Definitions

The following terms have the following meanings in these General Terms and Conditions:

1.   Scope of application

These General Terms and Conditions shall apply to use vis-à-vis:

• a natural person who, when concluding the contract, is performing their business in their commercial or self-employed capacity (an entrepreneur under Section 14 of the German Commercial Code (BGB)); and
• legal entities under public law or a special fund under public law.

If individual provisions set out in the individual agreement concluded by and between the Customer and Memmert conflict with these terms and conditions, such provisions set out in the individual agreement shall take precedence. The other provisions set out in the Terms and Conditions shall remain in force.

These terms and conditions shall apply to every agreement concluded by and between MEMMERT and its customers to regulate the sale/purchase of goods, the provision of equipment, spare parts and accessories, and the provision of services and ancillary services.

2.   Offers, delivery, delay

2.1 Offers issued by MEMMERT are non-binding. In other words, MEMMERT reserves the right to accept a subsequent offer from the Customer.

2.2 Orders shall only be deemed accepted when confirmed in writing by MEMMERT after the Parties have reached a consensus on all points that an agreement is to be reached on in accordance with the declaration of even just one Party.

2.3  MEMMERT shall not verify the accuracy of the Customer’s requirements or specifications that the offer or order confirmation is based on unless expressly confirmed by MEMMERT.

2.4 Information about the weight of the goods and the dimensions and weights of the packaging are always only approximate and are not binding for MEMMERT. MEMMERT reserves the right to prior sale in case of offers relating to goods in stock until such time that an order is confirmed.

2.5 Unless agreed otherwise on a case-by-case basis, delivery shall be FCA (Büchenbach) in accordance with the Incoterms 2020.

2.6 Delivery in Germany is “free domicile”. MEMMERT offers the Customer the option of taking out transport insurance for the delivered goods. The costs for this insurance are included in the offer or order confirmation and are charged to the customer when the order is placed, regardless of whether or not transport damage occurs.
If the Customer declares at the time of ordering that he is responsible for insuring the goods himself, a fee of 1% of the order value will be deducted from the order confirmation.

2.7 MEMMERT may make partial deliveries insofar as they do not unreasonably impede the Customer’s ongoing business operations.

2.8 If MEMMERT is not expressly informed in writing that the Customer only wishes to order a specific version of an appliance, the version modified in the course of further technical development shall be delivered if necessary. In this case, product improvements do not result in the previous version of the product being faulty.

2.9 MEMMERT shall deliver goods that reflect the current state of the art in terms of the material quality and condition and that have been tested in accordance with previously agreed conditions and/or in accordance with the applicable VDE regulations or DIN sheets.

2.10 Deviations in the goods’ dimensions are unavoidable during production. The tolerance ranges in accordance with the respective state of the art are therefore reserved.

2.11 Dispatch dates and delivery dates are only binding if MEMMERT has expressly confirmed them to be binding in the order confirmation. If a dispatch and/or delivery time has been specified, it shall commence once MEMMERT has confirmed the order, the Customer has handed over all the necessary documents, and any agreed advance payments have been made. MEMMERT shall otherwise be entitled to extend the dispatch and/or delivery period as appropriate after notifying the Customer to this effect.

2.12 In the event of default on MEMMERT’s part, the Customer shall only be entitled to withdraw from the contract if it has set a reasonable grace period.

2.13 If the delay is only due to slight negligence on MEMMERT’s part and if the Customer is an entrepreneur, compensation for damage caused by the delay is excluded. If the delay is due to grossly negligent or intentional conduct on the part of MEMMERT, its legal representatives or its vicarious agents, the Customer may demand compensation for the resulting damage caused by the delay.

3.  Prices and conditions

3.1 The prices indicated are in Euro unless agreed otherwise. VAT shall also be charged at the applicable rate. Prices do not include taxes, fees, contributions or other charges or ancillary costs such as insurance, installation, assembly, commissioning or similar services.

3.2 Unless agreed otherwise on a case-by-case basis, the invoice amount shall be payable within 30 days of the invoice date, irrespective of whether the Customer receives the goods.

3.3 Payments shall be made by bank transfer free of any charges to MEMMERT’s paying agent (bank account).

3.4 The prerequisites and legal consequences of late payment by the Customer shall be regulated by the applicable statutory provisions. Once the Customer is in default, MEMMERT shall, in particular, be entitled to demand default interest from the Customer in accordance with Section 288 (2) of the BGB at a rate of 9% above the respective base interest rate in accordance with Section 247 of the BGB on the outstanding invoice amount. Memmert expressly reserves the right to assert claims for higher damages caused by delay. Unless the law stipulates an earlier point in time, the Customer shall be in default on receipt of the first reminder. Subject to higher damages, MEMMERT may demand a lump sum of EUR 50.00 to cover expenses for each further appropriate reminder, with the exception of the first reminder, insofar as this was the cause of default. MEMMERT’s right to charge higher reminder costs remains unaffected by the above. The Customer reserves the right to prove the absence of or lesser damage.

3.5  In case of deliveries to other countries within the European Union, the Customer is obligated to provide MEMMERT with its VAT ID number when placing the order. If the Customer does not provide MEMMERT with a valid VAT ID number by the time the invoice is issued, VAT shall be charged at the legally applicable rate at that time.

4.   Retention of title and intellectual property

4.1 MEMMERT shall remain the owner of the delivered goods until the Customer has paid MEMMERT’s claims arising from the contracts concluded to date in full (retention of title). This includes receivables from current invoices or current accounts.

4.2 Prior to the settlement of MEMMERT’s claims mentioned in (4.1), the Customer may continue to use or resell the delivered equipment/parts in the ordinary course of business. This shall not apply if a non-assignment clause has been or is agreed with third parties for the receivables assigned to MEMMERT in advance. Pledges or transfers by way of security require MEMMERT’s prior written consent insofar as its rights are affected.

4.3  To further safeguard MEMMERT’s claims mentioned in (4.1), the Customer shall hereby assign to MEMMERT those of its receivables, including those from current invoices and current accounts, which accrue to it from resale of the unaltered or altered goods to its contractual partners or third parties. MEMMERT shall accept this assignment. This assignment shall be in the invoice amount for the products affected by the sale in question, including VAT.

4.4 The Customer may collect the receivables assigned to MEMMERT in advance according to (4.3) in the ordinary course of business. This authorisation to collect receivables shall expire if the Customer is in default on settling its liabilities to MEMMERT. When the authorisation to collect receivables expires, MEMMERT shall be entitled to disclose the assignments, to demand from the Customer all of the necessary information and documents for asserting the same, and to carry out collection itself.

4.5 MEMMERT shall acquire co-ownership of the new item as long as the delivered products are MEMMERT’s property and transformation or processing resulting in the creation of a new movable item takes place. The amount of this co-ownership shall be determined by the ratio of the value of goods that are subject to retention of title and incorporated into the new item to the value of the objects that the Customer or third parties incorporate at the time of incorporation.

4.6 MEMMERT and all distinguishing marks and names appearing on the goods are registered trademarks or trade names, the rights to which are not assigned to the Customer by these terms and conditions. No patents or other industrial property rights relating to the goods are transferred or licensed by these terms and conditions, nor are any rights granted to the Customer to distribute or resell the goods. The Customer must comply with all regulations and guidelines applicable to use of the goods.

4.7 MEMMERT reserves the right of ownership and copyright to drawings, drafts and other documents. They must not be made accessible to third parties.

4.8 If software is included in the scope of delivery, the Customer shall be granted a non-exclusive licence to use the software supplied, including its documentation. The software is provided – exclusively – for use on the delivery item intended for this purpose. This licence is not transferable. The Customer is not authorised to grant rights of use to third parties. Use of the software on more than one system is prohibited. The Customer may only reproduce, revise or translate the software, or convert it from the object code into the source code, to the extent permitted by law (as per Section 69 a et seq. of the German Copyright Act (UrhG)). The Customer undertakes not to remove existing manufacturer information, in particular copyright features or registration features, such as registration numbers in the software, or to change them without MEMMERT’s prior express consent. The other rights to the software and the documentation, including the copies, shall remain with MEMMERT or the software supplier.

5. Offsetting, retention

5.1 The Customer may only offset claims that are recognised by MEMMERT, undisputed or legally established, unless the enforcement of the Customer’s claim would be thwarted due to insolvency, deterioration of assets, etc.

5.2 The Customer shall only be entitled to the right of retention in accordance with Section 273 of the BGB insofar as these legal claims are based on the same legal relationship as MEMMERT’s claims. These restrictions shall not apply if the Customer’s counter-claims are undisputed or legally established.

6.  Packaging, transfer of risk, obligations to give notice of defects, warranty

6.1 Unless agreed otherwise, packaging shall take place at MEMMERT’s discretion. Unless expressly agreed otherwise, dispatch shall take place in accordance with the agreed Incoterms (FCA or an individually agreed Incoterm).

6.2 After the transfer of risk, the Customer shall bear the costs of insurance itself and undertakes to provide proof of corresponding insurance policies for the goods delivered under retention of title at MEMMERT’s first request.

6.3 Each delivery must be verified to ensure that it is complete and for any damage to the packaging on acceptance or receipt. If there are pronounced pressure marks on the (flexible) packaging, the product must be unpacked without delay and inspected for damage. Any complaints relating to the delivered goods must be reported to MEMMERT in writing without delay, within a maximum of five working days.

6.4 In the event of damage, a written factual report must be requested from the carrier and, following immediate consultation with MEMMERT, a loss adjuster must be commissioned with issuing a damage certificate if necessary.

6.5 The Customer undertakes to observe the instructions for storage and use appearing on the packaging and in the accompanying documents and to ensure compliance with the same. If these instructions are not complied with, MEMMERT shall be entitled to take all measures necessary to ensure the goods’ quality level and reputation, as well as to cancel open orders and to not accept future orders from the Customer.

6.6 MEMMERT must be notified without delay and in writing of any defects in the goods, stating the appliance numbers affected. In case of obvious defects, this notification must be sent to MEMMERT immediately. MEMMERT must be notified in writing and without delay of any defects that cannot be discovered immediately, even after careful inspection, as soon as they are discovered, but no later than five working days after delivery. Deliveries shall be deemed approved if defects are not reported in good time.

6.7 MEMMERT shall provide supplementary performance for defects in a product within 12 months of transfer of risk by means of rectification or replacement delivery at MEMMERT’s discretion. The Customer has the right to reject the chosen form of supplementary performance if it is unreasonable for the Customer. The statutory limitation periods shall apply in case of intentional breach of duty. In addition to the 12-month warranty, a 24-month warranty applies: MEMMERT will repair or replace all parts that have been damaged due to material or product defects for a further 24 months after the 12-month warranty has expired.  Memmert reserves the right to shorten or exclude certain products or parts thereof from the warranty. Any additional costs incurred for on-site repair or on-site removal or installation are not covered by the warranty.

6.8 The Customer shall not have the right to remedy a defect itself and to demand reimbursement of the costs incurred. If the supplementary performance that MEMMERT carries out fails, the Customer may assert additional warranty rights.

6.9 Calibration certificates, transport damage, glass and wear parts, as well as damage that the Customer causes due to accident, negligence, improper operation (e.g. with aggressive chemicals), Customer-owned compressors or pumps, or failure to carry out maintenance work (see the operating instructions), are excluded from warranty claims.

6.10 Spare parts and repair work are covered by the warranty in the same way as the delivery item itself.

6.11 In case of breach of material contractual obligations, as well as in case of default and impossibility, liability for damages caused by slight negligence shall, however, be limited to such damages as must typically be expected under the contract.

6.12 All limitations and exclusions of liability do not apply to damages resulting from culpable injury to life and limb or harm to health or to damages caused by intent, in the case of mandatory statutory liability under the German Product Liability Act, and to damages that fall under the scope of protection of a guarantee that MEMMERT assumes or insofar as MEMMERT has assumed a procurement risk.

6.13  Claims for damages asserted by the Customer, in particular those based on a breach of obligations on conclusion of the contract, non-contractual obligations or contractual ancillary obligations, are excluded in case of slight negligence, unless they are material contractual obligations (obligations whose fulfilment is essential for the proper performance of the contract and on compliance with which the contractual partner regularly relies and may rely).

6.14  MEMMERT shall not be liable

•  for damage caused by improper or unsuitable use of the delivery items, in particular due to overloading, incorrect or negligent handling, improper maintenance, incorrect assembly or commissioning of the delivery items by the Customer or third parties, use of unsuitable operating materials, use of consumables that do not meet the original specifications, chemical, electrochemical or electrical influences – unless MEMMERT is responsible for circumstances of the aforementioned type;
• for damage that occurs because statutory installation, operating, maintenance and cleaning instructions or such instructions communicated by MEMMERT are not followed by the Customer or third parties, such as its own customers – unless the damage in question cannot be attributed to failure to observe instructions;
• for damage caused by improper supplementary performance or such an attempt by the Customer or a third party commissioned by the Customer, as well as damage caused due to the Customer or a third party commissioned by the Customer having made changes to the delivery items or replaced parts without MEMMERT’s consent – unless the damage in question cannot be attributed to this;
• if the delivery item was produced or modified based on the Customer’s specifications, in particular in accordance with drawings provided by the Customer, and a defect in the delivery item can be attributed to these specifications or arises when solving a design task specified by the Customer that corresponded to the state of the art at the time of its realisation;
• for the intended wear and tear of the delivery items;
• for the delivery items complying with foreign regulations, unless MEMMERT has expressly warranted the same.

6.15  Insofar as MEMMERT’s liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, legal representatives and vicarious agents.

7. Force majeure

7.1 MEMMERT shall not be liable if the non-fulfilment or delay of one of its obligations is due to force majeure or unforeseeable, unavoidable and inevitable events. In this respect, any external, unforeseeable, unavoidable and inevitable event, in particular fire, floods, natural disasters, pandemics, interruption of the electricity or water supply, shortage of raw materials or spare parts, general strikes or other strikes of any nature that make the normal running of the company impossible, such as transport strikes, postal strikes, impossibility of procurement and similar events that are beyond MEMMERT’s control, shall be deemed to be force majeure.

7.2 Should such a situation arise, MEMMERT undertakes to inform the Customer accordingly. In cases of force majeure and other hindrances for which MEMMERT is not responsible, the delivery period shall be suspended until the circumstances of force majeure have ended. In case of unreasonable delay due to force majeure, the affected Party shall be entitled to withdraw from the contract.

7.3 If the hindrance in the aforementioned cases lasts longer than three months, the Customer shall also be entitled – after setting a reasonable grace period – to withdraw from the contract with regard to the part not yet fulfilled.

7.4  If the delivery time is extended as a result of an event of force majeure or if MEMMERT is released – in whole or in part – from its contractual obligations as a result of force majeure, the Customer may not derive any claims for damages against MEMMERT.

8. Disposing of waste electrical and electronic equipment

8.1 MEMMERT is a registered member of the ‘stiftung elektro-altgeräteregister’ (Waste Electrical and Electronic Register Foundation). Its registration number is: WEEE reg. no. DE66812464. In the context of the legal guidelines, MEMMERT assumes responsibility for the environmentally friendly return and disposal of all waste electrical and electronic equipment that MEMMERT places on the market and that is delivered to MEMMERT, for MEMMERT, free of charge.

8.2 MEMMERT reserves the right to exclude waste equipment from being returned if it has been physically or functionally modified without prior consent following dispatch from the factory or if the type plate attached to the equipment does not permit precise identification because the equipment serial number and/or the crossed-out wheelie bin symbol is missing.

8.3 MEMMERT shall only accept waste equipment if the sender provides a legally binding declaration that it is free from harmful contamination and other hazardous substances caused by use.

8.4 If the Customer, as the first purchaser, passes on equipment from MEMMERT to third parties, it shall be obligated to inform them of MEMMERT’s above-mentioned terms and conditions for taking back waste equipment and to contractually obligate them to impose a corresponding obligation on subsequent recipients in the event that the equipment is passed on again. If the Customer violates these requirements, it shall be obligated to take back the equipment and dispose of it in accordance with the statutory regulations. MEMMERT shall then be indemnified against any claims asserted by third parties. Claims resulting from these provisions that MEMMERT asserts against the Customer shall lapse at the earliest two years after the Customer stops using the equipment.

9. Final clauses

9.1 These Terms and Conditions of Delivery and Payment shall replace earlier General Terms and Conditions and shall, in any case, take precedence over other General Terms and Conditions. Deviations and subsidiary agreements shall only be valid if MEMMERT has confirmed them in writing. MEMMERT hereby expressly objects to application of the Customer’s General Terms and Conditions.

9.2 Until agreed otherwise, these Terms and Conditions of Delivery and Payment shall apply to all current and future business transactions, even if no specific reference is made to said terms and conditions when an individual order is placed in the context of existing extensive, routine business relationships.

9.3 The place of fulfilment is Büchenbach.

9.4 The exclusive place of jurisdiction is 91126 Schwabach, Bavaria, Germany.

If there is no enforcement agreement between Germany and the Partner’s country of residence for judgements issued by the state courts, the following wording shall apply in lieu of the wording set out in (9.4):

All disputes arising from or in connection with this contract, including any question as to its existence, validity or termination, shall be settled by means of arbitration in accordance with the Arbitration Rules set down by the Dubai International Arbitration Centre, which are deemed to be incorporated by reference into this clause.

There is one arbitrator. The seat of the arbitration proceedings shall be Dubai. The language to be used during the arbitration proceedings shall be English. The law applicable to the contract is the substantive law of the Federal Republic of Germany.

9.5 The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

9.6 Should any provision set out in these terms and conditions be or become invalid or unenforceable, in whole or in part, this shall not affect the validity of the remaining provisions. The valid and enforceable provision that most closely reflects the economic purpose of the invalid or unenforceable provision shall be deemed to have been agreed in place of the invalid or unenforceable provision. The same shall apply if there are omissions in the contract.