General Terms & Conditions
I. General Information
1. These General Terms and Conditions (hereinafter: GTC) of Matesy GmbH (hereinafter: MATESY) shall apply
a. exclusively; deviating Conditions of Purchase of the purchaser shall not be effective unless MATESY expressly accept them; such acceptance shall be in writing if given during the phase of contract formation;
b. towards purchasers that are businesses in the sense of section 14 of the German Civil Code;
c. on all future relations between the parties, even if not agreed upon expressly.
2. MATESY reserves all kinds of rights it has in samples, cost estimates, drawings and similar tangible and intangible items or information – also in electronic format; such items or information shall not be disclosed to any third party. MATESY undertakes not to disclose without the consent of the purchaser any information and documents defined by the purchaser as being confidential to a third party.
3. The respective Service Conditions of MATESY apply additionally for assembly, commissioning, repairs, maintenance and similar services with the tariffs mentioned therein.
MATESY shall revoke its offers until their acceptance unless MATESY designates them as binding. Errors and omissions excepted.
III. Written Form and Authorization of Employees
1. Additional or different agreements, representations or amendments have to be made in written form unless they are not made at the time of the formation of the contract. MATESY is entitled to charge an adequate price increase for modifications made on a request of the purchaser, placed after its placement of the order.
2. Employees of MATESY are not authorized to make oral representations in the course of the formation of the contract or agree orally upon additional clauses or amendments of the contract with the purchaser unless their authorization hereto is prescribed by law.
IV. Prices and Payment
1. Prices are valid ex works (EXW, Incoterms 2010), loading within the premises included, but packing, transport and unloading excluded, unless otherwise agreed. Prices do not include VAT (or ex-/import duties). Payment shall be considered as being made when the full amount of invoice has been credited to the account of MATESY.
2. Payment shall be made within 30 days (starting on the date of invoice-recipient), unless otherwise agreed, without any deduction, to one of the stated MATESY bank accounts. Relevant for the 30-day deadline is the day of the booking date to one of Matesy’s bank accounts.
3. Unauthorized and not explicitly by Matesy formulated changes in the payment amount, including the taken benefits of not explicitly formulated discount, leading to arrears in the same amount.
4. The purchaser shall not be entitled to any right of retention or refusal or offset of his counterclaims against our claims, unless the counterclaims the purchaser exercises retention or refusal for or sets them off against our claims are uncontested or res judicata.
5. If payment-deadline has exceeded Matesy has the right, without the need of further certification or reminder, to charge the buyer a 10% interest on the arrears payment amount. The assertion of additional damages remains unaffected.
6. Payments must usually be made in Euro. Any other agreement must be in writing and will be fixed in the order confirmation or the offer document by Matesy.
7. In the event the financial situation of the purchaser deteriorates considerably, jeopardizing MATESY’s claim for payment, MATESY shall be entitled to withhold the shipment until payment has been made or sufficient securities have been provided.
V. Delivery times and delay
1. The observance of the agreed upon delivery time by MATESY requires that all commercial and technical questions reasonably to be clarified before delivery are clarified between the parties and that purchaser has rendered all cooperation (for example, submission of necessary certificates from authorities or approvals of such) necessarily or reasonably to be rendered before delivery, and fulfilled all obligations to be performed in advance (for example an advance payment). Otherwise, the delivery time is prolonged correspondingly, unless MATESY would be liable for the delay.
2. The observance of the delivery time is subject to correct and timely delivery to MATESY by the subcontractors with which
MATESY has entered into corresponding hedgings.
3. The delivery time is met if either the goods to be delivered have left MATESY’s facility or the notification of readiness for dispatch has been sent until its expiry. In the event delivery has to be taken, the date of acceptance, or, subsidiary, the collection note is decisive – except for a justified refusal to take delivery.
4. Should non-compliance with the agreed-upon delivery time be caused by industrial actions or other events, arising after contract formation and beyond the control of MATESY, delivery time shall be prolonged correspondingly unless MATESY would be responsible for such temporary impossibility. This applies correspondingly if such events arise with subcontractors. MATESY shall notify the purchaser of the beginning and end of such circumstances without undue delay.
VI. Default in Delivery, Partial Deliveries
1. Should MATESY be in delay in delivery, the purchaser may only withdraw from the contract if he set a time limit accompanied from a warning to withdraw.
2. Partial deliveries are admissible insofar they are reasonable to the purchaser.
VII. Passing of Risk, Acceptance, Insurance
1. The risk passes – also for delivery freight paid – to the purchaser when the product has left the facility, even if partial deliveries are made or MATESY has taken over other obligations such as, for example, shipping costs or delivery and installation.
2. Acceptance shall be performed immediately at the date of acceptance, or, if no such date is agreed upon, after dispatch note of MATESY, unless the purchaser would be entitled to reject acceptance. Should the purchaser be entitled to reject acceptance, such rejection shall be declared without undue delay and in writing, submitting the supporting arguments.
3. In the event dispatch or acceptance is delayed or does not happen because of circumstances MATESY is not liable for, the risk passes to the purchaser from the day of dispatch or acceptance note if passing of risk to the purchaser did not already occur earlier.
4. MATESY will insure goods upon purchaser’s specific wish and at its expense and advance payment against normal transport risks, and against such further risks the purchaser wishes them to be insured against. MATESY may insure the goods at the purchaser expense against theft, breakage, fire, water and similar occurrences even without the purchaser’s request, unless the purchaser evidences having entered in such an insurance himself.
VIII. Reservation of title
1. MATESY reserves the title to the product until entry of all payments from the Supply Contract.
2. The purchaser may not sell the product, except it is expressly permitted by MATESY. Additionally, during MATESY’s retention of title, the puchaser may not pledge or transfer the product as security. In the event of pledges and seizure or other disposal by third parties, he shall notify MATESY immediately.
3. In the event of purchaser’s breach of contract, included but not limited to delay in payment, MATESY shall be entitled to take the product back after a reminder and set period of time, and the purchaser shall be obligated to return it. The assertion of the reservation of title and seizure of the product by MATESY shall not be considered as a withdrawal from the contract with the purchaser.
MATESY makes the following warranties for material defects and defects in title:
1. Purchaser has to examine the goods without undue delay and notify us in writing of any recognizable defects and shall, as far as possible with reasonable efforts, specify the defects found. At any rate, the purchaser has to examine the goods without undue delay on apparent damages in transit and report such to the transport person and MATESY
2. In case of a material defect that substantially reduces the suitability of the work for the contractually presupposed use, MATESY may, at its discretion, improve or replace the delivered goods.
3. Should an alleged defect prove to be no defect or exclusively result from fault of the purchaser, MATESY may claim for a service charge. Purchaser may prove MATESY that the cost is less than what MATESY charges. Should, however, the alleged defect prove to be a defect, MATESY shall bear the necessary cost of improvement or replacement delivery, except the cost of the purchaser’s personnel.
4. Wearing parts are exempted from warranty.
Defects in title
5. In case the use of the product causes an infringement of industrial property rights or copyrights, MATESY shall procure at his expense the right of further use for the purchaser or modify the product in a way acceptable to the Purchaser and avoiding the infringement. Shouldn’t this be possible with economically reasonable efforts and within an adequate period of time, the purchaser shall have the right to withdraw from the Agreement. MATESY shall also be entitled to withdraw from the Agreement under these circumstances.
6. MATESY shall release the purchaser from uncontested claims or claims recognized by declaratory judgment of the respective holder of property rights if
- the purchaser notifies MATESY without undue delay of asserted infringements of property or copy rights,
- the purchaser assists MATESY to a reasonable extent in rejecting asserted claims or enables MATESY the execution of modification action in accordance with Section IX. 5,
- MATESY reserves all rejections, including settlements out of court
- the infringement of a right has not been caused by the fact that the purchaser has changed the product without any authorization or used contrary to the agreement with MATESY.
1. MATESY shall be liable for purchaser`s damage only if such claims are based either on intent or gross negligence of MATESY`s actions.
2. MATESY is not liable for consequential damages, including, but not limited to lost profit, except such damages have been caused by its executive organs or managers or with intent. In any case of liability, such liability is limited to the amount of the foreseeable damage typical to such contracts and shall as well not exceed the value of the respective order, except that the liability claim is based on intent.
3. In case the purchaser uses, contrary to the recommendations of Matesy unapproved accessories, both the performance guarantee, as well as the warranty will be extinguished.
4. Any maintenance and calibration work must be carried out exclusively by Matesy-accredited agencies or Matesy itself. When maintenance or calibration work is carried out in violation of this agreement by the purchaser Matesy will be freed of any liability claims for malfunctions or other damages. It is recommended for all serviceable products to have scheduled maintenance intervals of a maximum of 12 months to ensure all functionality of the product.
XI. Limitation of actions
Purchaser's rights resulting from breach of warranty against defects of movable property that is usually not meant to be used for a building, are subject to a limitation period of 24 months, in as stated in sections 438 para 1 No. 3 of the German Civil Code.
XII. Software usage
As far as software is contained in the scope of delivery, the purchaser shall be granted a nonexclusive right to use to software delivered including its documentation. The use on the specific product is permitted. Use of the software on more than one system is prohibited. The purchaser may reproduce, revise,
translate the software or convert from object code to source code only to the extent permitted by law (sections 69a - 69f of the German Copyright Act). The purchaser is obligated not to remove manufacturer’s data, especially copyright notes, or change them without MATESY’s prior express consent. All other rights related to the software and documentation including copies remains at MATESY or the software supplier. Granting of sub-licenses is not admissible.
XIII. Miscellaneous, Applicable Law, Place of Jurisdiction
1. All legal relations between MATESY and Purchaser are exclusively subject to the law of the Federal Republic of Germany.
2. Place of jurisdiction is the court Jena, Germany. MATESY is, however, entitled, to take legal action at the purchaser’s seat. Both parties shall reserve the right to finally settle possible disputes ousting the jurisdiction of a court in accordance with the Rules of Arbitration of the German Institution for Arbitration (DIS).
XIV. Representation of Integrity
MATESY complies with the German and U.S. laws against corrupt practices and requires the same from the purchaser.
If a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that shall not affect:
(a) the validity or enforceability in that jurisdiction of any other provision of this Agreement; or
(b) the validity or enforceability in other jurisdictions of that or any other provision of this Agreement.
As of 5th September 2011
Matesy GmbH Management: Sandra Lindner Amtsgericht Jena HRB 502464 USt.-ID: DE 2592 7538 6 Bank Account: Sparkasse Jena 40568 BLZ: 830 530 30 BIC: HELA DEF1 JEN IBAN: DE 38 8305 3030 0000 0405 68 Bank Account: Merkur Bank 6604250 BLZ: 701 308 00 BIC: GENO DEF1 M6 IBAN: DE 79 7013 0800 0006 6042 50
Matesy GmbH Management: Sandra Lindner Amtsgericht Jena HRB 502464 USt.-ID: DE 2592 7538 6
Bank Account: Sparkasse Jena 40568 BLZ: 830 530 30 BIC: HELA DEF1 JEN IBAN: DE 38 8305 3030 0000 0405 68
Bank Account: Merkur Bank 6604250 BLZ: 701 308 00 BIC: GENO DEF1 M6 IBAN: DE 79 7013 0800 0006 6042 50