General Terms and Conditions
A. GENERAL TERMS AND CONDITIONS 01/2011
1. Scope
The above terms and conditions apply exclusively to business transactions between Mooser-Schwingungstechnik GmbH, hereinafter referred to as MOOSER, and:
1.1 Persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity, i.e. entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law or special funds under public law.
1.2 The general terms and conditions apply to all contractual relationships. In addition, special terms and conditions apply to the sale of goods (Section B), the rental of goods (Section C) and the terms and conditions for services (Section D).
2. General information and conclusion of contract
2.1 All deliveries and services are based on these terms and conditions and any separate contractual agreements. Other provisions, in particular the customer's general terms and conditions, shall not become part of the contract, even if MOOSER has not expressly objected to them.
2.2 Offers made by MOOSER are subject to change. In the absence of a special agreement, a contract shall only come into effect upon written order confirmation by MOOSER. Subsidiary agreements and amendments require the written confirmation of MOOSER, unless the MOOSER employee is authorized to agree to the subsidiary agreements or amendments.
2.3 Contracts with us are governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
2.4 The place of jurisdiction for all disputes arising from the contractual relationship is the headquarters of MOOSER. MOOSER reserves the right to bring legal action at the customer's legal place of jurisdiction.
2.5 MOOSER reserves ownership rights and copyrights to all documents created by us, such as samples, cost estimates, drawings, and other information of a physical and non-physical nature, including in electronic form. They may not be made accessible to third parties.
2.6 If necessary, the customer shall provide MOOSER with the following free of charge for use or shared use: necessary storage space on the construction site, access roads, cranes and hoists, tools, and energy connections. The costs for consumption and the meter shall be borne by the customer.
2.7 Should individual provisions of these terms and conditions be invalid, the remaining provisions shall remain unaffected.
3. Miscellaneous
3.1 We undertake to make information and documents designated as confidential by the customer available to third parties only with the customer's consent.
3.2 Personal data will be stored by MOOSER in accordance with the statutory provisions.
B. TERMS AND CONDITIONS OF SALE
1. Prices and terms of payment
1.1 The prices quoted by us are net prices. Unless otherwise agreed, they are ex works, including loading at the factory, but excluding packaging and unloading. Value added tax at the applicable statutory rate shall be added to the prices.
1.2 In the event of an increase in material and raw material prices, wages and salaries, or manufacturing costs between the conclusion of the contract and delivery, MOOSER is entitled to increase the agreed prices in line with the increase, taking into account any reduction in the prices of other cost groups. Upon request, MOOSER must provide the buyer with evidence of the price reduction factors and their specific increase.
1.3 Unless otherwise expressly agreed in writing, payment for the delivered goods and services is due under the following conditions, within the periods specified below
o Delivery of goods in accordance with the purchase contract within 30 days of the invoice date, with up to a maximum of 2% cash discount.
o Delivery of goods in accordance with the rental agreement within 30 days of the invoice date without deduction (see also section C).
o Freight, repair, labor, and assembly work immediately upon receipt of the invoice without deduction (see also section D).
1.4 The customer is not entitled to withhold payments or offset them against counterclaims, unless the counterclaim on which the right of retention is based has been legally established or recognized by MOOSER.
1.5 The claims arising from our services are to be settled by the customer by transfer and credit to one of our business accounts or by cash payment to us. If we receive checks from the customer, these will be accepted by us subject to final clearance. Our claim for payment shall only expire after the check has been credited to our account without the possibility of being reversed by the bank.
1.6 If the buyer defaults on payment, MOOSER shall be entitled to declare all claims due after a fruitless period of two weeks.
1.7 Interest on arrears shall be charged in accordance with §288 BGB (German Civil Code).
2. Delivery time, delay in delivery
2.1 The delivery time is based on the agreements between the contracting parties. These are only approximate. Compliance with them requires that all commercial and technical issues between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon them. If this is not the case, the delivery time shall be extended accordingly.
2.2 Compliance with the delivery period is subject to correct and timely delivery to us, unless the incorrect or delayed delivery to us is the fault of MOOSER. We shall inform the customer of any foreseeable delays as soon as possible.
2.3 In the event of force majeure or other impediments such as strikes, energy and transport difficulties, government bans or operational disruptions, etc., which are beyond MOOSER's control, the deadlines and dates shall be extended in accordance with their effects.
2.4 The delivery period shall be deemed to have been met if the delivery item has left the MOOSER factory by the end of the delivery period or readiness for shipment has been notified. Insofar as acceptance is required, the acceptance date shall be decisive, except in the case of justified refusal of acceptance, or alternatively the notification of readiness for acceptance.
2.5 If shipment or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, beginning one month after notification of readiness for shipment or acceptance.
2.6 If MOOSER is in default of contract
performance for other reasons and the customer incurs damage as a result, the damage to be proven shall be limited to 0.5% of the contract price of the outstanding delivery for each week of delay, but not exceeding 5% of the contract price.
3. Transfer of risk, receipt, acceptance
3.1 The risk shall pass to the customer when the delivery item has left the factory, even in the case of carriage paid delivery, upon handover to the forwarding agent or carrier or to the buyer itself. This shall also apply to partial deliveries.
3.2 Partial services or partial deliveries are permissible.
3.3 The service must be accepted by the buyer even if it has minor defects. The buyer must inspect the goods immediately after delivery and notify MOOSER of any defects in writing without delay.
3.4 If acceptance has been expressly agreed, this shall be decisive for the transfer of risk. The buyer must always accept the object of performance at the MOOSER factory or warehouse. An acceptance report must be drawn up on request. If the buyer does not appear at the agreed acceptance date despite having been notified in good time of the consequences of failure to appear, the delivery item shall be deemed to have been accepted in accordance with the contract.
3.5 The service shall be deemed to have been fulfilled if the object of performance complies with the terms of the contract or, if the service is delayed or rendered impossible by the buyer, as soon as MOOSER notifies the buyer that it is ready to perform.
3.6 The mode of shipment and packaging may be determined by MOOSER.
3.7 Unless otherwise agreed, the costs of shipping (including tolls) and packaging shall be borne by the buyer.
3.8 Claims for compensation for items damaged or lost during transport must be made by the customer directly to the delivery agent (e.g., freight forwarder, postal service, railway). Transport damage must be recorded by the customer immediately upon receipt of the shipment in the presence of two neutral witnesses and reported to the delivery agent in writing.
4. Retention of title
4.1 MOOSER retains title to the delivery item until all payments under the delivery contract have been received.
4.2 If the delivered goods are processed by the customer into a new movable item, the processing is carried out for MOOSER without MOOSER being obligated as a result. The new item shall become the property of MOOSER. If the goods are processed together with goods not belonging to the customer, MOOSER shall acquire co-ownership of the item in proportion to the value of the goods subject to retention of title and/or rental goods to the other goods at the time of processing.
4.3 The customer may not sell, pledge, or assign the delivery item as security. In the event of seizure, confiscation, or other dispositions by third parties, the customer must notify MOOSER immediately.
4.4 If goods subject to retention of title are nevertheless sold by the buyer alone or together with other goods, the buyer hereby assigns all claims in the amount of the value of the goods subject to retention of title with all ancillary rights before the rest. If the resold goods subject to retention of title are co-owned by MOOSER, the assignment of the claim shall extend to the amount corresponding to the buyer's share in the co-ownership. The value of the goods shall be determined according to MOOSER's list price, taking into account an appropriate used discount.
4.5 In the event of breach of contract by the customer, in particular in the event of default in payment, MOOSER shall be entitled to take back the delivery item after issuing a reminder and the customer shall be obliged to surrender it.
4.6 The application for the opening of insolvency proceedings entitles MOOSER to withdraw from the contract and to demand the immediate return of the delivery item.
5. Failure to fulfill a payment obligation
If MOOSER withdraws from the contract as a result of non-fulfillment of a payment obligation or other breach of duty by the buyer, or if it takes back the delivered products for reasons arising from the retention of title, the buyer shall reimburse MOOSER for the value of the transfer in the form of reasonable compensation for use for the period of its possession. The compensation may not exceed the purchase price.
6. Warranty
a. In the case of material defects, the following applies to the sale of new goods:
6.1 MOOSER shall repair or replace free of charge any goods that prove to be defective as a result of circumstances existing prior to the transfer of risk. MOOSER must be notified immediately in writing of any such defects. Replaced parts become the property of MOOSER in accordance with the retention of title (Section 4).
6.2 After consultation with MOOSER, the customer must give the seller reasonable time and opportunity to carry out the repairs and replacement deliveries deemed necessary by the seller. Otherwise, MOOSER shall be released from liability and warranty for the resulting consequences.
6.3 If the customer or a third party makes improper repairs, MOOSER shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without the prior consent of MOOSER.
6.4 If components, machines, and systems delivered by MOOSER are connected to other components from third parties and thus become part of an overall system, MOOSER shall only assume a warranty for the delivered components if there are no structural, technical, or other changes to the components delivered by MOOSER compared to the data originally specified or used as a basis for the order. Should such changes occur, MOOSER shall be released from the warranty.
6.5 If the complaint proves to be justified, MOOSER shall bear the direct costs of repair or, in the case of replacement delivery, the costs of the replacement part and its shipping costs. For delivery locations outside the Federal Republic of Germany, the total costs to be borne shall be limited to the order value.
6.6 Within the framework of the statutory provisions, the customer has the right to withdraw from the contract if MOOSER – taking into account the statutory exceptions – allows a reasonable period set for repair or replacement delivery due to a material defect to elapse without result. If there is no significant defect, the customer is only entitled to a reduction in the purchase price. The right to reduce the contract price is otherwise excluded.
6.7 No warranty is assumed in the following cases in particular:
Unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, defective construction work, unsuitable building ground, chemical, electrochemical or electrical influences – unless MOOSER is responsible for them.
b, In the case of material defects, the following applies to the sale of used goods:
Unless otherwise agreed in the contract, the sale of used goods is carried out to the exclusion of any warranty.
c, In the event of a defect of title, the following applies:
6.8 If the use of the delivery item leads to the infringement of industrial property rights or copyrights in Germany, MOOSER shall, at its own expense, obtain the right for the customer to continue using the delivery item or modify the delivery item in a manner reasonable for the customer so that the infringement of property rights no longer exists.
If this is not possible under economically reasonable conditions or within a reasonable period of time, the customer shall be entitled to withdraw from the contract. Under the aforementioned conditions, MOOSER shall also be entitled to withdraw from the contract.
In addition, MOOSER shall indemnify the customer against undisputed or legally established claims of the relevant property right holders.
These rights only exist if:
o The customer informs MOOSER immediately of any asserted infringements of property rights or copyrights.
o The customer supports MOOSER to a reasonable extent in defending against the asserted claims or enables MOOSER to carry out the modification measures.
o MOOSER reserves the right to take all defensive measures, including out-of-court settlements.
o The legal defect is not based on an instruction from the customer, and
o The infringement was not caused by the customer arbitrarily modifying the delivery item or using it in a manner not in accordance with the contract.
7. Liability
7.1 If the delivery item cannot be used by the customer in accordance with the contract due to MOOSER's fault as a result of omitted or incorrect execution of suggestions and advice given before or after conclusion of the contract or due to the breach of other ancillary contractual obligations – in particular instructions for operation and maintenance of the delivery item – the provisions of Sections 6 and 7.2 shall apply accordingly, excluding any further claims by the customer.
7.2 MOOSER shall only be liable for damage not caused to the delivery item itself – for whatever legal reasons – in cases of intent, gross negligence on the part of the owner or the executive bodies or senior executives, culpable injury to life, body and health, for defects that it has fraudulently concealed or whose absence it has guaranteed, for defects in the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items. In the case of slight negligence, liability shall be limited to the reasonably foreseeable damage typical for this type of contract.
7.3 Any further liability—on whatever legal grounds—in particular for compensation for damage not caused to the delivery item, is excluded.
7.4 MOOSER is not liable for the consequences of defects for which the warranty is excluded
8. Limitation period
All claims of the customer – regardless of their legal basis – shall become time-barred 12 months after the transfer of risk. The statutory periods shall apply to claims for damages.
9. Purchase from rental
9.1 If MOOSER agrees a hire purchase agreement with the customer following the existing rental agreement, and the customer purchases all or part of the rental equipment, the purchase price shall be calculated – subject to any deviating contractual agreement – from the replacement value of the rental equipment minus a reasonable discount for wear and tear minus a discount agreed in writing in the hire purchase agreement for the rental fees already paid.
9.2 MOOSER is not obliged to conclude a hire purchase agreement following a rental agreement.
10. Software use
10.1 If software is included in the scope of delivery, the customer is granted a non-exclusive right to use the delivered software, including its documentation. It is provided for use on the delivery item for which it is intended. Use of the software on more than one system is prohibited.
10.2 The customer may only reproduce, revise, translate, or convert the object code into source code to the extent permitted by law (§§69.a ff. UrhG). The customer undertakes not to remove manufacturer information—in particular copyright notices—or to change it without the prior express consent of MOOSER.
10.3 All other rights to the software and documentation, including copies, remain with MOOSER or the software supplier. The granting of sublicenses is not permitted.
C. TERMS AND CONDITIONS FOR RENTAL
1. Condition of rental equipment
Rental equipment is generally used goods; there is no entitlement to new goods. MOOSER must ensure that the rental equipment is clean and in working order.
2. Price calculation, rental period, and terms of payment
2.1 The rental period begins on the day on which the rental goods are shipped and ends on the day of return, i.e., when they arrive back at the warehouse specified by MOOSER.
Suspensions or reductions in rent due to downtime caused by bad weather, public holidays, or other technical conditions will not be granted unless otherwise agreed in writing between the contracting parties.
2.1 If the collection or shipment of the rental goods takes place later than agreed for reasons for which the renter is responsible, the day on which the goods are ready for shipment shall be deemed the first day of rental.
2.2 The minimum rental period is 1 day.
2.3 The rent is calculated according to calendar days. The calendar day rental price is also payable for equipment rented on Saturdays, Sundays, and public holidays, regardless of whether it is actually used on these days.
2.2 Unless otherwise agreed in writing, rental invoices are issued for 30 days. The rental fee is due within 30 days of receipt of the invoice.
2.3 Rental invoices and ancillary services are not subject to discount.
2.4 Interest on arrears shall be charged in accordance with §288 BGB (German Civil Code).
2.5 The claims arising from our services shall be settled by the customer by transfer and credit to one of our business accounts or by cash payment to us. If we receive checks from the customer, these shall be accepted by us subject to final clearance. Our claim for payment shall only expire after the check has been credited to our account without the possibility of reversal by the bank.
2.6 The customer shall not be entitled to withhold payments or offset them against counterclaims unless the counterclaim on which the right of retention is based has been legally established or recognized by MOOSER.
3. Delivery time, delivery delay
3.1 The delivery time is based on the agreements between the contracting parties. These are only approximate. Compliance with them requires that all commercial and technical issues between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon them. If this is not the case, the delivery time shall be extended accordingly.
3.2 Compliance with the delivery period is subject to correct and timely delivery to MOOSER, unless the incorrect or delayed delivery to MOOSER is due to MOOSER's fault. We will inform the customer of any foreseeable delays as soon as possible.
3.3 In the event of force majeure or other impediments such as strikes, energy and transport difficulties, government bans or operational disruptions, etc., which are beyond MOOSER's control, the deadlines and dates shall be extended in accordance with their effects.
3.4 The delivery period shall be deemed to have been met if the delivery item has left the MOOSER factory or readiness for shipment has been notified by the end of the delivery period. If acceptance is required, the acceptance date shall be decisive, unless acceptance is justifiably refused, or alternatively the notification of readiness for acceptance.
3.5 If shipment or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, beginning one month after notification of readiness for shipment or acceptance.
3.6 If MOOSER is in default of contract performance for other reasons and the customer incurs damage as a result, the damage to be proven shall be limited to 0.5% of the contract price of the outstanding delivery for each week of delay, but not exceeding 5% of the contract price.
4. Transfer of risk, acceptance
4.2 The risk shall pass to the customer when the delivery item has left the factory, even in the case of carriage paid delivery, upon handover to the forwarding agent or carrier or to the buyer itself. This shall also apply to partial deliveries.
4.3 Partial services or partial deliveries are permissible.
4.4 The buyer must accept the service even if it has minor defects. The buyer must inspect the goods immediately after delivery and notify MOOSER of any defects in writing without delay.
4.5 The shipping method and packaging may be determined by MOOSER, taking into account the interests of the lessee. If delivery is made using mesh boxes, the lessee must use the same mesh boxes for the return shipment.
4.6 Unless otherwise agreed, the costs of shipping (including tolls) and packaging shall be borne by the buyer.
4.7 Claims for compensation for items damaged or lost during transport must be made by the customer directly to the delivery agent (e.g., freight forwarder, postal service, railway). Transport damage must be recorded by the customer immediately upon receipt of the shipment in the presence of two neutral witnesses and reported to the delivery agent in writing.
5. Subletting
5.1 MOOSER rental equipment may not be sublet or lent to third parties or made available to third parties in any other way to the detriment of MOOSER, unless MOOSER has given its written consent.
5.2 The customer's relocation of rental equipment to a construction site other than the one specified in the rental agreement requires the express consent of MOOSER.
5.3 MOOSER must be notified immediately of any seizures or other impairments.
6. Signage
6.1 MOOSER is entitled to place advertising for its company and products in an appropriate size and visible location near the rental equipment.
6.2 MOOSER is also entitled to photograph the construction projects and use them in its own advertising (catalogues, trade fairs, brochures), mentioning the name of the customer.
7. Return of the rental goods, cleaning and damage
7.1 The return of the rental goods is at the expense and risk of the renter.
7.2 The lessee is obliged to return the rental equipment complete, in its original technically perfect condition, cleaned and ready for reuse.
7.3 If equipment is returned uncleaned, MOOSER reserves the right to charge cleaning costs per item of equipment, up to a maximum of €50.00.
7.4 Unusable or lost rental goods must be replaced by the renter in accordance with the statutory provisions. Rental equipment is considered unusable if it cannot be repaired within a reasonable period of time.
7.5 Insofar as MOOSER can assert claims for damages due to non-return of the rental equipment as a result of total loss or damage to the equipment on the basis of statutory or contractual provisions, the damage shall be calculated according to the replacement value of the goods in accordance with the MOOSER price list valid at the time of conclusion of the contract, less a reasonable used discount for depreciation of up to a maximum of 15%.
7.6 MOOSER's rental claims incurred up to the time of the damage event remain unaffected.
7.7 The lessee must ensure that rented items of the same type are not mixed. If rented and purchased items or other items are nevertheless mixed, the lessee bears the burden of proof as to which items are purchased items, rented items, or other items. In case of doubt, MOOSER is entitled to designate the items from the mixed items that are to be regarded as rented, at its own discretion. If purchased items or other items from MOOSER are returned to the customer from among the mixed items, the customer shall bear the costs of return transport.
8. Early termination of the rental agreement
8.1 MOOSER is entitled to terminate the agreement without notice and to arrange for the rental equipment to be collected if the customer is more than 14 days in arrears with the payment of a full month's rent or if a bill of exchange or check from the customer cannot be credited to our account or is reversed by a third party bank for reasons for which the customer is responsible, or if insolvency proceedings are initiated against the customer's assets. Any rights of the insolvency administrator remain unaffected. bank, or if insolvency proceedings have been initiated against the customer's assets. Any rights of the insolvency administrator remain unaffected.
8.2 The costs incurred by the return shall be borne by the lessee.
8.3 MOOSER is entitled to demand compensation in lieu of the remaining rent after termination without notice.
8.4 If a flat rental fee for the expected total rental period has been agreed in the rental agreement between the customer and MOOSER, MOOSER shall not grant a credit note for the period between the end of the rental agreement and the actual termination by return delivery in the event of early return of the rental equipment by the customer, unless the refund has been agreed in writing. If, in individual cases, MOOSER offers a refund for rental goods returned early, the following shall apply to determine the refund:
8.5 In the event of early return of the rental equipment, the rental price shall be determined on the basis of the current MOOSER price list for the actual rental period, from delivery to actual return. The rental price initially agreed in the contract for a longer rental period shall be replaced by the current list rental price for the actual rental period. In the event of a credit note, only the difference between a rental flat rate already paid and the rental fee payable according to the price list for the actual rental period shall therefore be refunded. In the worst case, if the difference is negative, no credit note will be issued.
9. Late return of the rental object
In the event that the rental object is returned after the date agreed in the rental agreement, the customer shall owe the calendar day rental price agreed in the original rental agreement for the period between the end of the rental agreement and the actual end of the rental period.
10. Liability of the lessor
10.1 MOOSER shall be liable in accordance with the statutory provisions.
10.2 MOOSER shall only be liable for property damage, financial loss, and personal injury within the scope of its existing business liability insurance.
10.3 Notwithstanding 10.2, MOOSER shall only be liable in cases of slight negligence if: there is a breach of an essential contractual obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the lessee may regularly rely, or the breach promotes the achievement of the purpose of the contract, or there is a case of mandatory legal liability under the Product Liability Act, or there is a case of fault in contract negotiations, or there is an injury to life, body, or health.
10.4 Any mixed use of the Lessor's products with the Lessee's own materials or with products from other manufacturers is at the Lessee's sole risk. In such cases, any liability on the part of the Lessor is excluded. Likewise, the Lessor assumes no liability for assembly instructions or other safety-related data and information prepared or provided by the Lessee or third parties.
10.5 To the extent that liability for MOOSER is excluded or limited, this also applies to the personal liability of MOOSER's employees, workers, staff, and vicarious agents.
11. Liability of the Lessee
11.1 The lessee shall also be liable for theft, fire, water, or other weather-related damage, unless the lessee is not responsible for the resulting damage.
11.2 The lessee is obliged to insure the rental objects against risks, in particular theft, damage, fire, water, etc., and to assign the claims against his insurance company to MOOSER upon request.
12. Choice of law and place of jurisdiction
12.1 These General Terms and Conditions of Sale and the contractual relationship between us as the seller and the buyer are governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
12.2 If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, our place of business in 82178 Puchheim near Munich shall be the exclusive and also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB (German Civil Code).
12.3 We shall also be entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions of Sale or a prior individual agreement, or at the buyer's general place of jurisdiction. This shall not affect any overriding statutory provisions (exclusive places of jurisdiction).
D. CONDITIONS FOR INSTRUCTION WORK
Only if expressly agreed in the contract will MOOSER provide instruction to the responsible employees named by the customer.
1. Areas of responsibility
1.1 The instructor provides guidance on the proper use of MOOSER products. Assembly is the responsibility of the customer.
1.2 The trainer has no authority over the construction site personnel and is therefore not responsible for compliance with occupational health and safety regulations and safety-related issues.
1.3 The trainer is not responsible for scheduling, the usability, or functionality of the customer's own materials.
1.4 Even when an instructor is used, the customer is always responsible for checking the structural and static connections required.
2. Working hours, remuneration
2.1 The working hours of MOOSER employees are based on the collective agreements applicable to MOOSER. Working and travel times are recorded in writing and must be signed by the customer.
2.2 Unless otherwise agreed, the customer shall be invoiced for remuneration at the agreed hourly rates plus any allowances for overtime, night work, or public holidays.
2.3 The hourly rates do not include any daily expenses, accommodation costs, travel expenses, tool or luggage freight costs.