General Terms and Conditions of MIK Construct GmbH
I. Scope of the conditions
- The deliveries, services and offers of MIK Construct GmbH are exclusively based on these terms and conditions. These terms and conditions therefore also apply to all future business relations, even if they are not expressly agreed again. These provisions shall be deemed accepted at the latest when the order is placed. Counter-confirmations of the customer with reference to his terms and conditions/purchasing provisions are contradicted.
- All agreements between the tenant, buyer, purchaser or client and MIK Construct GmbH, which are made in addition to orders, must be made in writing in order to be effective.
II. Offer and conclusion of contract
- The offers of MIK Construct GmbH are non-binding. Declarations of acceptance, placing of orders or orders must be made in text form and require the confirmation of MIK Construct GmbH in order to be legally effective.
- Drawings, illustrations, dimensions and other performance data shall be regarded as a binding basis for performance when the order is placed.
- The employees and subcontractors of MIK Construct GmbH are not authorized to make verbal side agreements or to give assurances which go beyond the content of the written contract without the consent of the management.
- MIK Construct GmbH is not liable for the correctness of the documents for offers that are prepared according to the information provided by the client or the documents provided by the organizer.
III. Ownership and copyright
Cost estimates, offers, plans, drafts, drawings, production or assembly instructions remain the property of MIK Construct GmbH with all rights, unless otherwise agreed. Changes of plans, drafts etc. may only be made by MIK Construct GmbH. These documents may neither be duplicated nor made accessible to third parties without the consent of MIK Construct GmbH.
- the prices stated in the order confirmation plus the statutory value added tax on the day of invoicing are decisive.
- Additional expenses not estimated in the offer, which are additionally incurred at the client’s request or are caused by incorrect or incomplete information of the client or the organizer, by transport delay for which MIK Construct GmbH is not responsible, insufficient freedom of construction or poor ground conditions at the installation site, as well as by improper or incorrect advance performance by third parties, will be charged to the client in full.
V. Time of delivery and performance
- Delivery and service dates must be in writing in order to be effective. In the case of exhibition stands, delivery dates shall be agreed with the customer.
- Changes of the delivery and service date by the customer or by third parties will be calculated as follows:
– more than 10 working days before the agreed delivery or service date = free of charge
– from 10 working days before the agreed delivery or service date = 5% of the price offered
– from 5 working days before the agreed delivery or service date = 10% of the price offered.
Cancellation of the entire order by the client or by third parties will be charged with 15% of the offered price.
- MIK Construct GmbH is not responsible for delays in delivery or service due to force majeure and due to events which do not only temporarily impede or render impossible the delivery/service for MIK Construct GmbH, in particular strike, lockout and official orders, even if they occur at suppliers or their sub-suppliers, even in case of bindingly agreed deadlines and dates.
- Compliance with the delivery and service obligations of MIK Construct GmbH requires the receipt of all documents, necessary approvals, releases and plans to be supplied by the client, as well as compliance with agreed material deliveries and other obligations. If the delivery or service date is delayed due to the fault of the customer, for example due to defective or incomplete material, the customer shall be invoiced for the additional costs incurred (e.g. subsequent delivery, storage, additional journeys and assembly costs). A new delivery or service date for the completion of the assembly work after complete provision of the material by the client will be determined by MIK Construct GmbH.
- The inspection and acceptance must be carried out immediately after completion of the assembly, by the customer or authorised third parties to ensure that the assembly is in proper condition and complete. Defects must be reported by the customer within two weeks. In the case of a notice of defects, the client has the right to demand a timely removal of the defects (rework, repair) by the employees or subcontractors of MIK Construct GmbH.
- Complaints of obvious defects as well as deviations of the delivered material from the ordered quantity will not be accepted if the corresponding complaint is not received within two weeks. Minor deviations in design, dimensions and colours which are reasonable for the customer shall not be deemed defects.
- The warranty obligation of MIK Construct GmbH does not apply to any defective light sources after delivery to the client.
VII. Invoicing / Terms of payment
- Payment shall be made in accordance with the invoice for the payment period (10 working days).
- Payment of the invoice amount shall be binding and no discount shall be granted unless otherwise agreed. Unauthorized cash discount deduction will be demanded subsequently.
- As a rule, invoices are issued after completion of the delivery / service.
- MIK Construct GmbH reserves the right to invoice a part of the invoice amount as prepayment for new customers as well as for orders exceeding a certain volume. These special terms of payment are agreed in writing in the offer or in the order confirmation.
- A payment shall only be deemed to have been made when MIK Construct GmbH can dispose of the amount.
- A separate invoice will be issued for deliveries and services which the client has ordered in addition to the contract content, if this is not yet part of the main invoice.
- The client shall only be entitled to set-off, retention or reduction, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed.
- In the event of default in payment, dunning charges or interest on arrears shall become due.
VIII. Retention of title
- In contracts with consumers, delivered items remain the property of MIK Construct GmbH until full payment has been made.
- If the client is an entrepreneur, MIK Construct GmbH reserves the ownership of the materials delivered by him until the complete payment of all claims from an ongoing business relationship.
- If the goods subject to retention of title are built into the property of the client as essential components, the client already now assigns to MIK Construct GmbH the claims resulting from a sale of the property or of property rights in the amount of the invoice value of the goods subject to retention of title with all ancillary rights.
- If the objects of retention of title are built into the property of a third party by the client or on behalf of the client as essential components, the client already now assigns to MIK Construct GmbH any claims against the third party or the third party concerned for compensation in the amount of the invoice value of the objects of retention of title with all ancillary rights. If the client processes, combines or mixes the reserved objects with other objects, MIK Construct GmbH is entitled to co-ownership of the new object in the ratio of the invoice value of the reserved objects to the value of the other objects.
- Claims of the client for damages are excluded. Excluded from this are claims for damages of the client from injury to life, body, health or from the violation of essential contractual obligations (cardinal obligations) as well as liability for other damages which are based on an intentional or grossly negligent breach of duty by MIK Construct GmbH, its legal representatives or vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
- In case of violation of essential contractual obligations, MIK Construct GmbH is only liable for the contract-typical, foreseeable damage, if this was caused by simple negligence, unless it concerns claims for damages of the client from an injury of life, body or health.
- The restrictions of paragraphs 1 and 2 also apply in favour of the legal representatives and vicarious agents of MIK Construct GmbH if claims are asserted directly against them.
- The limitations of liability resulting from paragraphs 1 and 2 do not apply in case of consequential damages, as far as MIK Construct GmbH has fraudulently concealed the defect or has given a guarantee for the condition of the object. The same applies if MIK Construct GmbH and the client have made an agreement about the condition of the item. The provisions of the Product Liability Act remain unaffected.
- For the execution of orders according to information or documents provided by the client, the client warrants that the work carried out on this basis does not infringe the industrial property rights of third parties. MIK Construct GmbH is not obliged to check whether the documents and information handed over by the client for production and delivery could violate industrial property rights of third parties.
- MIK Construct GmbH does not assume any liability for transport damages for customer’s own materials which are handled by MIK Construct GmbH. The goods are to be insured against transport damages at the request and expense of the customer.
X. Choice of law, place of jurisdiction, severability clause
- The inclusion and interpretation of these Terms and Conditions of Sale and Delivery as well as the conclusion and interpretation of legal transactions with the Customer shall be governed exclusively by the laws of the Federal Republic of Germany. The application of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, is excluded.
- The place of jurisdiction is the place of jurisdiction responsible for the registered office of MIK Construct GmbH, if the client is a businessman. MIK Construct GmbH is also entitled to sue before a court which is competent for the registered office or a branch office of the client.
- The invalidity of individual provisions of this contract or its components does not affect the validity of the remaining provisions. The contracting parties shall be obliged in good faith and within reason to replace an invalid provision with a valid provision equivalent to its economic success, provided that this does not result in a material change to the contents of the contract, and the same shall apply if a situation requiring regulation is not expressly regulated.