International Conditions of Sale for Customers not Resident in Germany
I. Application of the International Conditions of Sale
1. These International Conditions of Sale apply to all customers of Microplex Printware AG – hereinafter referred to as Microplex – if the relevant place of business of the customer is not in Germany. For customers whose place of business is in Germany, the General Conditions of Sale (Allgemeine Verkaufsbedingungen) of Microplex apply, which will be forwarded on request. In each case, the relevant place of business is the one which concludes the contract in its own name.
2. These International Conditions of Sale apply to all contracts concluded between Microplex and customers according to chapter I. 1.
3. Conflicting or differing terms of business of the customer do not bind Microplex, even if Microplex does not object to them or even if Microplex unconditionally renders performance or accepts the customer’s performance.
II. Formation of the Contract
1. The customer is under an obligation to give written notice to MICROPLEX prior to the formation of a contract if the goods to be delivered are to be fit not only for normal use or 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 or if there is a risk of atypical damages or unusual amounts of loss of which the customer is or ought to have been aware.
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 differences as such.
3. All orders will take effect exclusively if followed by a written acknowledgement of the order by Microplex. The actual delivery of the goods ordered, any other conduct of Microplex or silence on the part of Microplex does not allow the customer to assume the formation of the contract. 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. Until this time, the customer’s order is irrevocable.
4. The written acknowledgement of the order by Microplex shall be received in time, if it is received by the customer within fourteen (14) 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. If, however, Microplex requests in writing a signature by the customer of the acknowledgement of the order by Microplex, the contract only comes into effect if Microplex receives a copy of the acknowledgement of the order legally signed by the customer, within fourteen (14) calendar days from the date of the written acknowledgement of the order.
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 price for 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 International Conditions of Sale. Particular wishes of the customer, namely warranties or guarantees with reference to the goods or the performance of the contract therefore require express written confirmation by Microplex in every case. 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. Confirmations produced by the customer are of no effect without any objection by Microplex being necessary. In particular, neither the actual delivery of the goods, any other conduct of Microplex or silence on the part of Microplex shall give rise to any belief by the customer in the relevance of his confirmation.
7. Microplex´s employees, commercial agents or other sales intermediaries are not authorized to dispense with the requirement of a written acknowledgement of the order by Microplex or to make promises which differ from its content or guarantees. If and to what extent such persons are authorized to make or receive declarations with effect for or against Microplex, is to be determined according to German law.
III. Obligations of Microplex
1. Subject to an exemption according to section VII.-1. b) Microplex must 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 International Conditions of Sale.
2. Microplex’s obligations under the contract made with the customer are owed only to the customer. The customer gives Microplex an unlimited indemnity against all claims made by third parties against Microplex out of the contract made with 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 tolerances customary in trade, Microplex undertakes to deliver to the customer goods of the agreed kind and quantity which meet the common standards applicable in Germany. Performance specifications given by Microplex are subject to good operational conditions, particularly in view of the materials to be processed and the personnel used, as well as the exclusive use of original spare parts and to appropriate maintenance. Microplex is entitled to make part deliveries and to invoice them separately and ensures that at the time of delivery the goods are free from rights or claims of third parties which could prevent its use within the European Union.
4. Microplex undertakes to place the goods packaged and marked according to Microplex’s standard at disposal for collection by the customer FCA (Incoterms 2020) at the place of delivery indicated in the written acknowledgement of the order or – if a place of delivery is not indicated – at the premises in 26316 Varel/Germany at the agreed time of delivery. Previous separation or marking of the goods or notification to the customer of the goods being placed at disposal is not required. Under no circumstances, not even when other Incoterms are agreed is Microplex obliged to inform the customer of the delivery, to examine the goods with respect to their conformity with the contract on the occasion of delivery, to check the operational safety of the means of transport and the transportation safe loading or to furnish proof of the delivery being effected. The agreement of other Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a varia¬tion of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
5. The organization of the transport and the insurance of the goods beyond the place of delivery decisive according to section III.-5. is none of Microplex’s obligations, but is incumbent upon the customer. If the customer does not give a counter instruction in writing in time, Microplex is entitled – without the customer asking for it or without such a commercial practice existing – to contract on terms usual in Germany in the customer’s name and at the customer’s risk and expense for carriage and/or insurance of the goods to the destination indicated in writing by the customer and – if such a destination is not indicated – to the place of business of the customer.
6. Agreed delivery time periods or delivery dates are subject to the customer’s procuring any required documents, releases, permits, approvals, licences or any other authorizations or consents in sufficient time, opening letters of credit and/or making down-payments as agreed and performing all other obligations incumbent upon him properly and in good time and subject to no delay caused by pre-shipment inspections mandated by authorities. Moreover, agreed delivery time-periods begin on the date of the written acknowledgement of the order by Microplex. Microplex is entitled to deliver earlier than at the agreed delivery time or to select the date of delivery within the agreed period for delivery.
7. Without prejudice to his continuing legal rights, Microplex is entitled to fulfil his 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. An objection is only effective, if it is received by Microplex before commencing late performance. 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.
8. Risks as to price and performance even in relation to goods which are not clearly identifiable to the contract and without it being necessary for Microplex to give notice, pass to the customer with delivery pursuant to section III.-5., albeit irrespective of delivery as soon as the title to the goods has passed to the customer. The agreement of other Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a varia¬tion of the provisions as to the transportation and the transportation costs.
9. Microplex is not obliged to clear the goods for export or to take care of their security clearance. However, Microplex will apply for necessary export licences and customs formalities necessary for the export after the customer has furnished Microplex with the data essential for the export in a written notice attending to this purpose exclusively. If the goods are not cleared for export without any fault on the part of Microplex, Microplex is entitled to avoid the contract of sale in whole or in part without compensation. The agreement of other Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs.
10. Microplex is not obliged to procure documents or certificates not expressly agreed or to obtain any licences, authorizations or other documents necessary for the export, transit or import. The agreement of other Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a varia¬tion of the provisions as to the transportation and the transportation costs.
11. Microplex is in no case liable to perform duties associated with the making available of the goods on the market outside Germany, to bear levies, duties and charges accruing outside Germany, to comply with weight and measuring systems, packaging, labelling or marking requirements or registration or certification obligations applicable outside Germany or to comply with any other legal provisions applicable to the goods outside Germany. The customer will arrange for translations in any language other than German of instructions, safety information, performance declarations or other written materials about the goods required by law or called for otherwise at his risk and expense.
12. Without prejudice to his continuing legal rights and without a previous notice to the customer being necessary, Microplex is entitled to suspend the performance of his obligations as long as, in the opinion of Microplex, there are legitimate grounds for concern that the customer will wholly or partly fail to fulfil his obligations in accordance with the contract. In particular, the right to suspend arises if the customer insufficiently performs his obligations to enable payment to Microplex or pays late or if the limit set by a credit insurer has been exceeded or will be exceeded with the forthcoming delivery. Instead of suspending performance Microplex is entitled at his own discretion to make future deliveries, even if confirmed, conditional on payment in advance or on opening of a letter of credit confirmed by one of the big German commercial banks. Microplex is not required to continue with performance of his obligations, if an assurance given by the customer to avoid the suspension does not provide adequate security or could be challenged pursuant to an applicable law.
IV. Obligations of the Customer
1. Irrespective of continuing obligations of the customer to guarantee or to enable payment, the customer undertakes to pay the agreed price for the goods in the currency specified in the written acknowledgement of the order transferring it without deduction and free of expenses and costs to one of the financial institutions designated by Microplex. To the extent that a price for the goods has not been agreed, the price which is at the agreed time of delivery Microplex’s usual price for the goods will apply. Microplex’s employees, commercial agents or other sales intermediaries are not authorized to accept payments.
2. The payment to be made by the customer is in any event due for payment at the time specified in the written acknowledgement of the order or – if a time for payment is not indicated – on receipt of the invoice. The due time for payment arises without any further pre-condition and, in particular, does not depend on whether the customer has already taken delivery of the goods and/or the documents and/or has had an opportunity to examine the goods. 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 without providing a justifiable reason does not meet fundamental obligations due towards Microplex, if the customer has provided inaccurate information regarding his creditworthiness or to the extent that the cover given by a credit insurer for the customer is reduced on grounds for which MICROPLEX is not responsible.
3. The customer warrants that all legal requirements and documentations for the handling regarding customs laws and value added tax of the delivery and/or any service will be fulfilled according to the applicable provision in Germany. To the extent that Microplex has to pay German and/or foreign customs duties and/or value added tax, the customer will indemnify Microplex in all and every respect without prejudice to any continuing claim by Microplex. The indemnity is granted by the customer waiving any further requirements or other defences, in particular waiving the defence of limitation or prescription and also includes the reimbursement of the expenses incurred by Microplex.
4. Regardless of the currency and 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.
5. Any statutory rights of the customer to set-off against claims of Microplex, 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 the corresponding claim of the customer against Microplex is in the same currency, is founded in the customer’s own right and is either due and undisputed or has been finally adjudicated or 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.
6. The customer undertakes to furnish Microplex with the data to apply for the customs formalities according to section III.-10. reasonable time ahead, to take delivery of the goods either by himself or by a person appointed by him to Microplex at the delivery time without taking any additional period of time and at the place of delivery resulting from section III.-5. and shall fulfil all the duties imposed by the contract, by these International Conditions of Sale, by the rules of the ICC for the use of Incoterms® 2020 and by statutory provisions. The customer is only entitled to refuse to take delivery of the goods if he avoids the contract in accordance with the rules in section VI.-1.
7. Irrespective of any statutory provisions, the customer shall at his own cost take care of or in any other way ensure renewed utilization, material recycling or otherwise prescribed waste-disposal of the goods delivered by Microplex to the customer and of the packaging material.
V. Delivery of non-conforming Goods or Goods with Defective Title
1. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods that do not conform with the contract if the customer proves that, taking into account the terms in section III., at the time the risk passes the packaging, quantity, quality or the description of the goods is significantly different to the specifications laid down in the written acknowledgement of the order, or in the absence of agreed specifications, the goods are not fit for the purpose which is usual in Germany. Regardless of the stipulation established in sentence 1, the goods shall be deemed to conform with the contract to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods. Second-hand goods are delivered without any liability for their conformity.
2. 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 in Germany or for complying with further reaching expectations of the customer or for possessing the qualities of a sample or a model or for their compliance with the legal regulations existing outside Germany, for instance in the customer’s country. Microplex shall also not be liable for any non-conformity with the contract that did not exist at the time the risk has passed. To the extent that the customer, either himself or through third parties, initiates the removal of non-conformities without the prior consent of Microplex in writing, Microplex will be released from his liability.
3. The customer is obliged vis-à-vis Microplex to examine or to have examined every single delivery comprehensively for any discoverable or typical lack of conformity with the contract and moreover as required by law.
4. Without prejudice to any exclusion or reduction of liability of the seller provided by law, goods have a deficiency in title if the customer proves that the goods are not free from enforceable rights or claims of third parties at the time risk passes. Without prejudice to further legal requirements, third parties’ rights or claims founded on industrial or other intellectual property constitute a deficiency in title only to the extent that the rights are registered, made public and in legal force in Germany and prevent the usual use of the goods in Germany. Regardless of the stipulation established in sentence 1, title to the goods shall be deemed not to be defective to the extent that the legal regulations applicable at the place of business of the customer do not prevent the usual use of the goods.
5. Without prejudice to the statutory obligations of the customer to give notice within reasonable time, the customer is obliged vis-à-vis Microplex to give notice to Microplex of any lack of conformity with the contract or any deficiency in title at the latest within one (1) year after taking delivery in accordance with section IV.6. Such notice has to be made in writing and directly to Microplex and to be formulated in such a precise manner as to enable Microplex to effect remedy measures without need for further inquiries from the customer and to secure claims against Microplex’s suppliers and moreover as required by law. Microplex’s employees, commercial agents or other sales intermediaries are not authorised to accept notices outside Microplex’s premises or to make any statements concerning lack of conformity with the contract or of title and its consequences.
6. Following due notice according to section V.-5., the customer can rely on the remedies provided by these International Conditions of Sale. The customer has no other rights or claims whatsoever and no claims of a non-contractual nature. In the event of notice not having been properly given, the customer may only rely on remedies if Microplex has fraudulently concealed the lack of conformity with the contract or the deficiency in title. Statements by Microplex as to the lack of conformity with the contract or as to the deficiency in title are for the purpose of explaining the factual position only, but do not entail any waiver by Microplex of the requirement of proper notice.
7. The customer is not entitled to remedies for delivery of non-conforming goods or goods with a deficiency in title, insofar as the customer is liable vis-à-vis third parties for conditions of the goods or their fitness for a use which are not subject of the agreement with Microplex, or if the customer’s claim is based on foreign law not in force in Germany.
8. To the extent that the customer in accordance with the terms of these International Conditions of Sale is entitled to remedies because of delivery of non-conforming goods or goods with defective title, he is entitled to demand in accordance with the terms of the UN Sales Convention delivery of substitute goods or repair of Microplex or to reduce the price for the goods. The delivery of substitute goods or repair does not lead to a recommencement of the limitation period. The reduction of the price for the goods is limited to the damages suffered by the customer. Further claims for performance are not available to the customer. Irrespective of the customer’s remedies, Microplex is always entitled in accordance with the provision in section III.-8. to repair goods which do not conform with the contract or to supply substitute goods or to avert the customer’s remedies by giving him a credit note of an appropriate amount.
1. Without waiving the legal requirements, Microplex is only obliged to pay damages due to the violation of obligations resulting from the contract with the customer, the contractual negotiations carried on with the customer or the business relation with the customer in accordance with the following provisions:
a) The customer is required in the first instance to rely on other remedies and can only claim damages in the event of a continuing deficiency. The customer cannot claim damages as an alternative to other remedies.
b) Microplex is not liable for the conduct of suppliers, subcontractors, carriers or freight-forwarders or for damages to which the customer has contributed. Neither is Microplex liable for impediments which occur, as a consequence of natural or political events, acts of state, industrial disputes, sabotage, accidents, terrorism, biological, physical or chemical processes or comparable circumstances and which cannot be controlled by Microplex with reasonable means. Moreover, MICROPLEX is only liable to the extent that the customer proves that the executive bodies or members of staff of MICROPLEX have deliberately or negligently breached contractual obligations owed to the customer.
c) ) In the event of liability, Microplex will compensate within the limits of lit. d) the losses of the customer to the extent that the customer proves that he has suffered an unavoidable loss caused by the breach of obligations owed to the customer by Microplex and foreseeable to Microplex, at the time of the formation of the contract in respect of the occurrence of the loss and its amount. Moreover, the customer is required to mitigate his loss as soon as a breach of contract is or ought to be known.
d) Microplex is not liable for loss of profit or damage to reputation. Moreover, the amount of damages for late or non-existent delivery is limited to 0.5 per cent for each full week of delay, up to a maximum of 5 per cent, and in case of remedies because of delivery of non-conforming goods and/or goods with a deficiency in title is limited to an amount of 200 per cent of the value of the non-conforming part of the contract. However, this subparagraph does not apply to injury of life, body or health, to fraudulent concealment of the non-conformity or deficiency in title of the goods and to other breaches of contractual obligations due to intentional harm or gross negligence.
e) For breach of contractual, pre-contractual and/or obligations resulting from the business relation owed to the customer, Microplex is obliged to pay damages exclusively in accordance with the provisions of these International Conditions of Sale. Any recourse to concurrent bases of claim, in particular of a non-contractual nature, is excluded. Equally excluded is any recourse against Microplex’s company organs, employees, servants, members of staff, representatives and/or those employed by Microplex in the performance of his obligations on grounds of breach of contractual obligations owed by Microplex.
f) Insofar as the limitation period may not already have barred the claim, claims for damages brought by the customer are excluded after six (6) months beginning with the rejection of the claim for damages by Microplex.
2. Irrespective of continuing legal or contractual claims, the customer is obliged to pay damages to Microplex as follows:
a) In the event of delay in payment, the customer will pay the costs of judicial and extra-judicial means and proceedings, usual and accruing within the country and abroad, as well as (without evidence being necessary) interest at the rate applicable in 26316 Varel/Germany for unsecured short-term loans in the agreed currency, at least however interest at 8 per-cent points over the base rate of the German Federal Bank (Deutsche Bundesbank).
b) In the case of a failure to take delivery of the goods by the customer or of seriously late taking delivery of the goods by the customer, Microplex is entitled to claim damages without evidence being necessary of up to 15 per cent of the value of the goods to be delivered.
3. Within the bounds of what is legally possible as well as within what is usual in the trade, the customer is in his commercial relationships with his clients obliged to limit his liability both in principle and in amount.
VII. Other Provisions
1. Title of the goods that have been delivered remains with Microplex until settlement of all claims existing against the customer. The allocation of risk as to price and performance in section III.-9. is not affected by the reservation of title.
2. The customer shall, without any demand being necessary, inform Microplex in writing if Microplex has to observe any particular duties of reporting or registration or providing information or prior notification or retaining documents or any other requirements for access to market, under the provisions in force in the customer’s country or in the country where the goods are to be used. Moreover, the customer will monitor the delivered goods in the market and inform Microplex directly and in writing of any concern that the goods might pose a risk to third parties.
3. Without prejudice to Microplex’s continuing claims, the customer will indemnify Microplex without limit against all claims of third parties which are brought against Microplex on the grounds of product liability or similar provisions, to the extent that the liability is based on circumstances which – such as, for example, the presentation of the product – were caused by the customer or other third parties without express written consent of Microplex. In particular, the indemnity also includes the reimbursement for expenses incurred by Microplex and is granted by the customer waiving further conditions or other objections, in particular without requiring compliance with control and recall obligations, and waiving any defence of limitation.
4. In relation to pictures, drawings, calculations and other documents as well as software, which have been made available by Microplex in a material or electronic form, the latter reserves all proprietary rights, copyrights, other industrial property rights as well as know-how rights.
5. All communications, declarations, notices etc. are to be drawn up exclusively in German or English. Communications by means of fax or e-mail fulfil the requirement of being in writing.
6. The customer has a non-exclusive right to use the software delivered with the goods. The use of the software independently from the delivered goods or the passing on of the software to third parties is not permitted.
VIII. General Basis of Contracts
1. The place of delivery results from section III.-5. of these International Conditions of Sale and applies likewise to the delivery of substitute goods or the repair of delivered goods. The place of payment and performance for all remaining obligations arising from the legal relationship between Microplex and the customer is 26316 Varel/Germany. These provisions also apply if Microplex assumes the costs of money remittance, renders performance for the customer somewhere else or payment is to be made in exchange of documents or goods or in the case of restitution of performances already rendered. The agreement of other Incoterms or of clauses such as “delivery free…….” or similar ones merely involve a variation of the provisions as to the transportation and the transportation costs; besides that, the provisions laid down in these International Conditions of Sale remain applicable.
2. The United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention / CISG) in the English version governs the legal relationship with the customer. The UN Sales Convention applies, above and beyond its own area of application, and regardless of reservations adopted by other states, to all contracts to which these International Conditions of Sale are to be applied according to the provisions of section I. Where standard terms of business are used, in case of doubt the Incoterms® 2020 of the International Chamber of Commerce apply taking into account the provisions stipulated in these International Conditions of Sale.
3. The formation of contract, including agreements as to the jurisdiction of courts and arbitrators, and the contractual rights and obligations of the parties, also including the liability for death or personal injury caused by the goods to any person and breach of pre-contractual and collateral obligations, as well as the interpretation are exclusively governed by the UN Sales Convention together with these International Conditions of Sale.
4. All contractual and extra-contractual disputes as well as disputes under insolvency law, arising out of or in connection with contracts to which these International Conditions of Sale apply, including their validity, invalidity, violation or cancellation as well as other disputes arising out of the business relationship with the customer shall be finally resolved, without recourse to the ordinary courts of law, by arbitration according and under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The tribunal shall consist of three (3) arbitrators, one (1) of them shall be nominated by the claimant, one (1) of them by the respondent and the chairman of the tribunal shall be designated by the two arbitrators so nominated, or if the amount in dispute is inferior to € 150.000, there shall be one (1) arbitrator appointed according to said rules. The place of the arbitration shall be Oldenburg (Olbg), Germany, the languages used in the arbitral proceedings shall be German and/or English. The competence of the Arbitral Tribunal excludes especially every statutory competence, which is provided by reason of a personal or substantive relation. If this arbitration clause is ineffective or ceases to be effective, the exclusive local and international jurisdiction of the courts which have jurisdiction for 26316 Varel/Germany is agreed for all disputes instead. Instead of bringing an action before the arbitral tribunal and irrespective of any ineffectiveness of the arbitration clause, Microplex is also entitled to bring an action before the State Court which has jurisdiction for 26316 Varel/Germany or the State Court of the customer’s place of business, or any national court with jurisdiction according to domestic or foreign law.
5. If provisions of these International Conditions of Sale should be or become partly or wholly ineffective, the remaining arrangements 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.