Conditions of Use
General sales and delivery conditions
of microParticles GmbH (as of February 2015)
- 1. Scope
- 1.1The following sales and delivery conditions (hereinafter called “the SDCs”) shall apply to goods and services (hereinafter called “the Subject Matter of this Contract“) supplied by microparticles GmbH (hereinafter called “the Contractor”) in relation to any of its business partners (hereinafter called “the Customer”). The SDCs shall become an integral part of any sales and delivery contract, either by express incorporation in the contractual agreements and/or through the Customer accepting the aforementioned conditions without any objection. The SDCs shall apply to any future business with the Customer, without a separate further agreement being required.
1.2 If and insofar as any of the Customer’s terms and conditions that deviate from these SDCs are intended to become part of a contract, this shall be agreed in writing between the Contractor and the Customer.
1.3 The Contractor may change the SDCs unilaterally, and the changes shall then apply to any future business relationship. In this case, all Customers shall be informed in a suitable manner about the changes implemented.
- 2. Offers
- 2.1Any offer made by the Contractor shall be subject to change without notice, insofar as it is not expressly designated as binding, i.e., an offer shall always be deemed to constitute an invitation to submit an offer.
2.2An order shall only be considered to have been accepted by the Contractor when the Customer has been given a written confirmation of order and/or the order has been executed without delay or within the agreed time.
2.3Subsidiary agreements, provisos or amendments to this Contract shall only be valid if they have been confirmed by the Contractor in writing.
2.4The Contractor shall retain all rights of ownership and all copyrights in respect of any cost estimate, drawing, scientific-technical description or any other such document, and in respect of any supplied model, design or sample, unless otherwise agreed in writing with the Customer. The Customer shall not allow third parties access to any of the aforementioned, even in those cases where the aforementioned have not expressly been marked as confidential. Number 6 of this Contract shall also apply.
- 3. Prices and terms of payment
- 3.1Prices (see Separate Price Information) are ex premises of the Contractor, including normal packaging plus statutory value added tax. The Customer shall bear the shipping costs, which will be charged separately.
3.2The Contractor’s invoices shall be payable exclusively to the account of the Contractor within the agreed time limit for payment without any discounts. Should no time limit for payment have been agreed, the invoice amount shall be payable no later than 30 days from the date of the invoice. The Contractor shall not incur any expenses in respect of payments and shall not be charged for postage.
3.3In the event that payment in instalments has been agreed, the unpaid balance shall be payable in full should the Customer have defaulted, either in whole or in part, on the payment of two consecutive instalments.
3.4The Customer shall only be entitled to exercise his right of setoff or assert his right of retention insofar as the Customer’s counter claims have been accepted and/or have not been disputed by the Contractor, or have been finally determined by a court.
3.5Should an import licence or any other form of permit be required for the country of destination, the Customer shall provide the number, date of the permit and period of validity of the relevant permit on placing his order.
- 4. Delivery
- 4.1Any period of delivery and performance specified or confirmed by the Contractor shall merely be indicative; it shall only be binding if this has been expressly agreed in writing with the Customer. Any period of delivery and performance shall start with the date on which the confirmation of order was sent, but in no event may it start earlier than the date on which the Customer supplies any permits, documents or similar data that he may be required to obtain.
4.2Any period of delivery shall be deemed to have been met when the Subject Matter of this Contract has left the Contractor’s works, or when the Customer has been notified of its readiness for shipping, before the period has expired. The period shall be extended by an appropriate length of time in the case of measures taken within the context of industrial action, especially strikes and lockouts, and in the case of unforeseen events that are beyond the Contractor’s control. This shall also apply in those cases where the aforementioned circumstances occur at any of the Contractor’s subcontractors. Extension of the delivery period shall not establish any entitlement to damages on the part of the party that has placed the order.
4.3The import, export and/or transport of the Subject Matter of this Contract to other countries is subject to German import and export regulations. The Customer shall be solely responsible for obtaining the relevant permits and licences required.
- 5. Shipment, passing of risk, default in acceptance
- 5.1Any delivery shall be made at the Customer’s risk; the risk shall pass to the Customer at the time of dispatch. This provision shall also apply to any partial delivery or partial performance, both of which shall be permitted to a reasonable extent. The scope of delivery shall be in accordance with the Contractor’s written confirmation of order.
5.2The Contractor shall not be liable for any damage or loss which occurs during transport. Any damage or loss that occurs shall not release the Customer from his obligation to pay the Contractor the full purchase price.
- 6. Reservation of title/resale
- 6.1The goods delivered (goods subject to reservation of title) shall remain the property of the Contractor (reservation of title) until settlement in full of any claim for payment brought by the Contractor against the relevant Customer which existed at the time of the conclusion of the relevant contract, as well as of any subsequent claim for payment. In the case of payment on account, the goods subject to reservation of title shall serve as security for the relevant balance claimed by the Contractor.
6.2The Customer may neither pledge nor assign by way of security any goods subject to reservation of title, nor may he dispose of them in any other way that might put the Contractor’s ownership at risk. In the event of the goods being attached, seized or otherwise disposed of by a third party, the Customer shall inform the Contractor without delay of any such measure. Should the Customer be in breach of contract, the Contractor may, after supplying a notice of warning, take back the goods subject to reservation of title. In such cases the Customer shall be obliged to surrender the goods. Any claim by the Contractor under the reservation of title, or an attachment by the Contractor of the goods subject to reservation, shall not count as withdrawal from the contract.
6.3The Customer may not resell any goods subject to reservation of title to third parties, e.g. by changing the particle concentration or by repackaging, relabeling, chemically or biochemically modifying or otherwise modifying the product, without the express prior written consent of the Contractor.
6.4In those cases where the Customer purchases the goods subject to reservation of title for resale, or receives the Contractor’s consent to resell the goods pursuant to Number 6.3, he may only dispose of them in the ordinary course of his business. In such cases the Customer may label the goods subject to reservation of title with his own company name and/or logo. Any change in the size of the packages that the Customer receives from the Contractor shall be subject to the Contractor’s express prior written consent.
6.5. In those cases where the goods subject to reservation of title are not intended for resale, any resale of the goods during the period of reservation of title shall not be permitted without the express prior written consent of the Contractor.
6.6 The Customer’s entitlement to resell the goods subject to reservation of title and to collect the receivables from the resale of these goods shall cease in the event of the Customer’s failure to pay or of his falling into arrears with his payments by more than one month, in the event of the Contractor protesting a cheque or bill of exchange, in the case of attachment of goods subject to reservation of title, or in cases where an application has been made for the initiation of insolvency proceedings or judicial or extrajudicial settlement proceedings on the Customer’s assets. The Customer shall inform the Contractor of any such aforementioned events without delay.
6.7 During the duration of the reservation of title, the Customer shall handle the goods subject to reservation of title with care, and insure them at his own expense against the usual risks, at the very least against fire, storm and water damage as well as theft, with the insured sum being adequate to cover the replacement value.
6.8 The Contractor shall be entitled to insure the goods subject to reservation of title against theft, fire and water damage as well as other sources of damage at the Customer’s expense.
- 7. Warranty
- The Customer shall be responsible for examining the Subject Matter of this Contract at his own expense and without undue delay to ensure that it is free of defects, particularly to make sure that delivery is correct and complete. The Customer shall notify the Contractor without undue delay in writing of any defects and of the delivery of wrong goods or reduced quantities. A preclusive time limit of one week following receipt of the delivery shall apply to such notification. In the event that the Customer finds a hidden defect he shall notify the Contractor of the defect in writing without undue delay.
7.2 In the event that notification of a defect is given, the Contractor shall be entitled to view and examine the Subject Matter of this Contract to which the Customer objects. The Customer shall grant the Contractor the necessary time and opportunity to do so. If so requested by the Contractor, the Customer shall send back the Subject Matter of this Contract to which the Customer objects to the Contractor at the Contractor’s expense. Should a Customer’s notification of a defect prove to be unwarranted, the Customer shall reimburse the Contractor for all expenditure incurred in this context.
7.3 The obligation under this warranty shall on no account cover the following: natural wear and tear; damage from improper handling, use, operation, etc. of the Subject Matter of this Contract; damage due to improper modification carried out by the Customer or by a third party; damage resulting from the processing, mixing, bonding or from any other modification of the Subject Matter of this Contract.
7.4 The Customer’s warranty claims shall be limited to the Contractor either remedying the defect or supplying a replacement, at the discretion of the Contractor. Should the remediation or replacement prove to be unsuccessful, the Customer shall be entitled at his discretion to reduce payment or cancel the contract.
- 8. Liability
- The Contractor shall only be liable for damage sustained by the Customer where the Contractor, or any of his legal representatives or vicarious agents, has acted with intent or gross negligence. This shall also apply to damage resulting from the infringement of obligations during contractual negotiations or from unauthorised acts. Except in the case of intent, the Contractor’s liability shall be limited in each case to the foreseeable damage that typically occurs.
8.2 Liability for culpable injury to life, body or health as well as liability under the provisions of the German Product Liability Act (Produkthaftungsgesetz) or pursuant to other obligatory statutory definitions of an offence leading to liability shall remain unaffected by the aforementioned exclusion of liability.
8.3 Should the Customer dispose of the Subject Matter of this Contract, either in an unmodified state or after he has processed or reshaped it or bonded or mixed it with other goods, he shall indemnify the Contractor with regard to the Customer-Contractor relationship from all claims by third parties insofar as the Customer is responsible for the defect that gave rise to liability.
- 9. Intellectual property, third party industrial property rights
- 9.1 The Customer shall undertake to ensure that any material or document or any other object provided by him does not infringe the intellectual property or any other right of a third party. The Customer shall indemnify the Contractor from all third party claims in respect to the aforementioned provision.
9.2 In the event that the Customer prescribes the methods to be used in the manufacture of the products to be supplied by way of specific instructions, specifications, documents, designs or drawings, he shall guarantee that the rights of third parties are not infringed thereby.
- 10. Obligation to confidentiality
- 10.1 The Customer shall undertake to keep secret all commercial and technical information which he has received from the Contractor in the course of the business relationship and not to disclose the aforementioned information to any third party without the Contractor’s express prior written consent. This obligation shall apply irrespective of whether the information was made accessible orally, in writing, by electronic means or on data media and irrespective of whether or not the information made accessible was expressly marked as confidential in the individual case at hand. The Customer shall undertake to exercise the degree of care he usually exercises in his own affairs in order to keep the information confidential, but the degree of care he takes shall be no less than what may reasonably be expected of him.
10.2 The Customer shall particularly undertake to use the information solely for the purposes of the contract on the basis of which the information was provided to him, and to refrain from using the information in any other way for commercial or other purposes, from copying the information and from passing on the information in any other way without the Contractor’s prior written consent.
- 11. Place of performance and place of jurisdiction
- 11.1 Provided that the Customer is a fully qualified and registered merchant, a legal entity under public law or a special public-law asset body, any action with respect to a conflict resulting from the contractual relationship shall be filed with the court that has jurisdiction at the place where the head office of microparticles GmbH is located.
11.2. The Contractor may also file an action at the place of the Customer’s head office.
- 12. Final Provisions
- 12.1 Any additional or deviating agreements shall be recorded in writing before becoming part of the contractual relationship.
12.2 Should individual provisions of the contractual relationship, including these general terms and conditions of business, be or become invalid, void or impracticable, either in part or in whole, the validity of the remaining provisions shall remain unaffected thereby. The invalid, void or impracticable provision shall be replaced by a provision which corresponds as closely as possible to the commercial purpose of the invalid, void or impracticable provision. The same shall apply to any contractual gaps.
12.3 Unless agreed otherwise, the law of the Federal Republic of Germany shall exclusively apply, to the exclusion of the UN Sales Convention.