Terms and Conditions of Business (TCBs)
§ 1 Scope – object of agreement
(1) These General Terms and Conditions of Business (hereinafter referred to as ‘TCBs’) apply for delivery of goods in accordance with the agreement concluded between memon and the customer.
(2) Alternative, conflicting or additional General Terms and Conditions of Business – even when known – are not part of this agreement. The use of the TCBs of a commercial partner is expressly excepted. Any proposal for the inclusion of the customer’s TCBs will be rejected by memon. The following TCBs are an integral part of all legal relationships of memon, including where contracts are concluded over the internet. The customer consents to the inclusion of the terms of business in the contract upon placing an order, or upon the delivery of a legal declaration vis-á-vis memon in respect of the conclusion of a purchase contract relating to a memon product.
(3) These TCBs apply both to private individuals and to businesses, unless a differentiation is made between the two in the relevant clause.
§ 2 Offer and conclusion of contract – documents
(1) Offers presented by memon are without obligation. The right is reserved to make technical and other changes within reasonable bounds.
(2) The customer’s order constitutes a binding offer, which we can accept within four weeks by sending an order confirmation or by delivering the goods.
(3) Where the customer orders the goods by electronic means, the contract wording and these TCBs will be saved in reproducible form and at the customer’s request sent by email.
(4) In the case of orders for which the customer does not use the internet, the provisions of the German Civil Code (§§ 145 ff. Bürgerliches Gesetzbuch, BGB) shall apply for the conclusion of the contract, with the proviso that, taking into account sub-section 2, a purchase order fax and a fax response to the order confirmation are also sufficient to conclude the contract.
(5) memon retains the proprietary and intellectual property copyright in illustrations, drawings, calculations and other documents. This shall apply also for such written documents as are designated ‘confidential’. Before passing on such documents to any third parties, the customer shall require the express written approval of memon.
(6) The contract shall be concluded, for memon, on the condition that, in the event of incorrect or improper supply to memon itself, it shall not deliver or shall deliver only in part. In the event of non-availability or only partial availability of the goods and services, the customer will be informed immediately. Payment (if already made) will be refunded without delay.
(7) Insofar as they go beyond the written contract wording, any subsidiary agreements or verbal representations shall require confirmation in writing or email confirmation by memon in order to be valid.
§ 3 Usage rights
(1) The scope of supply and services and range of function of the goods, devices and programs delivered shall be as specified in the product descriptions valid upon conclusion of the contract. Any agreements in excess of this in specific cases, such as e.g. in respect of capacity, time response and compatibility, are dependent on the specific customer situation and must be expressly agreed in writing. The same shall apply for individual customer-specific modifications to the products or other special conditions of use. Technical changes and minor variations that do not result in any functional impairment (e.g. enhancements) are reserved.
(2) The customer receives an indefinite, non-exclusive right of use in respect of the software provided. He/she is authorised to use the software only for the purpose specified in the installation instructions for the memon product he/she has purchased. Duplication of the program (coding) is not permitted.
(3) In all other regards, in respect of the usage rights the mandatory provisions of the German Copyright Act (§§ 69 a ff. Urheberrechtsgesetz, UrhG) shall apply in addition.
§ 4 Prices and payment terms
(1) Subject to the provisions of sub-sections 3 and 4, the purchase price offered is binding. Vis-á-vis private individuals, VAT is included at the statutory rate.
(2) Where the customer is a business, we quote only the net price. The statutory VAT is therefore not included in the prices; it will be shown separately, in the statutory amount, in the invoice on the date of invoicing.
(3) Where the customer is a private individual, price changes are permitted if there is a period of more than four months between contract conclusion and agreed delivery date. If pay levels or materials costs change up to the delivery date, we are then entitled to make reasonable changes to the price commensurate with such cost increases or cost reductions.
(4) Where the customer is a business, the agreed price shall apply taking into account the following arrangements. If, at the time of the service provision, the price has increased due to a change in the market price or due to an increase in the payment required by third parties involved in providing the service, the higher price applies. If this is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be exercised immediately upon notification of the increased price.
(5) The purchase price must be paid within ten days of receipt of the goods and without cash discount, unless agreed otherwise. The statutory regulations in respect of the consequences of late payment and the payment of damages for delay in performance (§§ 280(2), 286 BGB) shall apply. For warning notices, memon can request a flat-rate sum of €10.00 / warning by way of reimbursement of expenses from the customer.
(6) The customer shall have the right to set-off only if his/her counterclaims have been established by a final judgement of a court, are undisputed or have been accepted by memon. Where the customer is a business, he/she is entitled to exercise a right of retention only if his/her counterclaim is based on the same contractual relationship.
§ 5 Time of performance and passing of risk
(1) If delivery periods have been specified by memon and have been made the basis for the contract award, such periods shall extend in the event of strike and cases of force majeure, with such extension being for the duration of the delay. The same applies if the customer fails to comply with any obligations to cooperate.
(2) Where the customer is a business, delivery ex factory is stipulated, unless a different arrangement ensues out of the order confirmation.
(3) Including in the case of mail order purchase, the risk of the accidental loss and the accidental deterioration of the goods sold shall pass to the user upon the delivery of the goods. The same consequences arise if the buyer is in default in accepting delivery.
§ 6 Right of withdrawal
(1) A customer who is a private individual shall have the right to withdraw his/her declaration of intent to conclude the contract within two weeks of receipt of the goods. The notice of withdrawal need not contain any statement of grounds and is to be communicated to memon in textual form or by returning the goods; dispatch in a timely manner shall be sufficient to meet the deadline. The withdrawal notice is to be sent to: memon® bionic instruments GmbH, Oberaustraße 6a, 83026 Rosenheim, email: firstname.lastname@example.org, telephone 08031 - 402 200, fax: 08031 - 402 222.
(2) In the event of withdrawal being effected, the products and services received on both sides, and any benefits derived (e.g. interest), are to be returned.
(3) If the customer is unable, in full or in part, to return the goods or services received, or if he/she can return them only in a deteriorated state, he/she must compensate memon for any loss in value. This does not apply if the deterioration can be attributed exclusively to inspection of the goods, such as the customer could reasonably have conducted in a retail outlet. In all other respects, the customer can avoid the obligation to replace the value by not making use of the merchandise as if he/she were its owner and by refraining from any action that might reduce its value.
(4) Goods that are suitable for dispatch by parcel are to be returned at the cost and risk of memon. Return shipment is free of charge. Goods that are unsuitable for dispatch by parcel will be collected from the customer.
§ 7 Liability for defects
(1) Where the customer is a private individual, if a defect is present memon shall be liable in accordance with the statutory provisions, unless any restrictions ensue from the following. The user shall notify memon in writing of obvious defects within two weeks of the appearance of the defect. If the notification is not made within the above period, the warranty rights expire. This does not apply if memon fraudulently concealed the defect, or furnished a guarantee for the appearance and workmanship of the goods.
(2) The customer receives no guarantees in the strict legal sense from memon.
(3) Where the customer is a business, memon reserves the right to select the type of subsequent performance in the case of a defect.
(4) Where the customer is a private individual, the period of limitation for warranty claims where items have been delivered new is two years; for used items it is one year. This period begins upon the passing of risk. The preceding does not apply if claims for compensation are involved. For claims for compensation, the arrangements in § 8 apply.
(5) If the customer is a business, the warranty period for defects is one year in all cases. This period begins upon the passing of risk. This shall not affect the period of limitation for recovering from the supplier as provided for under §§ 478, 479 BGB. The preceding does not apply if claims for compensation are involved. For claims for compensation, the arrangements in § 8 apply.
(6) The warranty liability of memon is limited to direct defects to the subject of the contract itself. Memon is therefore not liable for indirect losses (consequential damages), in particular for loss of profit or other financial losses. This exclusion of liability does not apply if the damage was caused by memon deliberately or due to grossly negligent behaviour.
§ 8 Liability for damage
(1) Memon’s liability for violations of contractual obligations and in tort is limited to deliberate act and gross negligence. This does not apply for loss of life, physical injury or damage to health suffered by the customer or claims due to the breach of cardinal obligations and claims for compensation for loss caused by delay (§§ 280(2), 286 BGB). In these respects, memon shall be liable for all degrees of fault.
(2) The above exclusion of liability also applies for slightly negligent breaches of obligations committed by vicarious agents of memon.
(3) Insofar as liability for damage that is not based on loss of life, physical injury or damage to health suffered by the customer is not excluded for slightly negligent behaviour, such claims shall become time-barred within one year beginning from the origination of the claim, and/or where a claim for damages is due to a defect, from the handing over of the item.
(4) To the extent that memon’s liability for damages is excluded or limited, this applies also in respect of the personal liability for damages of the officers, employees, staff, representatives and vicarious agents of memon.
§ 9 Retention of title
(1) For contracts with private individuals, memon shall retain title in the purchase object until the purchase price has been paid in full.
(2) If the customer is a business, memon shall retain title in the goods until all claims against the customer have been fulfilled, including where the actual goods have already been paid for.
(3) The customer shall notify memon immediately of any acts of distraint by third parties in respect of the goods subject to reservation of ownership, and provide us with the documents necessary for an intervention; this applies also for unfavourable acts or circumstances of any other nature. Independently of this, the customer shall advise such third parties of the existing rights in the goods at an early stage in advance of notifying memon. Where the customer is a business, he/she shall bear the costs of any intervention by memon, if the third party is not able to repay these costs.
(4) In the event of the resale/leasing of the goods subject to reservation of ownership, where the customer is a business he/she shall assign to memon by way of security all receivables due from his/her own customers in connection with these transactions, already at this point and until all claims of memon have been fulfilled. In the event of any processing of the goods subject to reservation of ownership, their modification or their incorporation into another item, we gain direct title to the object produced. This shall then be considered goods subject to reservation of ownership.
(5) If the value of the security exceeds memon’s claims against the customer by more than 20%, memon may, at the customer’s request and at its own discretion, release securities owing to memon in the corresponding amount.
§ 10 Limitation of memon’s own claims
The period of limitation for the claims of memon is as per the general statutory provisions (§§ 195 ff. BGB), unless a different arrangement has been agreed in the contract between the customer and memon.
§ 11 Form of declarations
Legally relevant declarations and notifications which the customer is required to submit to memon or to a third party in connection with the formation of the contract or its performance must be in written form. This applies also for the waiver of the above formal requirement.
§ 12 Place of performance – choice of law – place of jurisdiction
(1) Unless an alternative arrangement is specified in the contract, the place of performance is the registered office of memon.
(2) This contract is subject to the law of the Federal Republic of Germany. This does not apply where specific consumer protection legislation is more favourable in the home country of the customer (Art. 29 German Civil Code (Introduction) Act, Einführungsgesetz zum Bürgerlichen Gesetzbuche, EGBGB).
(3) If the customer is a business, German law shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods and German private international law.
(4) If the customer has no place of general jurisdiction in Germany or in another EU Member State, exclusive place of jurisdiction for all disputes under this contract shall be the registered office of memon.
(5) For contracts with merchants, bodies corporate under public law or bodies with special assets under public law, the court of memon’s registered office is the exclusive place of jurisdiction. .
§ 13 Final provisions
(1) The customer expressly consents to the collection, processing and use of personal data. He/she has the right to withdraw this consent at any time with effect for the future.
(2) Should certain provisions of the contract with the customer, including these General Terms and Conditions of Business, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The provision(s) which is/are invalid in whole or in part shall be replaced by a provision, the economic success of which corresponds as closely as possible to that of the invalid provision(s). The parties undertake to reach an appropriately effective arrangement.