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J. MORITA EUROPE GMBH
D-63128 Dietzenbach, Germany
Commercial register: Offenbach am Main, HRB 9671
1. Scope of application
(1) The following terms of delivery and payment (hereinafter: General Terms and Conditions) apply for all contracts concluded between the purchaser and Morita in relation to the sale and delivery of movable items (hereinafter: goods). They also apply for all future business relationships, including where not expressly agreed.
(2) These General Terms and Conditions apply exclusively. Deviating, contradictory or supplementary general terms and conditions of the purchaser or third parties will only be deemed an integral component of the contract insofar as Morita has expressly agreed to such. This requirement of consent applies in all cases; including, for example, where Morita unconditionally fulfils the purchaser’s order in awareness of the purchaser’s general terms and conditions. Even where Morita refers to correspondence containing the purchaser’s terms and conditions or draws attention to such, this shall not constitute any form of agreement regarding application of the terms and conditions in question.
(3) Specific, individually established agreements with the purchaser (including ancillary agreements, supplements and amendments) have priority over these General Terms and Conditions in all cases. In terms of the content of any such agreements, a written contract or written confirmation from Morita shall be authoritative.
(4) Statements and notifications of legal relevance to be submitted to Morita by the purchaser following contract conclusion (such as deadlines, notice of defects, notifications of withdrawal or reduction of the purchase price) are required in writing for validity.
(5) References to the applicability of statutory provisions are purely for the purpose of clarification. Accordingly, insofar as not actually amended or expressly precluded under these General Terms and Conditions, all respective statutory provisions also apply without such clarification.
2. Conclusion of contract
(1) All offers provided by Morita are non-binding and subject to change, save for where expressly designated as binding. This also applies where Morita has furnished the purchaser with catalogues, technical documentation (for example, drawings, plans, calculations, references to DIN standards, models and/or samples), or other product specifications or documents – including in electronic form.
(2) The ordering of goods by the purchaser is deemed a binding contractual offer. Insofar as not otherwise stipulated in the order, Morita is entitled to accept this contractual offer within two weeks following receipt.
(3) Acceptance may be confirmed either in writing (for example, by order acknowledgement) or through dispatch of the goods to the purchaser.
(4) Morita retains its legal titles, copyrights and other property rights pertaining to all illustrations, drawings, and other documentation. The purchaser may only forward such to third parties following written approval by Morita, regardless of whether or not Morita has marked the document in question as confidential. At the behest of Morita, the purchaser will return such items in their entirety to Morita and destroy any commensurate copies no longer required by the purchaser in the ordinary course of business or where negotiations do not result in a conclusion of contract.
3. Price and terms of payment
(1) In the absence of alternative agreement in the individual case, the Morita prices valid at the time of conclusion of contract apply, ex warehouse, plus statutory value added tax and any applicable packaging costs; in the case of exported deliveries, also plus any applicable customs duties and fees or other official charges. Morita will separately show the statutory value added tax due on the invoice date in the invoice.
(2) In the case of sales to destination according to purchaser's instruction as per Section 5 (2) below, the purchaser is responsible for transport costs ex warehouse and the cost of any transport insurance desired by the purchaser. The purchaser will also pay any customs duties, fees, taxes and other official charges. In accordance with the German Packaging Ordinance, Morita will not accept the return of transport packing or other packaging as this becomes the property of the purchaser, whereby pallets represent an exception to this rule.
(3) Minimum quantity surcharge: For orders with a net value of less than EUR 100.00, Morita will charge a minimum quantity surcharge of EUR 35.00 plus value added tax at the statutory applicable rate.
(4) In the absence of alternative written agreement, the purchase price is due and payable within 30 days of invoicing and delivery or acceptance of the goods. Payment shall only first be deemed settled once the amount in question is available to Morita (date of payment receipt at Morita).
(5) Upon expiry of the aforestated payment period, the purchaser will be deemed in default. For the period of default, the purchase price will incur interest at the applicable statutory default interest rate. Morita also reserves the right to claim for additional damages resulting from default. In the case of mercantile traders, Morita’s right to claim commercial default interest in accordance with Section 353 of the German Commercial Code (HGB) remains without prejudice.
(6) SEPA DIRECT DEBIT MANDATE
Morita will grant the purchaser a 3% discount where the purchaser furnishes Morita with a direct debit authorisation in the form of a SEPA direct debit mandate (SEPA standard direct debit or SEPA B2B direct debit). Accounts will be debited 10 days after invoicing and delivery or acceptance of goods. The period of advance notice for direct debits is hereby agreed to be five days in the first instance, reducing to two days for subsequent debits.
(7) The purchaser is only entitled to offset insofar as the claim is judicially non-appealable or uncontested. The purchaser may only exercise a right of retention where its counterclaim is based on the same contractual relationship. In the case of a defective delivery, the counter-rights of the purchaser, particularly in accordance with Section 7 (3) sentence 2 of these General Terms and Conditions, remain without prejudice.
(8) Following conclusion of contract, should it become evident that Morita’s claim to the purchase price is at risk due to lack of performance on the part of the purchaser (for example, due to an application to open insolvency proceedings), in accordance with statutory provisions Morita is entitled to withhold performance and – subject to any applicable period of notice – withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of customised goods (one-off items/custom-made products), Morita is entitled to withdraw with immediate effect, whereby statutory provisions on the dispensability of setting deadlines remain without prejudice.
4. Delivery period and default on delivery
(1) The delivery period will be agreed on an individual basis or stated by Morita within the scope of the order acknowledgement. Should this not be the case, the delivery period is four weeks from conclusion of contract.
(2) Insofar as consignment is agreed, delivery periods and times will relate to the point in time the goods pass to the shipping agent, carrier or other third party tasked with transport.
(3) The occurrence of default in delivery is determined in accordance with statutory regulations. The purchaser is however required to issue a reminder in each case.
(4) Morita shall not be responsible for impossibility of delivery or delivery delays insofar as resulting from force majeure or other events not foreseeable at the time of contract conclusion (for example, breakdowns of any kind, material procurement difficulties, transport delays, strike, legitimate lockout, shortage of labour, power or raw materials, difficulties in obtaining the requisite official approvals, official action, or failure on the part of Morita suppliers to deliver to Morita correctly and on-time) for which Morita or its suppliers (in the case of untimely delivery to Morita) are not responsible. Should such events significantly hamper Morita in terms of delivery or performance or render such impossible and where the hindrance in question is not merely of a temporary nature, Morita will be entitled to withdraw from the contract. In any such case, the purchaser will be notified immediately that the ordered goods are unavailable. Any commensurate payment already effected by the purchaser will be refunded without delay. In the case of hindrances of a temporary nature, the delivery and performance periods will extend for the time of the hindrance, plus an appropriate restart period. Insofar as the purchaser cannot be expected to accept the delivery or performance as a result of the delay, the purchaser will be entitled to withdraw from the contract by promptly submitting a commensurate written statement to Morita.
(5) Any further liability for default in delivery occasioned by Morita is precluded. Notwithstanding this, the rights of the purchaser pursuant to Section 8 (Liability) of these General Terms and Conditions as well as the rights of Morita, particularly regarding exclusion of the performance obligation (for example, due to impossibility or unreasonableness of performance and/or subsequent performance) remain without prejudice.
5. Delivery, transfer of risk, acceptance, default in acceptance
(1) Delivery is effected ex warehouse. Place of performance for deliveries and payment is Morita’s registered office in 63128 Dietzenbach, Germany.
(2) Insofar as not otherwise stated in the order acknowledgement, delivery will be effected ex warehouse. At the request and cost of the purchaser, the goods can also be consigned to another destination specified by the purchaser (sale to destination according to purchaser's instruction). Insofar as not otherwise agreed, Morita is entitled to determine the nature of consignment (particularly in terms of transport companies, shipping route, packaging).
(3) Morita may effect part deliveries and partial performance at any time where
- part delivery is applicable for the purchaser within the scope of the contractually intended purpose,
- no considerable extra expense or additional costs are incurred by the purchaser (save for where Morita confirms its willingness to bear any such costs).
(4) The risk of accidental loss or accidental deterioration of the goods passes to the purchaser at the latest upon transfer. However, in the case of sale to destination according to purchaser's instruction, the risk of accidental loss or deterioration of the goods and the risk of delay transfer upon surrender of the goods to the shipping agent, carrier or person or organisation otherwise tasked with consignment (whereby the start of the loading process is definitive). Insofar as acceptance has been agreed, this shall be authoritative in terms of the transfer of risk. Transfer and acceptance shall be deemed effected where the purchaser is in default in acceptance.
(5) Should the purchaser default in acceptance, fail to cooperate, or where delivery is delayed for other reasons occasioned by the purchaser, Morita will be entitled to require compensation for the resulting damage, including additional expenses (for example, warehousing costs). To this end, Morita will apply a flat-rate compensation payment of 0.5% of the net price (delivery value) for each full calendar week, up to a maximum of 5% of the delivery value of the goods being warehoused in the case of definitive non-acceptance, commencing upon the delivery date or – in the absence of such – upon notification of readiness of the goods for consignment. The right to furnish evidence of greater damage as well as statutory claims (particularly reimbursement of additional expenses, adequate compensation, cancellation) remain without prejudice, whereby the flat-rate fee is, however, to be offset against any additional monetary claims. The purchaser remains at liberty to demonstrate that Morita has not actually incurred any damage or has only incurred damage to a considerably lower level than the above-stated flat-rate fee.
6. Retention of title
(1) The delivered goods (goods subject to a retention of title – reserved goods) remain the property of Morita until the settlement of all claims, including all current account balances, owed by the purchaser to Morita on the basis of outstanding and future receivables arising from the purchase contract. In the event of conduct not conforming to the contract on the part of the purchaser, such as default in payment, following an appropriate period of advance notice Morita will be entitled to recover the reserved goods. Recovery of the reserved goods by Morita will represent a withdrawal from the contract (enforcement event). Should Morita assert a levy of execution on the reserved goods, this shall also amount to withdrawal from the contract. Morita is entitled to exploit the reserved goods following recovery. Following the deduction of an appropriate amount for the cost of exploitation, the proceeds from exploitation are to be offset against the amounts owed to Morita by the purchaser.
(2) The purchaser is to handle the reserved goods with care and is to adequately insure such goods against fire, water damage and theft for value as new at its own cost.
(3) Up until the instance of an enforcement event, the purchaser is entitled to duly dispose of and/or use the reserved goods within the ordinary course of business, provided the purchaser is not in default on payment. Pledging or assignment as security is not permissible. As a precautionary measure, the purchaser hereby assigns all receivables to Morita in their entirety (including all current account balance claims) that ensue from resale or other legal basis (insurance, tortious action) pertaining to the reserved goods; whereupon Morita hereby accepts the said assignment. Morita revocably authorises the purchaser to collect the receivables assigned to Morita for its account in its own name. The authorisation to collect may be withdrawn at any time in the event of failure on the part of the purchaser to fulfil its payment obligations. The purchaser is also not authorised to assign these receivables for the purposes of collection of accounts receivable by way of factoring, save for where an obligation is simultaneously imposed upon the factor to effect counter-performance directly to Morita to the value of the receivables for as long as receivables payable to Morita remain against the purchaser.
(4) In the event of third-party attack on the reserved goods, particularly levies of execution, the purchaser will allude to the ownership of Morita and notify Morita accordingly without delay in order that Morita may exercise its rights of ownership. To the extent that the third party in question is unable to reimburse Morita for any judicial or out-of-court costs incurred, the purchaser shall bear responsibility for such.
(5) Morita is obliged to release collateral security afforded to it in the event that the realisable value of Morita's collateral security exceeds the receivables being secured by more than 10%, whereby Morita is at liberty to select the commensurate securities for release.
(1) Purchaser claims for defects will exist solely where the purchaser has duly fulfilled its obligations for inspection and notification of defects imposed in accordance with Section 377 of the German Commercial Code (HGB).
(2) In the event of legitimate notification of defects, to the preclusion of purchaser rights, Morita shall be obliged to withdraw from the contract, reduce the purchase price (reduction) or effect subsequent performance, save for where Morita is entitled to refuse subsequent performance on the basis of statutory regulations. The purchaser shall grant Morita a reasonable period to effect subsequent performance, which may take the form of elimination of the defect (rectification) or delivery of new goods as the purchaser so chooses.
(3) Morita may make due subsequent performance conditional upon payment of the outstanding purchase price by the purchaser. The purchaser is, however, entitled to withhold an appropriate part of the purchase price in proportion to the extent of the defect.
(4) Morita will bear necessary expenses in the case of rectification of the defect, insofar as such costs are not increased due to the contract object being located in a place other than the place of performance.
(5) Should subsequent performance be unsuccessful, the purchaser may require a reduction of the purchase price (reduction) or declare its withdrawal from the contract as it so chooses. Subsequent performance will be deemed unsuccessful where the second attempt at subsequent performance fails, insofar as further attempts at subsequent performance are not deemed suitable for the nature of the contract object or reasonable for the purchaser.
(6) Claims for compensation under the following terms due to the defect may only first be asserted by the purchaser where subsequent performance has failed. The right of the purchaser to assert further claims for compensation under the following terms remains without prejudice herefrom.
(7) Warranty claims on the part of the purchaser will be barred by limitation one year after delivery of the goods to the purchaser, save for where Morita maliciously failed to disclose the defect; in such cases, statutory regulations will apply. Obligations pursuant to Sections 8 (4) and (5) below remain without prejudice herefrom.
(1) Irrespective of the limitations of liability stated above under Section 7 (Warranty) and in the following, Morita bears liability in accordance with the pertinent statutory provisions for injury to life, body and health resulting from any negligent or intentional breach of obligation on the part of Morita, its legal representatives or vicarious agents, as well as for damages encompassed under liability in accordance with the German Product Liability Act (Produkthaftungsgesetz). In respect of damages not covered under sentence 1 that result from any intentional or grossly negligent breach of obligations or malicious intent on the part of Morita, its legal representatives or vicarious agents, Morita bears liability in accordance with the pertinent statutory provisions. In such cases, liability for damages is limited to actual foreseeable loss that is typical for the contract, insofar as Morita, its representatives or vicarious agents have not acted with (wrongful) intention. To the extent that Morita has provided a quality and/or durability guarantee in relation to the goods or parts thereof, Morita will also bear responsibility within the scope of the said guarantee. In respect of damages resulting from a lack of the guaranteed quality or durability that do not directly occur on the goods, Morita will bear responsibility solely where the risk of such damage is evidently covered by the quality and durability guarantee.
(2) Morita also bears liability for damages resulting from an ordinary negligent breach by Morita of such contractual obligations, the performance of which facilitate due and proper implementation of the contract in the first place and the observance of which the purchaser should regularly be able to rely upon and trust. However, Morita shall only bear responsibility insofar as the damage in question is foreseeable and typically associated with the contract.
(3) Any further liability without consideration of the legal nature of the asserted claim is precluded, whereby this also specifically applies for tortious claims and claims for reimbursement of futile expenses in place of performance; liability on the part of Morita as per Section 4 (Delivery period and default on delivery) of this contract remains without prejudice herefrom. To the extent that liability on the part of Morita is precluded or restricted, the same also applies regarding the personal liability of any of Morita's employees, representatives or vicarious agents.
(4) Claims for compensation on the part of the purchaser due to defects shall be barred by limitation one year from delivery of the goods. In the event of injury to life, body or health caused by Morita, its legal representatives or vicarious agents, or in the event of maliciously intentional or grossly negligent conduct by Morita or its legal representatives, or in the event of maliciously intentional conduct by Morita's ordinary vicarious agents, the statutory periods of limitation will apply with respect to claims for compensation by the purchaser.
(5) Liability in accordance with the German Product Liability Act (Produkt-haftungsgesetz) remains without prejudice (Sections 1, 14 of the German Product Liability Act).
9. Applicable law/legal venue/binding effect
(1) This contract is subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) is excluded.
(2) Where the purchaser is a business entity, legal person under public law, special fund under public law, or has no general legal venue in the Federal Republic of Germany, the legal venue for all disputes arising directly or indirectly from the contractual relationship shall be Morita's place of business in Dietzenbach. Morita is nonetheless also entitled to proceed against the purchaser at the purchaser's domicile and/or place of business. Compulsory statutory regulations pertaining to exclusive legal venues remain without prejudice from this provision.
(3) Should any individual provisions of these terms and conditions be or become wholly or partly inoperative or unworkable or where gaps are identified in the provisions, the validity of all other provisions will remain without prejudice therefrom.
(4) The contract language is German.
(5) Only the German version of these terms and conditions is binding.