Article 1 - application, contract conclusion
All Mentor's quotations, sales, deliveries and services are subject
solely to the following terms. This applies even if Mentor has
not objected to the client's different business terms.
These terms form part of all contracts concluded by Mentor with
contract partners in respect of Mentor's deliveries and services;
the award of an order or acceptance of a delivery is deemed to
constitute recognition of the terms.
Quotations issued by the company Mentor are subject to change
and are not binding. Purchase orders are deemed to have been accepted
once they have been confirmed in writing by Mentor. The delivery
and invoice are simultaneously deemed to represent an order confirmation.
Article 2 - prices
All prices are deemed to be ex-works, excluding packaging and
insurance, and excluding the applicable statutory turnover tax.
If, following contract conclusion, extraordinary and significant
cost factor increases should occur (e.g. raw materials, freight
or packaging materials, etc.) in respect of Mentor or its suppliers,
and if these increases should result in a significant increase
in the purchase prices or cost prices, Mentor shall be entitled
to demand an appropriate price adjustment from the purchaser.
Product prices in the "SV" catalogue may be altered due to fluctuations
in exchange rate parity.
Article 3 - product description
Mentor's statements regarding the subject of the delivery and
service (e.g. weight, dimensions, utility values, loads, tolerances,
technical data etc.), as well as product illustrations in catalogues,
are only approximately definitive. They represent descriptions
rather than guaranteed attributes. Deviations or changes in accordance
with ordinary trade usage, which occur as a result of statutory
regulations or which represent technical improvements, are permissible
as long as they do not adversely affect the product's usefulness
for the contractually intended purpose.
A quantity tolerance of +/- 10 % is deemed to be conceded. Mentor
reserves the right to make partial deliveries.
Article 4 - payment and settlement
Invoice amounts are payable within 7 days with a 2% discount,
or within 30 days without deduction, unless otherwise agreed in
writing. The date of payment shall be determined by the date on
which it is received by Mentor. Cheques, bills of exchange and
transfers will only be considered as paid once they have been
cleared or credited to Mentor's account.
Retention on the basis of the purchaser's counter-claims, or offsetting
against such counter-claims, is only permitted if the counter-claims
in question are undisputed or have been legally determined and
can no longer be appealed.
In the case of small orders up to 75 EURO, Mentor reserves the
right to levy a processing fee of 10 EURO.
Mentor's representatives are not entitled to collect monies due
unless they are explicitly authorised to do so.
Article 5 - reservation of title
The goods delivered shall remain the property of the company
Mentor until all claims deriving from the business relationship,
including ancillary claims and damage compensation claims, have
been paid, and until all cheques and bills of exchange have been
cleared.
Until revocation, the party placing the purchase order is entitled
to resell the goods in respect of which there is reservation of
title in the context of normal business dealings, but is not permitted
to pledge the goods, to transfer ownership by way of security
or to make a fiduciary assignment in respect of the goods.
The purchaser at this point already assigns to Mentor any claims
deriving from resale of the goods in respect of which Mentor reserves
title; Mentor accepts this assignment. Until revocation, the purchaser
is entitled to collect the assigned claims.
If the value of the securities held by Mentor exceeds the value
of Mentor's claims by more than 20%, Mentor is obliged to release
such securities if so requested by the purchaser; Mentor may select
the securities in question.
If, based on the reservation of title, Mentor takes back the delivery
object, the contract will only be deemed to have been repudiated
if Mentor makes an explicit declaration in this regard.
The purchaser is obliged to insure the goods in respect of which
Mentor has reserved title against damage, and to bear the associated
costs.
Article 6 - delivery / transfer of risk
Agreed delivery clauses are to be interpreted in accordance
with the Incoterms applicable at the time of contract conclusion.
If there is no specific delivery clause in the contract, the delivery
object will be deemed to be delivered "ex works" (EXW).
If, in the case of an EXW delivery and at the request of the purchaser,
Mentor undertakes to ship the delivery object to its destination
location, the transfer of risk will, at the latest, take place
at the time when the first shipper takes delivery of the goods
in question.
Unless otherwise agreed, partial deliveries are permitted.
The shipping method and packaging shall be decided by the company
Mentor.
On receipt, the purchaser is obliged to check the goods for damage
and freedom from defects. A complaint must be lodged in respect
of defective or incorrect deliveries, or delivery shortfalls,
within 7 days of receiving the goods at the latest; otherwise
the goods will be deemed to have been approved.
If the purchaser causes shipping to be delayed for more than a
month after being notified of shipping readiness, Mentor may levy
a warehousing fee of 0.5% of the delivery price for each month
commenced, not however exceeding 5%. The contracting parties shall
remain free to prove higher or lower warehousing costs.
The delivery time stated by Mentor is not binding. Events representing
force majeure, breakage or machine damage, delays in the delivery
of raw materials or other substances shall release Mentor from
the need to observe the stated delivery time, and shall not result
in dissolution of the contractual relationship. The purchaser
shall remain bound by the contract and is, under all circumstances,
obliged to accept the goods. If contract performance should prove
impossible, Mentor shall be released from its delivery obligations.
In the event of delays, the purchaser must set Mentor a subsequent
deadline of at least 12 weeks.
Article 7 - defects
In the case of a verifiably defective delivery, Mentor may chose
whether to rectify the defect or to deliver a replacement. If
the defect rectification or replacement delivery fails, the purchaser
may - ruling out all further claims of any kind, and regardless
of the legal bases therefore - choose to either repudiate the
contract or demand a reduction.
If returning goods, the purchaser is obliged to observe Mentor's
stipulations (return confirmation / complaint with a request to
return the test report containing all data and features of note,
and including samples, within 14 working days).
Any further claims on the part of the purchaser in respect of
quality defects are ruled out to the extent legally permitted,
unless relating to the absence of guaranteed attributes (check
German).
Quality defects shall become statute-barred 12 months after the
initial transfer of risk.
Quality defects must always be acknowledged in writing.
In the case of attribute guarantees intended to protect the purchaser
from the risk of any damage as a consequence of defects, Mentor
shall be liable for damage compensation in accordance with the
provisions of statutory regulations. However, this liability is
limited to typical and predictable damage.
Article 8 - liability
Claims against Mentor, or persons employed in performing an
obligation for which Mentor is vicariously liable, or Mentor's
vicarious agents, relating to compensation for damage as a consequence
of defects, as well as damage compensation claims relating to
impossibility of performance, non-performance, the absence of
guaranteed attributes, culpable breach of contract, culpability
when concluding the contract, and prohibited actions are ruled
out unless the damage was the result of premeditation or gross
negligence.
This limitation of liability does not apply if a) damage compensation
claims are derived from a guarantee of attributes intended to
protect the client from the risk of damage as a consequence of
defects; b) Mentor is in breach of contractual obligations the
performance of which is vital to orderly contract performance
(cardinal obligations); c) the German Product Liability Act stipulates
liability for damage to persons or property in the case of defects
in respect of the delivery object, and relating to privately used
objects. If, in such cases, minor negligence is present, Mentor
shall only be liable for contractually typical damage which could
be reasonably predicted.
Article 9 - flat-rate damage compensation
In the event that the purchaser unjustifiably repudiates the
contract, or does not meet his acceptance obligation, or is in
arrears of over 30 days in respect of payments due, Mentor is
entitled to demand damage compensation for non-performance. The
same applies if, for other reasons, Mentor has the right, as a
result of statutory provisions, to repudiate the contract, or
has the right of extraordinary termination, and has availed of
this right.
In such cases Mentor is entitled, without prejudicing its right
to enforce a higher actual level of damage compensation, to demand
20% of the (gross) purchase price in the form of damage compensation,
whereby there is no need to verify the damage. However, the client
shall be entitled, in individual cases, to verify a lesser amount
of damage.
Article 10 - tools
Tools and equipment shall remain the property of Mentor under
all circumstances, even if they have been invoiced and paid for
on a pro-rata basis.
Mentor reserves the right to apportion the costs of producing
a tool intended for production of a product specific to the client
to the client in question.
Article 11 - concluding provisions
The place of performance is Düsseldorf. The legal relations between
the client and Mentor shall be solely subject to the law of the
Federal Republic of Germany. Application of the UN Law of Purchase
(CISG) is ruled out.
If the client is a merchant as defined by the German Commercial
Code, the legal venue for both parties shall be Düsseldorf or,
if so requested by Mentor, the client's principal place of business.
Should a provision in the above General Terms of Business be or
become ineffective, the remaining provisions shall not be affected
thereby. The parties undertake to replace an ineffective provision
with an agreement which most closely approximates to the commercial
purpose of the ineffective provision.
These Terms of Business shall apply until revoked.
MENTOR GmbH & Co. Präzisions-Bauteile KG
Otto-Hahn-Str. 1
40699 Erkrath
Stand 09/2003
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