General Terms and Conditions of MUGLER SE, Oberlungwitz for the Provision of Supplies and Services and Online Trade

As of: 03/2023

A. Agreement on general terms and conditions or framework agreements

MUGLER SE concludes contracts with its customers (hereinafter referred to as the “customer”) on the basis of the following general terms and conditions. A contract between MUGLER SE and a customer with the inclusion of these GTC is concluded by MUGLER SE referring in writing or orally to the validity of its GTC in an offer or an offer acceptance and the customer subsequently does not object to the use of these GTC until the contract is signed.
All contracts, deliveries and other services are aimed exclusively at natural or legal persons or partnerships with legal capacity in the exercise of their commercial or self-employed professional activity. By placing his order, the customer expressly assures that he is not acting as a private individual.
If the Purchaser objects to the application of the GTC of MUGLER SE and MUGLER SE nevertheless concludes the contract, which can also be done by conclusive conduct or execution of the delivery, a contract without the GTC of MUGLER SE shall be concluded under the statutory conditions.
If, in the course of concluding the contract, the customer makes it clear that he only wishes to conclude on his own terms and conditions and rejects all third-party terms and conditions, MUGLER SE does not agree to contract under a third-party general terms and conditions, but then wants to conclude without agreeing on a general terms and conditions under statutory conditions. An acknowledgment of third-party terms and conditions can only be made by express and written agreement that has been legally signed by MUGLER SE.

B. Prices and Terms of Payment

Prices as well as ancillary costs are calculated on the basis of written agreements. Not included are packaging costs, freight costs including insurance. Prices are ex works.
Payment is made in advance, by bank transfer or by invoice. MUGLER SE reserves the right to exclude individual payment methods.
In the case of payment in advance, MUGLER SE will provide the customer with the purchase price as well as the bank details in the order confirmation. The amount must be transferred in full to the said account within 30 days from the date of dispatch of the written order confirmation. If the amount is not transferred to the said account on time or in full, MUGLER SE reserves the right to withdraw from the contract. Purchasers can only exercise a right of retention if the claims result from the same contractual relationship.
The payment method “on invoice” is only possible for customers with a valid customer number. Customer-specific conditions apply. These will be advertised in the offer letter, at the latest in the written order confirmation, or named at the customer’s written request. In the case of delivery on account, the full amount must be paid within the payment periods specified in the order confirmation.
Unless otherwise agreed, the payment period is 30 days net.6. Payments are to be made free of charge to the paying agent of MUGLER SE.
A set-off of claims is excluded unless the counterclaim has been recognised or has been legally established by a court and does not relate to the same contractual relationship.
In the event of default of payment by the customer, MUGLER SE shall be entitled to charge a fee of EUR 15.00 net for each reminder. MUGLER SE reserves the right to assert higher or further damages.

C. Retention of title

The items supplied (reserved goods) shall remain the property of MUGLER SE until all claims arising from the business relationship with the purchaser have been fulfilled. If the value of all security rights exceeds the amount of all secured claims by more than 20%, MUGLER SE shall, at the purchaser’s request, release a corresponding portion of the security rights. MUGLER SE has the right to choose between different security rights when releasing them.
The purchaser shall store the reserved goods free of charge for MUGLER SE. The purchaser is entitled to process and sell the reserved goods until the occurrence of the realization event (Section 9). Pledges and transfers of ownership by way of security are not permitted. If the reserved goods are processed by the purchaser, it is agreed that the processing is carried out in the name of and on behalf of MUGLER SE, and MUGLER SE shall directly acquire ownership—or, if the processing involves materials from multiple owners or the value of the processed item is higher than the value of the reserved goods—co-ownership (fractional ownership) of the newly created item in proportion to the value of the reserved goods to the value of the newly created item. In the event that such ownership acquisition does not occur, the purchaser hereby transfers its future ownership or—proportionately—co-ownership of the newly created item to MUGLER SE as security. If the reserved goods are combined or inseparably mixed with other items to form a unified item, and if one of the other items is considered the main item, the purchaser, to the extent that the main item belongs to it, shall transfer co-ownership to MUGLER SE in the proportion stated in the first sentence.
In the event of the sale of the new item, the purchaser hereby assigns to MUGLER SE its claim against the customer arising from the resale, including all ancillary rights, as security, without the need for any further special declarations. The same applies to other claims that take the place of the reserved goods or otherwise arise concerning the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. However, the assignment only applies to the amount corresponding to the value invoiced by MUGLER SE for the processed, transformed, or combined reserved goods.
If the purchaser combines the reserved goods with real property or movable items, it hereby assigns to MUGLER SE, without the need for any further special declarations, its claim to compensation for the combination, including all ancillary rights, as security in the proportion of the value of the combined reserved goods to the other combined items at the time of combination.
The purchaser is authorized to collect the claims assigned from the resale until revoked. In the event of a significant reason, particularly in the case of payment default, cessation of payments, the opening of insolvency proceedings, protest of a bill of exchange, or reasonable indications of over-indebtedness or impending insolvency of the purchaser, MUGLER SE is entitled to revoke the purchaser’s authorization to collect. Furthermore, MUGLER SE may, after prior notice and within a reasonable period, disclose the security assignment, realize the assigned claims, and demand that the purchaser disclose the security assignment to the customer.
In the event of seizures, confiscations, or other disposals or interventions by third parties, the purchaser shall immediately notify MUGLER SE. Upon credible demonstration of a legitimate interest, the purchaser shall provide MUGLER SE with the information required to assert its rights against the customer and hand over the necessary documents.
In the event of the purchaser’s breach of duty, particularly in the event of default in payment, MUGLER SE is entitled, after the unsuccessful expiration of a reasonable deadline set for the purchaser to perform, to withdraw from the contract and reclaim the goods (= realization event); the statutory provisions on the dispensability of setting a deadline remain unaffected. The purchaser is obligated to surrender the goods. The reclaiming of the goods or the assertion of the retention of title or the seizure of the reserved goods by MUGLER SE shall not constitute a withdrawal from the contract unless MUGLER SE has expressly declared so.

D. Time of Performance and Storage Fees

Compliance with agreed deadlines requires the timely receipt of all documents to be provided by the purchaser, necessary approvals and releases, particularly of plans, as well as compliance with the agreed payment terms and other obligations by the purchaser. If these conditions are not met in a timely manner, the deadlines shall be extended accordingly; this does not apply if MUGLER SE is responsible for the delay. The performance is considered timely if MUGLER SE indicates its readiness to perform to the purchaser within this period and schedules a date for the provision of the services.
If the failure to meet deadlines is due to force majeure, such as mobilization, war, riots, natural disasters, or other unforeseen events at the time of the contract conclusion, such as strikes, lockouts, difficulties in material or energy procurement, transport delays, shortages of labor, energy or raw materials, or governmental actions that are not the fault of MUGLER SE, the deadlines shall be extended accordingly. If such delays exceed a period of 8 weeks, both parties are entitled to withdraw from the contract with respect to the affected scope of performance. No other claims shall exist.
If the delivery time is extended according to Section 1 or MUGLER SE is released from its obligation according to Section 2, the purchaser cannot derive any claims for damages from this.
If the dispatch or delivery of goods is delayed by more than one month after notification of readiness for shipment at the request of the purchaser, a storage fee of 0.5% of the price of the items to be delivered, but no more than 5% in total, may be charged to the purchaser for each month or part thereof. The right to provide evidence of higher or lower storage costs is reserved for both parties.

E. Transfer of Risk

Shipping is carried out at the purchaser’s risk and expense. The same applies to returns made by the purchaser.
The risk passes to the purchaser, even in the case of carriage-paid delivery, as follows: a. For deliveries without installation or assembly, when they are dispatched or picked up. Upon the purchaser’s request and at their expense, MUGLER SE will insure the deliveries against the usual transport risks. b. For deliveries with installation or assembly, on the day of acceptance in their own operation or, where agreed, after successful trial operation.
If dispatch, delivery, commencement, execution of installation or assembly, acceptance in their own operation, or trial operation is delayed for reasons attributable to the purchaser, or if the purchaser is otherwise in default of acceptance, the risk passes to the purchaser upon receipt of the first reminder from MUGLER SE due to the purchaser’s lack of cooperation or acceptance. The receipt is considered effective at the end of the third day after the date of the reminder letter.

F. Installation and Assembly

Unless otherwise agreed in writing, the following provisions apply to installation and assembly:

Unless included in the agreed scope of services, the purchaser shall bear the costs and provide the following in a timely manner:
a. All earthworks, construction, and other ancillary work, including the necessary skilled and unskilled labor, building materials, and tools required,
b. The necessary equipment and materials for installation and commissioning, such as scaffolding, lifting devices, and other apparatus, fuel, and lubricants,
c. Energy and water at the installation site, including connections, as well as heating and lighting,
d. Sufficiently large, suitable, dry, and lockable rooms at the installation site for storing machine parts, apparatuses, materials, tools, etc., and appropriate work and rest rooms for the assembly personnel, including adequate sanitary facilities; furthermore, the purchaser must take the measures necessary to protect the property of MUGLER SE and the assembly personnel at the construction site in the same way they would protect their own property and personnel,
e. Protective clothing and protective devices that are required due to specific circumstances at the installation site.
Before starting the assembly work, the purchaser must, without being asked, provide the necessary information regarding the location of concealed electrical, gas, and water lines or similar installations, as well as the required structural data.
Before the installation or assembly begins, all items required for the commencement of work must be at the installation or assembly site, unless otherwise agreed, and all preliminary work must have progressed sufficiently before the start of the assembly so that installation or assembly can be started as agreed and carried out without interruption. Access roads and the installation or assembly site must be leveled and cleared.
If installation, assembly, or commissioning is delayed due to circumstances not attributable to MUGLER SE, the purchaser shall bear the costs for waiting time and any additional travel required by MUGLER SE or the assembly personnel to a reasonable extent.
The purchaser must certify to MUGLER SE the duration of the working hours of the assembly personnel and the completion of installation, assembly, or commissioning on a weekly basis.
If MUGLER SE requests acceptance of the delivery after completion, the purchaser must carry it out within two weeks. If this does not happen, acceptance is deemed to have taken place. Acceptance is also considered to have occurred if the delivery has been put into use—if applicable, after the completion of an agreed test phase.

G. Acceptance

Deliveries and services must be accepted by the purchaser even if they exhibit minor defects. In cases where such defects do not preclude the proper acceptance of the delivery or service and where the defects are not hidden, the goods or services shall be deemed approved if the defect is not reported within a maximum of two weeks after acceptance.

H. Descriptions and Similar

Technical descriptions of the object of a purchase contract or work contract are not to be understood as a guarantee of specific performance parameters but as descriptions of the approximate technical parameters to be achieved. A guarantee of specific safety standards, especially the agreement on safety margins for the agreed performance, is not generally associated with such a description. This also applies if specific technical regulations or standards prescribe a safety margin. Such over-fulfillment or safety margins, even if typically required, require an explicit and written agreement.
The illustrations, dimensions, descriptions, technical details, and packaging units stated in brochures are not binding. MUGLER SE expressly reserves the right to make changes.
As a rule, only the manufacturer’s product description is agreed upon as the condition of the goods. Public statements, promotions, or advertising by the supplier do not constitute a contractual condition of the goods.
All details, drawings, illustrations, descriptions, and information regarding weight, size, or capacity, as well as other descriptive details and information on compliance with legal requirements, regardless of whether they are provided in a catalog, on dispatch notes, invoices, packaging, or otherwise, are intended to provide an overview of the item. Such descriptions shall not form part of the contract. If an item’s description deviates from the manufacturer’s description, the manufacturer’s information shall prevail in case of doubt. MUGLER SE takes all reasonable measures to ensure the accuracy and correctness of the description, without, however, making it the subject of the contract, guaranteeing it, or assuming any liability for it. MUGLER SE does not assume any liability for the accuracy, completeness, and correctness of the description.

I. Warranty and Limitation Period

No warranty is provided for test products, early series devices, and/or prototypes used by the purchaser during the development phase.
MUGLER SE is liable for defects as stipulated in the framework agreements, otherwise according to these General Terms and Conditions. For justified defects in its services, MUGLER SE, at its discretion, shall rectify the defective parts free of charge, deliver new parts, or provide new services, provided that the cause existed at the time of the transfer of risk.
The limitation period is one year from delivery, or if acceptance is required, two years from acceptance. An unjustified refusal of acceptance is equivalent to acceptance. The limitation period does not apply to claims for damages arising from injury to life, body, or health, nor in cases of intentional or grossly negligent breaches of duty, which are each subject to the statutory limitation periods.
Claims by the purchaser for expenses required for supplementary performance, particularly transport, travel, and material costs, are excluded.
Telecommunications systems and equipment as well as electronic accessories supplied by MUGLER SE are not considered part of the building on which they are installed. The warranty period for such transmission systems and their associated components is two years from acceptance. Item 3, sentences 2 and 3, apply.
The purchaser’s warranty claims do not extend to services that they modify themselves or use outside the contractually agreed system environment. No warranty is assumed, particularly in the following cases: a. Unsuitable or improper use, b. Faulty assembly or commissioning by the purchaser or third parties, c. Natural wear and tear, d. Faulty or negligent handling, e. Improper maintenance, f. Unsuitable operating materials, g. Chemical, electrochemical, or electrical influences, provided they are not the responsibility of MUGLER SE.
Further prerequisites for warranty claims are the reproducibility or detectability of the defect or fault.
Should the delivery of used items occur, it is done under exclusion of any warranty for material defects.
The purchaser has an immediate duty to inspect and report defects upon delivery according to § 377 HGB. Costs incurred due to erroneous notifications shall be reimbursed by the purchaser.
The purchaser must provide evidence of all the conditions required for claims, particularly for the defect itself, the time of the defect’s discovery, and the timeliness of the defect notification.

J. Product Liability

The purchaser shall indemnify MUGLER SE against claims made by third parties against MUGLER SE for damages caused by a product supplied by MUGLER SE that has been incorporated into another end product, especially when the cause of liability is due to non-compliance with MUGLER SE’s specifications.

K. Liability for Damages Due to Fault

The liability of MUGLER SE for damages, regardless of the legal grounds, particularly for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tort, is limited according to this section K, insofar as it depends on fault.
MUGLER SE shall not be liable for simple negligence on the part of its organs, legal representatives, employees, or other vicarious agents, unless it concerns a material contractual obligation. Material contractual obligations are those which ensure timely delivery and performance, freedom from legal defects, and freedom from material defects that significantly impair the function or usability of the delivered goods, as well as duties of advice, protection, and care, intended to enable the purchaser to use the delivered item in accordance with the contract, protect life or health, or safeguard the purchaser’s property against significant damage.
To the extent that MUGLER SE is liable for damages, this liability is limited to damages that MUGLER SE foresaw as a possible consequence of a breach of contract at the time of contract conclusion or should have foreseen by exercising ordinary care. Indirect damages and consequential damages resulting from defects in the delivered goods are only compensable to the extent that such damages are typically expected when the goods are used as intended.
Insofar as MUGLER SE is liable for simple negligence, liability is limited to a maximum of €1,000,000.00 (in words: one million euros), even if it concerns a breach of material contractual obligations.
The above exclusions and limitations of liability apply to the same extent in favor of the organs, legal representatives, employees, and other vicarious agents of MUGLER SE.
These limitations do not apply to liability for intentional misconduct, guarantees, injury to life, body, or health, or under the Product Liability Act.

L. Industrial Property Rights and Copyrights

If a third party asserts justified claims against the purchaser due to the infringement of an industrial property right or copyright (hereinafter: “property rights”) by products supplied by MUGLER SE and used in accordance with the contract, MUGLER SE shall be liable to the purchaser as follows: a. MUGLER SE shall, at its discretion and at its expense, either obtain a right to use the product, modify the product so that the property right is not infringed, or replace the product. If MUGLER SE is unable to do so under reasonable conditions, it shall take back the product and refund the purchase price. b. The aforementioned obligations of MUGLER SE exist only if the purchaser notifies MUGLER SE in writing without delay of the claims asserted by the third party, does not acknowledge any infringement, and leaves all defensive measures and settlement negotiations to MUGLER SE. If the purchaser ceases to use the product for reasons of damage mitigation or other important reasons, they are obliged to inform the third party that the cessation of use does not imply an acknowledgment of a property rights infringement.
The purchaser’s claims are excluded if they are responsible for the property rights infringement.
The purchaser’s claims are also excluded if the property rights infringement is caused by specific specifications of the purchaser, by an application not foreseeable by MUGLER SE, or by the product being altered by the purchaser or used together with products not supplied by MUGLER SE.
Further claims against the supplier are limited to the purchaser’s right to withdraw from the contract after a prior deadline for performance has been set.

M. Contract Adjustment

If unforeseen events significantly change the economic significance or the content of the delivery or have a considerable impact on the operations of MUGLER SE, the contract will be appropriately adjusted in good faith. If such adjustment is not economically justifiable, MUGLER SE reserves the right to withdraw from the contract. If MUGLER SE wishes to exercise this right of withdrawal, it must notify the purchaser immediately after recognizing the implications of the event, even if an extension of the delivery time was initially agreed with the purchaser.
In the case of a framework contract or a continuing obligation contract with a duration of more than 24 months, either party may request an adjustment of the contract prices if market prices have changed by more than 10% compared to the time of contract conclusion and this was not foreseeable at the time of the contract’s conclusion.

N. Data Protection

Personal data of the purchaser will be stored by MUGLER SE exclusively for contract processing, customer care, and customer information. MUGLER SE will only pass on the data to the shipping companies entrusted with the delivery to the extent necessary for the delivery of the goods. To process payments, MUGLER SE will forward the payment data to the financial institution handling the payment.
MUGLER SE assures that personal data will not otherwise be passed on to third parties unless MUGLER SE is legally obliged to do so or the purchaser has explicitly consented beforehand. If third-party services are used to carry out and process processing procedures, the provisions of the Federal Data Protection Act will be complied with.
If the purchaser no longer agrees with the storage of their personal data or if the data has become incorrect, MUGLER SE will arrange for the deletion, correction, or blocking of the data upon corresponding instruction within the framework of the statutory provisions. Upon request, the purchaser will receive free information about all personal data stored about them. For questions about the collection, processing, or use of your personal data, for information, correction, blocking, or deletion of data, please contact: MUGLER SE, Hofer Straße 2-4, 09353 Oberlungwitz, Germany, Fax: +49 3723 747 299, E-Mail: mugler@mugler.de.

O. Cessation of Payments / Insolvency

If the purchaser ceases payments, a provisional insolvency administrator is appointed, insolvency proceedings are opened over the purchaser’s assets, or if there are protests of bills or checks against them, MUGLER SE is entitled to withdraw from the contract in whole or in part without any claims arising against MUGLER SE. If MUGLER SE withdraws from the contract, the services performed up to that point will be invoiced at the contract price.

P. Exclusion of the CISG

The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

Q. Miscellaneous

The law of the Federal Republic of Germany applies.
The place of jurisdiction is the seat of MUGLER SE. Mandatory statutory provisions regarding exclusive jurisdictions remain unaffected.
If the contract or these General Terms and Conditions contain gaps, those legally effective provisions shall be deemed agreed to fill these gaps, which the contracting parties would have agreed upon according to the economic objectives of the contract and the purpose of these General Terms and Conditions if they had recognized the gap.

GTC