1. Scope of Application of the General Terms and Conditions
1.1. All offers, deliveries and services of MMT GmbH & Co KG., Neue Reihe 18, 06779 Raguhn-Jessnitz, Germany (hereafter: “MMT”) shall be subject to these general sales and delivery terms. The terms are components of all contracts that MMT concludes with contract partners regarding MMT’s offered products, deliveries and/or other services.
1.2. These general sales and delivery terms shall also apply to all future transactions within the scope of the running business relationships, even if they have not been explicitly referred and/or have not been expressly stipulated again.
1.3. These general sales and delivery terms shall at latest be deemed accepted with receipt of the delivery items or services. We explicitly reject the application of general terms and conditions or purchasing terms of the customer/contractual partner.
1.4. Deviations, supplements or changes to these general sales and delivery terms shall require for their effectiveness written form, including this written form clause itself. The written form requirement can be met by transmission using telecommunication, particularly via fax or email, insofar as the copy of the signed statement is transmitted.
1.5. These general sales and delivery terms shall only apply vis-a-vis companies (section 14 para. 1 German Civil Code “BGB”), legal entities under public law as well as special assets under public law pursuant to section 310 para. 1 BGB.
2. Conclusion of Contract
2.1. All specifications in sales brochures, advertisements, price lists, pictures, drawings etc. are subject to change and non-binding, unless they are expressly referred to as binding. They are a mere call to submit an offer.
2.2. An order made by the customer/contractual partner shall be binding and includes an offer to conclude a sales contract. The contract shall only become effective upon MMT’s written submission of a letter of confirmation, however, no later than delivery of the ordered goods.
2.3. Seller’s oral confirmations prior to the conclusion of this contract are legally non-binding and oral agreements of the contractual parties shall be replaced by the written contract, unless it is expressly stated therein that they will continue to be binding in each case.
2.4. Letters of confirmations and all orders shall require written form for their effectiveness (cf. cipher 1.4.). This shall also apply to additions, changes and supplemental agreements. The crucial prices for the delivery are the prices at the date of the contract conclusion.
2.5. Any information and specification made by MMT, including in brochures, materials and other documents are only service descriptions. They are thus not to be construed as guaranties or warranties regarding characteristics, but merely descriptions or hallmarks of the delivery or services. Customary deviations and deviations that result from legal provisions or are technical improvements as well as exchange of components by parts of equal quality and characteristic shall be permissible, insofar as they do not affect the intended contractual use or the intended contractual use requires an exact match.
3.1. Insofar as nothing deviating has been stipulated, the prices of the respective applicable general offer documents and price lists (plus the respective applicable VAT) shall apply.
3.2. Insofar as nothing deviating has been stipulated, additional or special services shall be subject to additional invoicing. Prices shall apply ex warehouse in EUR (including customary packaging) plus transportation costs and customs in the event of export deliveries as well as fees and other public taxes.
4. Delivery and Service Times
4.1. Deliveries shall be ex warehouse and, unless something deviating is stipulated – require advance payment.
4.2. The periods and appointments envisaged by MMT regarding deliveries are only approximate, unless, a binding period has been explicitly confirmed or stipulated in writing. In exceptional cases, where shipping by MMT has been agreed upon, the delivery periods and delivery dates shall refer to the time of handover to the shipper, freight carrier or other third parties assigned with the transport.
4.3. The start of the delivery period shall also require clarification of all essential issues for performing the contract and compliance of all duties by customer/contractual partner.
4.4. MMT shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events which were not foreseeable at the time of concluding the contract (e.g. operating disruptions of all kinds, difficulties in procuring materials or power, transport delays, strikes, lawful lockouts, workforce, energy or raw materials shortages, difficulties in procuring necessary official approvals, official measures or non-delivery or incorrect or late delivery by suppliers), insofar as MMT is not responsible. A stipulated delivery period shall be extended for the time of the disruption plus an adequate acceleration time.
4.5. In the event that the disruption lasts longer than one month, the customer/contractual partner shall have the right to determine a grace period including notification that he will reject acceptance of the sale item after expiry of this period. The grace period shall be at least two weeks. In the event that no agreement can be reached regarding a new delivery date, the customer/contractual partner may rescind from the contract by written notification after the grace period has expired.
4.6. Partial deliveries and separate partial invoices shall be permissible if no contrary recognizable interest of customer is present.
4.7. MMT shall be entitled to rescind from the contract if events pursuant to cipher 4.4. make the delivery, overall or partially, impossible without MMT being subjected to damage claims.
4.8. The risk of accidental deterioration and accidental loss shall pass to the customer/contractual partner as soon as the goods are handed over to the freight carrier assigned by customer and/or have left the warehouse of MMT for shipping purposes. This shall also apply if MMT bears the transport costs in an exceptional case.
4.9. In the event that shipping or handover is delayed for reasons for which the customer/contractual partner is responsible, the risk shall pass to the customer/contractual partner on the day the delivery item is ready for shipping and MMT has notified the customer/contractual partner thereto.
4.10. The customer/contractual partner shall be obligated to make complaints regarding transport damages immediately vis-a-vis the freight company. The delivered goods shall be immediately examined on delivery regarding obvious damages.
4.11. Upon customer’s/contractual partner’s explicit request and subject to a respective written agreement, MMT shall secure the delivery by concluding transport insurance. The customer/contractual partner shall bear the respective costs.
4.12. MMT shall be entitled to exercise a retention right if the customer/contractual partner is in default of payment.
4.13. Storage costs after transfer of risk shall be borne by the customer/contractual partner. In the event of storage by MMT the storage costs shall be 1% of the net amount of item to be stored per expired week. MMT shall have the right to claim higher costs by providing respective evidence. The customer/contractual partner may provide evidence of lower storage costs.
4.14. In the event that customer/contractual partner obstruct the performance of a sales contract by unjustified non-acceptance of the ordered goods, the ordered contractual items may be stored at risk and expense of the customer/contractual partner. MMT shall alternatively have a contractual right of renunciation.
4.15. Prior to exercising the right of renunciation (cipher 4.14.) a written request for acceptance within a period of 7 (seven) calendar days shall be required.
5. Payment Terms
5.1. Insofar as nothing deviating has been stipulated in writing, MMT’s invoices shall be due immediately and be paid within 7 days upon receipt of the invoice and without deduction.
5.2. The crucial day regarding payment shall be the receipt of payment on the MMT’s account. The customer/contractual partner shall be in default of payment without remainder at latest 30 days after receipt of the invoice.
5.3. Insofar as a discount has been stipulated, a deduction may only be made if no earlier invoices remain due.
5.4. MMT shall be entitled in any case to determine towards which claim and/or debt the incoming payment is made. Incoming payments will frequently be credited towards incurred costs, then interest and finally towards the main debt.
5.5. In the event customer’s/contractual partner’s default of payment, MMT shall be entitled to request default interest in the amount of 8 percent points above the respective applicable base rate of the European Central Bank starting at the time the default occurs. MMT’s right to claim higher interest and further damages in the event of default shall remain unaffected.
5.6. The offsetting with counter claims of customer/contractual partner or withholding of payments due to such claims, shall only be permissible insofar as counter claims are non-disputed or legally binding determined and/or if MMT approved such offsetting in writing.
6. Defect Claims and Liability
6.1. Defect claims (warranty claims) of the customer/contractual partner shall require an immediate examination by the customer/contractual partner pursuant to section 377 German Commercial Code after receipt and immediate notification of any discovered defects after the examination or of any hidden defects without undue delay after their discovery, specifying these defects vis-a-vis MMT in writing.
6.2. The goods shall be deemed approved by the customer regarding apparent defects or other defects that would have been visible in the course of a prompt, thorough examination, if the customer does not notify MMT pursuant to cipher 6.1. of this defect.
6.3. MMT does not assume warranty for defects and damages that result from inappropriate or improper use, non-observance of instructions or incorrect treatment. The same shall apply regarding defects and damages that are caused by fire, lightning strike, circuit related excess voltage, moisture or incorrect or missing software and processing data.
6.4. Insofar as a defect is present for which MMT is responsible, the customer/contractual partner may exercise further rights (contract renunciation or price reduction) only if he initially grants MMT the possibility to effect subsequent performance twice (repair or replacement of the defect item), within a reasonable grace period. MMT shall be entitled to determine the form of subsequent improvement performance (repair or replacement).
6.5. In the event that unjustified defect claims are asserted by the customer/contractual partner for reasons for which we are not responsible, we shall be entitled to charge the customer/contractual partner with the costs that reasonably occurred to us for determining the damage and remedying the damage.
6.6. We shall be entitled to charge the customer/contractual partner with additional costs of subsequent performance (repair or replacement), particularly transport costs, travel costs, work and material costs to the extent that these are caused by customer’s /contractual partner’s bringing of the delivery item to another place than the place of performance.
6.7. Defect claims shall became time barred after 12 months after delivery, unless, MMT has caused the defect intentionally or gross negligently or by malicious deceit. The statute of limitation shall apply to damages and consequential damages due to a defect respectively. In the event of a statutory limitation period of more than two years, the statutory period shall however apply.
6.8. No warranty shall exist in cases where the customer or a third party assigned by the customer changes goods and/or the delivery item without prior written approval by MMT and this causes impossibility of remedying the defect or substantially complicates remedying the defect. The customer/contractual partner shall in any case bear the additional costs for remedying the defects caused by the changes.
6.9. A delivery stipulated in an individual case with the customer/contracting party regarding delivery of used goods shall be without any warranty for defective goods.
7. Warranty Exclusions
7.1. The guarantee does not apply to damage or defects for which MMT does not bear responsibility and which include but are not limited to the following:
a. Incorrect use, mechanical damage (e.g. scratches, pressure or break points), incorrect storage or cleaning, transport damage, misuse or other fault of the customer or a third party;
b. Connection or use of the product for a purpose other than that for which it is intended and non-observation of MMT’s operating and installation instructions or the valid technical and safety-relevant provisions or standards of the country in which the product is used;
c. Non-observation of MMT’s care and maintenance instructions when maintaining and caring for the product;
d. The permanent – also partial – display of fixed images (typical display damage being so-called burn-in effects such as image retention and image sticking);
e. Operating conditions which exceed normal office or private use (e.g. operation in smoky or dusty atmospheres or at extraordinary room temperatures and under UV/IR radiation). Separate operating conditions are specified by MMT for certain products if necessary;
f. Defects or variations in the electrical power supply or circuits, the air conditioning or other ambient conditions;
g. Force majeure, fire, flooding, chemical or biological exposure, acts of war, acts of violence or similar events;
h. The modification of the product by persons not authorised by MMT;
i. Normal wear and tear and wearing parts (e.g. prism, colour wheel, LCD panel, DMD in projectors)
j. Insufficient maintenance and repair, or the use of non-original replacement parts and consumables not approved by MMT (e. g. lamps);
k. Virus infections or use of the product with software which was not supplied with the product or which was incorrectly installed.
7.2. Accessory parts such as boxes, packaging, batteries or other consumables which are used in conjunction with the product and have to be replaced as expected are not covered by the guarantee.
7.3. Expendable parts such as lamps and dust filters for projectors are excluded from the guarantee (separate guarantee terms may apply to these).
7.4. Pixel errors are unavoidable in LCD and DLP technology. They only constitute a fault under the terms of this guarantee if they deviate from EN ISO 9241 Standard. Typically, MMT LCD products are stated under Pixel Fault Class II, if not mentioned differently in the data sheet of that product.
7.5. Products whose serial numbers have been modified, removed or made illegible are excluded from the guarantee;
7.6. Should the customer complain about faults although they are excluded from the guarantee, MMT reserves the right to charge the customer for costs thus incurred.
8. Damages and Limitation of Liability
8.1. MMT shall not be liable for simple negligent breach of duties, insofar as these are non-essential duties (so called cardinal duties), damages due to life, body or other health injuries or guarantees or claims pursuant the German Product Liability Law. Essential duties of the contract are those whose fulfillment is essential to the proper execution of the contract and whose observance may be relied on. The liability of MMT is limited vis-a-vis entrepreneurs regarding the violation of essential duties of the contract to the typical foreseeable damage at the time of contract conclusion.
8.2. Insofar as MMT is liable for damages in principle pursuant to cipher 8.1, this liability shall be limited to damages that were foreseeable at the time of contract conclusion as possible consequence of contract violation and are typical for the contract. Indirect and consequential damages that are caused by defects of the delivery item shall only be subject to compensation insofar as such damages may typically be expected when the delivered item is used for its intended purpose.
8.3. In the event of liability for simple negligence, the compensation obligation of MMT for material damage and further asset damages resulting thereof shall be limited to an amount equivalent to the purchase price – per damage event – even if an essential contract violation is present.
8.4. In the event of default of payment the customer/contractual partner shall be entitled to rescind from the sales contracts after a grace period vis-a-vis MMT has expired without result. Asserting damage claims shall only be permissible if MMT caused the default intentionally or gross negligently by violation of an essential duty.
8.5. The limitation of liability pursuant to cipher 8.4 shall not apply in the event of a commercial fixed dated transaction.
9. Retention of Title
9.1. MMT reserves the right to title on the delivery items until all payments owed by customer/contractual partner are received. In the event that the customer is in default with his payment for longer than 30 days, MMT shall be entitled to repossess the delivery item. MMT shall continue to be entitled to utilize the delivery item after repossession. The utilization proceeds shall be credited towards the customer/contractual partner debts, minus appropriate utilization costs.
9.2. The customer/contractual partner shall be entitled to re-sell the delivery items within the ordinary course of business. In this event the customer/contractual partner already assigns all claims he gains from reselling in the final invoice amount (including VAT) against his customers or third parties as security; irrespective thereof, if the delivered item has been resold without or after processing. The customer/contractual partner shall remain entitled to collect the dues even after the assignment. MMT shall however be entitled to collect the dues itself, if the customer/contractual partner does not fulfill his payment obligations regarding the received proceeds, is in default, makes an application for initiating insolvency proceedings or insolvency proceedings have been initiated or suspension of payments occurs. In these cases, MMT may request that the customer/contractual partner discloses the assigned claim and its debtor, makes all necessary statements for collection, hands over all necessary documents and informs the respective debtor of the assignment.
9.3. The processing or reconfiguration of the delivery items by the customer/contractual partner shall always be made in the name and on account of MMT. In the event that the delivered item is processed with other items which are not our assets, MMT shall acquire (joint) ownership (so called co-ownership) on the new item pro rata of the value of the delivered items to the other processed items at the time of processing. Regarding the item created by processing, the same shall apply as for the delivered good subject to retention of title.
9.4. Upon request of the customer/contractual partner, MMT shall release its securities insofar as the value of the securities exceeds the secured claims by more than 20%; the choice of the securities subject to release shall lie solely with MMT.
10. Jurisdiction, Severability Clause, Applicable Law
10.1. In the event that individual provisions of these general sales and delivery terms are or become, overall or partially, void, the remaining provisions shall remain unaffected thereof. The parties shall be obligated in such case to stipulate instead of the void provision, a valid provision that comes closest to the economic intention within the legal permissible frame. Insofar as this should not be possible, the statutory provisions shall apply instead of the void provision.
10.2. Changes and supplements to these general sales and delivery terms shall require for their effectiveness written form. This shall also apply to the revocation of this written form requirement.
10.3. The laws of the Federal Republic of Germany shall apply, excluding the UN-Convention on Contract for the International Sale of Goods (CISG) and the conflict of law rules of the Introductory Law to the German Civil Code.
10.4. Exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relation shall be the competent court at MMT’s registered seat of business if the customer/contractual partner is a merchant, a legal entity under public law or a special fund under public law or has no general German place of jurisdiction or another EU-member or changes his place of business abroad or his residence or habitual residence is unknown at the time of filing legal proceedings.
10.5. The Contracting Parties agree that the translation of the original German version can – even when the translation was done with the utmost care – result in different interpretations/meanings. For means of interpretation the German version of these General Sales and Delivery Terms shall prevail.
11. Notification regarding Data Security
11.1. MMT explicitly points out and the customer/contractual partner acknowledges that MMT collects, saves and processes customer/contractual partner data that is necessary for the business relation. Any use, storage or processing and/or transfer of data shall be pursuant to the provisions of the German Data Protection Law.