Terms and Conditions - Mesa Labs Germany
GENERAL TERMS AND CONDITIONS OF SALE
The purpose of these General Terms and Conditions of Sale (hereinafter the “GTCS”), is to define the conditions under which Mesa Germany provides Customers, who so request, with the Products and/or Services.
In these GTCS, the terms below starting with a capital letter will have the following meaning, whether used in the singular or in the plural:
“Customer” means any person ordering Products or Services from Mesa Germany; “Mesa Germany” means the company Mesa Germany GmbH, Sigmund-RiefIer-Bogen 19, 81829 Munchen, a limited liability company registered at Bayern Amtsgericht Munchen HRB 236083, represented by “Products” means any product offered for sale by Mesa Germany, “Services” means any provision of services offered by Mesa Germany.
2 § 1 Scope of the GTCS
(1) All offers, sales contracts and deliveries made on the basis of orders by a Customer shall be governed by these GTCS.
(2) The offering of Products and Services are directed exclusively to entrepreneurs (as defined in Sec. 14 (1) of the German Civil Code , i.e. natural or legal persons or partnerships with legal capacity acting, when entering into the transaction in the exercise of their commercial, business or professional activity), as well as legal entities and special funds organized under public law, but in each case only to end users.
(3) These GTCS shall prevail over any clause to the contrary appearing in the Customer's documents and, in particular in its general terms and conditions of purchase, regardless of whether or not Mesa Germany expressly objects to them in a particular case. If Mesa Germany fails to avail itself of any of these GTCS, it shall not be construed as a waiver to avail itself of any of the terms and conditions in the future.
3 * s 2 AMENDMENTS OF THE GTCS
(1) Mesa Germany reserves the right to amend these GTCS at any time with effect also within the existing contractual relationships, insofar as — this is necessary for valid reasons, in particular due to a change in legislation or jurisdiction of the highest courts, technical changes or further developments, new organizational requirements of mass traffic, regulatory gaps in the terms and conditions, changes in market conditions or other comparable reasons and does not unreasonably disadvantage the customer, and the amendments do not alter the essential business characteristics of the contract, in particular the paid services provided by Mesa Germany.
(2) Mesa Germany shall notify the Customer of such amendments at least two (2) months before the planned entry into force of the amendments. The Customer may either accept or reject the amendment before their planned entry into force. The Customer shall be deemed to have given his consent unless he has given notice of his rejection before the planned date of entry into force of the amendments. Mesa Germany shall specifically make reference to this de facto consent in its offer.
(3) If the Customer rejects the amendments, both parties have the right to give extraordinary notice of cancellation of the business relationship. Mesa Germany will inform the Customer separately of this mutual extraordinary right of cancellation in its offer.
4 § 3 ORDERS
(1) All orders for Products and/or Services must be made in writing and include the following information:
Item number, descriptions and quantities of the Products or Services, billing address and company name,
— delivery address and company name, VAT number,
— name, phone number and email address of the person to contact.
If the wording is inaccurate, the item number of the Product and/or the Service shall take precedence over the description.
(2) Orders are only firm and final after being accepted and confirmed in writing by Mesa Germany.
(3) Mesa Germany reserves the right to refuse to act on an order in the event, in particular, of manufacturing constraints, irregularities or imprecise ordering or non-payment of an invoice from Mesa Germany by the Customer. The Customer will be informed about the refusal without undue delay, but no later than after 5 business days.
5 § 4 MODIFICATION OF ORDERS
(1) Any modification or cancellation of an order requested by the Customer must be the subject of the express written agreement of Mesa Germany, with the latter having full discretion to refuse it. No request for modification or cancellation of an order can be taken into account if it is made one month after receipt of the Products by Mesa Germany at its premises, if they are custom Products or Services (Customised Product or Service, On-demand Product or Service) and their manufacture or supply has already started, if the delivery of the Products is in progress, if the performance of the Services has started or if costs have already been incurred by Mesa Germany to process the order.
(2) Any modification of an order may give rise to invoicing of additional processing costs by Mesa Germany, as well as to a price adjustment if necessary. Any cancellation of an order may give rise to the invoicing by Mesa Germany of costs of up to 30% of the amount of the cancelled order.
6 § 5 CONCLUSION OF CONTRACT, ORDER CONFIRMATION
(1) The offerings in catalogues, prospectuses and other publicity documents of Mesa Germany are non-binding. They are for information purposes only and serve as the basis for requests for quotations in accordance with § 5 (2) of this regulation.
(2) The Customer may request Mesa Germany, both by telephone and by e-mail, to submit a quotation for the products selected by the Customer.
(3) Based on the Customer's request, Mesa Germany prepares a quote. The quote will be provided to the Customer by e-mail or by telephone, with e-mail being the rule. The quote constitutes an ofter wilhin the meaning of Section 145 of the German Civil Code (“BGB’).
(4) Only when the Customer accepts the quote by placing a purchase order with Mesa Germany, a contract is concluded. An e-mail or fax is sufficient for this purpose.
(5) After receiving the purchase order, Mesa Germany books the order and sends an order confirmation to the Customer via E-Mail.
7 § 6 PRICE, PAYMENT & CONSEQUENCES OF LATE PAYMENT
(1) The prices of the Products and/or Services in the quote include statutory VAT if applicable, but are net of shipping costs. Any customs duties and similar public charges as well as the shipping costs shall be borne by the Customer. The costs for the installation of the Products is not included in the price. This will be priced separately upon request.
(2) In general, delivery on invoice shall be deemed to be agreed. Invoices issued by Mesa Germany are due and payable thirty (30) days after receipt of the invoice by bank transfer, unless specifically agreed otherwise between Mesa Germany and the Customer. Mesa Germany's bank details are shown on the invoices issued by Mesa Germany.
(3) Mesa Germany reserves the right to require different payment terms, such as the advance payment of the full price of the Products and/or Services (transport costs, customs duties and taxes included) when the order is placed, especially in the event of a first order or an order for an amount exceeding the usual outstanding amount or due to a payment incident, deterioration of the Customer's solvency or refusal of insurance by the credit insurer.
(4) In the event of default or late payment of an invoice, Mesa Germany may refuse performance of its obligations under the respective order until payment has been made, without prejudice to any other course of action and in particular, its right to request the cancellation of the order in question according to Section 15.
(5) Any amount not paid within 30 days after the due date and receipt of an invoice will automatically result in, without any formalities or prior notice:
— the immediate payment of all sums owed by the Customer to Mesa Germany, without prejudice to any other action that Mesa Germany shall be entitled to bring, in this respect, against the Customer.
— the application of default interest in the amount of 9 (nine) percentage points above the base rate.
—Lump sum compensation for recovery costs, of an amount of 40 euros will be due, automatically and without prior notification, for each unpaid invoice within 30 days after its due date and receipt of the invoice.
(6) In the event of a payment incident, Mesa Germany reserves the right to demand, at any time, any guarantee of payment, including a bank guarantee and to call into question any payment period previously agreed to.
8 § 7 DELIVERY TIMES, DISPATCH OF THE PRODUCT, PARTIAL DELIVERY
(1) Delivery times begin to run when the Customer receives the order confirmation from Mesa Germany according to Section 5 (3). If delivery against prepayment according to Section 6 (3) has been agreed upon, the delivery times shall start on the day of receipt of the full purchase price (including VAT if applicable and shipping costs).
(2) Any time period for the dispatch of the product specified by Mesa German shall be only approximate, except if a fixed date of dispatch has been agreed upon.
(3) If the Customer has purchased, through the same order, several Products that can be used separately, Mesa Germany may dispatch those Products in separate deliveries, provided that Mesa Germany shall bear any additional shipping costs.
9 § 8 SHIPMENT, PASSING OF RISK, 2020 EXW or FCA INCOTERM
(1) Unless expressly otherwise agreed upon, Mesa Germany shall be free to determine the appropriate mode of shipment and to select the carrier at our reasonable discretion.
(2) If the Product is shipped according to the agreement with the Customer. Mesa Germany shall only be obliged to properly and timely deliver the product to the carrier and shall not be responsible for any delays caused by the carrier. Any transit time (i. e. the time between the delivery by Mesa Germany to the carrier and the delivery to the Customer) specified by Mesa Germany shall therefore be non-binding.
(3) The risk of accidental destruction, damage or loss of the delivered Product shall, if the obligation of Mesa Germany is limited to the dispatch of the Product (Subsection 2), pass to the Customer upon delivery of the Product by Mesa Germany to the carrier.
(4) If the 2020 EXW or FCA lncoterm is applied, transport is arranged by the Customer. If the Customer does not appoint a carrier or if the 2020 DAP lncoterm is applied, Mesa Germany reserves the right to choose the carrier.
(5) The Products are considered to be delivered on the ground floor.
10 § 9 WARRANTY
(1) The Customer shall promptly upon delivery inspect the Products with due care. It is the Customer's responsibility to check the apparent condition of the Products and their compliance with the order upon receipt of the Products and to make any reservations on the
(2) In case of damaged Products, missing Products, apparent defects or non-compliance, the Customer must notify Mesa Germany in writing within five (5) business days of receipt of the Products and notify the carrier without undue delay. The complaint must state the date and number of the invoice and delivery note, as well as the description of the faults or defects observed.
(3) Similarly, any complaint relating to a Service must be notified to Mesa Germany in writing within five (5) business days of the end of the service.
(4) If no reservations are expressly made by the Customer under the above conditions, the Products and/or Services will be deemed to comply in quantity and quality with the Customer's order and no complaints will be admissible.
(5) In case of lack of conformity or defect of the Products, the Customer must return them to Mesa Germany, according to the returns procedure described below.
(6) After confirmation of the lack of conformity of the Products or their defective nature by its services, Mesa Germany will proceed, to supply another Product (as ordered) which is free from defects free of charge
(7) If remediation pursuant to Section 9 (6) fails or cannot reasonably be expected from Customer, or Mesa Germany refuses to remedy the defect, the Customer shall be entitled to terminate the sales contract, reduce the purchase price or claim damages or frustrated expenses, in each case in accordance with applicable law. However, damage claims of the Customer shall be subject to the provisions contained in Section 11 of these GTCS.
(8) The Products are warrantied through the expiry date as noted on the Product label. If the Product does not have an expiry date on the Product label, then such Product is warrantied for twelve (12) months from the date of purchase.
11 § 10 PRODUCT RETURNS
(1) The Customer may return all Products to Mesa Germany, except custom Products, subject to compliance with the following conditions.
(2) All returns must be subject to prior written authorisation from Mesa Germany.
(3) The Products must be returned as new and in their original, undamaged packaging with their accessories within thirty (30) days of receipt. The Products must be returned freight prepaid to Mesa Germany at the premises of its warehouse in Chassieu (69684), France, along with a copy of the return authorisation.
(4) After checking the condition of the Products and verifying that the conditions for return are met, Mesa France will proceed, at the Customer's choice, to exchange or refund the price of the Products. The Customer will however remain responsible for the transport costs (round trip) of the Products and will have to pay a restocking fee of 15% of the price of the returned Products with a minimum charge of 50 euros, except in the case of non-compliant or defective Products.
12 § 11 LIABILITY
(1) For damages caused by Mesa Germany or by its legal representatives, executive employees, or vicarious agents intentionally (durch Vorsatz) or through gross negligence (durch grobe Fahrlassigkeit), Mesa Germany shall be liable without limitation.
(2) In other cases, Mesa Germany shall only be liable - unless otherwise stipulated in Subsection 4 of this provision - in the event of a breach of a contractual obligation, the fulfillment of which is a prerequisite for the proper execution of the contract and on the observance of which the Customer may regularly rely (so-called cardinal obligation), limited to compensation for the foreseeable and typical damage. In all other cases, the liability of Mesa Germany shall be excluded - except as stipulated in Subsection 4 of this provision.
(3) The limitations of liability stipulated in the Subsections 1 and 2 of this provision shall also apply to the benefit of legal representatives, executive employees, and vicarious agents of Mesa Germany if claims are asserted directly against them.
(4) The limitations of liability resulting from Subsections 1 and 2 of this provision shall not apply in the event of malice (Arglist), damages resulting from injury to life, body, or health, in the event of the granting of guarantees or other no-fault liability as well as for claims under the Product Liability Act (ProdHG).
13 § 12 FORCE MAJEURE
Mesa Gemany shall not be liable for impossibility of delivery or for delays in delivery if such impossibility or delays are caused by force majeure or other events not foreseeable at the time of the conclusion of the contract, for which Mesa Germany is not responsible, including, but not limited to, natural or man-made disasters, riots, war, acts or threats of terrorism, epidemics, pandemics, internal or external strikes or other labour disputes, shortages of fuel or raw materials, interruption of transport or delays of carriers or suppliers and/or acts or omissions of any government authority. Insofar as such events make it significantly more difficult or impossible for Mesa Germany to provide the delivery of the Products or Service and the impediment is not only of temporary duration, Mesa Germany shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the deadlines for the delivery of the Products or Service shall be extended or the delivery or Service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. Insofar as the Customer cannot reasonably be expected to accept the delivery of the Products or Service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to Mesa Germany.
14 §13 EXPORT CLAUSE
The Products and Services sold by Mesa Germany can be subject to the United States Export Control laws and regulations and may be subject to export or import regulations of other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain any and all applicable licenses and permits which may be required in order to sell, license, export, re-export, import or otherwise deal with the Goods. Diversion of the Goods contrary to any such law is strictly prohibited.
15 § 14 RETENTION OF TITLE (“EIGENTUMSVORBEHALT’)
(1) All Products remain the property of Mesa Germany until full payment of the price and related costs (transport costs, customs duties, taxes, etc.).
(2) In the event of seizure or any other third party intervention on the Products, the Customer shall make aware the third party of Mesa Germany's title right and must inform Mesa Germany promptly in order to allow it to object and to preserve its rights.
16 § 15 CANCELLATION
In the event of non-payment by the due date of one of its invoices by the Customer and eight (8) days after a formal notice has remained ineffective, Mesa Germany may cancel the sale of the Products in question by notifying the Customer of its decision by registered letter or e-mail with acknowledgement of receipt. If the sale is cancelled, the Customer must proceed at his/her own expense and without delay to return the Products to the address provided by Mesa Germany, without prejudice to the payment of any damages.
17 § 16 GOVERNING LAW
These GTCS and all sales of Products and/or Services governed by them are subject to the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
18 § 17 PLACE OF JURISDICTION
Place of jurisdiction for all disputes arising from these Terms and Conditions of Participation and Use shall be the registered office of Mesa Germany, Munich, Germany.