GENERAL TERMS AND CONDITIONS for BUSINESS of MISUMI Europa GmbH and MISUMI UK
Ltd. (E02. 2007)
Preamble
- Purchases of products (the “Products”) from MISUMI Europa GmbH
and/or MISUMI UK Ltd. (each of which is hereinafter referred to as the “Company” -
as the context may require), including (without limitation) such purchases
of products related to the Mechanical Standard Components for Factory Automation
Catalog (the “Catalog”) and special orders by the customer (the "Customer")
(see Article10) will be governed by these Terms and Conditions for Business
(the “Terms and conditions”). Purchasers who utilize the Catalog
service (the “Service”) must strictly adhere to these Terms and
Conditions.
- These Terms and Conditions shall exclusively apply, save changes made
by express agreement accepted in writing by both parties. The offer, order
acknowledgement,
order acceptance of sale of any Products, whether through the Service or
otherwise, are subject to these Terms and Conditions. Any conditional or
different terms
proposed by the Customer are not recognized and will not be binding upon
the Company unless agreed upon in writing by the Company.
- These Terms and Conditions
shall apply to every future individual purchase transaction between the Customer
and the Company (each a "Contract"),
unless verriding written agreements have been made by the parties. Any typographical,
clerical or other error or omission in any sales literature, quotation, price
list, acceptance of offer, invoice or other document of information issued
by the Company shall be subject to correction without any liability on the
part of the Company.
- These Terms and Conditions shall exclusively apply to Customers that
are
merchants and/or registered companies.
Article 1
Registration
- Customers must complete all appropriate registration applications and
procedures established by the Company prior to any use of the Service. After
the Customer has properly completed the registration process, and has subsequently
been approved by the Company as a registered Customer, the Company shall
then issue the Customer a customer identification number that will enable
the Customer to use and access the Service.
- The Company reserves the exclusive right, in its sole discretion,
to deny approval of any Customer’s application, for any reason, including
without limitation, the following:
- the Customer is not a duly registered company;
- the Customer is a previously registered customer with
the Service;
- the Customer’s principal place of business or postal
address at the time of registration is outside of the European Union
(the "EU") or outside those countries that Company has sent
the Catalog;
- the Customer has previously had its registration revoked
by the Company;
- the Customer has provided untrue, inconsistent or false statements
in connection with its registration application; and
- any other reason (including, without limitation, the Customer’s
credit situation and business category) that the Company deems appropriate
by its sole discretion.
- When ordering Products from the Company, the Customer must provide the
customer identification number issued to it at the time of registration as
a registered Customer under Article 1.1.
- The Company may notify Customers via facsimile or electronic mail, from
time to time, with respect to upcoming sales campaigns and other related
Company matters. Such notification will be not sent if so requested by the
Customer in writing.
- The Customer is responsible for maintaining the security of its registered
Customer identification number.
- The Customer may not transfer, lend or disclose its registered Customer
identification number to any third-party.
Article 2
Details of Service
- The Customer may purchase Products listed in Catalog using the Service
subject to the provisions of these Terms and Conditions (including, without
limitation, specifications, price, delivery date, and terms of use). However,
due to the nature of the Products, the Customer’s business or other
standards prescribed by the Company, or at the discretion of the original
manufacturer or Company, some Products may be discontinued, modified, improved,
replaced, or declared as obsolete without prior notice or warning to the
Customer.
- The Service is provided within the EU and those countries outside
the EU within which the Company has distributed a catalogue. For the avoidance
of doubt, the Service is not available in countries or areas to which deliveries
by the Company are not made. Any inquiries regarding delivery locations should
be directed to the Company.
Article 3
Ordering Products
- A Customer may apply to use the Service by utilizing the following methods
as set forth in Catalog. The Company may restrict the ordering method with
respect to special orders (see Article 10) or based on the type or quantity
of the Products ordered. The date and time the Company may receive an application
are set forth in the Catalog.
- If the Customer sends its order via email, the Company shall confirm
receipt of the order with a return email or via an alternative appropriate
means. This acknowledgement of receipt of the order does not constitute acceptance
of the Customer's order by the Company.
- Internet orders: Customers may access the Company’s website at
www.misumi.de (German), www.misumi-europe.com (English) and should enter
information in all of the required entry fields. Users of the Company’s
website should also see the Company’s Website Terms and Conditions
of Use and Privacy Policy prior to any use of the Company’s website.
Any enquiries with respect to the Company’s website should be directed
to the Company.
- Verbal orders are not possible.
- A quotation by the Company does not constitute an offer. The Company
reserves the right to withdraw or revise any quotation at any time prior
to the Company’s acceptance of the Customer’s order.
- Each order for Products submitted by the Customer to the Company shall
be deemed to be an offer by the Customer to purchase Products subject to
these Terms and Conditions. The Company shall not be obliged to accept any
order for Products. The Contract shall be formed when acceptance of the Customer’s
order is confirmed in writing by the Company.
- Please be aware that the Company may claim from the Customer any associated
expenses (including, without limitation, insurance and special delivery),
which the Company incurs in connection with requests from the Customer.
Article 4
Obligations regarding Use of Product
- The Customer is referred to the following with respect to the nature
of the Products:
- the Products are only suitable to be used in general production equipment.
(General production equipment means: automatic assembly equipment; devices
for machine processing; inspection equipment and devices; and plant automation
machines).
- the Products are, in particular, not appropriate for use in
the following types of equipment:
- transportation equipment, including semi trucks, ships,
railed vehicles, airplanes, etc.;
- all types of medical devices or equipment;
- all types of commercial goods that are sold to customers or
will be sold to customers;
- aeronautics and aerospace equipment;
- equipment for use in nuclear
energy production; and/or
- military products (for example: weapons, rifles, etc.
-
The parties agree that the inherent nature of the Products renders them
suitable to use only according to the terms in Article 4.1.(1).
- Use of the Products in the areas list above in Article 4.1(b) is prohibited.
- In general, the Customer should bear in mind and observe all of the
duties and obligations listed in the catalog in regard to the Products as
well as all details and descriptions in the written material sent with products
(or accessories). These duties and obligations include product specifications,
intended usage, terms and conditions of use, and/or product markings.
Article 5
Delivery Time
5. A Regulations valid only for contracts with MISUMI Europa GmbH:
- The number of days required for Products to be delivered to the Customer,
-- meaning the number of days required to deliver Products as set out on
the relevant page of Catalog(the “Delivery Time”) -- depend on
the type and quantity of the Products ordered (such as when Products cannot
be delivered right away or there is a large order). The Delivery Time set
out in the Catalog is an estimate only and is not binding.
- The Delivery
Time set out in the offer, order acknowledgement, order acceptance is an
estimate only and is not binding unless explicitly otherwise agreed
upon.
- Any delivery time shall be reasonably extended in face of action
due to industrial disputes, particularly strikes or lockouts, or in face
of unforeseeable
obstacles beyond the power of the Company, if such obstacles can be shown
to have a significant effect on the manufacture or dispatch of the Products
concerned. The same shall apply should these circumstances arise for suppliers.
- Compliance
with duty of delivery further assumes that the Customer has fulfilled its
obligations in a timely and proper way. Defence under non-fulfilment
of contract shall remain reserved.
- Should the Customer be in default of
acceptance, or should it culpably infringe any other duties of collaboration,
the Company shall be entitled
to claim restitution of such damages as it has suffered thereby, including
any additional expenditure. Further claims are hereby reserved.
- The Company
shall be liable in accordance with statutory regulations should deliveries
be in default due to a malicious or grossly negligent infringement
of contract for which it is responsible; a fault committed by its representative
or vicarious agent shall be attributed to the Company itself. Providing that
such defaults of delivery are not due to any malicious infringement or grossly
negligent infringement of contract for which it is responsible, its liability
for damages shall be restricted to foreseeable, typical damage.
- The Company
shall also be liable in accordance with statutory regulations should any
defaults of delivery for which it is responsible be due to culpable
infringement of a major contractual duty. In this case, however, when such
infringement is not malicious, its liability for damages shall be restricted
to foreseeable, typical damage.
- In other cases of defaults of delivery
for which it is responsible, the Company’s liability for damages shall
be restricted to a maximum of the value of said delivery.
- The above restrictions
shall not apply to liability for damage to life, body or health.
- All
further statutory rights and claims of the Customer shall be reserved,
excepting claim for damages.
- The regulations contained in Article 15.A
shall not be affected by the above regulations.
5. B Regulations valid only for contracts with MISUMI UK Ltd.:
- The number of days required for Products to be delivered to the Customer,
-- meaning the number of days required to deliver Products as set out on
the relevant page of Catalog or as agreed between the parties in writing
(the “Delivery Time”) -- depend on the type and quantity of the
Products ordered (such as when Products cannot be delivered right away or
there is a large order). The Delivery Time is an estimate only and is not
binding.
- For the avoidance of doubt, time is not of the essence with regards
to the delivery of Products.
- Any delivery time shall be reasonably extended
in face of action due to industrial dis-putes, particularly strikes or
lockouts, or in face of
unforeseeable
obstacles beyond the power of the Company, if such obstacles can be shown
to have a significant effect on the manufacture or dispatch of the Products
concerned. The same shall apply should these circumstances arise for
suppliers.
Article 6 Delivery of Products
6. A Regulations valid only for contracts with MISUMI Europa GmbH:
- The place of fulfillment for all obligations of the contractual relationship
is the Company’s location unless explicitly otherwise agreed upon.
- The products are shipped to the Customer at its risk and cost according
to the following regulations. The means of delivery and the packaging material
are subject to the sole discretion of the Company.
- Delivery will be
made to the Customer’s address, which is provided
in the order acknowledgement. For orders within Germany, the Company will
pay applicable delivery charges.
- For deliveries outside of Germany, the
Customer is responsible for paying the shipping and handling charges per
the Company's price list at the time.
- Responsibility and risk for loss
or damage to the Products are passed on to the Customer upon transferal
of the Products to the shipper, freight
carrier, or designated third party assigned with delivery. The beginning
of the loading of the Products will be used to determine when these risks
and responsibilities are transferred.
- The Company will add transportation
insurance only when requested by the Customer. The Customer shall be responsible
for paying for this
insurance.
- The Customer is responsible for import clearance as well
as for all costs related to import clearance.
6. B Regulations valid only for contracts with MISUMI UK Ltd.:
- Subject to Article 11.2, unless otherwise agreed in writing, delivery shall
be DDU(Incoterms2000), excluding a fixed delivery charge, to destinations
outside the European Union and DDP(Incoterms2000), excluding a fixed delivery
charge,
to destinations within the European Union to the address specified in the
Customer’s
delivery address as set out in the Company’s order confirmation.
- The
risk of loss and damage to the Products shall pass to the Customer immediately
upon delivery.
- Products may not be delivered if the Customer’s company
name, factory name, research institute name, nameplate or other verification
of the Customer
cannot be confirmed.
- If Products are delivered to a location other than
the Customer's premises, the person receiving Products may be required
to provide personal identification
such as a license or passport. In this case, details such as the address,
name and registration number in the license or passport provided may be copied.
Article 7
Retention of Title
7. A Regulations valid only for contracts with MISUMI Europa GmbH:
- Notwithstanding delivery and the transferral of risks for the Products,
or any other provision of these conditions, ownership of the Products shall
not pass to the Customer until the Company has received payment in full
for the price of the Products and all other Products agreed to be sold by
the Company
to the Customer for which payment is then due.
- The Company shall have absolute
authority to retake, sell or otherwise deal with or dispose of all or any
part of the Products in which title remains vested
in the Company.
- Until such time as ownership passes to the Customer, the
Customer shall hold the Products as the Company’s fiduciary agent, and
shall keep the Products properly stored, protected and insured. The Customer
may use or resell
processed Products by way of its normal business operations until such time
as full payment has been made, but the Customer must hold any proceeds from
the sale of such Products for the benefit of the Company and keep such moneys
separate from the Customer’s own assets and those of third parties. However,
the Customer cedes to the Company here and now all receivables to the final
sum (including VAT) of such Company’s receivable due to the Customer
by way of resale or transfer to a its customer or third parties, irrespective
of whether or not, the item purchased has been resold after being processed.
The Customer shall be empowered to collect this receivable even after cession.
The right of the Company to collect this receivable itself shall not be thereby
affected. However, the Company shall have a duty not to collect such receivable
as long as the Customer fullfils the duties of payment arising from the agreed
proceeds, is not in default of payment, and provided in particular that no
application has been made to institute a creditors’ composition or
to open insolvency proceedings and no suspension of payments has been declared.
Should this be the case, however, the Company may require the Customer to
inform
the Company of ceded receivables and debtors, to provide all information
needed for collection, to hand over all related documents, and to inform
all debtors
(Third Parties) of such cession.
- If the Products are processed or reshaped
by the Customer and if processing is done with Products that the Company
does not own, the Company shall become
co-owner of the Products. The same shall apply if the Company’s Products
are completely reshaped and mixed with other Products.
- If third parties
take up steps to pledge to otherwise dispose of the Products, the Customer
shall immediately notify the Company in order to enable the Company
to seek a court injunction. If the Customer fails to do so in due time
it will be held liable for any damages caused.
- The Company shall on demand
of the Customer release any part of the collateral if the value of the
collateral held in favour of the Company exceeds the
value of the claims being secured. The Company may decide to release
whichever parts
of the collateral it deems suitable.
7. B Regulations valid only for contracts with MISUMI UK Ltd.:
- Notwithstanding delivery and the passing of risk in any Products, the property
in them shall not pass to the Customer and shall remain in the Company
until the Customer shall have paid to the Company in full the price for them
together
with any other sums due under any Contract.
- Until such payment, the Customer
shall carefully store the Products in such a way as to enable them to
be identified as the property of the Company and
keep them insured at its own expense.
- The Company reserves the immediate
right of repossession of any Products which have not been paid for to
which the Customer has retained title as
aforesaid exercisable at any time after delivery or collection of Products
and the Customer
hereby grants an irrevocable right and licence to the Company's employees,
agents and contractors to enter upon all or any premises where Products
are stored without prior notice for this purpose.
Article 8
Duty to examine
- The Customer must examine the Products promptly following delivery by the
Company insofar as this is practicable in the proper course of business,
and promptly notify the Company of any defects or mistakes in the delivery.
- If the Customer fails to advise the Company of any defect or mistake within
a reasonable period of time following delivery, the Products are deemed
to have been ac-cepted(approved) by the Customer, unless there is a defect
which
was not apparent dur-ing the examination.
- When such a defect becomes apparent
at a later time, notice must be given promptly following the discovery,
otherwise, the Products are to be deemed
accepted(approved) by the Customer, also with regard to this defect.
Article 9
Excess Products
- If the Company delivers to the Customer a greater quantity of Products
than that which Customer ordered and such mistake is attributable to Company,
the Customer will inform the Company within one (1) week of delivery and agrees
to return the surplus Products to the Company. In such case, the Company will
pay applicable shipping costs to return the excess Products. The Customer shall
maintain the excess Products with reasonable care from the time it receives
such Products until the Products are returned to Company.
Article 10
Special Orders
- The Customer may place special orders for Products with specifications
set out in schematic drawings provided by Customer, specifications other
than those prescribed by Company or other special orders not for Products
with the
specifications listed in Catalog (“Special Orders”) by submitting
appropriate drawings and specifications to the Company and the Company shall,
if possible, issue a quotation (offer) for the Special Order. On the basis
of such quotation, Article 3 shall then apply.
- These Terms and Conditions
shall apply to all Special Orders, provided that in the event of any
conflict between the Terms and Conditions and any terms,
set out in a Special Order, agreed between the parties in writing, the
terms as set out in the Special Order shall prevail to the extent of such
inconsistency.
Article 11
Price and Applicable Taxes
- The price of Products shall be the price quoted by the Company to the
Customer or, where no price has been quoted, the price listed in Catalog
at the date
of acceptance of the order (“Contract Price”).
- The Company
shall charge and the Customer shall pay the applicable delivery rate notified,
of which the Company will from time to time notify the Customer
(“Delivery Charge”) in addition to the Contract Price.
- The Contract
price shall be exclusive of any value added tax and any other taxes and
duties, which shall (if and to the extent applicable) be payable
by the Customer at the rate and in the manner from time to time prescribed
by law.
Article 12a
Payment
- Unless otherwise agreed in writing, the Company shall be entitled to invoice
the Customer for the Contract price (together with the Delivery Charge)
and any applicable taxes and duties payable pursuant to the provisions of
Article
11 on or at any time after delivery.
- The Customer shall make payment of
any amount invoiced by the Company in full within thirty (30) days of the
date of the invoice, notwithstanding
that
title to the Products may not have passed to the Customer.
- All amounts due
under a Contract shall be paid in full without any deduction. The Customer
shall enjoy rights of set-off only if its counterclaims have been
legally upheld by a final verdict, are undisputed, or are recognized by
the Company. Furthermore, the Customer shall only be entitled to exercise
a right
of retention if its counterclaim is based solely and directly on the contractual
relationship between the Customer and the Company.
- Payments hereunder shall
be made by way of credit card, cheque or direct bank transfer to the Company’s
nominated bank account or by such other means as may be agreed between
the parties in writing from time to time. The
Customer shall be responsible for any bank charges levied for payments
made by direct bank transfer.
- All payments hereunder shall be made by the Customer
in Euros (for Customers of Misumi Europa GmbH only). For Customers of
Misumi UK Ltd, who are located
in the United Kingdom, payments shall be made in GBPs. For Customers
of Misumi UK Ltd, who are not located in the United Kingdom, payments shall
be made
in either GBPs or Euros.
Article 12b
Credit Card Payment
- Credit Card Payments can be identified by means of the branding
'www.misumi-ec.com'. All transaction rates will be covered by MISUMI Europa
GmbH or MISUMI UK Ltd. The credit card charge will be processed after credit
card validation and directly before delivering.
Article 13
Maximum Amount
- The Company will set a maximum amount the Customer can owe the Company
for the purchase of Products at any given time (the “Maximum Amount”).
- The
Company may respond, at its sole discretion, in any of the following ways
if the total price for Products ordered by Customer meets or exceeds
the Maximum Amount:
- requesting the Customer pay in advance or pay
the outstanding amount;
- refusing, revoking or cancelling the order(s);
and/or
- any other action as deemed reasonably necessary by Company.
- The Customer
may verify its Maximum Amount by contacting the Company.
Article 14
Refusal to Receive Products
- If for any reason the Customer will
not accept delivery of Products when they are ready for delivery, or the
Company is unable to deliver Products
on or before the agreed delivery date because the Customer has not provided
adequate delivery instructions, documents, licenses or authorizations
or due to any other act or omission on the part of the Customer then, without
prejudice to any other right or remedy available to the Company, the
Company
shall reship the Products back to its warehouse or other premises and
the Customer shall indemnify the Company against any and all claims, actions,
liabilities, losses, damages and expenses incurred by the Company which
arise
out of or in connection with the Customer’s failure to take delivery
of the Products. All further statutory rights and claims of the Company
shall be reserved.
Article 15
Force Majeure
15A Regulations only valid for contracts with MISUMI
Europa GmbH:
- The Company shall not be liable for the inability to deliver or delays
in delivery caused by circumstances or events beyond the Company’s
control, which could not be foreseen at the time of signing the Contract
and which include
Acts of God and events such as all types of business disruption; difficulty
or increased expense in obtaining labor, materials or transport; difficulties
in obtaining regulatory authorization; the effects of regulatory measures;
labor strikes and lock-outs; or failures on the part of the shipper to
timely or completely deliver the products. To the extent that these events
considerably
hinder or render impossible the execution of the contract and these events
are not temporary, the Company reserves the right to rescind the contract.
Shall the events be of a temporary nature, the terms of delivery or execution
of the service will be prolonged or the terms of delivery or execution
of the service will be postponed for the duration of the hindrance plus
an additional
appropriate time period. If the Customer does not agree to the delay in
the terms of delivery or the execution of the service, it can withdraw
from the
Contract having given prompt written notice to the Company.
15. B Regulations only valid for contracts with MISUMI UK Ltd.:
- Notwithstanding anything to the contrary in the Conditions, the Company
shall not be liable to the Customer for any loss or damage which may be suffered
by the Customer as a direct or indirect result of the supply of Products
by the Company being prevented, hindered, delayed or rendered uneconomic,
or by
the failure or delay, by the Company, to perform any of its other obligations
hereunder by reason of circumstances or events beyond the Company’s reasonable
control including, without limitation, acts of God, war, riot, strike, lock-out,
trade dispute or labor disturbance, accident, break-down of plant or machinery,
fire, flood, storm, difficulty or increased expense in obtaining labour, materials
or transport or other circumstances affecting the supply of Products or of
raw materials by the Company’s normal source of supply or the manufacture
of Products by the Company’s normal means or the delivery of Products
by the Company’s normal route or means of delivery.
- If due to such
circumstances or events the Company has insufficient stocks to meet all
its commitments the Company may apportion available stocks between
its Customers at its sole discretion.
- In the event of the occurrence of
any of the foregoing, delivery times shall be extended accordingly.
Article 16
Changing or Canceling Orders
16. A Regulations only valid for contracts with MISUMI Europa GmbH:
- The
customer may change the details of an order and cancel a contract via telephone
according to the hereafter detailed “Cancellation rules”.
The Customer is then obligated to pay fees according to these following rules:
Cancellation Fees:
- These rules do not affect the Customer’s legal
rights. They are applicable only when MISUMI allows for the cancellation
of a contract and is not legally
bound to cancel the contract. MISUMI reserves the right for exceptions
to these rules, when due to the manner, type, quantity or shipment date
of the product
or the utilized distribution system, MISUMI cannot accept the cancellation.
- As
a basic principle, cancellation of an order is free of charge, when
it is made on the day that an order was placed. For cancellations, which
are
given to MISUMI on the next day (i.e., the day after placement of the
order), the customer is responsible to pay a cancellation fee of 40% of
the value
of
the order, including taxes, shipping charges etc according to these
following rules. The work day at the facility at MISUMI, Schwalbach / Ts,
Germany
will be used to determine on which day cancellations were received.
- For all
parts, which have an estimated delivery time of 6 days, it is possible
to cancel free of charge on order date, later cancellation is not possible.
Stock items can be cancelled free of charge until the day before shipment.
- For
all parts, which have an estimated delivery time of 8 days, the customer
is responsible to pay a cancellation fee of 40% of the value of the order,
if the cancellation is made on the next work day following placement
of the
order. Cancellations at a later date are not possible.
- For all parts, which
have an estimated delivery time of 10, 12 or 13 days, cancellation
1 day after placement of the order is free of charge. Cancellation
2 or 3 days after receipt of the order will result in a cancellation
fee of 40% of the value of the order. Cancellations at a later date are
not possible.
- For
all parts, which have an estimated delivery time of 14, 15 or 16 days,
cancellations on the day of placing the order and 1 or 2 days after are
free of charge. Cancellations falling 3 or 4 days after order placement
will
result
in a cancellation charge of 40% of the value of the order. Cancellations
at a later date are not possible.
- As exceptions to the rules listed above,
special orders (see Article10) and orders of optional parts, as well
as express orders cannot be cancelled.
16. B Regulations only valid for contracts with MISUMI UK Ltd.:
- The Customer may change the details of or cancel an order (“Cancellation”)
in accordance with the “Cancellation Policy” as provided below
by contacting the Company by telephone. Notwithstanding the foregoing, Cancellations
are at the discretion of the Company, and the Company reserves the right
to refuse a request for a Cancellation, including (without limitation) due
to
the nature, type, quantity or shipping date of the applicable Products or
the Company's distribution system.
Cancellation Policy
If a Cancellation is made through no fault of Company there may be a restocking
charge or a production Cancellation charge (see Table A). These fees are applied
to offset the costs incurred by Company for handling and/or production work
already performed.
Table A: Special Note: No Cancellation request or return can be accepted
if express service was used.
| Order day |
Catalog Delivery Time |
| 6* |
8,11 |
10,12,13 |
14,15,18 |
Special Item |
| Order day |
OK |
OK |
OK |
OK |
OK |
| 1st day after |
20% RSC |
40% PCC |
OK |
OK |
NO |
| 2nd day after |
20%RSC |
NO |
40% PCC |
OK |
NO |
| 3rd day after |
20% RSC |
NO |
40% PCC |
40% PCC |
NO |
| 4th day after |
40% RSC |
NO |
NO |
40% PCC |
NO |
| 5th day after |
40% RSC |
NO |
NO |
NO |
NO |
* Exception: All heavy items (e.g.: Guide Post Sets) are NON-RETURNABLE
anytime after the order date. Please consult Company for details.
Key:
Day = indicates a Company business day (i.e. 1st day after, etc.)
OK = cancellations
can be made free of charge.
20% RSC (Re-Stocking Charge) = cancellation is allowed, but there will be
a charge equivalent to 20% of the value of the order.
40% PCC (Production Cancellation Charge) = cancellation is allowed, but there
will be a charge equivalent to 40% of the value of the order.
NO = No cancellation is allowed.
- Customer may be required to pay a cancellation fee pursuant to the terms
set forth in this Article 16.
- Customer may not cancel an order unless such
cancellation is in strict accordance with the provisions of this Article
16.
Article 17
Returning and Replacing Products
- The Customer may only return and replace Products (“Return”)
to the Company, if mistakes in delivery or damage to the Products are attributable
to the Company, and provided that the Customer has notified the Company of
such mistake in delivery or damage pursuant to Article 8. The Customer is
requested to contact the Company by telephone prior to making a Return. The
Customer shall not return any Products actually delivered to the Company
without the written consent of, and upon terms agreed to, by the Company.
- Notwithstanding
the provisions in Article 17.1, if there are any damages or errors attributable
to the Company, the Company will replace or accept
a
return of the Products that have been delivered to the Customer if the Customer
contacts the Company. The Company will pay for all reasonable delivery costs
incurred in replacing the Products.
- The purchase price of the Products
that have been returned to the Company will not be calculated in the aggregate
amount that is used to determine
any volume discounts to be offered by the Company and all prices will be
re-calculated
accordingly.
Article 18 Claims for Defects and Liabilities
18. A Regulations only valid for contracts with MISUMI Europa GmbH:
- Any claims for defects by the Customer assume that it has fulfilled its
duties of inspection and complaint (examination and notice) as set out in Article
8 in a due and proper way.
- Insofar as any item of purchase should be defective
(Mangelhaft), the Customer shall be entitled to require subsequent fulfilment
(Nacherfüllung). Such
subsequent fulfilment shall be made either by removal of said defect, or
by the supply of a new, defect-free item, as the Company shall determine.
- Should
such subsequent fulfilment fail, the Customer shall be entitled, under
the conditions prescribed by law, to require either rescission (Rücktritt)
or price reduction (Minderung), as it shall determine.
- The Company shall
be liable in accordance with statutory regulations should the Customer
claim damages grounded on malice or gross negligence, including
malice or gross negligence by the Company’s representatives or vicarious
agents. Provided the Company is not accused of malicious infringement of
contract, liability for damages shall be restricted to foreseeable, typical
damage.
- The Company shall be liable in accordance with statutory regulations should
it culpably infringe on a major contractual duty; in this case, however,
when such infringement is not malicious or grossly negligent, liability for
damages
shall be limited to foreseeable, typical damage.
- Liability for culpable damage
to life, body or health shall not be affected hereby; this shall also apply
to compulsory liability under the terms of the
German Product Liability Act (Produkthaftungsgesetz).
- Unless a different
regulation is contained above, all liability for defects is hereby excluded.
- The
period of limitation governing claims for defects shall be 12 months, calculated
from transfer of risk.
- The regulations contained in Sections 478 and 479
of the German Civil Code (§§ 478,479 BGB) shall not be affected
by this agreement.
- Any further liability for damages beyond those set out
in the above regulations is hereby excluded, irrespective of its legal
justification (in particular,
by way of other infringements of duty arising from contractual obligations
or claims in tort). This shall also apply should the Customer require
restitution of fruitless expenditure in place of damages. However, liability
for default
shall be regulated by Article 5.A and Article 15.A.
18. B Regulations only valid for contracts with MISUMI UK Ltd.:
- The Company warrants that Products will correspond in all material respects
with applicable specifications as set out in the Catalog or as requested
by the Customer and agreed by the parties in writing pursuant to a Special
Order.
The Customer acknowledges and agrees that the Company shall not provide
any recommendation or advice concerning the interoperability of any Product
with
third party products or recommend any Product for use in connection with
any design or for a specific purpose of the Customer.
- The Company shall be
under no liability under the warranty in Article 18.B.1:
- in respect of any
defect in Products arising from fair wear and tear, neglect or failure
to follow the Company's instructions;
- if the Customer fails to notify any claim in
respect of Products based on an alleged breach of the warranty within
seven (7) days after the discovery
of the alleged breach;
- for any failure of the Products to interoperate
with any third party products; or
- in respect of a defect in any Product
used other than for the purposes set out in Article 4.1.(1).
- Where any valid
claim in respect of Products which is based on a breach of the warranty in
Article 18.B.1 is notified to the Company within twelve
(12) months from the date of delivery, the Company shall replace or repair
any Products (or any part(s) in question) free of charge or (at the Company's
sole discretion) refund to the Customer the price of affected Products (or
a proportionate part of the price). Such repair, replacement or refund shall
be the Company’s sole liability and the Customer’s sole remedy
for breach of the warranty in Article 18.B.1.
- Without prejudice to Article
18.B.6, the Company shall be under no liability to the Customer for any
loss of profit, loss of income, loss of business, loss
of revenue, loss of goodwill, or for any indirect or consequential loss
or damage of any kind, in each case howsoever arising, whether such loss
or damage
was foreseeable or in the contemplation of the parties and whether arising
in tort (including negligence), contract or otherwise.
- Without prejudice
to Article 18.B.6, the Company’s maximum aggregate
liability under or in connection with any Contract, whether arising in
contract, tort (including negligence) or otherwise, shall in no event exceed
the total
amount paid by the Customer under that Contract.
- Nothing in these Conditions
shall exclude or limit the Company's liability for fraud, death or personal
injury caused by its negligence (including negligence
as defined in section 1 of the (UK) Unfair Contract Terms Act 1977),
breach of terms regarding title implied under the (UK) Sale of Goods Act
1979 and/or
the (UK) Supply of Goods and Services Act 1982, or any other liability
to the extent that the same may not be excluded or limited as a matter of
law.
- Save
as expressly provided in Article 18.B.1, all conditions, warranties,
representations and terms, express or implied, whether by statute, common
law or otherwise in relation to Products are hereby expressly excluded.
Article 19
Revocation of Customer’s registration and Termination
of
Sales Agreements
- If any of the following cases apply to the Customer, the Company may revoke
the Customer’s registration and immediately terminate any Contract
without notice for important reasons:
- if it becomes evident that the case set forth
in Article 1.2 (e) applies to Customer;
- if a receiver, administrative receiver,
administrator or equivalent is appointed over the whole or any part
of the Company's business or assets;
- if the Customer is subject to a petition for
attachment or provisional attachment;
- if a petition for bankruptcy, reorganization
or other insolvency proceeding is filed against or by Customer;
- if the Customer
passes a resolution to dissolve or merge with another company; or
- if the
Customer breaches a material provision of these Terms and Conditions.
- If
any of the above circumstances apply to Customer, all obligations owed
by Customer through use of the Service will become immediately due and payable,
and the Customer must promptly pay all such obligations. Further, the Customer
must indemnify and hold the Company harmless for any damages incurred by
the
Company due to the Customer’s breach of any provisions of these Terms
and Conditions.
Article 20
Notification of and Changes to Registered Information
- If there
are any changes to the company name, address, representative, telephone number,
fax number, contact person or other information registered by the
Customer at the time of registration, the Customer must immediately notify
the Company of such changes in writing
- In addition to Article 20.1, if
(i) the Customer transfers its business to a third party, receives an assignment
of a business from a third party or
undergoes a merger, or (ii) any of the circumstances set out in Article
19.1 occur, the Customer must immediately notify the Company. In such cases,
the
Company may, if it deems it necessary, at its sole discretion, request
consultation with the Customer about the status of Customer’s registration.
The Customer may not assign any of its rights or obligations under a Contract
without the
prior written consent of the Company.
- If the Customer fails or delays in
giving the appropriate notice provided in Article 20.1 or 20.2, and the
Products and Catalog and any administrative
communications are not delivered to the Customer or such delivery is
delayed, the Company will deem such items to have been received by the Customer.
Further,
the Customer must pay for all delivery costs in re-sending such items
to its new address, costs incurred in replacing Products and any additional
fees
incurred
by the Company.
Article 21
Cancellation of Registration by Customer
- The Customer may cancel
its registration by notifying the Company in a writing signed by an authorized
officer of the Customer. Upon receipt of such notification,
Company will revoke the registration of Customer, and Customer will lose
its status as a registered Customer.
Article 22
Revisions to Price and Specifications
- The Company may change,
revise or suspend sales of Products listed in its Catalog (“Revisions”),
and may choose the timing, media and other methods concerning notification
at its discretion in giving notification
of Revisions to the Customer.
- If a Customer orders Products after such
Revisions, the Customer will be deemed to have approved such Revisions.
- Please note, however, that the Company will not notify its Customer of
minor changes that do not affect the specifications listed in the Catalog.
Article 23
Approval to Amend these Terms and Conditions
- The Company may
revise, modify or amend these Terms and Conditions (“Amendments”)
and will set forth such Amendments in Catalog.
- If the Customer orders Products
after such Amendments, the Customer will
be deemed to have approved such Amendments.
Article 24
Effective Term of Catalog
- The Catalog is effective only until
the end of the effective period set forth in Catalog (the “Catalog Effective
Term”). Unless the Company
indicates otherwise, the Customer will be unable to make any orders from
the Catalog after expiration of the Catalog Effective Term. This also applies
to orders from any prior Catalog issued that are made before the expiration
of the current Catalog Effective Term.
- The Company will not be liable
in any way to the Customer for any expenses or damages incurred by the
Customer as a result of making an order from a Catalog
whose Catalog Effective Term has expired.
Article 25
Intellectual Property
- To the extent permitted by law, the Company
gives no warranty that the Products shall not infringe the intellectual
property rights of any third party.
- The Customer acknowledges and agrees that it
uses the Products at its own risk as regards infringement of third party
intellectual property rights.
- The Customer may not without the approval of
the Company or intellectual property rights holder use any of the information
provided in the Catalog
beyond the scope of intellectual property rights (included, but not
limited to copyright)
and other applicable law.
Article 26
Confidentiality
- Each party agrees and undertakes that it will
keep confidential, and will not use for its own purposes nor without the
prior written consent of the
other party disclose to any third party, any information of a confidential
nature (including trade secrets and information of commercial value), which
may become known to such party from the other unless such information is
public knowledge (other than by breach of this Article) or is required
to be disclosed by a court of competent jurisdiction or government or competent
authority.
Article 27
Miscellaneous clauses
- Should individual provisions of the purchase
contract or of these Terms and Conditions be void, the other provisions
shall nevertheless remain in
force.
- The Customer may not assign or transfer any Contract to a third
party except with the written consent of the Company.
- Except as expressly
stated in the Terms and Conditions to the contrary, all notices and other
communications required or permitted to be given under
the Terms and Conditions shall be in German (for customers of Misumi Europa
GmbH) or English (for customers of Misumi UK Ltd) and in writing and shall
be delivered or transmitted to the intended recipient's registered office
or principal place of business or such other address as either party may
notify
the other from time to time.
Article 28
Governing Law: Jurisdiction
28. A Regulations only valid for contracts
with MISUMI Europa GmbH:
- All Contracts and these Terms and Conditions shall
be governed by and construed in accordance with German law and each party
agrees to submit to the exclusive
jurisdiction of the courts having jurisdiction for Misumi Europa GmbH.
The Company shall have the right to bring a claim before a court at the Customer’s
principal place of business or at its discretion before any other court
being competent according to any national or international law. The UN Convention
on the International Sale of Goods is hereby excluded.
28. B Regulations only valid for contracts with MISUMI UK Ltd.:
- All Contracts
and these Terms and Conditions shall be governed by and construed in accordance
with the laws of England and each party agrees to submit to the
exclusive jurisdiction of the English courts, provided that the Company
shall have the right to bring a claim before a court at the Customer’s
principal place of business or at its discretion before any other court being
competent
according to any national or international law. The UN Convention on the
International Sale of Goods is hereby excluded.
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