General terms and conditions of business
last update April 27, 2017
§1. Scope of the general terms and conditions
1. All deliveries, services and offers from Morali GmbH are made exclusively on the basis of these general delivery conditions. These are part of all contracts that Morali GmbH concludes with its contractual partners (hereinafter also referred to as “client”) regarding the deliveries or services it offers. They also apply to all future deliveries, services or offers to the client, even if they are not separately agreed again.
2. Terms and conditions of the client or third parties do not apply, even if Morali GmbH does not specifically object to their validity in individual cases. Even if Morali GmbH refers to a letter that contains or refers to the terms and conditions of the client or a third party, this does not constitute agreement with the validity of those terms and conditions.
§2 Offer and conclusion of contract
1. All offers from Morali GmbH are subject to change and non-binding, unless they are expressly marked as binding or contain a specific acceptance period. Orders or assignments can be accepted by Morali GmbH within fourteen days of receipt.
2. The written purchase contract, including these general delivery conditions, is the only decisive factor for the legal relationship between Morali GmbH and the client. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by Morali GmbH before the conclusion of this contract are legally non-binding and oral agreements between the contracting parties are replaced by the written contract unless they expressly state that they continue to be binding.
3. Additions and changes to the agreements made, including these general delivery conditions, must be in writing to be effective. To maintain the written form, transmission by fax is sufficient; otherwise, telecommunication transmission, especially by email, is not sufficient.
4. Information provided by Morali GmbH on the subject of the delivery or service (e.g. weights, dimensions, usage values, load capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately relevant, unless the usability is as contractually intended Purpose requires an exact match. They are not guaranteed characteristics, but rather descriptions or labels of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permitted as long as they do not impair the usability for the contractually intended purpose.
5. Morali GmbH reserves the ownership or copyright of all offers and cost estimates submitted by it as well as drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the client. The client may not make these items available to third parties as such or in terms of content, disclose them, use them or reproduce them themselves or through third parties without the express consent of Morali GmbH. At the request of Morali GmbH, he must return these items in full and destroy any copies that may have been made if they are no longer required by him in the normal course of business or if negotiations do not lead to the conclusion of a contract.
§3 Prices and payment
1. The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in EURO ex works plus packaging, statutory VAT, customs duties for export deliveries as well as fees and other public charges.
2. If the agreed prices are based on the list prices of Morali GmbH and the delivery is only to take place more than four months after the conclusion of the contract, the seller's list prices valid at the time of delivery apply.
3. Invoice amounts must be paid within thirty days without any deductions, unless otherwise agreed in writing. The receipt by Morali GmbH is decisive for the date of payment. Checks are only considered payment after they have been cashed. If the client does not pay by the due date, the outstanding amounts will be charged at 5% p.a. from the due date. a. to pay interest; The assertion of further damages in the event of delay remains unaffected.
4. Offsetting against the client's counterclaims or withholding payments due to such claims is only permitted if the counterclaims are undisputed or legally established. The offsetting must be declared to Morali GmbH in writing.
5. The company Morali GmbH is entitled to carry out or provide outstanding deliveries or services only against advance payment or security if, after conclusion of the contract, it becomes aware of circumstances which are likely to significantly reduce the creditworthiness of the client and through which the payment of the outstanding claims of Morali GmbH by the client arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
§4 Delivery and delivery time
1. Deliveries are made from the location.
2. The deadlines and dates for deliveries and services announced by Morali GmbH are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If shipping has been agreed, delivery times and delivery dates refer to the time of handover to the freight forwarder, freight carrier or other third party commissioned with the transport.
3. The company Morali GmbH can - without prejudice to its rights arising from the client's default - demand from the client an extension of delivery and service deadlines or a postponement of delivery and service dates by the period in which the client does not fulfill its contractual obligations to the company Morali complies.
4. The company Morali GmbH is not liable for the impossibility of delivery or for delays in delivery if these are due to force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lawful ones). Lockouts, lack of workers, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the lack of, incorrect or late delivery from suppliers) have been caused for which Morali GmbH is not responsible. If such events make delivery or service significantly more difficult or impossible for Morali GmbH and the hindrance exceeds a period of 3 months, both contracting parties have the right to withdraw from the contract after setting a reasonable deadline. In the event of temporary obstacles, the delivery or service deadlines are extended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by immediately notifying the seller in writing.
5. Morali GmbH is only entitled to make partial deliveries if the partial delivery can be used by the client within the scope of the contractual intended purpose,
- the delivery of the remaining ordered goods is ensured and
- The client will not incur any significant additional effort or additional costs as a result (unless the seller agrees to assume these costs).
Each partial delivery represents an independent transaction within the meaning of the general terms and conditions of business and delivery. The client must pay the proportionate remuneration for partial deliveries to Morali GmbH.
6. If the seller is in default with a delivery or service or if a delivery or service is impossible for him, regardless of the reason, the seller's liability is limited to compensation in accordance with Section 8 of these general delivery conditions.
§5 Place of performance, shipping, packaging, transfer of risk, acceptance
1. Place of fulfillment for all obligations arising from the contractual relationship is Rottweil.
2. The shipping method and packaging are subject to the due discretion of the seller.
3. The risk is transferred to the client at the latest when the delivery item is handed over (the start of the loading process being decisive) to the freight forwarder, freight carrier or other third party designated to carry out the shipment. This also applies if partial deliveries are made or the seller has provided other services (e.g. shipping or installation). If shipping or handover is delayed due to a circumstance caused by the client, the risk passes to the client from the day on which the delivery item is ready for dispatch and the seller has notified the client of this.
4. Storage costs after transfer of risk are borne by the client. When stored by Morali GmbH, the storage costs amount to 0.25% of the invoice amount of the delivery items to be stored per completed week. We reserve the right to assert and provide evidence of additional or lower storage costs.
§6 Warranty
1. The warranty period is 6 months from delivery. Morali GmbH does not assume any warranty for wearing parts. If the goods are used in 2-shift operation (16 hours of daily use), it is reduced to three months and three-shift operation (24-hour daily use) to two months, starting with delivery of the goods.
2. The delivered items must be carefully examined immediately after delivery to the client or to a third party designated by him. They are deemed to have been approved if the seller does not receive a written notice of defects regarding obvious defects or other defects that were recognizable during an immediate, careful inspection within five working days after delivery of the delivery item or otherwise within seven working days after the discovery of the defect or any earlier point in time , in which the defect was recognizable to the client during normal use of the delivery item without further inspection, was received in the manner specified in §2(2), sentence 6. Any transport damage must be reported to the respective transport company immediately. At the request of Morali GmbH, the delivery item in question must be returned to Morali GmbH freight prepaid.
3. In the event of material defects in the delivered items, Morali GmbH is initially obliged and entitled to repair or replace the item, at its discretion within a reasonable period of time. In the event of failure, i.e. the impossibility, unreasonableness, refusal or unreasonable delay of the repair or replacement delivery, the client can withdraw from the contract or reduce the purchase price appropriately in accordance with the legal requirements.
4. If a defect is due to the fault of Morali GmbH, the client can demand compensation under the conditions specified in §8.
5. In the event of defects in components from other manufacturers that Morali GmbH cannot remedy for licensing or factual reasons, the seller will, at his discretion, assert his warranty claims against the manufacturers and suppliers for the account of the client or assign them to the client. In the event of such defects, warranty claims against Morali GmbH only exist under the other conditions and in accordance with these general delivery conditions if the legal enforcement of the above-mentioned claims against the manufacturer and supplier was unsuccessful or is hopeless, for example due to insolvency. During the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the client against the seller is suspended.
6. The warranty is void if the client changes the delivery item or has it changed by a third party without the consent of Morali GmbH and this makes rectifying the defect impossible or unreasonably difficult. In any case, the client must bear the additional costs of correcting the defect resulting from the change.
7. A delivery of used items agreed with the client in individual cases is carried out under exclusion of any warranty for material defects.
§7 Property rights
1. In accordance with this §7, Morali GmbH guarantees that the delivery item is free of third-party industrial property rights or copyrights. Each contractual partner will immediately notify the other contractual partner in writing if claims are asserted against them due to the violation of such rights.
2. In the event that the delivery item infringes an industrial property right or copyright of a third party, Morali GmbH will, at its discretion and at its expense, modify or replace the delivery item in such a way that the rights of third parties are no longer violated, but the delivery item continues to be infringed fulfills contractually agreed functions, or provides the client with the right of use by concluding a license agreement. If he does not succeed in doing this within a reasonable period of time, the client is entitled to withdraw from the contract or to reduce the purchase price appropriately. Further claims for damages are excluded.
3. In the event of legal violations caused by products from other manufacturers delivered by Morali, Morali will, at its discretion, assert its claims against the manufacturers and sub-suppliers for the account of the client or assign them to the client. In these cases, claims against Morali GmbH only exist in accordance with this §7 if the legal enforcement of the above-mentioned claims against the manufacturers and suppliers was unsuccessful or, for example due to insolvency, is hopeless.
§8 Liability for damages due to negligence
1. The liability of Morali GmbH for damages, regardless of the legal basis, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tortious acts, is subject to the stipulations insofar as fault is involved this §8 restricted.
2. Morali GmbH is not liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a violation of essential contractual obligations. Essential to the contract is the obligation to deliver the delivery item on time and free of significant defects.
3. To the extent that Morali GmbH is fundamentally liable for damages in accordance with Section 8(2), this liability is limited to damages that Morali GmbH foresaw as a possible consequence of a breach of contract when concluding the contract or that it would have foreseen if it had exercised customary care must. Indirect damages and consequential damages that result from defects in the delivery item are also only eligible for compensation if such damage is typically to be expected when the delivery item is used as intended. The foreseeable, typically occurring damage is limited to the value of the respective order.
4. In the event of liability for simple negligence, Morali GmbH's obligation to pay compensation for property damage and resulting further financial losses is limited to an amount of EUR 5,000 per case of damage, even if it involves a breach of essential contractual obligations.
5. The above exclusions and limitations of liability apply to the same extent in favor of the bodies, legal representatives, employees and other vicarious agents of Morali GmbH.
6. If Morali GmbH provides technical information or provides advice and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.
7. The restrictions of this §8 do not apply to the liability of the Morali company due to intentional behavior, for guaranteed characteristics, due to injury to life, body or health or under the Product Liability Act.
§9 Retention of title
1. Morali GmbH reserves ownership of the delivered item until all claims arising from the business relationship have been paid in full.
2. Combining, mixing or processing the reserved goods is always carried out in the name and on behalf of Morali GmbH. However, this does not constitute any obligation on the part of Morali GmbH. If the goods are processed, mixed or combined with items that do not belong to Morali GmbH, then the company Morali GmbH acquires co-ownership of the new item in the ratio of the value of the reserved goods (purchase price plus VAT) to the other processed items .
3. The reserved goods must be treated with care. The client is obliged to maintain the reserved goods at his own expense, if necessary, and to adequately insure them at replacement value against the usual risks, in particular against fire, water and theft, and to provide proof of the conclusion of such insurance upon request. The client already assigns his claims for compensation from these insurance contracts to Morali GmbH. The assignment is hereby accepted by Morali GmbH.
4. If the client behaves in breach of contract, in particular in the event of late payment, a significant deterioration in the financial situation or the opening of insolvency proceedings, Morali GmbH is entitled to assert retention of title. In this case, Morali GmbH is entitled to enter the client's business premises and to take the reserved goods. If the customer does not fulfill his obligations, Morali GmbH has the right to withdraw from the contract.
5. If the client has an existing payment obligation from the business relationship, he must immediately notify in writing of the transfer of his registered office, the insolvency, the transfer of ownership of the delivered goods to his customers, seizures or other access by third parties and other impairments. In the event of access by third parties, the client must point out that the property is owned by Morali GmbH.
6. The client is entitled to resell the delivered goods in the normal course of business. The client hereby assigns to Morali GmbH all claims in the amount of the invoice amount of the delivered reserved goods that arise from the resale to a third party. Morali GmbH accepts this assignment.
7. The customer is entitled to collect the assigned claim. This collection authorization can be revoked at any time by Morali GmbH. The authority of Morali GmbH to collect the claim itself remains unaffected by this. The authorization to collect expires even without express revocation if the client defaults on payment and an application is made to open insolvency proceedings against his assets. In these cases, Morali GmbH is entitled to demand that the client immediately discloses the assigned claims and their debtors in writing, provides all information necessary for collection, hands over the associated documents and notifies third parties of the assignment. In order to secure the claims, Morali GmbH is entitled to disclose the assignment to the client's customers. The client is not entitled to further dispose of the delivered goods.
8. Morali GmbH undertakes to release the securities to which it is entitled if and to the extent that they exceed 20% of the claim to be secured. Release takes place at the request of the client.
§10 Final provisions
1. The place of jurisdiction for all possible disputes arising from the business relationship between Morali GmbH and the client is, to the extent legally permissible, Rottweil. Morali GmbH is also entitled to sue the client at his place of residence.
2. The relationships between Morali GmbH and the client are subject exclusively to the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods and other conventions on the international sale of goods is excluded.
3. The client acknowledges that Morali GmbH stores data from the contractual relationship in accordance with Section 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties if necessary for the fulfillment of the contract.