Terms & Conditions of Sale of Mitsuboshi Belting Europe GmbH (hereinafter referred to as MBE)
I. Terms & Conditions of Sale
1. The following conditions will apply to all sales of goods and services and quotations made by MBE. These Terms & Conditions of Sale will also apply to all future business transacted with the Buyer.
2. MBE will not recognize any terms and conditions of purchase of the Buyer that conflict with or differ from these Terms & Conditions of Sale. These Terms & Conditions of Sale will also apply if MBE makes delivery to the Buyer with no reservations despite awareness of the existence of other terms and conditions of the Buyer that conflict with or differ from these Terms & Conditions of Sale.
3. These Terms & Conditions of Sale will apply only to business with companies within the meaning of section 310(1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
II. Formation of Contract
1. Quotations made by MBE are subject to change without notice and are not binding. Purchase orders of the Buyer must be received in writing. A contract will come into being only upon confirmation of the purchase order by MBE in writing or if MBE fills an order of the Buyer. MBE reserves the right to accept orders within 14 days.
2. Any amendment of, supplement to and/or cancellation of a contract must be agreed to by both parties in writing to be valid.
III. Shipment and Passage of Risk
1. Goods will be shipped ex works (EXW Ex Works – Incoterms 2010). The Buyer will bear the cost of shipping and freight.
2. Unless expressly agreed otherwise, MBE will be under no obligation, to obtain any certifications or certificates, to procure any licenses, permits or other documents required for export, transit or import or to assume any responsibility for security clearance, export, transit or import clearance or customs processing. Any agreement to other Incoterms will entail no differences other than different arrangements as regards shipment and shipping costs.
3. MBE will not be responsible for the fulfillment of duties in connection with the sale of goods outside Germany or for payment of fees, duties or other charges incurred outside Germany or for compliance with systems of weights and measures, packaging, identification or labeling requirements, registration or certification requirements or other provisions of law governing the goods outside Germany.
4. Goods will be loaded and shipped without insurance at the risk of the Buyer.
5. The risk of loss or damage will pass to the Buyer as soon as the goods are ready for shipment and have left the works or the storage facility of the MBE’s agent even in the event prepaid freight is agreed. If shipment or delivery is delayed at the request of the Buyer or for reasons attributable to the Buyer, the risk of loss or damage will pass to the Buyer upon notification of readiness for shipment.
6. If acceptance cannot take place on a timely basis for reasons attributable to the Buyer, MBE may, but has not obligation to, set a period of 12 days for acceptance and cancel the contract or claim damages upon expiration of such period if acceptance has not taken place.
7. MBE shall be entitled to undertake partial deliveries and performances at any time, provided this is reasonable for the customer.
IV. Date of Delivery
1. Delivery dates or periods will be based on confirmation of the acceptance of the order and will not be binding unless expressly agreed to in writing.
2. Compliance with a delivery date presupposes that the Buyer has fulfilled all contractual obligations in a timely manner. Delivery will be considered to have been made on a timely basis if a shipment leaves MBE’s works within one week of the delivery date. If shipment is delayed for reasons attributable to the Buyer, notification of readiness for shipment by the delivery date will suffice for compliance.
3. If MBE is prevented from making timely delivery due to the occurrence of unforeseeable circumstances that are unavoidable despite reasonable care in view of the given circumstances, regardless of whether such occurrence takes place in the works of MBE or its subcontractors – for example, any disruption of operation, industrial action, delay in the delivery of essential raw and building materials, the time of delivery will be extended by the duration of any such occurrence unless delivery or performance is rendered impossible, but in no case by more than five weeks plus the grace period. In the event such circumstances should make delivery or performance impossible, MBE will be released from its obligation to make delivery. Such extension will apply only if the other Party is promptly notified of the reason for the delay as soon as it becomes obvious that the above-mentioned delivery date cannot be respected.
4. A grace period of 12 days will commence without further notice as soon as the delivery date lapses.
5. If the Buyer decides to claim damages instead of requiring performance, the Buyer must allow MBE a period of 4 weeks for performance. This period will commence on the day on which MBE receives written notification from the Buyer.
6. The grace period will be 5 working days in the case of goods that are ready for shipment. The Buyer will be informed of non-delivery without delay. The provisions of paragraphs 4 and 5 above will otherwise apply.
7. The Buyer may bring no claims for late delivery prior to expiration of the grace period.
1. Prices are based on the written confirmation of acceptance of the order from MBE and are payable by bank transfer in the currency specified in full without deduction of any fees or charges through one of the financial institutions designated by MBE. Prices are understood to be ex works.
Unless agreed otherwise, prices of MBE do not include the cost of packing, insurance or freight.
VI. Conditions of Payment
1. Invoices of MBE are due and payable by the date specified in the written confirmation of acceptance of the order or immediately upon receipt.
2. For the purposes of determining the timeliness of payment, payment will be considered to have been made when the amount is credited to the account of MBE in the case of payment by bank transfer and upon receipt of the check by MBE in the case of payment by check.
3. If the Buyer should fall into arrears, MBE may, without prejudice to claims for further loss due to default, claim late interest in the amount of eight percentage points above the respective base interest rate on past due accounts. MBE reserves the right to claim greater damages.
4. If after execution of the contract MBE should become aware of facts that would indicate significant deterioration of the financial situation of the Buyer that would jeopardize MBE’s claim to consideration, MBE may require appropriate security until such time as payment is made. MBE may in any such case require that the Buyer make payment or, at the discretion of the Buyer, provide security within a period set by MBE as and when performance takes place. If this period lapses to no avail, MBE may cancel the contract.
5. Payments received will without exception be applied towards the least recent outstanding items plus accrued late interest on the respective items.
VII. Retention of Title
1. Title to goods delivered to the Buyer will not pass from MBE to the Buyer until all payments arising from business with the Buyer are received. If bills of exchange or checks are tendered in payment, the corresponding amounts will be credited to the Buyer’s account only upon clearance.
2. The Buyer may dispose of goods to which MBE retains title in the normal course of business as long as the Buyer is not in arrears. The Buyer may not pledge or assign a security interest in such goods. The Buyer hereby assigns to MBE by way of security interest the full amount of all receivables arising from any such sale of the goods to which MBE retains title or any other legal reason. The Buyer will also retain the right to collect such receivables after their assignment. This will not affect MBE’s right to make collection. MBE will, however, refrain from collection as long as the Buyer does not cease to fulfill payment obligations in connection with proceeds received or fall into arrears of payment and insolvency proceedings are not initiated against the Buyer. If, however, that is the case, MBE may require that the Buyer divulge the assigned claims and the names of the respective debtors, provide all information required for collection, produce the corresponding documents and inform the debtors of the assignment.
3. Goods to which MBE retains title will in all cases be processed or transformed for MBE by the Buyer. If goods to which MBE retains title are processed with other physical objects that are not the property of MBE, MBE will acquire rights of joint ownership in the new object in proportion to that share of the value of the new object represented by the goods to which MBE retains title as of the time of processing. The physical object resulting from processing will otherwise be subject to the same conditions as goods to which MBE retains title.
4. If goods to which MBE retains title are inseparably combined with other physical objects that are not the property of MBE, MBE will acquire rights of joint ownership in the new object in proportion to that share of value of the other combined goods represented by the goods to which MBE retains title as of the time of processing. If the physical object resulting for the process of combination is considered the primary object, it is agreed that the Buyer will assign MBE rights of joint ownership. The Buyer will retain possession of the solely or jointly owned property for MBE.
5. In the event an agent is involved in the transaction between MBE and the Buyer and assumes the credit risk, MBE will assign the title to the goods to the agent upon shipment on the condition precedent of payment of the purchase price by the agent. The Buyer’s obligation will be satisfied upon payment by the agent.
6. In the case of any breach of contract on the part of the Buyer, in particular default of payment, MBE may set a period for payment and if this period lapses recover possession of the goods to which MBE retains title. Such recovery by MBE will not constitute cancellation of the contract unless MBE expressly so stipulates in writing. Any attachment of the goods by MBE will constitute cancellation of the contract. MBE may otherwise dispose of the goods after recovery of possession. Proceeds from such disposal – less appropriate expenses incurred through disposal – will be credited towards the outstanding liabilities of the Buyer.
7. In the case of actions by third parties against goods to which MBE retains title, in particular attachment, the Buyer will identify MBE as the owner and notify MBE without delay so that MBE can assert its rights of ownership. If the third party is not able to reimburse MBE for judicial or non-judicial costs incurred in this connection, the Buyer will be liable for such costs.
8. MBE agrees to release any security to which it is entitled at the request of the Buyer insofar as the recoverable value of such securities exceeds that of the claim to be secured by more than 10%; MBE may determine at its sole discretion which securities are to be released.
9. The Buyer will keep goods to which MBE retains title for MBE at no cost to MBE. The Buyer will obtain and maintain in force insurance protection with the usual coverage against, for example, fire, theft and water damage. In the case of any claims against insurance companies or other parties arising in connection with such losses, the Buyer will assign the invoiced amount of the corresponding goods to MBE, and MBE will accept such assignment.
1. The warranty rights of the Buyer presuppose fulfillment of the Buyer’s obligations to inspect the goods and notify the MBE of any defects pursuant to section 377 of the German Commercial Code (Handelsgesetzbuch – HGB).
2. If the Buyer knowingly accepts delivery of defective goods or services from MBE, the Buyer may exercise the rights arising from such defects only if the Buyer has expressly reserved the right in writing to bring claims in connection with the defect.
3. No claims may be brought in connection with minor deviations in quality, color, width, des weight, equipment or designs that are technically unavoidable. This will also apply accordingly to such deviations as are common in the industry unless MBE has expressly agreed to make delivery in conformity with a sample in writing.
4. If goods or services delivered by MBE are defective and the Buyer has notified MBE accordingly on a timely basis, MBE will at its discretion make replacement or repair (corrective work). The Buyer will in each case give MBE an opportunity to do so within an appropriate period of time.
5. In the event the corrective work is inadequate, the Buyer may cancel the contract or reduce the price. The Buyer may also claim reimbursement of expenses incurred for the purposes of performance of corrective work. This claim to compensation will not be honored if such expenses increase because the goods delivered have been subsequently moved to a location other than the branch location of the Buyer unless such move is required in connection with the intended use of the goods.
6. The Buyer will have legal recourse against MBE only insofar as the Buyer has entered into no understanding with its customer that exceeds claims arising from defects allowed by law. The above provision will also apply accordingly as regards reimbursement of expenses.
7. The warranty claims of the Buyer will become time-barred after one year of delivery or invoice of the goods under Section IV.
IX. Limitation of Liability
1. MBE is liable for claims due to gross negligence or willful misconduct on the part of MBE, its representatives or its agents. This will not affect MBE’s liability in connection with the loss of life, bodily injury or illness; this will also apply accordingly for compelling liability under the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG).
2. MBE also be liable for claims arising from simple negligence in the case of breach of a material contractual obligation (cardinal obligation), in which case MBE’s liability will be limited to typical foreseeable losses.
3. All further liability will be excluded regardless of the legal nature of the claims brought. This will apply in particular as regards claims for damages arising from precontractual liability (culpa in contrahendo), due to other breaches of duty or tortious claims for compensation for damages pursuant to section 823 of the Civil Code.
4. MBE will not be liable for claims arising in connection with instructions issued by the Buyer.
5. In the event the liability of MBE is excluded or limited, this will also apply to the personal liability of salaried employees, contract employees, collaborators, representatives and agents of MBE.
X. Rights of Offset and Retention
1. The Buyer may offset claims against claims of MBE only if the corresponding counterclaims are legally enforceable, undisputed or recognized by MBE.
2. The right of retention in connection with counterclaims that are not legally enforceable and not recognized is excluded in the case of claims that do not arise from the same contractual relationship.
XI. Places of Performance, Jurisdiction and Applicable Law
1. The place of performance for all rights and obligations arising from the purchase or delivery contract will be place of business of MBE.
2. The Parties consent to the jurisdiction of the courts of Düsseldorf
3. These Terms & Condition will be interpreted and construed in accordance with German law to the exclusion of application of the Unite Nations Convention on Contracts for the International Sale of Goods.
1. The information, documents, data and /or materials disclosed, provided or lent by MBE to the Buyer shall be utilized by the Buyer only for the purpose of performing its responsibilities and obligations herunder, and shall not disclose, provide, lend or divulge to any third party.
1. If any provision hereof is subsequently held invalid or unenforceable by any court or authority agent, such invalidity or unenforceability shall in no way affect the validity or enforceability of any other provisions thereof.
Neuss, June 2020
Mitsuboshi Belting Europe GmbH
Phone.: +49 (0) 21 31 / 7 40 94 -0
Fax: +49 (0) 21 31 / 7 40 94 -24