROPLEX accepts the assignment.
4. The customer may transfer the goods subject to the retention of title within the scope of proper business practice only on the condition that he is not in default of payment and that the payment of the customer’s purchaser is not due before the date on which the customer must pay the price to MICROPLEX. The customer is not entitled to make other dispositions (e.g. as transfer by way of security or pledge etc.). The customer hereby assigns all claims against his purchaser as well as all supplementary rights arising out of the sale of the goods subject to the retention of title in the full amount and irrevocably to MICROPLEX by way of security. If the customer includes the claims from an alienation to his purchasers into a current account relationship existing with his purchasers, it hereby assigns all rights arising from the balancing of the current account in their full amount and irrevocably to MICROPLEX by way of security; MICROPLEX accepts the assignments.
5. The customer retains the capacity to recover the claims assigned to MICROPLEX as trustee for MICROPLEX, insofar as he is not in default of payment. The customer is not entitled to assign the claims to third parties. The customer must administer incoming payments separately and, notwithstanding other payment dates granted by MICROPLEX, forward them to MICROPLEX without delay, until the rights secured by MICROPLEX are satisfied in full. If payment is made to the financial institution of the customer by transfer, the customer hereby irrevocably assigns to MICROPLEX all rights arising against his financial institution thereby. If the customer receives a bill of exchange to satisfy his claims against third parties, he hereby irrevocably assigns to MICROPLEX all rights arising against the financial institution out of the discounting of the bill of exchange; MICROPLEX accepts the assignments.
6. Processing of the goods occurs for MICROPLEX as producer of the goods within the meaning of § 950 BGB, without liabilities arising therefrom for MICROPLEX. If the goods delivered by MICROPLEX are intermixed, mingled or connected with other objects in such a way that the ownership of MICROPLEX extinguishes by operation of law, the customer herewith transfers his ownership or co-ownership rights in the new object to MICROPLEX and holds it free of charge as trustee for MICROPLEX. A union of the goods with land is only temporary.
7. If necessary, the customer will enquire as to the extent to which the goods remain subject to retention of title. MICROPLEX is not obliged to quantify the extent of the retention of title in response to payments without being requested to do so. If goods which have not been completely paid for and which are subject to a retention of title are in the safekeeping of the customer, MICROPLEX will release the goods at the request of the customer to the extent that the invoice value of the goods exceeds the sum of payable claims by more than 20% and no right to separate settlement and recovery in favour of MICROPLEX exists. The corresponding applies insofar as claims against third parties have taken the place of the goods subject to the retention of title and these are asserted by MICROPLEX in his own name. Moreover, MICROPLEX will release securities of the customer at the customer’s request to the extent that the market price of the securities exceeds the sum of the secured claims by more than 50% plus value added tax payable on their exploitation.
8. If goods which have not been completely paid for and which are subject to the retention of title are in the safekeeping of the customer and the initiation of insolvency proceedings against the assets of the customer is applied for, or if the customer does not fulfil his obligations towards MICROPLEX or against third parties without presenting a justifying reason therefore, MICROPLEX is entitled to withdraw the customer’s right to possession and require return of the goods without rescission of the contract. MICROPLEX is not entitled to require return of the goods if the insolvency trustee has opted for performance of the contract and the price is paid.
9. In the event that the contract is rescinded, in particular due to the customer’s default of payment, MICROPLEX is entitled to freely alienate the goods and to satisfy itself from the proceeds. Notwithstanding other rights of MICROPLEX, the customer is obliged to pay MICROPLEX damages in respect of expenses associated with the conclusion of contract, the performance of the contract so far and the rescission of the contract as well as the costs of recovering the goods and to pay a usage fee in the amount of 5 % of the value of the goods for every month or part thereof.
IX. Other Provisions
1. Adherence to written form requires neither a handwritten signature nor an electronic signature. Communications by facsimile or email suffice the requirements of written form just as do other forms of text, without the end of the communication having to be made particularly distinguishable.
2. Information on the customer received in connection with the business relationship will be processed by MICROPLEX within the meaning of the Federal Data Protection Act (Bundesdatenschutzgesetz).
3. The customer shall inform MICROPLEX immediately and in writing if authorities are called upon or take action with any regard to the goods. Moreover, the customer will monitor the delivered goods in the market and inform MICROPLEX immediately and in writing of any concern that the goods might pose a risk to third parties.
4. In relation to pictures, drawings, calculations and other documents as well as computer-software, which have been made available by MICROPLEX in a material or electronic form, MICROPLEX reserves all proprietary rights, copyrights, other industrial property rights as well as know-how rights. They are to be kept secret from third parties and are to be used exclusively for the performance of the respective contract.
X. General Basis of Contracts
1. The place of delivery results from section III.-4. of these General Conditions of Sale. The place of payment and performance for all other obligations arising from the legal relationship between MICROPLEX and the customer is D-26316 Varel (Germany). These provisions also apply if MICROPLEX renders performance for the customer somewhere else or in the case of restitution of performances already rendered.
2. The German law as well as the relevant usages in Germany exclusively govern the contractual and extra-contractual legal relationships with the customer.
3. All contractual and extra-contractual disputes arising out of or in connection with contracts to which these General Conditions of Sale apply, including their validity, invalidity, violation or cancellation as well as disputes under insolvency law, shall be finally resolved, without recourse to the ordinary courts of law, by arbitration according to the rules of arbitration of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS) valid at the time of the communication of the notice of arbitration. The arbitral tribunal shall consist of three (3) arbitrators, or if the amount in dispute is inferior to € 150.000, there shall be one (1) arbitrator. The place of the arbitration shall be Cologne/Germany, the language used in the arbitral proceedings shall be German. If this arbitration clause is or will become void, the exclusive local and international jurisdiction of the courts which have jurisdiction for D-26316 Varel (Germany) is agreed for all disputes instead. Instead of bringing an action before the arbitral tribunal, MICROPLEX is also entitled to bring an action before the court having jurisdiction for D-26316 Varel (Germany), before the courts of the customer’s place of business, or any other state courts having jurisdiction, irrespective of the validity of this arbitration clause.
4. If provisions of these General Conditions of Sale should be or become partly or wholly ineffective, the remaining provisions will continue to apply. The parties are bound to replace the ineffective provision with a legally valid provision, as close as possible to the commercial meaning and purpose of the ineffective provision.