§ 1 Scope and general information
These General Terms and Conditions (GTCs) are an integral part of all contracts that MIM concludes with its contract partners regarding the deliveries and services provided by MIM. They also apply to all future contracts concluded with the same contract partner, without the need to reconfirm their validity in each individual case.
These GTCs apply to the exclusion of all others. Deviating, contradictory or supplementary GTCs provided by the contract partner shall only become part of the contract to the extent that their validity is expressly agreed to in writing by MIM. This approval requirement also applies if MIM is aware of the contract partner's GTCs and executes the deliveries or services without reservation.
All proposals submitted by MIM are non-binding and subject to confirmation. A written contract or written confirmation by MIM is binding for the content of individual agreements with the contract partner.
Legal declarations and notices to be submitted by the contract partner after the conclusion of the contract (e.g. deadlines, notifications of defects, declaration of withdrawal or reduction), must be made in writing (e.g. email, fax) to be effective.
§ 2 Delivery and service
Goods shall be delivered from MIM's registered office, which is also the place of fulfillment. At the contract partner's request, the goods shall be shipped to a different destination, for which the contract partner shall bear both the cost and the risk (sale involving carriage of goods). In all other respects, the risk of the accidental loss or deterioration of the goods, including for partial performances, shall pass to the contract partner no later than at the time the goods are transferred, or on provision of the delivery notification in default of acceptance. Storage costs that arise after the risk has been transferred shall be borne by the contract partner.
Performance periods and deadlines are always non-binding, unless their binding nature has been expressly agreed. If the goods are shipped, the time point at which the goods are transferred to the carrier is definitive.
If MIM is not able to comply with binding deadlines due to circumstances for which it is not responsible (non-availability of the service), the performance periods/deadlines shall be extended/postponed by the period of the impairment plus an appropriate start-up period. If the service remains unavailable during this period, MIM is entitled to partially or completely withdraw from the contract; MIM shall immediately reimburse any consideration already paid by the contract partner. Non-availability of a service in this respect also relates to delayed delivery from our suppliers, if MIM has concluded a corresponding supply agreement. MIM shall also be entitled to withdraw from the contract, if, due to a circumstance for which MIM is not responsible, a service can only be provided with unreasonable difficulties. The contract partner's withdrawal and termination rights in accordance with these General Terms and Conditions and the law remain unaffected.
If permitted by the type of performance, MIM is entitled to provide partial performances, if this is useful for the contract partner within the scope of the intended contractual use without additional expense, and the outstanding partial performance is ensured.
§ 3 Prices and terms of payment
Unless otherwise agreed in each individual case, the MIM prices applicable at the time of conclusion of the contract, or, if more than 4 months have passed since the contract was concluded, the prices applicable at the time of performance shall apply; this particularly applies if they are taken from existing price lists.
Invoice amounts are payable within 14 days of performance and invoicing, without reduction, in the agreed currency. Any costs for the transaction shall be borne by the contract partner. The receipt of payment by MIM, or the final credit entry in case of a check, is decisive for the time of fulfillment.
If, after the conclusion of the contract, circumstances occur, which make it apparent that MIM's receivables may be threatened, MIM shall be entitled to demand pre-payment or security before providing any further deliveries or services.
The contract partner shall not have any set-off rights or rights of retention, unless their claim is legally binding or undisputed.
§ 4 Warranty
The statutory provisions shall apply for the contract partner's rights in the event of material defects and defects of title, unless otherwise agreed below. The warranty is primarily based on the agreement reached relating to the condition of the goods. Agreements on the condition of the goods particularly include product descriptions, which are part of the individual contract.
The warranty period lasts for a year from the date of performance. This period of limitation also applies to contractual and non-contractual compensation claims made by the contract partner, which are based on defective performance. The periods of limitation defined in the Product Liability Act remain unaffected in any case.
Goods delivered by MIM must be carefully inspected immediately after delivery to the contract partner or an assigned third party. They are deemed to have been accepted if MIM has not received a written notification of defects due to obvious defects or other defects which were identified as part of an immediate and careful inspection within five working days of delivery or within five working days of discovery of the defect or the time the defect was discovered by the contract partner as part of the normal use of the goods without further investigation. If a defect rectification request made by the contract partner turns out to be unjustified, and the contract partner was aware, or should have been aware, of the non-existence of the defect, MIM may demand that the resulting costs be reimbursed by the contract partner. If a defect is present, MIM is initially entitled and obliged to rectify the defect or provide a replacement delivery at their discretion. The contract partner must return the goods for which a complaint has been raised to MIM at MIM's request. The supplementary performance does not include the removal of the defective product, nor a re-installation, unless MIM was originally obliged to install the product. In the event of the definite failure of the supplementary improvement, the contract partner is entitled to withdraw from the contract or demand a reduction. Compensation claims made by the contract partner are only considered in accordance with the following § 5.
Defects are not accepted for disposable products after they have been used once and otherwise in the event of improper use or handling, incorrect storage, installation or commissioning and natural wear.
§ 5 Liability
MIM is liable for compensation in the event of intent and gross negligence, regardless of the legal basis. In the event of simple negligence, MIM is only liable
a) for damages resulting from the loss of life, physical injury or damage to health,
b) for damages resulting from the breach of a major contractual obligation (obligation, whose fulfilment makes it possible to properly implement the contract in the first place and on whose compliance the contract partner can normally rely).
If MIM is liable for compensation, this compensation is limited to damages that MIM anticipated as a possible consequence of a breach of contract on conclusion of the contract, or, depending on the circumstances, of which MIM was aware or should have been aware, or which MIM should have anticipated if they had applied due care and diligence. Indirect damages and consequential damages, which result from performance defects, are also only liable for compensation, if these damages are to be typically expected in the event of the intended use of the performance/deliverable.
The above limitations of liability do not apply if MIM fraudulently conceal a defect or if they have provided a guarantee for the condition of the goods. The same applies to claims based on the Product Liability Act.
§ 6 Reservation of title
MIM remains the owner of all delivered goods until payment of all, including future, receivables from the business relationship with the contract partner, including all current account balance claims.
If the contract partner breaches the contract, especially if they are in default of payment, MIM is entitled to repossess the goods subject to reservation of title once MIM has provided an adequate grace period. The contract partner shall bear the transport and other costs associated with the return of the goods. If MIM repossesses the goods subject to the reservation of title, this represents a withdrawal from the contract. The seizure of goods subject to the reservation of title by MIM also represents a withdrawal from the contract.
At MIM's request, the contract partner is obliged to mark the goods delivered subject to the reservation of title, and/or store these goods separately. The contract partner shall store the goods for MIM free of charge. The contract partner must treat the goods subject to the reservation of title with care and insure the goods within the usual scope at their expense; however, the insurance must at least provide cover for fire, storm, water and theft damages at the original value. The contract partner must provide evidence of this insurance cover at MIM's request. The contract partner hereby assigns their claims to which they are entitled from the insurer and/or other third parties in connection with the goods subject to the reservation of title to MIM, up to the value of MIM's share in the goods subject to the reservation of title. MIM hereby accepts this assignment. The above obligations also apply if the goods subject to the reservation of title are mixed with other goods.
The contract partner may use the goods subject to the reservation of title, which they have purchased for the purpose of direct resale, or for the purpose of connection or processing and subsequent resale, and resell these goods as part of normal business operations, if they are not in default of payment. However, if the goods subject to the reservation of title are not intended for direct resale or for processing with subsequent resale, the goods cannot be resold without MIM's prior consent. The resale of the goods is also not permitted if the resulting receivable is included in earlier dispositions by the contract partner in favor of third parties, such as a blanket assignment. The contract partner is not permitted to pledge the goods subject to the reservation of title or assign the goods by way of security.
The contract partner hereby assigns all of their payment claims towards their customers from the resale of the goods subject to the reservation of title, including all ancillary and security rights, as well as the contract partner's receivables relating to the goods subject to the reservation of title, to which they are entitled from their customers or third parties for another legal reason (especially tortious liability and claims to insurance benefits), and also including all current account balance claims, to MIM. MIM hereby accepts this assignment. The contract partner may collect the receivables assigned to MIM for their account and in their name for MIM, unless MIM revokes this authorization. This does not affect MIM's right to independently collect these receivables. However, MIM shall not claim the receivables or revoke the collection authorization as long as the contract partner meets their payment obligations in an orderly manner. However, if the contract partner breaches the contract, especially if they default on the payment of an account receivable, MIM may demand that the contract partner disclose their assigned receivables and the respective debtors, that they inform the respective debtors of the assignment and submit all documents and provide any information that MIM requires to enforce the receivable. The contract partner is also not entitled to assign these receivables in order to include these in factoring, unless the factor is irrevocably obliged to pay the consideration directly to MIM for as long as they remain entitled to receivables from the contract partner.
Any processing, mixing or conversion of the goods subject to the reservation of title performed by the contract partner always takes place on behalf of MIM. If the goods subject to the reservation of title are processed with other goods owned by third parties, MIM shall acquire joint ownership of the new product in proportion to the value of the goods subject to the reservation of title (invoice amount plus statutory value added tax) to the other processed goods at the time of processing. In all other respects, the same provisions apply for the new product produced as a result of processing, as applies for the goods subject to the reservation of title. If the goods subject to the reservation of title are connected or mixed with other goods that do not belong to MIM, MIM shall acquire joint ownership of the new product in relation to the proportional value of the goods subject to the reservation of title (invoice amount plus statutory value added tax) to the other connected or mixed goods at the time of connection or mixing. If the goods subject to the reservation of title are connected or mixed so that the contract partner's product is considered to be the main product, the contract partner and MIM hereby agree that the contract partner shall transfer proportional joint ownership of this product to MIM. MIM hereby accepts this transfer. The contract partner shall store the resulting sole ownership or joint ownership to a product for MIM as defined in the third paragraph in this section.
If the goods still owned by MIM are sold with a third party's goods subject to the reservation of title in a single transaction, the assignment of the receivables to MIM as a result of the sale is limited to the invoice value of MIM's goods subject to the reservation of title at the time of resale by the contract partner. The same applies for a resale after mixing with external goods subject to the reservation of title and in cases in which the contract partner uses the goods to fulfill contracts for work and services.
If requested by the contract partner, MIM is obliged to release the securities provided to the extent that their realizable value exceeds the value of their outstanding receivables from the contract partner by more than 20%. However, MIM may choose the securities that are to be released.
In the event of seizures of the goods subject to the reservation of title by third parties, or in the event of other interventions by third parties, the contract partner must immediately disclose MIM's ownership and communicate this to MIM in writing, so that MIM is able to enforce their rights of ownership. If the third party is unable to reimburse MIM in connection with resulting court or out-of-court costs, the liability for these costs shall pass to the contract partner.
The above provisions apply accordingly for international deliveries, if this is permitted in accordance with the law in whose jurisdiction the goods subject to the reservation of title are located. If this jurisdiction does not permit a reservation of title but permits the reservation of other rights to the goods, this reservation shall apply in full. The contract partner is obliged to cooperate in all measures that are taken to protect MIM's right of ownership of the goods, or the right that takes its place.
§ 7 Reservation of rights/Confidentiality
MIM reserves all rights to confidential information and surrendered documents and other carrier media, which are not part of the object of purchase, provided to the contract partner as part of the contractual relationship, regardless of the type, including all property rights, copyrights and usage rights and the right to register trademark rights or other industrial property rights, regardless of the type. The transfer of confidential information to the contract partner as part of the contractual relationship does not grant any property, licensing, usage or other rights unless deviating agreements are made in each individual case.
The contract partner must treat all confidential information of which they become aware as part of the contractual relationship, as strictly confidential and must not forward this to third parties or allow this information to be accessed in any other way, and they must take appropriate precautionary measures to protect the confidential information. The contract partner may only use confidential information for the purpose for which it is intended by the contractual relationship.
At MIM's request, the contract partner must return, destroy or delete all documents and other carrier media (which are not part of the object of purchase) transferred to the contract partner at MIM's discretion, unless the contract partner is obliged to store the information based on a ruling by a competent court or authority, or other establishment or the information can only be returned, destroyed or deleted at an unreasonably high expense.
§ 8 Miscellaneous
The law of the Federal Republic of Germany applies to this GTC and all legal relationships between the contract partner and MIM, to the exclusion of all international and supranational (contract) law regulations, especially the UN Convention on Contracts for the International Sale of Goods.
The exclusive, including international, place of jurisdiction for all disputes directly or indirectly connected with the contractual relationship is MIM's registered office in Hamburg. However, MIM is also entitled to institute proceedings at the contract partner's general place of jurisdiction.