a) These conditions apply for all deliveries and services, even if a special contract confirmation is not issued within the framework of a business relationship. The customer's conditions of purchase do not apply, even if they have not been expressly contradicted.
b) Agreements with our employees, in particular assurances, are valid only if they have been confirmed by us in writing.
a) We are authorised to undertake partial deliveries, which are billed separately, if this can be reasonably assumed to be in the interests of the buyer. A partial delivery is considered reasonable as long as it does not comprise individual parts that are sold together.
b) The delivery is free and made to the agreed delivery address. Dispatch is at the risk of the buyer. At the request of the buyer, all the dispatches can be insured against breakage at a risk of ½% of the value.
c) Gas, plumbing and electricity connections as well as drainage are not part of the delivery programme. The connections required must be carried out by the buyer in accordance with the valid provisions.
d) Force majeure, official regulations and other circumstances for which we cannot be held responsible, in particular traffic and operational problems, industrial disputes, shortage of transportation facilities and fire damage release us from the duty to deliver for the duration of their effect. We are entitled to withdraw from the contract, if we cannot reasonably be expected to fulfil the contract for the above-mentioned reasons. A duty to pay compensation to the buyer is excluded in such cases.
e) We reserve the right to make changes in the construction, the volumes and the weights of the delivery item, if they can be deemed to be reasonable according to objective criteria.
f) In the case of purchase on demand the buyer must collect the item within 3 months at the latest following receipt of the order confirmation. These conditions govern the delivery deadlines.
g) In accordance with the valid packaging ordinance in Germany we accept liability for the return and recovery of empty packaging. All system-related costs (e.g. lease containers) are borne by the buyer.
3. Prices and due date
a) Route and work time as well as travel costs are invoiced separately if installation is required.
b) A discount deduction is admissible following prior agreement and if all the previous bills have been paid.
c) Offsetting on the part of the buyer is only permitted in the case of non-contested and legally enforced claims.
d) If the buyer does not honour a cheque or bill of exchange in his business dealings with entrepreneurs, if he is in default with a payment, if he has suspended payment or if there are reasons that are tantamount to a suspension of payment, all the claims arising out of the business relationship with the buyer for deliveries that have already been made shall fall due, even if a bill of exchange has been presented for them. There is no right of retention based on the bill of exchange. We can make further deliveries subject to a prior payment of a security or the contemporaneous payment of the purchase price. If the security is not paid within a reasonable grace period, we are entitled to withdraw from the contract or to demand compensation due to non-performance.
e) If the buyer should experience circumstances that give rise to doubts regarding his creditworthiness, or if we should subsequently become aware of the fact that such circumstances existed prior to the conclusion of the contract, we can make the deliveries subject to a prior payment of a security or the contemporaneous payment of the purchase price. This also applies if the buyer has provided a bill of exchange. There is no right of retention based on the bill of exchange.
4. Title retention
a) The goods delivered remain our property until full payment has been made, and in the case of business transactions with entrepreneurs, until the payment of our full current and future claims from the business relationship with the buyer.
b) In the case of selling on, the buyer agrees in advance to assign the receivables from the resale in an amount equal to the value of the goods to which we retain the title, together with all ancillary rights and with priority over all other debts. With the proviso of recall, the buyer is authorised to call in the claim transferred to us.
c) The buyer is only authorised to resell the goods subject to retention of title within the scope of ordinary business activities and under the condition that the buyer together with his clients agrees a title retention on his part and that the receivables from the resale are in fact transferred to us. The buyer is not entitled to dispose of the goods subject to retention of title in any other way, in particular via pledge or a transfer of ownership by way of security. The buyer must inform us immediately in the event of seizures or other actions by third parties. The buyer is obliged to compensate us for the cost of such interventions. In the case of the suspension of payments, an application for or the initiation of insolvency proceedings or in the case of the implementation of an out-of-court settlement, the right of resale and collection of the assigned claims shall expire.
d) Should we, after withdrawal from the contract, gain the return of the goods subject to retention of title and be legally entitled to claim compensation instead of services, we are free to dispose of the goods subject to retention of title in the best possible way whilst safeguarding the buyer's interests or to reimburse the buyer with the normal sales value of the goods subject to retention of title at the time of taking them back. On the request of the buyer, which can only be made immediately following the repossession of the goods subject to retention of title, a publicly appointed expert chosen by the buyer shall determine the normal sales value. The buyer shall bear all the costs of the repossession and the valuation of the purchase object. The recovery costs shall amount to 10% of the normal market value if no documentary evidence is provided. They are to be increased or decreased, if the seller can prove higher or the buyer lower costs.
e) If the value of the securities given to us that are subject to segregation and substitutional segregation in accordance with the German Insolvency Code, exceeds our claim by more than 20%, or in the case of securities that are subject to segregation by more than 45%, we are to that extent obliged to make reassignment or release of the securities of our choice upon the request of the buyer.
a) The buyer hereby undertakes to insure the consigned goods against fire and theft. He is liable for any loss or damage to the goods,
due to the lack of insurance even through no fault of his own.
b) The consigned goods may not be sold on without our consent. The buyer hereby assigns his claims against the buyer to us in accordance with the provisions in
Point 5 b.
c) We are entitled to have the consigned goods inspected at any time and to request that they should be handed over to us or a third party. The buyer shall bear all the dispatch and any repair or reconditioning costs.
6. Liability for material defects
a) In the course of business transactions with companies and legal entities governed by public law, defects that are detected by normal inspection must be reported in writing immediately upon receipt of the goods and other defects must be reported in writing immediately following the identification of the defect.
b) Faults that are caused by incorrect use or repairs or modifications that were carried out without our approval do not justify any claims under warranty.
c) In business transactions with companies and legal entities governed by public law, in the case of a material defect we are obliged either to rectify the fault or to deliver a defect-free piece of merchandise, according to how we see fit. If we do not rectify the fault or provide a defect-free piece of merchandise within four weeks, if the attempt to rectify the fault fails on the second attempt or if it is impossible, the buyer is entitled to withdraw from the contract or to receive a reduction in the purchase price. Further claims under warranty are excluded. The buyer's statutory rights for the assumption of a guarantee for the condition of a product remain unaffected hereby. Point 8 of the conditions applies for claims for damages due to a fault.
d) Liability claims become time barred for business transactions with companies and legal entities governed by public law one year after the delivery of the purchase item. The period of limitation for household appliances that are sold on to consumers is two years.
a) In all cases in which the buyer is obliged to pay compensation instead of provide a service, subject to proof of a higher level of damage, we can demand 20% of the purchase price as compensation. The buyer is free to provide evidence that there was no damage or that it was considerably less.
b) The compensation and reimbursement of the buyer's expenses (hereinafter: compensation claims), irrespective of the legal basis, in particular due to a violation of duties arising from the contractual obligation and unauthorised use, are excluded.
This does not apply for product liability claims, for cases of wilful intent and gross negligence, for loss of life, bodily injury or damage to health or for major violations of material contractual obligations. Compensation due to the violation of material contractual obligations, however, is limited to damage that is foreseeable and typical of the contract, provided there is no intent or gross negligence involved, or there is liability for loss of life, bodily injury or damage to health.
c) Insofar as there are claims for compensation on the part of the buyer, they shall have a deadline of one year, beginning with the start of the period of limitation valid for the claim for defects. This does not apply for claims for defects pursuant to product liability law.
8. Right of retention
Any right of retention on the part of the buyer is excluded, unless this right is based on the same contractual relationship.
9. Cancellation of the contract
In the event of a withdrawal from the contract of sale due to a wilful violation of the contract by the buyer, the following claims can be enforced:
a) Special expenses incurred due to the contract, such as commissions, dispatch costs and replacements for faults that were caused by the buyer.
b) Compensation for assignments and the associated reduction in value. As a rule the compensation is calculated based on the value retention as follows: In the case of withdrawal and handover following delivery within the first 3 months 30% of the selling price and for every further month 3% of the selling price. In business transactions with consumers, the rule is that they are permitted to prove that the damage or the loss in value did not occur or is considerably less than the fixed rate.
10. Place of performance, place of jurisdiction, choice of law clause
a) The place of performance for our services is Gütersloh.
b) In business transactions with dealers and legal entities governed by public law, the place of jurisdiction for all disputes arising from this contractual relationship shall be the headquarters of the company Miele & Cie. KG. The company Miele & Cie. KG is also authorised to sue the buyer at his domicile.