General conditions for supply and assembly for exports

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General conditions for supply and assembly for exports
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1. PREAMBLE
  1. These general conditions shall apply unless the Parties to the Contract have expressly agreed otherwise in writing. All agreements by the Parties to the Contract must be made in writing in order to be valid.

2. CONCLUSION OF CONTRACT
  1. The contract shall be considered concluded once MTI has sent a written order confirmation after receipt of the order, if applicable within the time frame established by the Buyer.

  2. If MTI has set an acceptance deadline upon the submission of a written offer, the contract shall be considered concluded if the Buyer sent a written declaration of acceptance before the deadline. However, this shall only apply if this declaration of acceptance is received no later than one week after the deadline.

3. PLANS AND DOCUMENTATION
  1. The information regarding weights, dimensions, holding capacity, prices, services and the like as provided in drawings, brochures, mailings, ads, illustrations and price lists are only estimates. They shall only be binding if the contract expressly refers to them and expressly describes them as binding.

  2. Plans and technical documentation that are provided to the Buyer before or after the conclusion of contract and that can be used to manufacture or assemble the work as a whole** or parts thereof shall remain the exclusive property of MTI. The Buyer cannot use, copy or reproduce these, share them with third parties or publish them without permission. They shall become the property of the Buyer:

    1. if this is specified by an express contractual provision
      or

    2. if they are based on an independent contract concluded before the delivery contract that regards the creation of a draft and that does not contain a reservation of title on behalf of MTI.

  3. Plans and technical documentation that are provided by the Buyer to MTI before or after the conclusion of contract and that can be used to manufacture or assemble the overall delivery object or parts thereof shall remain the exclusive property of the Buyer. MTI cannot use, copy or reproduce these, share them with third parties or publish them without permission from the Buyer.

  4. At the Buyer’s request, MTI shall provide the Buyer with instructions and drawings – with the exception of workshop drawings – free of charge at the beginning of the guarantee period (Art. 23); these must contain sufficiently detailed information to allow the Buyer to use, maintain and start up the delivery object and all of its parts (including ongoing repairs), with the exception of cases in which MTI has been hired to perform the start-up on the basis of the contract. These instructions and drawings shall become the property of the Buyer; the restrictions given in No. 2 of this Article with regard to their use shall not apply, but MTI can require that they be treated as confidential.

4. PACKAGING
  1. In the absence of an agreement to the contrary, the binding offers and prices given in the contract shall include the necessary vehicle packaging or other protection necessary in order to prevent damages to the delivery object on the way to the destination established in the contract, under normal transport conditions.

5. REGIONAL REQUIREMENTS
  1. The Buyer must support MTI, upon request, in obtaining information about legal and official requirements relating to the delivery object and its proper use, as well as any associated taxes and fees.

  2. If the assembly costs change after the submission of the offer as a result of a change in legal or official requirements, the increased or reduced costs shall be added or subtracted from the assembly costs.

6. CONDITIONS OF SERVICE
  1. Unless the ordering party informs MTI otherwise, the price shall be understood to fulfill the following conditions:

    1. the service shall not be performed under unhealthy or dangerous conditions;

    2. the MTI personnel must be able to find suitable accommodations and meals in the vicinity of the assembly site, and must receive medical care;

    3. MTI shall be provided with devices and materials, water and power at the assembly site free of charge in a timely manner, in the scope established by the contract;

    4. the Buyer shall provide MTI with lockable or guarded rooms in the vicinity of the assembly site free of charge, as long as not otherwise agreed, where the delivery object and devices, hand tools and clothing of the assembly personnel can be stored and protected against theft and damage;

    5. MTI is not required to undertake any construction or demolition work; MTI is also not required to take any unusual measures in order to transport the delivery object from the unloading site to the setup site unless delivery to the setup site has been expressly agreed.

      If the above conditions are not fulfilled, the prices shall increase correspondingly.

  2. However, if one of more of these conditions is not fulfilled and it is unreasonable to expect MTI to perform the assembly as a result, MTI can refuse to do so regardless of the Buyer’s rights.

7. ASSEMBLY ON AN HOURLY BASIS AND ASSEMBLY AT A FLAT RATE
  1. For assembly performed on an hourly basis, the following costs shall be invoiced separately according to MTI’s applicable assembly rates:

    1. the travel costs for assembly personnel and the costs of transporting the tools and personal luggage, within an appropriate scope, according to the expenditures by MTI; the type and class of transport can be determined in the contract; in the absence of a contractual agreement, these shall be determined according to the MTI guidelines.

    2. a daily allowance for the entire period of the assembly personnel’s absence from his or her place of residence, also payable for days off and holidays;

    3. the hours of work performed according to the status of the work, based on the receipts signed by the Buyer; overtime and Sunday/holiday/night work shall be calculated according to MTI’s assembly rates; unless agreed otherwise, the hourly rates shall contain compensation for wear and tear and amortization of MTI’s lightweight tools;

    4. the necessary time for:

      1. preparing and completing the formalities for the assembly personnel’s travel to and from the site, incl. any expenditures for obtaining immigration approval (visas);

      2. the assembly personnel’s travel to and from the site;

      3. the daily commute between the lodgings and the assembly site, if it is longer than half an hour and there is no suitable accommodation closer to the assembly site;

      4. the waiting time for assembly personnel if work is interrupted for reasons that are not MTI’s responsibility according to the contract;

    5. the expenses incurred by MTI on the basis of the contract for providing tools, and any applicable rent for heavy tools belonging to MTI;

    6. taxes and fees that MTI must pay on the invoice amount in the country where the assembly is performed.

  2. For assembly performed at a flat rate, the estimated cost includes all individual items listed in Art. 7 No.1. However, if the length of the assembly process is extended for a reason that is the responsibility of the Buyer or one of its suppliers, excluding MTI, and if this interrupts or extends the work of the assembly personnel, then the waiting time, the additional working time, all of the accommodation costs and the additional travel costs must be invoiced separately.

  3. If additional costs are incurred during startup that were caused by the Buyer or a third party commissioned by the Buyer – especially costs for starting up a complete system – MTI must be compensated for these regardless of the culpability of the Buyer. MTI shall assist the Buyer in claiming these costs from the responsible third party.

8. CONTROLS AND INSPECTIONS OF THE DELIVERY OBJECT

CONTROLS

  1. If the contract contains an explicit provision regarding the Buyer’s controlling rights, the Buyer shall be entitled to have the quality of the implemented materials and the manufactured parts controlled and inspected by authorized representatives during the manufacturing process and after its completion. The control and inspection shall take place during normal business hours, by prior arrangement with regard to the day and time, at the MTI plant.

  2. If the Buyer finds, on the basis of this inspection, that certain materials or parts of the delivery object are defective or in violation of contract, the Buyer must document these objections in writing together with an explanation.

INSPECTIONS

  1. The inspections established in the contract (with the exception of the final SAT acceptance test as per Art. 22) shall take place at the MTI plant during normal business hours unless otherwise agreed. If the contract does not contain a provision regarding the technical details, the inspections shall take place according to common practice for the relevant industrial sector in the manufacturing country.

  2. MTI must inform the Buyer in a timely manner so that the Buyer can allow its representative to take part in the inspections. If the Buyer does not provide a representative, it shall receive the inspection protocol from MTI and shall not be permitted to dispute its accuracy.

  3. If an inspection (with the exception of an acceptance test as per Art. 21) shows the delivery object to be defective or in violation of contract, MTI must eliminate the defect and restore the contractual condition as quickly as possible. At the request of the Buyer, the inspection can be repeated.

  4. Unless otherwise agreed, MIT shall bear all of the costs for inspections carried out at its plant, but not for personal expenditures by the Buyer’s representative.

9. TRANSFER OF RISK
  1. Subject to Art. 10 No. 1, the transfer of risk shall be set according to the International Commercial Terms (Incoterms) in the version applicable on the date the contract is concluded. If the contract does not specify the type of sale, the delivery object shall be considered sold “ex works”.

  2. For sales “ex works” MTI must inform the Buyer in writing of the time at which the delivery must be accepted. This information must be provided in a timely manner so that the Buyer can take any measures that are normally necessary. If, for sales ”ex works” the Buyer does not accept the delivery object on the basis of circumstances named in Art. 25, risk shall be transferred to the Buyer at the latest on the date when this circumstance occurred.

  3. If MTI undertakes shipping at the Buyer’s request, the risk shall be transferred to the Buyer on the date when the item is given to the first freight forwarder, as long as this is before the time established in Art. 9 No. 2.

10. DELAYED ACCEPTANCE OF DELIVERY
  1. If the Buyer does not accept the delivery by the contractually agreed time, the Buyer must nonetheless provide the payments based on the delivery by the agreed deadlines, as if the delivery had taken place. MTI must provide for the storage of the delivery object at the Buyer’s expense and risk. At the request of the Buyer, MTI must insure the delivery object at the Buyer’s expense. However, if the delayed acceptance of the delivery is based on circumstances named in Art. 25 and if MTI can store the delivery object at its facilities without any negative effect on its operations, the storage costs shall not be invoiced to the Buyer.

  2. If the delayed acceptance is not based on a circumstance named in Art. 25, MTI can request in writing that the Buyer accept the delivery within an appropriate period of time. If the Buyer is for some reason unable to fulfill this request, MTI can withdraw from the contract with regard to the portion of the delivery object that was not accepted, by way of a simple notification in writing (without legal involvement), and can then request compensation from the Buyer for the damages suffered due to non-fulfillment; the maximum damage amount shall be 25% of the value of the part of the delivery object in question, based on the contract, or of the value resulting directly from the contract for the respective part of the delivery object. The Buyer shall be entitled to demonstrate lesser damages on the part of MTI. The payment of damages shall not release the Buyer from its payment obligations for the delivery object itself.

11. PAYMENT
  1. Payments must be provided according to the agreed conditions.

  2. The partial payments provided by the Buyer shall be offset against the delivery price; they do not represent a penalty that would create an entitlement to terminate the contract.

  3. If the delivery object is delivered before all of the amounts owed by the Buyer according to the contract have been paid, the object shall remain the property of MTI until payment has been provided in full, to the extent permissible by law in the place where the delivery object is located. If the law does not permit the retention of title but entitles MTI to retain other rights to the delivery object, MTI can exercise all rights of this type. The Buyer must participate in any measures taken by MTI in order to protect its ownership rights or other alternate rights to the delivery object. The Buyer shall not be entitled to transfer ownership of the machine to third parties or to resell it before the purchase price has been paid to MTI in full.

  4. MTI cannot demand payment based on the fulfillment of its own obligation before its obligation has been fulfilled, unless the nonfulfillment is due to an action or omission on the part of the Buyer.

  5. If the Buyer is in arrears with its payments, MTI can delay the fulfillment of its own obligations until the delayed payments have been made, unless the delay in payment is due to an action or omission on the part of MTI. MTI shall be entitled to refuse its performance if a circumstance that occurred after the conclusion of contract raises justified fears that the Buyer’s consideration will not be provided in full or in a timely manner.

  6. If the Buyer is in arrears with its payments as a result of circumstances named in Art. 25, MTI cannot request interest on arrears.

  7. In all other cases, MTI can request interest on arrears from the Buyer as of the payment’s due date for delayed payments on the part of the Buyer, on the basis of a written notice provided by MTI in a timely manner. The interest rate shall be 8% over the applicable marginal lending facility of the European Central Bank at the time the payments come due. If the Buyer does not pay the owed amount within a period of 1 month, MTI can withdraw from the contract by way of a simple written notice (without legal involvement) and request damage compensation up to a maximum amount equal to 25% of the value of the part of the delivery object in question.

  8. In order to secure all of MTI’s liabilities, all concluded contracts must include appropriate payment guarantee forms. To this end, MTI has concluded a production downtime and del credere insurance policy with Euler Hermes Versicherungs-AG. According to these contracts, MTI must transfer all overdue liabilities to Euler Hermes for collection after a period of 30 days, and report any possible negative indicators. In addition to the interest on arrears described in 11.7, all additional applicable costs incurred by MTI must be compensated. Reporting the payable amount to Euler Hermes shall also nullify the agreed payment conditions and shall render all unpaid liabilities payable immediately.

12. PRELIMINARY WORK
  1. MTI must, in a timely manner, provide the plans for installing the delivery object and all instructions (which, unless otherwise agreed, shall refer only to the work) that are necessary in order to set up the appropriate foundations, to transport the materials and the necessary tools to the assembly site without hindrance, and to create all of the necessary connections to the delivery object, regardless of whether the contract requires MTI to create these itself or not.

  2. The Buyer must carry out the preliminary work according to the plans and instructions provided by MTI. This work must be completed in a timely manner. The foundations must be able to support the delivery object by the agreed time. If the Buyer is responsible for the transport of the delivery object, the object must be at the assembly site on time.

  3. Costs arising from errors or omissions in the plans and instructions named in No. 1 shall be borne by MTI if they are discovered before the acceptance of the delivery object. If such errors or omissions are discovered only after acceptance, they shall be considered structural faults in the sense of Art. 23.

13. LIAISON OFFICERS
  1. The Buyer and MTI must each appoint a responsible representative in writing who will act as a liaison to the other during the performance of the ongoing work.

  2. During the work, they must be in the immediate vicinity of the assembly site as long as assembly is included in MTI’s scope of delivery.

14. ASSISTANTS
  1. At the request of MTI, of which the Buyer must be notified in a timely manner, the Buyer shall provide MTI with the skilled and unskilled workers named in the contract, free of charge. If necessary, the Buyer must also provide MTI with unskilled assistants not named in the contract, within an appropriate scope.

15. SAFETY REQUIREMENTS
  1. The Buyer must inform MTI of the safety requirements that apply to the Buyer’s own personnel. MTI must obligate its assembly personnel to observe these.

  2. If the Buyer determines violations of these requirements, it must inform MTI of this immediately in writing. The Buyer shall be entitled to immediately bar anyone who fails to follow the requirements from accessing the assembly site.

  3. MTI must inform the Buyer of any special risks that can result from the performance of the assembly work.

16. OVERTIME
  1. The Parties shall conclude agreements regarding the conditions for performing overtime work, with consideration for the legal provisions in MTI’s country and the country in which the assembly is taking place. If no agreements are concluded, the conditions of the Federal Republic of Germany for the Federal State of North Rhine-Westphalia shall apply in conjunction with the applicable laws and wage agreements.

17. NON-CONTRACTUAL WORK
  1. The Buyer cannot use MTI’s personnel for non-contractual work without prior permission from MTI. Even if MTI provides such permission, it shall not assume any liability for this work. The Buyer shall be responsible for the safety of any MTI personnel employed in this way.

  2. Work as per 17.1 must be documented separately and invoiced by MTI according to the provisions of Art. 7.

18. MTI’S CONTROLLING RIGHTS
  1. MTI has the right to carry out controls until the time of acceptance as well as during the work performed on the basis of the guarantee obligation, at its own expense, at the assembly site and during normal business hours. The persons employed to carry out these controls must observe the applicable visitors’ policy at the Buyer’s facilities.

19. INSTRUCTING THE BUYER’S PERSONNEL
  1. As appropriate, the contract can include conditions governing the way in which MTI must instruct the personnel charged with operating the delivery object.

20. COMPLETION DEADLINE
  1. Unless otherwise agreed, the deadline for completing the work shall be set based on the latest of the following:

    1. date of the contract conclusion as per Article 2,

    2. date on which MTI learns that a necessary import license has been granted,

    3. date on which MTI receives a contractual partial payment before the start of fabrication.

      Another requirement for setting the completion deadline is that all technical questions whose clarification the Parties have made subject to later negotiations at the time of the contract’s conclusion must be resolved. In addition, any approval required in order to fulfill the obligations of the business operator must have been granted.

  2. If the completion is delayed due to circumstances named in Art. 25 or due to an action or omission on the part of the Buyer, an appropriate grace period shall be granted for the completion. This also applies – except in the case described in No. 5 of this Article – if the cause of the delay occurs after the end of the contractually agreed deadline.

  3. If the contract establishes a binding deadline for completion, but MTI does not complete the work within the agreed period (or by the extended deadline as per No. 2 of this Article), the Buyer can request a reduction in the contractual price as long as this request is made to MTI in writing in a timely manner; however, this shall not apply if the circumstances reveal that the Buyer did not suffer any damages. The reduction shall be 0.5% for each full week; it cannot exceed a total of 5% of the net contractual price (not including taxes, customs, fees, freight costs, etc.). It shall be offset against the payments to be provided by the Buyer as of the time of completion. Subject to No. 5 of this Article, this price reduction shall release MTI from any other damage compensation obligations due to a delay in completion.

  4. If the contractually established completion deadline is only considered an estimate, each of the Parties, after two-thirds of the time has elapsed, can ask the other in writing to agree to a binding deadline for completion. If the contract does not establish a completion deadline, each Party can do the same 6 months after the conclusion of the contract. If the Parties fail to agree in one of these cases, each Party shall be entitled as per Art. 28 to resort to arbitration in order to establish an appropriate deadline for completion. The deadline established in this way shall be considered a contractual deadline for completion and shall therefore be subject to the provisions in No. 3 of this Article.

  5. If the Buyer was entitled to request the maximum price reduction established in No. 3 of this Article for a portion of the work (or if the Buyer would have had such a right if it had requested a price reduction as per this provision), the Buyer can set a final completion deadline for MTI in writing; this deadline must appropriately consider the already existing delay in completion. If MTI fails, for any reason that is not the responsibility of the Buyer or of a manufacturer employed by the Buyer, to fulfill all of its obligations to complete the work by this deadline, the Buyer can withdraw from the contract with regard to this portion of the work by way of a simple written notification (without legal involvement), and can then request compensation from MTI for any damages caused by the non-fulfillment. In this case, the Parties must come to an amicable agreement. The amount of the damage compensation is calculated according to the circumstances of the individual case, between 5 and 25% of the contractual price for the portion of the work that could not be used as planned due to the delay in completion; any further damages shall only be compensated in cases of intent, gross negligence or culpable violation of significant contractual obligations in the sense of Art. 24 No. 5.

21. FACTORY ACCEPTANCE TEST (FAT)
  1. Acceptance tests shall only be performed if expressly agreed in the contract. In this case, MTI must notify the Buyer in writing as soon as the work is ready for acceptance. This notification must be provided in a timely manner so that the Buyer can take all of the necessary measures. The acceptance tests must be carried out in the presence of both parties, under the technical conditions established in the contract; if such provisions do not exist, the acceptance tests shall be carried out as is customary for the relevant industrial sector in the manufacturing country.

  2. If the work is found to be defective or in violation of contract during the acceptance tests, MTI must eliminate the defect or restore the contractual condition as quickly as possible, at its own expense. At the request of the Buyer, the acceptance test shall be repeated at MTI’s expense.

  3. The Buyer must provide all necessary materials, subject to the provisions in No. 2, in an appropriate scope and free of charge, to the extent that this is necessary for carrying out the acceptance tests and for the operation-ready calibration of the work. The Buyer must also take all other necessary precautions in this regard at its own expense.

22. SITE ACCEPTANCE TEST (SAT)
  1. Once the delivery object is contractually provided and all acceptance tests have successfully been performed after the completed assembly, the work is considered to have been accepted by the Buyer. The warranty period begins at this point or as of the notification of readiness to ship (for self-assembly by the Buyer). The Buyer must provide a certificate (acceptance protocol) noting the date of completion and the date of the acceptance tests.

  2. If the buyer prevents acceptance tests from being carried out, the acceptance is considered to have been granted; the warranty period shall begin with MTI’s written notification to the Buyer. This notification can also be provided by way of a notification of readiness to ship.

  3. If the acceptance tests cannot take place due to circumstances on the Buyer’s side, the acceptance tests are postponed. It is not significant whether these circumstances fall under Art. 25 or not. However, the postponement cannot exceed the deadline established by the Parties, or if none is established, a deadline of 4 weeks. In this case, the following provisions apply:

    1. The Buyer must make the payments as if acceptance had taken place. Unless otherwise agreed, however – in the event of circumstances that represent a reason for exemption as per Art. 25 No. 1 – the Buyer shall not be required at the time contractually agreed for the acceptance tests to pay the amounts for work not yet performed, nor to pay the amounts that were retained as security for the warranty before the end of the period established in Paragraph 22.3.4.

    2. At this time, the Buyer must inform MTI in writing of the date as of which the acceptance tests can be performed, and shall ask MTI to set a new date for their performance; this new date must be within 2 weeks of the date the Buyer named in the abovementioned notification. The date named by the Buyer must be chosen in such a way that the pending deadlines can be met.

    3. MTI can inspect the work before the acceptance tests are carried out in order to rectify all defects and damages as well as replace any losses that occurred after the work was made available for the contractually required acceptance tests.

    4. The warranty period shall begin on the date when readiness to ship was reported or when the postponed acceptance tests were successfully carried out, but no later than the end of the total agreed time frame.

    5. At the request of the Buyer – according to the provisions in the contract regarding the transfer of risk – MTI must ensure that the work is protected and maintained until the acceptance tests are carried out. This period is limited to one month, beginning on the date when the work was originally made available for the acceptance tests. The Buyer must compensate MTI for the costs of all measures that were taken by MTI in order to protect and maintain the work. After the end of this month – subject to an agreement to the contrary – MTI shall be released from its obligations with regard to protecting and maintaining the work. If MTI is unable to leave personnel on site because of other obligations, MTI must provide the Buyer with all necessary instructions so that the Buyer can carry out the measures needed to protect and maintain the work itself.

    6. If the acceptance tests are not carried out by the end of the agreed period, or by the end of 4 weeks if no such period has been agreed, Art. 22.2 shall apply to the extent that Art. 25 is not effective.

23. WARRANTY
  1. MTI is obligated to rectify any defects that negatively affect serviceability as per the following provisions and that arise from a fault in the construction, the material or the design.

  2. This obligation exists only for defects that were discovered within a period of 12 months after acceptance or 16 months after notification of readiness to ship – unless another time frame is expressly agreed in the contract – and beginning with acceptance as per Art. 22 or Art. 21 in the event of self-assembly by the Buyer.

  3. For individual explicitly named parts of the work (regardless of whether they were manufactured by MTI or not), varying deadlines can be set in the contract.

  4. The daily operating time is 8 hours; for longer periods of use, the warranty period shall be reduced accordingly.

  5. Any replacement parts or repaired parts delivered on the basis of this Article shall not extend the warranty period. For all other parts of the work, the warranty period shall only be extended by the length of downtime caused by a defect under this Article.

  6. The Buyer can only cite this Article if it immediately informs MTI in writing of the defects discovered. The Buyer must give MTI every opportunity to determine and eliminate these defects.

  7. MTI must respond to this notification and rectify the defect as quickly as possible, at its own expense except in the cases mentioned in No. 8 of this Article. If the defect does not require repairs at the installation site, the Buyer shall send MTI the defective parts for repair or replacement. In such cases, MTI’s warranty obligation shall be considered fulfilled when it returns the properly repaired part or a replacement part to the Buyer.

  8. Unless otherwise agreed, the Buyer shall assume the costs and risks of transporting the defective parts, the repaired parts or replacement parts between the installation site and one of the following locations:

    1. MTI’s plant, if the contract has been concluded as “EXW” or “FCA”

    2. the port from which MTI sent the delivery object, if the contract has been concluded as FOB, FAS, ClF or CFR;

    3. the border of the country from which MTI sent the delivery object, in all other cases.

  9. If, according to No. 7 of this Article, the repairs must take place at the installation site and if the Parties do not come to an agreement, all travel and lodging expenses for MTI personnel as well as the costs and risks for transporting the materials and the necessary tools shall be divided among the Parties as an arbitrator sees fit.

  10. The defective parts replaced as per this Article shall be made available for MTI’s use. If the defective part is not returned to MTI within 4 weeks of the receipt of the newly delivered part, a warranty claim can be asserted. The newly delivered part shall then be invoiced to the customer at standard market rates.

  11. If MTI refuses to fulfill its obligation or if MTI does not act with appropriate speed despite a warning, the Buyer can have the necessary repairs carried out at MTI‘s expense and risk; however, these must be performed in a careful and appropriate manner.

  12. MTI’s warranty obligation shall not extend to defects that arise due to materials delivered by the Buyer or a construction style required by the Buyer. In addition, no warranty obligation shall exist on MTI‘s part for the products supplied by the Buyer.

  13. MTI‘s warranty obligation shall only apply to defects that arise under the contractually established operating conditions and with proper use. It shall not apply to defects whose cause occurred only after acceptance. In particular, it shall not apply to defects arising from: faulty self-assembly, poor maintenance by the Buyer, modifications made without written permission from MTI, poorly executed repairs by the Buyer and normal wear and tear. All defect claims by the Buyer shall be rendered null and void – unless otherwise agreed – 12 months after acceptance. For the rest, Point 24.5 shall apply correspondingly. As a rule, wear and tear parts are excluded from the warranty.

  14. After acceptance, MTI shall not assume any liability beyond what is established in this Article – including for defects – where the cause occurred before acceptance. It is hereby expressly agreed that MTI shall not be required to provide the Buyer with damage compensation for personal injuries or for damage to materials that are not the subject of the contract, nor for damages that occurred after acceptance, nor for lost profits, unless the circumstances in the individual case show that MTI can be charged with gross culpability.

  15. Gross culpability is not provided by every lack of care or skill; rather, gross culpability only exists if MTI fails to consider the serious consequences of an action or omission that it would normally have been able to predict by applying the care of a prudent businessman, or if it intentionally ignores the consequences of its actions.

24. LIABILITY FOR PERSONAL OR MATERIAL DAMAGES
  1. For personal and material damages that occur before the final acceptance of the delivery object, liability shall be distributed as follows:

    1.  

      1. MTI shall be liable for any loss or damage to the delivery object or the work that occurs before the transfer of risk, regardless of the cause, with the exception of cases involving an action or omission on the part of the Buyer;

      2. MTI shall be liable for every loss or damage to the delivery object or the work that occurs after the transfer of risk if the loss or damage is due to an action or omission on the part of MTI;

      3. if a part of the delivery object or the work is destroyed or damaged and MTI is not responsible as per 24.1.1.1 or 24.1.1.2, MTI shall replace or repair this at the Buyer‘s request and at the Buyer‘s expense.

    2. If the Buyer suffers damages to its property (other than the contractual work), these must be compensated by MTI to the extent that they were caused by MTI, or resulted from defects in devices or tools that MTI provided for the assembly. However, this liability requires the circumstances of the case to show that MTI failed to exercise the necessary care and technical knowledge.

    3.  

      1. For accidents involving people, the Buyer and MTI shall be liable according to the law of the place where the accident occurred.

      2. If the damaged party asserts claims against the Buyer, the Buyer shall only be entitled to a right of recourse against MTI in the cases named under 24.1.2.

      3. If the damaged party asserts claims against MTI, MTI shall only be entitled to a right of recourse against the Buyer to the extent that the law of the place where the accident occurred grants such a right, and only if MTI itself would have needed to indemnify the Buyer as per 24.1.3.2 if the claims had been asserted against the Buyer.

    4. In the event that third-party property is damaged, the requirements under 24.1.3 shall apply.

    5. The provisions of this Article with regard to the contractual liability of the Parties shall also apply to their employees. With regard to the assistants hired by the Buyer as per Art. 14.1, MTI shall be liable for its requirements and instructions to the extent that these are incorrect or imprecisely worded, or if they were given to a person who was clearly unsuitable.

  2. In order to assert its rights as per Art. 24.1.3 and 24.1.4, the Party against which a claim has been enforced must inform the other Party of this and give the other Party the choice of initiating settlement negotiations, representing it in the proceedings, or taking part in the proceedings to the extent permitted by law in the court with jurisdiction.

  3. The maximum compensation for material damages shall be 25% of the value of the total delivery price arising from the contract. Damage compensation for material damages cannot under any circumstances exceed 100,000 euros, and shall be limited to the services that were covered by the insurance taken out by MTI at the time of the damage incident. For the rest, Point 24.5 shall apply correspondingly.

  4. The provisions of this Article shall also apply if MTI fulfills its obligations at the assembly site as per Art. 23.

  5. Further claims by the Buyer, particularly regarding compensation for damages of any kind and including damages that are not to the delivery object or the work itself – regardless of the legal grounds upon which they are asserted – are hereby excluded. This liability exclusion shall not apply in the event of intent, gross negligence on the part of the owner or a management employee; in the event of a culpable injury to life, body or health; or in the event of a culpable violation of significant contractual obligations. In the event of a culpable violation of significant contractual obligations, MTI shall only be liable – except in cases of intent and gross negligence on the part of the owner or a management employee – for reasonably foreseeable damages that are typical for this type of contract. Furthermore, this liability exclusion shall not apply in cases where the product liability act establishes liability for personal or material damages in privately used objects if there are faults in the delivery object. It also shall not apply for damages due to willful deceit or despite special guarantees.

25. REASONS FOR EXEMPTION
  1. The following circumstances are considered reasons for exemption if they occur after the conclusion of the contract and stand in the way of its fulfillment: labor conflicts and all circumstances unrelated to the Parties. intentions, such as fire, mobilization, requisition, embargo, currency restrictions, insurrection, transport shortages, a general shortage of resources, or limitations on the use of power.

  2. The Party citing one of the above circumstances must immediately notify the other Party in writing of the occurrence or discontinuation of such circumstances.

  3. The effects of these circumstances on the deadline for fulfilling the Parties‘ obligations are defined in Art. 10, 11, 20 and 22. However, if these circumstances make it impossible to fulfill the contract within an appropriate period, each Party shall have the right – regardless of Art. 10 No. 2, Art. 11 No. 7 and Art. 20 No. 5 – to withdraw from the contract by way of a simple written notification (without legal involvement).

  4. In the event that the contract is terminated as per No. 3 of this Article, the Parties shall reach a settlement regarding the distribution of the costs already incurred in its execution, by way of an amicable agreement.

  5. If no amicable agreement is achieved, the arbitration court shall decide which Party was hindered in fulfilling its obligations; this Party shall then be compensated by the other Party for the named costs, minus the amounts it is to be credited as per No. 7. If these exceed the amount of the costs named, the Party shall be entitled to compensation for the additional amount. If the arbitration court decides that both Parties were hindered in fulfilling their obligations, the court shall distribute the costs as it sees fit, with consideration for all circumstances of the case.

  6. “Costs” in the sense of this Article are the appropriate, actual expenditures; each Party must ensure that its losses remain as low as possible; as regards the delivery to the Buyer, MTI‘s expenditure is considered the portion of the contractual price corresponding to this delivery, with consideration for all work performed during the assembly of the delivery object.

  7. The Buyer shall be credited for all amounts that it paid to MTI or still owes MTI as per the contractual provisions, by subtracting them from the costs incurred by MTI. By subtracting the costs incurred by the Buyer, MTI must be credited for the portion of the contractually agreed purchase price that corresponds to the actual delivery; in the event of an incomplete delivery, the value corresponding to this incomplete delivery must be credited. In both cases, all work performed during the assembly of the delivery object must be taken into consideration.

26. LIMITATION OF DAMAGE COMPENSATION
  1. The Party citing non-fulfillment of the contract shall be obligated to undertake everything possible in order to lessen the damage incurred, assuming that this does not result in any unreasonable costs or disadvantages for this Party. Otherwise, the Party that failed to fulfill the contract can request a reduction in the damage compensation as a result of this omission.

27. TERMINATION OF CONTRACT
  1. The termination of the contract, regardless of reason, shall not waive the Parties‘ rights that were established during the term of the contract up to the time of its termination.

28. ARBITRATION COURT, APPLICABLE LAW
  1. All disputes arising from the contract shall be decided according to the Conciliation and Arbitration Rules of the International Chamber of Commerce, by one or more arbitrators appointed as per these rules.

  2. The arbitrators shall only make decisions at their discretion if the Parties have expressly agreed to this.

  3. Unless agreed otherwise, the contract shall be subject to the UN Convention on Contracts for the International Sale of Goods (CISG).

**) In these general conditions, “delivery object” shall be understood to mean the machines, devices, materials and other objects that MTI must deliver on the basis of the contract, while the “work” includes the “delivery object” as well as all work performed by MTI on the basis of the contract.


As of 08/2011
The German version is binding