General Terms and Conditions
General Terms and Conditions
Deliveries and Services of MCL Computer & Zubehör GmbH
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I. General Terms
1.1 This contract is brought about between MCL Computer & Zubehör GmbH (hereinafter: MCL) and the customer (hereinafter: Customer).
1.2 The following General Terms & Conditions shall apply exclusively to all deliveries and services. They shall also apply to all future business relations, provided attention was drawn to their applicability and the Customer was able within reason to take note of their contents. Any conflicting or supplementary agreements or statements of the Customer (e.g. terms of business or purchase) and any ancillary arrangements are hereby refuted. They shall be subject to express written consent from MCL. MCL’s employees are not authorized to conclude oral ancillary agreements or verbal covenants that extend beyond the content of the written contract.
1.3 Customers within the meaning of these General Terms & Conditions are exclusively entrepreneurs, i.e. individuals acting within the scope of their commercial or self-employed activity when concluding a legal transaction. If requested by MCL, the Customer shall present a business license within 10 days of conclusion of the contract. This shall be pointed out to the Customer upon confirmation of the order. If the Customer fails to perform this duty, MCL shall be entitled to withdraw from the contract.
1.4 MCL is entitled to transfer its rights and claims created under these Terms & Conditions.
2. Offer / Subject-matter of the contract / Contract closure
2.1 Contracts may be concluded in either German or English.
2.2 Unless expressly designated otherwise, all information given by MCL on the internet, in brochures, catalogues or other materials is non-binding with regard to services, quantity and supplementary services, and shall not constitute a binding offer by MCL to conclude a contract. The quantity to be delivered as designated in the offer shall be limited to the supply kept in stock in the sense of an individual determinate obligation. Prior to the binding declaration of contract by MCL, MCL expressly reserves the right to make technical changes. MCL agrees to inform the Customer without delay if an article is not available. MCL reserves the right to make the conclusion of a contract contingent upon prepayment, a down payment or payment of security. The order is processed using automated data processing equipment.
2.3 A purchase order may be placed online, by telephone or in writing. Orders for lease or hire can only be made by telephone or in writing. When placing an order, the customer submits a binding offer to conclude a contract with MCL. The confirmation of receipt of the order and any status reports by MCL do not constitute acceptance of such offer. In all events, the contract is only brought about when MCL issues confirmation of the order. The shipping of the ordered goods and corresponding notification of the Customer are deemed equivalent to an express declaration of acceptance by MCL.
3. Prices and terms of payment / Packaging and shipping
3.1 The prices stated in the (order) confirmation to which applicable statutory value-added tax must be added shall apply. Unless otherwise agreed, the prices are freight collect within Germany. MLC shall be entitled to demand a surcharge for small orders.
3.2 The prices for online orders are as stated in the shopping basket on our website at the time of the order, plus applicable statutory value-added tax. Deviating prices possibly given on pages that have been uploaded from a buffer (browser or proxy cache) are not current and are not valid. Our shopping basket cannot be cached. In accordance with statutory regulations, we reserve the right to correct prices that result from typing errors or errors in calculation.
3.3 Unless expressly otherwise agreed in writing, MCL’s prices are calculated ex dispatch location, excluding packaging, freight or prior carrier charges. The Customer must pay the packaging and shipping costs, which are stated as a separate item in the invoice.
3.4 Unless otherwise agreed, amounts fall due for payment net cash and without deduction within 8 days of receipt of the invoice by the Customer. The Customer falls into arrears by not adhering to the payment deadline. No separate reminder will be sent.
3.5 In the case of first-time transactions and new customers, delivery is made either on account subject to a positive trade credit insurance check, or in return for advanced payment, or cash on delivery. In the aforementioned cases, payment for (customer) services falls due without deduction immediately on receipt of the invoice and acceptance of the services.
3.6 If a payment is overdue, MCL shall be entitled to charge statutory default interest pursuant to Sec. 288 (2) German Civil Code (hereinafter: BGB, Bürgerliches Gesetzbuch) in the amount of 9% above the applicable base interest rate pursuant to Sec. 247 BGB. The flat-rate fee for default pursuant to Sec. 288 (5) BGB shall also apply.
3.7 MCL is entitled to obtain information regarding its customers’ credit rating (banks, credit bureaus, etc.) at its own discretion, even prior to conclusion of a contract. If MCL becomes aware of circumstances that cast doubt on a Customer’s creditworthiness, in particular if a cheque bounces or if the Customer discontinues payments, MCL shall be entitled to demand the total payment outstanding, even if cheques had been accepted. MCL shall also be entitled to demand prepayments or security payments for orders already confirmed if, owing to the Customer’s previous payment practices or the exceptionally large value of the order compared to earlier business with MCL, there is reason to fear that the Customer will not pay the purchase price as set out in the agreements reached with MCL.
3.8 Packaging shall become the Customer’s property and be invoiced by MCL in the shipping costs as a separate item (cf. item I. 3.3).
3.9 Shipping costs shall be calculated depending on the method of shipment or payment, weight, and the shipping address. The shipment method shall be chosen from the possibilities available either at MCL’s discretion or in accordance with the Customer’s wishes. In the case of partial deliveries initiated or offered by MCL, subsequent deliveries shall be made freight-free. If the Customer requests that a shipment be split, the shipping costs for each partial delivery may be charged extra.3.10 In case the customer is in arrears with more than one payment, the total sum is due for payment without any delay.
3.10 If the Customer is in arrears with more than one payable, the total receivables from the Customer shall fall due for payment immediately.
4. Dates of delivery / performance and deadlines
4.1 Unless otherwise agreed, orders shall be delivered to the Customer within 5 working days after MCL receives the order, taking into consideration the availability of the goods at the manufacturer. Apart from that, dates and deadlines for deliveries and (customer) services provided by MCL are only binding if they have been expressly agreed upon as binding between the parties.
4.2 Should delays beyond the agreed date of delivery or service occur after an order has been placed, or if such delays are foreseeable, the Customer shall be informed without delay. If the Customer allows MCL a period of grace on MCL failing to comply with the delivery date, this period must be reasonable (cf. item I. 8.1).
4.3 MCL shall not assume any procurement risk for the goods. If the item is not available or is temporarily unavailable despite MCL having made provision accordingly, MCL shall immediately inform the customer after receipt of the order as well as at regular intervals thereafter. MCL shall be released from the obligation to perform until the product is delivered by MCL’s own supplier, and if the item cannot be delivered MCL may withdraw from the contract. This shall not apply if MCL is responsible for non-delivery by its own supplier. If MCL wants to withdraw from the contract, it shall exercise its right to withdraw without undue delay. In the event of withdrawal, MCL shall promptly refund to the Customer any amounts already paid towards the purchase price. Any claims for damages by the Customer are excluded. This shall not apply if MCL is responsible for non-delivery by its own supplier.
4.4 Any claims for damages asserted by the Customer on the basis of delayed delivery or services and which have arisen owing to slight negligence on MCL’s part, shall be limited to 0.5% of the invoiced amount concerned for each full week of the delay, and shall not exceed max. 5% of the invoiced amount concerned in total. In all other respects, item I. 8 shall apply.
4.5 MCL shall be entitled to make partial deliveries and perform partial services if this cannot be avoided owing to reasons for which MCL is not responsible (e.g. in the cases mentioned in item 4.3), unless a partial delivery is obviously of no interest to the Customer because of the items’ functional interconnection or for other reasons. In such cases, the shipping costs pursuant to items I 3.3 and 3.9 shall be billed to the customer once only.
4.6 If a delivery is canceled by MCL at the Customer’s request, MCL may without further proof charge the customer 15% of the invoice amount for the product involved by way of lump-sum compensation. In such instances, however, the Customer has the option of proving that as a result of the cancellation requested by the Customer, MCL either sustained no damage at all or much less damage than the 15% of the invoice amount for the respective product that it is demanding.
4.7 Delay of delivery or services owing to force majeure or any other circumstances unforeseen by and not attributable to MCL, for instance strikes or lockouts, including such events at MCL’s own suppliers or their sub-suppliers, shall entitle MCL to postpone the delivery or services for the term of the hindrance, plus a reasonable start-up time. This shall be without prejudice to the Customer’s statutory rights.
4.8 Should the delivery or performance of services be delayed as a result of circumstances for which the Customer is responsible, the Customer shall bear any resulting costs incurred by MCL.
5. Passing of risk
Risk (object risk, price risk) shall in all events pass to the Customer as soon as the goods have been handed over to the freight forwarder, the carrier or any other person effecting their transportation, or have left the warehouse for shipment. If the Customer picks up the goods on MCL’s premises, the risk of accidental loss or damage shall pass to the Customer when the goods are handed over to the Customer. If shipping is delayed at the Customer’s request or becomes impossible for reasons not attributable to MCL, risk shall pass to the Customer when notice of readiness for shipping is issued. In the case of a rental or lease agreement, the Customer shall bear the risk during return transport to MCL.
6. Obligation of the customer to cooperate, data protection
6.1 The Customer is under obligation to reasonably support MCL during fulfilment of its contractual obligations. The Customer shall designate a contact person, who must be available to MCL’s staff during normal business hours. The contact person is authorized to make any statements with regard to execution of the contractually agreed performance and to accept any relevant statements from MCL.
6.2 On the agreed customer service dates, the Customer shall grant MCL free access to the equipment as well as unimpeded access to the respective diagnosis and application programs and documentation.
6.3 By the agreed delivery date, the Customer shall meet MCL’s requirements regarding spatial, technical and other prerequisites for installation and connection, so that MCL can ensure readiness for operation insofar as MCL is responsible for installation. If the Customer does not satisfy the aforementioned requirements, or fails to do so adequately or in a timely fashion, then the Customer shall compensate MCL for the additional expense thus incurred, applying the MCL service rates in force at the time. Losses occurring solely due to a breach of duty or breach of obligation by the Customer within the meaning of items I. 6.1 to 6.3 above, shall be borne solely by the Customer.
6.4 MCL shall deliver and install hardware according to the agreed specifications and performance features. During installation and when ensuring readiness for operation, MCL shall not be responsible for connecting the delivered hardware with other equipment or programs, unless otherwise expressly agreed.
6.5 The Customer shall be under obligation to ensure that its data is sufficiently backed up at regular intervals, and in particular before installation of software and hardware and before maintenance services are carried out by MCL. If the customer has failed to sufficiently back up its data, MCL shall only be liable - if at all - for damage that would have occurred even if the data had been sufficiently backed up, as must be proven by the Customer. In all other respects, MCL shall only be required to pay damages for lost data or for data rendered unusable in accordance with item I. 8.8 of these General Terms & Conditions.
6.6 If services are performed on the Customer’s premises, the Customer must immediately examine its objects and buildings on delivery to make sure they are intact, and promptly inform MCL in writing of any damage. MCL shall not be liable for damage that is reported late, i.e. in breach of the aforementioned duty.
7.1 In the event of spelling mistakes, printing errors or miscalculations regarding services, quantities and ancillary services offered on the MCL website, MCL shall be entitled to withdraw from the contract. In other respects, statutory rights pursuant to Secs. 119 et seq BGB shall apply to errors.
7.2 If the Customer’s financial situation substantially deteriorates, casting doubt on its ability to pay, MCL shall be entitled to hold back its goods and services that are not already fully paid at such point in time, and may set a reasonable deadline for the Customer to make pre-payments or furnish security. After the deadline has expired, MCL shall be entitled to withdraw from the contract. In addition, the statutory provisions of the BGB shall apply.
8. Warranty claims and claims for damages
Notwithstanding specific provisions regarding warranty and liability, the following shall apply in cases of breach of duty by MCL:
8.1 For remedying a defect or eliminating a breach of duty, the Customer shall grant MCL a reasonable grace period, which as a rule shall not be less than two weeks. Only after the grace period has expired can the customer withdraw from the contract or cancel a lease agreement and/or claim for damages.
8.2 Notwithstanding the provision set forth in item I. 8.7, the Customer may only claim damages or compensation for wasted expenditure in cases of gross negligence or intentional breach of duty by MCL. Accordingly, claims for damages in lieu of performance (in case of non-performance, Sec. 280 (3) in conjunction with Sec. 281 BGB) as well as default losses (Sec. 280 (2) in conjunction with Sec. 286 BGB) shall be limited to the negative interest. Notwithstanding the provision set forth in item I. 8.7, damages for non-performance or non-compliant performance (Sec. 282 BGB) shall be limited to the amount of the purchase price or rental. Claims for damages in lieu of performance are ruled out where the performance obligation (and possibility) has been excluded.
8.3 The right to withdraw from or terminate the contract and the right to claim damages in lieu of complete performance shall only exist in the case of substantial defects.
8.4 The customer must furnish evidence of the cause and the amount of damage that occurred. The same shall apply to wasted expenditure.
8.5 In the event of a breach of cardinal duty (cf. item I. 8.7), liability shall be limited moreover to the typically foreseeable damage and the typically foreseeable amount; in such cases, liability for indirect damage, in particular consequential damage ensuing from defects (e.g. lost production or other costs for downtimes) and lost profit shall be excluded.
8.6 As a matter of principle, the delivery of hardware and software and the provision of services shall not be considered a unified item. Defects within the meaning of nos. II. 2.1 and III. 5 in one area do not entitle the Customer to assert claims for defects or compensation in another area, unless an inseparable connection was previously agreed in writing between MCL and the Customer, or unless the Customer cannot reasonably be expected to use one part separately. This shall be without prejudice to the provisions on claims for defects and for compensation regarding the specific defective product or specific defective performance concerned.
8.7 The limitations of warranty and liability as set out in items I. 8.1 to 8.6 shall not apply in the event of mortal injury, physical harm or health damage resulting from at least negligent breach of duty by MCL, or from wilful or negligent breach of duty by one of its statutory representatives or vicarious agents, or in cases of non-compliance with the guarantee of quality, in cases covered by the German Product Liability Act, as well as in cases of damage resulting from a grossly negligent or wilful breach of cardinal duty, i.e. a contractual duty performance of which is a prerequisite for due implementation of the contract in the first place, compliance with which is expected and may always be relied upon by the contractual partner, and which conversely may jeopardise attainment of the contractual purpose if breached.
8.8 In the event of loss of data attributable to MCL, MCL shall be liable for an amount limited to the expense that would have been incurred if the Customer had duly carried out backups of its data on a regular basis, in particular the expense of reproducing the Customer‘s data from backup copies to be created by the Customer, and for reconstructing the data that would have been lost even if the data had been properly backed up.
8.9 If the customer is solely or mainly responsible for circumstances which would entitle it to withdraw from or terminate the contract, or if the circumstance entitling it to withdraw from or terminate the contract occurs during default of acceptance by the Customer, then withdrawal or termination shall be excluded.
8.10 In the case of products it did not produce itself, MCL may assign to the Customer its claims for damages which exist in relation to the manufacturer, and in the first instance it may refer the Customer to the manufacturer regarding such claims. MCL shall assist the customer in doing so to its best ability. In this case, MCL shall only be liable for damages if and insofar as the Customer fails in its efforts to sue the manufacturer for those of MCL’s compensation claims which have been assigned to the Customer.
9. Limitations on resale
9.1 HP and HPE products
9.1.1 Resale of HP/HPE products outside of the European Union or EFTA, regardless of whether it is a new or a renewed HP/HPE product, is prohibited.
9.1.2 MCL reserves the right not to deliver to or to discontinue deliveries to a Customer, if it comes to MCL’s knowledge that HP/HPE products ordered from MCL are being resold by the Customer outside of the European Union or EFTA or that the Customer is planning such resale.
9.2 Lenovo products
9.2.1 The resale of Lenovo products outside of the EEA countries and Andorra, Liechtenstein, Monaco, San Marino, Switzerland and the Vatican State, is prohibited.
9.2.2 MCL reserves the right not to deliver to or to discontinue deliveries to a Customer, if it comes to MCL’s knowledge that Lenovo products ordered from MCL are being resold by the Customer outside of the EEA countries and Andorra, Liechtenstein, Monaco, San Marino, Switzerland and the Vatican State or that the Customer is planning such resale.
In case of contracts for work or services with MCL, the Customer agrees not to enter into a service agreement or employment agreement with employees of MCL during the term of the contract and for a period of one year after termination of its cooperation with MCL. If the Customer fails to honour this agreement, it shall be under obligation to compensate any losses thus caused.
11. Data protection and confidentiality
11.1 The Customer agrees that the Customer’s data that is obtained in connection with the business relationship may be processed, stored and analysed by MCL within the meaning of data protection law, and it authorizes MCL to this effect.
11.2 MCL shall not disclose personal customer data to third parties. Service partners requiring the transfer of such data for processing orders are excluded from this provision. In such cases, however, the amount of the data transferred shall be reduced to the absolute minimum.
11.3 MCL shall not disclose personal customer data to third parties. Service partners are excluded here who need such data to be transferred for processing orders. In such cases, however, the amount of the data transferred shall be reduced to the absolute minimum.
11.5 The Customer undertakes to treat confidentially all information obtained during preparation and execution of the contract, insofar as such information involves business or trade secrets and in particular information or documents specifically marked confidential (hereinafter referred to as “Confidential Information”), also after termination of the contractual relationship, and not to disclose such information to third parties and to use same solely for performance of the contract. The details of the content of the contract also constitute one of MCL’s business secrets.
11.6 The Customer shall allow employees to access Confidential Information within the meaning of item I. 11.5 only to the extent that access is necessary for performance of the contract or for exercising the rights of use granted to the Customer. The Customer shall give all persons whom it allows to access Confidential Information instructions on the obligation to observe confidentiality, and it shall obligate them accordingly in writing in accordance with items I. 11.5 and 11.6.
12. Third-party industrial property rights and copyrights
12.1 The Customer shall be under obligation to immediately inform MCL in writing if it learns that a product supplied by MCL infringes industrial property rights or copyrights.
12.2 In the event of an infringement of German industrial property rights (e.g. patents, utility models and registered designs) owing to use of a product supplied by MCL, MCL shall indemnify the Customer from and against any claims (for damages) brought by the proprietor of the industrial property rights concerned.
12.3 In addition, MCL shall ensure in principle that the Customer acquires the right to continue using the product. If this is economically feasible within reason, MCL shall at its own discretion either modify the product or replace it such that the property rights are not infringed, or take the product back and reimburse the Customer for the purchase price paid to MCL, less an amount commensurate with the age of the product, or refund the rental fee.
12.4 MCL’s aforementioned obligations shall apply only if and insofar as the Customer informs MCL without delay of the claims brought against it, leaves defensive measures including out-of-court settlement up to MCL, and provided the infringement of the property right has not been caused by the Customer modifying a product delivered by MCL, or using it in a manner not described in the manufacturer’s literature, or using it in conjunction with products not supplied by MCL.
12.5 In accordance with item I.8, further claims of the Customer based on culpable conduct by MCL shall remain unaffected by the provisions set forth in items I. 12.1 to 12.4.
13. Rights of use in the software
13.1 Unless otherwise agreed, the Customer shall be granted a non-exclusive, transferable right of use in the software, in third-party software (i.e. software developed by a non-related software supplier) and in the respective pertinent documentation, supplementary documentation and other documentation, for use for the contractual purpose on one computer system. This encompasses in particular the right to copy the software. Any further rights in the software and documentation, including copies and subsequent additions, shall remain with MCL or the software supplier. Otherwise – apart from the exceptions pursuant to item I. 13.2 – the Customer must not use the software without MCL’s prior written consent, in particular it must not reproduce all or any of the software, allow public access, rent out, modify, translate or convert the software from the object code to the source code.
13.2 Statutory exceptions, such as are stipulated in sec. 69d para. 1 and para. 2 German Copyright Law (UrhG) shall remain unaffected. Notwithstanding item 13.1 above, the Customer may observe, examine or test the software’s functions in order to understand the software’s underlying ideas and principles, if this is done by activities involving loading, viewing, running, copying or saving the software, to which the Customer is contractually entitled. Activities which are absolutely necessary for obtaining information such as is required for determining the interoperability of an independently created computer program and other programs, if this information is not otherwise available to the customer, are not subject to MCL’s prior written consent. These activities must be limited to those parts of the original program that are required for interoperability; the information thereby obtained may not be used for any other purpose, nor disclosed to third parties (cf. Sec. 69e of the German Copyright Act). MCL may request reasonable compensation for disclosure of the information. The customer shall ensure that the software and documentation are not accessible to third parties without MCL’s prior written consent. As a matter of principle, copies may only be made for archiving purposes, for backups to the necessary extent (cf. Sec. 69d para. 2 of the German Copyright Act), and for searching for errors.
13.3 Source codes shall only be made available under a special written agreement. If the originals are marked with a copyright notice, the Customer shall affix such notice to the copies. Unless otherwise agreed, the right of use shall be deemed granted in each case on confirmation of the order and delivery of the software, documentation and subsequent additions.
14. Export regulations
The Customer shall observe the applicable German regulations and the relevant foreign regulations when (re-)exporting products supplied by MCL, and it shall inform its own customers that in the event of (re-)export the German regulations and the relevant foreign export / import regulations will apply. If the Customer breaches any export regulations, it shall bear full liability in relation to MCL.
15. Offsetting ban, right of retention
The customer is not entitled to offset any claims that do not relate to the reciprocity of performance and counter-performance under the contract. This offsetting ban does not apply if the counterclaims are not disputed by MCL or have been declared res judicata, or where adjudication is pending. The customer cannot claim any right of retention, unless one of the aforementioned exceptions is the case.
16.1 Without MCL’s prior written consent, the Customer shall not be entitled to assign any claims arising from the contract to third parties. This shall not apply in the case of the Customer’s monetary claims against MCL.
16.2 The Customer may only assign obligations created under the contract to third parties with MCL’s written consent. The Customer may only offset claims asserted by MCL or assert a right of retention if the Customer’s counterclaims are not disputed or have been declared res judicata, or where adjudication is pending.
16.3 The Customer shall be entitled to return transport packaging to MCL. The packaging materials must be clean, must not contain any alien substances, and must be sorted into different types of packaging material. Otherwise, MCL shall be entitled to charge the Customer the additional expenses incurred for disposal.
II. Special Terms for Purchase Contracts
In addition to the General Terms set out in Part I., the following Special Terms apply for purchase contracts:
1. Online orders
1.1 Placing an order online. The Customer may place an order online after registering. The Customer can then select goods by clicking on them, which places them in a shopping basket. When the order button is clicked, all of the items in the shopping basket are displayed again in a separate confirmation window, where corrections can be made. By activating the button “Send order”, the Customer can then submit the order form to MCL.
1.2 Obligations of the online customer. The Customer must furnish correct and complete information during registration. The Customer must inform MCL without delay if its data changes, in particular name, address, email address, telephone number, or bank account details. If the Customer does not supply this information or provides incorrect data from the outset, in particular a wrong email address, MCL will be entitled to withdraw from the contract, insofar as one has been concluded. Withdrawal will be declared in writing or in written form (email). The Customer must ensure that the email address it has supplied is available at all times, and that the receipt of email messages is not blocked owing to forwarding, an overfull inbox or deactivation of the email account. The Customer is responsible for protecting the access data provided to it by MCL. The access data must be kept secret and must not be made accessible to third parties without prior written consent from MCL. If the Customer learns or suspects that its access data are being used by third parties, it must immediately change the access data or - if this is not possible – notify MCL. In case of justified suspicion that the access data are being misused, in particular if notified to this effect by the Customer, MCL shall be entitled to immediately block access. MCL shall inform the customer about such blocking without delay. MCL is not liable for any damage which might be suffered by the Customer owing to the misuse or loss of the access data. Item I. 8.7 shall apply to such cases mutatis mutandis.
1.3 Formation of a contractual agreement. Presentation of the goods on the internet does not constitute a binding sales offer by MCL (cf. also item I. 2.2 of these General Terms & Conditions). Any notification confirming receipt of the Customer’s order, including any details regarding the goods and prices contained in it (so-called “confirmation of receipt”), likewise does not constitute formal acceptance of the order. The purchase contract is only brought about when the formal confirmation of order with the heading “Order Confirmation” is sent.
1.4 Saving the contract text. MCL does not save the contract text and it cannot be accessed after the order process has been completed. However, the Customer can print out the order particulars immediately after placing its order.
2. Reservation of title
2.1 MCL reserves title to the products delivered until the purchase price and any outstanding payables or current account debit balance (including future claims) have been paid in full. The Customer is under obligation to treat the goods in its possession with care. Any treatment or processing of the goods subject to reservation of title shall be deemed done on behalf of MCL. If the Customer installs the goods in third-party goods, MCL shall become co-owner of the newly created products at a rate of the value of the reserved goods in proportion to the third-party goods also used. Products thus created shall be deemed goods subject to MCL’s reservation of title. If the Customer fails to honour its payment obligations vis-à-vis MCL, it shall only be entitled to re-sell such goods subject to reservation of title. Any other disposition over reserved goods, in particular pledging or assignment as security, is inadmissible. If a third party has access to the reserved goods, the Customer shall draw attention to MCL’s title and immediately notify MCL. By way of security, the Customer here and now assigns to MCL up to the value of the reserved goods all accounts receivable and ancillary rights and surrogates, which accrue to it from the re-sale or re-lease of the reserved goods as well as from business dealings with its customers in connection with the re-sale or re-lease of the reserved goods.
2.2 The Customer shall be entitled and obligated to collect the assigned receivables. If the Customer defaults on payments, MCL shall be entitled at any time to revoke the direct debit mandate and to notify its Customer’s own customers of the assignment, as well as to take back the goods subject to reservation of title, or, if applicable, to demand assignment of the Customer’s right to recover possession vis-à-vis third parties. The Customer is obligated to provide MCL with any particulars required for collecting the receivables and to hand over the relevant documents. In the event of MCL taking back or pledging the reserved goods, this shall not constitute withdrawal from the contract. If so requested by the Customer, MCL shall release security to the extent that it exceeds 20% in value of the total collateralised receivables.
3. Claims for defects
3.1 A material defect exists if, at the time of the passing of risk, the contractual objects do not have the agreed characteristics or are not suitable for the contractually agreed use. Each item’s characteristics are given in MCL’s product description. Unless agreed upon by the parties, MCL’s public utterances, promotions or advertisements do not constitute contractual specifications of the item’s characteristics. A defect in title exists if the rights required for contractual use have not been granted to the Customer with due effect. Insubstantial deviations with respect to the goods’ colour, dimensions and/or other quality or performance features shall not give rise to any claims by the Customer whatsoever.
3.2 The Customer must inspect the delivered goods immediately on delivery and notify MCL without delay of any existing defects.
3.3 Any transport damage or wrong quantities evident on delivery must be noted on the forwarder’s receipt voucher and reported to MCL without delay.
3.4 MCL will not consider defects that are reported late, i.e. not reported immediately in breach of the aforementioned obligation, and such defects shall be excluded from liability. Complaints about defects shall only be acknowledged as such by MCL if filed in writing. Complaints that are made to sales representatives or forwarders or other third parties do not constitute complaints filed in due time and form. In all other respects, the provisions pursuant to sec. 377 German Commercial Code (HGB) regarding the obligation to report defects shall apply.
3.5 Any return shipment to MCL that becomes necessary in the event of a defect may only be made with MCL’s prior consent. MCL does not have to accept return shipments to which it did not give prior consent. In this case, the Customer shall bear the cost of the return shipment.
3.6 If improvements are made or if a replacement is supplied on the basis of a legitimate complaint, the terms and conditions for delivery shall apply accordingly. If a defect is established and effectively reported to MCL, MCL undertakes, at its own discretion, to replace or repair the defective products within the scope of supplementary performance. Software errors that impair contractual use more than merely insubstantially shall be remedied at MCL’s discretion depending on the significance of the defect, either by supplying an improved version of the software or by issuing instructions on rectifying the defect or circumventing its effects. Moreover, if the first attempt at supplementary performance fails, MCL shall be entitled to make two more attempts at supplementary performance, again at its own discretion. Only after the third attempt at supplementary performance has failed shall the Customer be entitled to withdraw from the contract or reduce the purchase price. However, MCL cannot insist on a further attempt at supplementary performance as defined above, if the Customer cannot reasonably be expected to tolerate such further attempt in any individual instance.
3.7 When purchasing new merchandise, claims for defects will become statute-barred 12 months from delivery of the goods. This shall apply accordingly for used goods which are marked “Renew” by MCL. The exceptions specified in item I. 8.7. shall apply mutatis mutandis.
3.8 The Customer shall not be entitled to claims for defects insofar as such defects result from the fact that the Customer or a third party, without having the consent of MCL or being otherwise entitled, has altered products or improperly used or repaired them, or has installed, operated and maintained them disregarding the manufacturer’s guidelines.
3.9 Unjustified claims for defects are processed subject to an additional charge for the expenses thereby incurred on MCL.
3.10 In cases of used goods which are not more than two years old at the time of sale or are described as being as good as new, the guarantee shall be restricted to supplementary performance (rectification or replacement delivery) and the guarantee period shall be 12 months from delivery of the goods. In all other respects liability for defects is excluded for used goods and in particular for older goods, unless expressly agreed otherwise on contract closure. Both the aforementioned exclusion of liability and the restrictions to the guarantee do not apply to the cases specified in item I. 8.7 of these General Terms & Conditions.
3.11 With respect to goods not manufactured by MCL, MCL may assign to the Customer any claims for defects existing in relation to the manufacturer and refer the Customer to the manufacturer regarding such claims. MCL shall assist the Customer in this respect to its best ability. In this case, MCL shall only be liable for defects if the Customer fails in its efforts to sue the manufacturer for those of MCL’s claims for defects which have been assigned to the Customer.
III. Special Terms for Lease Contracts
n addition to the General Terms set out in Part I., the following Special Terms apply for lease contracts:
1. Availability for use/rental fees
1.1 The object of the lease contract agreed with the Customer is to make the designated products / equipment / additional installations available for use by the Customer for a defined period in return for payment. Such products shall be in working order, but not necessarily in factory condition.
1.2 The rental fee covers compensation for provision of the leased object as well as for its maintenance and repairs to ensure its contractual condition, commensurate with its condition at the point in time when readiness for operation was established.
2. Term of the lease
2.1 The contract shall be concluded for the agreed term.
2.2 Insofar as a contractual term has not been agreed, the contract shall be for an indefinite period. In such cases, the lease contract may be terminated observing a period of notice of 1 month, to take effect as from the end of any calendar month.
2.3 This shall be without prejudice to the right of both parties to terminate the contract without notice for good cause.
3. Default on payment and dissolution of the contract
If the lessee culpably refuses to duly implement the contract despite the setting of a deadline, MCL shall be entitled to claim damages in the amount of the rental fee for the minimum lease term, unless the lessee proves that MCL’s losses are smaller. MCL must allow setoff of possible saved expenses or other advantages ensuing from non-performance of the lease contract. If the lessee defaults with at least 1.5 monthly rates, MCL shall be entitled to terminate the contract. Furthermore, in case of termination, MCL shall be entitled to assert claims for damages in the amount of half of the remaining rental fees up to expiration of the contract (residual fees), unless the lessee proves that MCL’s losses are smaller. Item 3 sentence 2 shall apply mutatis mutandis.
4. Claims for defects
4.1 A leased object shall be deemed to have a material defect if the actual condition of the leased object is below the contractually agreed standard. A defect in title exists if the rights required for contractual use have not been granted to the Customer with due effect.
4.2 MCL must be notified without delay of malfunctions and damage to the equipment.
4.3 No claims for defects shall exist if the condition or suitability of the leased item deviates merely insubstantially from the condition or suitability contractually agreed. Claims for such defects are also excluded if the deviation from the contractual specifications is caused by improper use or is owing to the leased object being used under operating conditions which do not comply with the contract. The same shall apply for deviations caused by exceptional external influences beyond MCL’s control for which no provision is made in the contract.
4.4 MCL’s liability regardless of culpability pursuant to Sec. 536 a (1) BGB for defects already existing at the time of contract closure is excluded. In all other respects, the limitations of liability according to item I. 8. of these General Terms & Conditions shall apply mutatis mutandis.
4.5 Claims of the lessee for reimbursement of expenses (e.g. for obtaining a replacement in accordance with sec. 536a para. 2 German Civil Code (BGB) or for a permit to remove an installation) shall become statute-barred three months after termination of the lease contract. Claims based on sec. 536a para. 1 German Civil Code shall become statute-barred one year after they are created and the defect has come to the lessee’s knowledge. The above-mentioned curtailed limitation periods shall not apply in the cases specified in item I. 8.7.
4.6 Where necessary and acceptable, the Customer shall assist MCL in remedying defects, and in particular it shall enable MCL to access via online remote access or to enter the premises, if required.
4.7 Warranty claims shall not apply if the defect is caused by improper use, or if the Customer has used parts not approved by MCL, allows work to be done on the equipment by employees not authorised by MCL or has moved the equipment to a place other than that agreed with MCL without its prior consent, or if the leased object has been used under operating conditions other than those agreed. This shall not apply if the defect claimed by the Customer was not caused by the aforementioned circumstances.
4.8 Defects shall be remedied free of charge by carrying out improvements or repairs to the leased object. MCL must be granted a reasonable period of time to do so. MCL shall be entitled to replace the leased object or individual parts thereof for the purpose of remedying defects.
4.9 The Customer may only terminate the contract without notice pursuant to Sec. 543 (2) sentence 1 no. 1 BGB on the grounds of being denied contractual use if MCL has been unable to remedy the defect before a reasonable deadline.
4.10 The Customer’s rights shall be excluded if the Customer rectifies defects of the leased object itself or has this done by a third party without MCL’s prior consent. The Customer’s rights with respect to defects shall remain unaffected to the extent that the Customer is entitled to make alterations, in particular in the context of exercising its right to self-help pursuant to Sec. 536 a (2) BGB, and has done so properly and has clearly documented the steps taken.
4.11 Claims for defects in a leased object become statute-barred after 2 years. The limitation period begins on delivery of the leased object to the Customer. The statutory limitation periods remain unaffected in the cases specified in item I. 8.7.
5. Returning the leased object
5.1 After termination of the lease contract, the Customer shall return the entire leased object to MCL in a condition commensurate with contractual use. The Customer shall assume the costs for return shipment, disassembly of the products and their packaging, and shall bear the risk of damage, loss or destruction of the leased object during shipment.
5.2 Any damage to the leased object established upon its return shall be noted in a written record. The Customer shall compensate MCL for the expense of restoring the leased object, unless that is covered by and is within the limits of contractual use, or unless the damage is due to conduct attributable to MCL.
5.3 If the Customer does not return the leased object after termination of the lease contract, despite being requested to do so by MCL setting a deadline, MCL shall be entitled to charge a usage fee for the period exceeding the contractual term in the amount of the previously agreed leasing fees. This does not exclude any more far-reaching or additional claims for damages by MCL. The Customer shall be entitled to prove that MCL did not suffer any damage or only sustained smaller losses than the above-mentioned liquidated damages.
6. Liability of the lessee
6.1 The lessee shall be liable for all damage resulting from improper use of the leased object, in particular for damage culpably caused or if the leased object is destroyed, as well as for damage culpably caused by manipulating or altering the leased object.
6.2 In case of total write-off or destruction of the leased object, the lessee shall compensate MCL for the market value of the equipment. If the damage is attributable to a third party, the lessee shall be obliged to assign to MCL all its claims for damages existing vis-à-vis such third party, unless the lessor is already entitled to such claims directly.
IV. Special Terms for Service Contracts
1. Scope of performance
MCL provides maintenance services and customer support for certain hard- and software products supplied by MCL. The scope of performance can be gathered from the respective service contracts concluded with the customer. Unless otherwise agreed, the following Special Terms apply for service contracts in addition:
2. Cooperation by the customer
2.1 Before calling the hotline, the customer must consult the hard- and/or software documentation in order to define the error. The result found must be communicated to MCL on request.
2.1 At its own expense, the customer shall put at the disposal of service personnel all the technical installations required, as well as telephone and communications cables, and shall grant access to the equipment having to be serviced.
2.2 At its own expense, the customer shall put at the disposal of service personnel all the technical installations required, as well as telephone and communications cables, and shall grant access to the equipment having to be serviced.
2.3 The customer is under obligation to cooperate so that the contractual services can be rendered as agreed. This includes in particular naming a contact person, who in IT matters is a subject-matter expert and authorised to issue instructions.
2.4 The customer shall notify MCL without delay of any change in the location of the hardware and any changes made to its configuration.
2.5 The customer must not do any work on or make any modifications to the hard- and software, nor may it have this done by third parties. The customer’s attention is drawn to the fact that unauthorised work or modifications can render maintenance services more complicated or impossible. The service provider shall charge for any extra time and materials. In any such case, the obligation to pay the agreed remuneration does not lapse.
2.6 Employing the latest technical standards, the customer shall save its data at regular intervals (cf. item I. 6.5 of these General Terms & Conditions).
3. Service fees, payment date, adjustment of the service fees
3.1 Unless otherwise agreed, the service fees quoted are net prices to which turnover tax must be added. The service fees can be gathered from the respective service contract.
3.2 Unless otherwise agreed, the service fees must be paid in advance each quarter and shall fall due for payment on receipt of invoice.
3.3 MCL reserves the right to adjust the service fees at the end of the first contractual period depending on general price trends, in particular if there is any increase or decrease in prices for preliminary services that are required for rendering MCL’s performance owed under the contract. The customer shall be sent advance notification in writing or in electronic form (email) of adjustments to service charges at least four (4) months before they take effect. For a period of six (6) weeks after receiving the notification, the customer shall have the right to object to the price adjustment. If the customer does not object within the period allowed, the price adjustment shall be deemed effectively agreed. If the customer objects within the period allowed, MCL shall have the right – giving at least four (4) weeks’ notice – to terminate the contract with effect from the date of the price adjustment. In the notification announcing the price adjustment, the customer’s attention shall be expressly drawn to the deadline for objections and to the consequences of missing such deadline.
4. Advance announcement of maintenance work
Maintenance work may mean that temporarily, use of the customer’s hard- and/or software is partly or fully suspended or restricted. If possible in the circumstances and provided there is no imminent danger, the customer shall be informed in good time before such measures are carried out. In consultation with the customer, MCL shall endeavour to keep any disruption caused by maintenance work to a minimum.
V. Final provisions
1. Place of performance / Jurisdiction, governing law
1.1 Böblingen shall be the place of performance for deliveries and services.
1.2 The courts of Böblingen shall have jurisdiction in all contractual claims and all claims directly or indirectly connected with the signed contract. This shall also apply to proceedings restricted to documentary evidence. MCL shall also be entitled to file claims at the court having jurisdiction at the Customer‘s place of residence or place of abode.
1.3 The contract shall be governed solely by the laws of the Federal Republic of Germany, excluding CISG and German International Civil Law.
If any one or more of the aforementioned provisions is invalid, this shall be without prejudice to the validity of the remaining provisions. In any such case, MCL and the customer shall be under obligation to substitute the invalid provision with an effective clause, which in business terms reflects as nearly as possible what the parties intended.
Version October 2019
MCL Computer & Zubehör GmbH