General sales and delivery conditions of Mimico®GmbH

§ 1 Scope, form

(1) These General Terms and Conditions of Sale and Delivery (AVB) apply to all of ours
Business relationships with our customers (“Buyers”). The AVB only apply if the buyer is an entrepreneur (§ 14
BGB), a legal entity under public law or a special fund under public law.
(2) The AVB apply in particular to contracts for the sale and/or delivery of movable items
(“Goods”), regardless of whether we manufacture the goods ourselves or buy them from suppliers (§§ 433, 651
BGB). Unless otherwise agreed, the AVB shall apply in the version valid at the time the buyer places the order
or at least in the version last communicated to him in text form as a framework agreement also for similar ones
future contracts without us having to refer to them again in each individual case.
(3) Our AVB apply exclusively. Deviating, conflicting or supplementary general terms
The buyer’s terms and conditions only become part of the contract if and to the extent that we accept them
expressly agreed in writing. This consent requirement applies in any case, for example also
if we carry out the delivery to the purchaser without reservation in knowledge of the general terms and conditions of the purchaser.
(4) Individual agreements made with the buyer in individual cases (including ancillary agreements,
Additions and changes) always take precedence over these AVB. For the content of such
Agreement is, subject to proof to the contrary, a written contract or our written confirmation
(5) Legally relevant declarations and notifications by the buyer in relation to the contract (e.g. setting a deadline,
Notification of defects, withdrawal or reduction) are in writing, i.e. in written or text form (e.g. by letter, e-mail,
fax) to deliver. Statutory formal requirements and other evidence, especially in the event of doubts about the
Legitimacy of the declarant remain unaffected.
(6) References to the validity of legal regulations are only of clarifying importance. Even without one
Such clarifications are therefore subject to the statutory provisions, insofar as they are not directly contained in these AVB
modified or expressly excluded.

§ 2 Conclusion of contract
(1) Our offers are subject to change and non-binding. This also applies if we provide the buyer with catalogues, technical
Documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), others
Product descriptions or documents – also in electronic form – which we use
Proprietary and copyright reserved.
(2) The ordering of the goods by the buyer is considered a binding contract offer. If from the
Unless otherwise stated in the order, we are entitled to withdraw this contract offer within 5 working days
to accept his access to us.
(3) Acceptance can only be made in writing (e.g. by order confirmation, also in electronic form) to the
be declared to buyers.


§ 3 Delivery period and delay in delivery
(1) The delivery period is agreed individually or specified by us when accepting the order. Unless this
If this is not the case, the delivery period is approx. 6 weeks from the conclusion of the contract and clarification of all technical details.
(2) If we are unable to meet binding delivery times for reasons for which we are not responsible
(non-availability of the service), we will inform the buyer of this immediately and at the same time
inform you of the expected new delivery date. If the service is also not available within the new delivery period,
we are entitled to withdraw from the contract in whole or in part; consideration already rendered by the
Buyer we will refund immediately. A case of non-availability of the service in this sense applies
in particular the failure to supply ourselves in good time by our suppliers if we have a congruent one
have concluded a cover transaction, neither we nor our suppliers are at fault or we in
are not obliged to purchase in individual cases.
(3) The occurrence of our delay in delivery is determined by the statutory provisions in accordance with §§ 286 ff. BGB.
In any case, however, a reminder by the buyer is required. If we are in default of delivery, he can
Buyer demand a lump-sum compensation for his damage caused by delay. The damage lump sum is for each
completed calendar week of delay 0.5% of the net price (delivery value), but in total no more than 5% of the
delivery value of the goods delivered late. We reserve the right to prove that the buyer has no
Damage or only a significantly lower damage than the above flat rate has occurred.
(4) The rights of the buyer according to § 8 of these AVB and our legal rights, in particular with a
Exclusion of the obligation to perform (e.g. due to the impossibility or unreasonableness of the performance and/or
supplementary performance) remain unaffected.


§ 4 Delivery, transfer of risk

§ 4 Delivery, Passing of Risk, Acceptance, Default of Acceptance
(1) The delivery takes place ex warehouse, which is also the place of performance for the delivery and any supplementary performance.
At the request and expense of the buyer, the goods will be shipped to another destination
(sales by mail). Unless otherwise agreed, we are entitled to choose the type of shipment
(in particular transport company, shipping route, packaging) to determine yourself.
(2) Deviations from the order quantities of up to plus/minus 10% (additional or partial services) are reasonable and
(3) The risk of accidental loss and accidental deterioration of the goods passes at the latest with
delivery of the goods to the buyer. With mail order purchases, however, there is a risk of accidental
loss and accidental deterioration of the goods as well as the risk of delay upon delivery
of the goods to the forwarding agent, the carrier or the person otherwise responsible for carrying out the shipment
or institution about. If acceptance has been agreed, this is decisive for the transfer of risk. Also in
For the rest, the statutory provisions of the law on contracts for work and services apply accordingly to an agreed acceptance.
The handover or acceptance is the same if the buyer is in default of acceptance.
(4) If the buyer is in default of acceptance, he fails to cooperate or ours is delayed
delivery for other reasons for which the buyer is responsible, we are entitled to replace the resulting
damage incurred, including additional expenses (e.g. storage costs). For this we calculate
beginning with the delivery period or – in the absence of a delivery period – with the notification of readiness for dispatch
goods, a lump-sum compensation of 0.5% of the net price (delivery value) per completed
calendar week, but no more than 5% of the delivery value of the goods delivered late.
(5) Proof of higher damage and our legal claims (in particular compensation for
Additional expenses, reasonable compensation, termination) remain unaffected; but the package is up
further monetary claims to be taken into account. The buyer is allowed to prove that we have no
or only a significantly lower damage than the above flat rate has occurred.

§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, ours apply at the time the contract is concluded
current prices, ex warehouse, plus the applicable statutory sales tax.
(2) In the case of mail-order sales (§ 4 Para. 1), the buyer bears the transport costs from the warehouse and the costs of any
transport insurance requested by the buyer. Any duties, fees, taxes and other public
The buyer bears the charges.
(3) The purchase price is due and payable within 10 calendar days of invoicing and delivery
or acceptance of the goods. However, we are always available, even within the framework of an ongoing business relationship
entitled to carry out a delivery in whole or in part only against advance payment. A relevant caveat
we declare at the latest with the order confirmation.
(4) We reserve the right to refuse checks. Checks are only accepted on account of performance, all
associated costs shall be borne by the buyer.
(5) With the expiry of the above payment period, the buyer is in default. The purchase price is during default
interest at the applicable statutory default interest rate. We reserve the right to claim one
further damage caused by default. In relation to merchants, our claim to the commercial remains
Maturity interest (§ 353 HGB) unaffected.
(6) The buyer is only entitled to set-off or retention rights to the extent that his claim
has been legally established or is undisputed. In the event of defects in the delivery, the counter rights of the buyer remain
in particular according to § 7 paragraph 6 sentence 2 of these AVB unaffected.
(7) If it becomes apparent after the conclusion of the contract (e.g. through an application for the opening of insolvency proceedings), that
our claim to the purchase price is jeopardized by the buyer’s inability to pay, so are we
according to the statutory provisions on the refusal of performance and – if necessary after setting a deadline – on the
entitled to withdraw from the contract (§ 321 BGB). In the case of contracts for the production of non-fungible items
(custom-made products) we can declare our withdrawal immediately; the legal regulations on the
Dispensability of setting a deadline remain unaffected.

(6) Dem Käufer stehen Aufrechnungs oder Zurückbehaltungsrechte nur insoweit zu, als sein Anspruch

rechtskräftig festgestellt oder unbestritten ist. Bei Mängeln der Lieferung bleiben die Gegenrechte des Käufers
insbesondere gem. § 7 Abs. 6 Satz 2 dieser AVB unberührt.

(7) Wird nach Abschluss des Vertrags erkennbar (z.B. durch Antrag auf Eröffnung eines Insolvenzverfahrens), dass
unser Anspruch auf den Kaufpreis durch mangelnde Leistungsfähigkeit des Käufers gefährdet wird, so sind wir
nach den gesetzlichen Vorschriften zur Leistungsverweigerung und gegebenenfalls nach Fristsetzung zum
Rücktritt vom Vertrag berechtigt (§ 321 BGB). Bei Verträgen über die Herstellung unvertretbarer Sachen
(Einzelanfertigungen) können wir den Rücktritt sofort erklären; die gesetzlichen Regelungen über die
Entbehrlichkeit der Fristsetzung bleiben unberührt.

§ 6 Retention of title
(1) Until all our current and future claims from the purchase contract have been paid in full
and an ongoing business relationship (secured claims), we retain ownership of the
goods sold.
(2) The goods subject to retention of title may, prior to full payment of the secured
Claims are neither pledged to third parties nor assigned as security. The buyer has us immediately
to notify in writing if an application for the opening of insolvency proceedings is made or so far
Access by third parties (e.g. attachments) to the goods belonging to us.
(3) In the event of breach of contract by the buyer, in particular non-payment of the purchase price due, we are
entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods due to the retention of title. The request for return does not also include the declaration of withdrawal; on the contrary, we are entitled to only demand the return of the goods and to reserve the right to withdraw from the contract. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the buyer a reasonable deadline for payment or setting such a deadline is unnecessary under the statutory provisions.

(4) Until revoked, the buyer is authorized in accordance with (c) below to sell the goods subject to retention of title in
to resell and/or process in the ordinary course of business. In this case apply additionally
the following provisions.
(a) The retention of title extends to the processing, mixing or combination of our
Goods resulting products at their full value, whereby we are considered the manufacturer. stick to one
Processing, mixing or connection with third-party goods whose property rights exist, we acquire
Co-ownership in relation to the invoice value of the processed, mixed or connected goods. In the
Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) Claims against third parties arising from the resale of the goods or product shall be assigned to the
Buyer already now in total or in the amount of our possible co-ownership share according to the previous paragraph
security to us. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 also apply in
Consideration of the assigned claims.
(c) The buyer remains authorized to collect the claim alongside us. We undertake the claim
not to collect as long as the buyer meets his payment obligations towards us, no defect
his ability to perform and we have not asserted the retention of title by exercising a right pursuant to paragraph 3
assert. If this is the case, however, we can demand that the buyer return the assigned goods to us
claims and their debtors, provides all the information required for collection
relevant documents and notifies the debtors (third parties) of the assignment. Besides, we’re in
In this case entitled to the authority of the buyer to further sell and process the under
goods subject to retention of title.
(d) If the realizable value of the collateral exceeds our claims by more than 10%, we will
Release securities of our choice at the request of the buyer.


§ 7 Claims for defects by the buyer
(1) For the rights of the buyer in the case of material defects and defects of title (including incorrect and short deliveries as well as
improper assembly or inadequate assembly instructions) the statutory provisions apply, insofar as
nothing else is stipulated below. In all cases, the special statutory provisions remain unaffected
Final delivery of the unprocessed goods to a consumer, even if the latter has processed them further
(Supplier recourse according to §§ 478 BGB). Claims from supplier recourse are excluded if the
defective goods by the buyer or another entrepreneur, e.g. by installing them in another product,
was further processed.
(2) Our liability for defects is primarily based on the condition of the goods
Agreement. All product descriptions that are valid as an agreement on the quality of the goods
are the subject of the individual contract or from us (in particular in catalogs or on our Internet
Homepage) have been made public.
(3) If the quality has not been agreed, it is to be assessed according to the statutory regulation whether a
there is a defect or not (§ 434 Para. 1 Clause 2 and 3 BGB). For public statements by the manufacturer or
However, we assume no liability for other third parties (e.g. advertising statements).

(4) The buyer’s claims for defects presuppose that he fulfills his statutory inspection and

Obligations to give notice of defects (§§ 377, 381 HGB) have been complied with. Shown upon delivery, inspection or to
a defect at a later point in time, we must be notified immediately in writing. In
In any case, obvious defects are not within 5 working days from delivery and upon inspection
recognizable defects in writing within the same period of time from their discovery. If the buyer fails to do so
proper inspection and/or notification of defects, our liability for the non-delivery or not in good time
or improperly reported defects are excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we can initially choose whether we want to rectify the defect by eliminating the
In the event of a defect (rectification) or by delivering a defect-free item (replacement delivery). our right
refusing supplementary performance under the statutory requirements remains unaffected.
(6) We are entitled to make the supplementary performance owed dependent on the buyer paying the due
purchase price paid. However, the buyer is entitled to a proportionate part of the defect in relation to the defect
retain the purchase price.
(7) The buyer must give us the time and opportunity required for the supplementary performance owed,
in particular to hand over the rejected goods for inspection purposes. In the case of a replacement delivery, the
Buyer to return the defective item in accordance with the statutory provisions. The supplementary performance includes
neither the removal of the defective item nor the reinstallation if we were not originally responsible for the installation
were obliged.
(8) The expenses required for the purpose of testing and supplementary performance, in particular transport,
We shall bear the labor and material costs (not: removal and installation costs) if there is actually a defect. Otherwise, we can demand reimbursement from the buyer for the costs incurred from the unjustified request for rectification of defects (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the buyer.

(9) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate
Damage, the buyer has the right to remedy the defect himself and to obtain compensation from us for this purpose
to demand the necessary expenses. We are immediately informed of such self-performance
Possibility to notify beforehand. The right of self-remedy does not exist if we were entitled to
to refuse subsequent performance according to the statutory provisions.
(10) If the supplementary performance has failed or a supplementary performance to be set by the buyer
reasonable deadline has expired unsuccessfully or is dispensable according to the legal regulations, the buyer can
withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no defect
right of withdrawal.
(11) Claims of the buyer for damages or reimbursement of futile expenses also exist
Defects only in accordance with § 8 and are otherwise excluded.

§ 8 Other Liability
(1) Unless otherwise stated in these AVB including the following provisions, we are liable
in the event of a breach of contractual and non-contractual obligations in accordance with statutory provisions.
(2) We are liable for damages – for whatever legal reason – within the framework of fault-based liability
intent and gross negligence. In the case of simple negligence, we are liable subject to a milder one
Liability standard according to legal regulations (e.g. for care in one’s own affairs).
a) for damage resulting from injury to life, limb or health,
b) for damages resulting from the not inconsiderable breach of an essential contractual obligation (obligation whose
Fulfillment makes the proper execution of the contract possible in the first place and on compliance with it
the contractual partner regularly trusts and may trust); in this case, however, our liability is limited to
Compensation for the foreseeable, typically occurring damage is limited.
(3) The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or
in favor of persons whose fault we are responsible for according to legal regulations. they do not apply
if we fraudulently concealed a defect or assumed a guarantee for the quality of the goods
have and for claims of the buyer under the Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or
terminate if we are responsible for the breach of duty. A free right of termination of the buyer (in particular
according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.

§ 9 Statute of limitations

(1) Deviating from § 438 Para. 1 No. 3 BGB, the general limitation period for claims from property and
legal defects one year from delivery. If acceptance has been agreed, the limitation period begins with the
(2) The above limitation periods of sales law also apply to contractual and non-contractual
Claims for damages by the buyer based on a defect in the goods, unless the application of the
regular statutory statute of limitations (§§ 195, 199 BGB) would lead to a shorter statute of limitations in individual cases.
Claims for damages of the buyer according to § 8 paragraph 2 sentence 1 and sentence 2(a) and after
Product Liability Act, however, expire exclusively according to the statutory limitation periods.


§ 10 Provision of Materials
(1) If materials are supplied by the buyer, they are at his expense and risk with a reasonable
Quantity surcharge of – unless otherwise agreed – at least 10% on time and in perfect condition
deliver quality.
(2) If these requirements are not met, the delivery time will be extended appropriately. Except in higher cases
The buyer bears the resulting additional costs for production interruptions.


§ 11 Commercial legal protection
(1) We have according to drawings, models, samples or using parts provided by the buyer
to deliver, the buyer is responsible for ensuring that property rights of third parties in the country of destination of the goods are not thereby violated
get hurt. We will inform the customer of the rights known to us. The buyer has us from claims
indemnify third parties and pay compensation for the damage incurred. Will us manufacture or delivery
prohibited by a third party with reference to a property right belonging to him, we are – without examination of the
Legal position – authorized to continue the work until the legal position is clarified by the buyer and the third party
set. Should the continuation of the order no longer be reasonable for us due to the delay,
we are entitled to withdraw.
(2) Drawings and samples provided to us that did not lead to the order will be made available upon request
returned; otherwise we are entitled to destroy them three months after submission of the offer. This
Obligation applies to the buyer accordingly. The person entitled to destroy has the contractual partner of
to be informed in good time beforehand of his intention to destroy it.
(3) We own the copyright and, if applicable, industrial property rights, in particular all rights of use and
exploitation rights to the models and devices designed by us or by third parties on our behalf,
designs and drawings.
(4) If there are other defects of title, § 7 applies to them accordingly.


§ 12 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic applies to these AVB and the contractual relationship between us and the buyer
Germany to the exclusion of uniform international law, in particular the UN Sales Convention.
(2) If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law
or a special fund under public law, is the exclusive, also international place of jurisdiction for all itself
disputes arising directly or indirectly from the contractual relationship are our registered office in Herford.
The same applies if the buyer is an entrepreneur within the meaning of § 14 BGB. However, we are in all cases too
entitled to take legal action at the place of performance of the delivery obligation in accordance with these AVB or a priority
individual agreement or at the buyer’s general place of jurisdiction. Priority legal regulations,
in particular with regard to exclusive responsibilities, remain unaffected