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General Terms of Business of MIK INTERNATIONAL GmbH & Co. KG

Mutual confidence and good cooperation are the basic elements of a lasting business relationship. Nonetheless, we cannot refrain from negotiating general sales and delivery conditions with our customers for the sake of a uniform and prompt business handling, thus declaring null and void any other purchasing or sales conditions.

A. Contracts between MIK INTERNATIONAL GmbH & Co. KG and business people or consumers

I. Range of application and definitions

1. The following General Terms of Business of MIK INTERNATIONAL GmbH & Co. KG (called MIK hereafter) are always the basis of any contract; with the conclusion of a contract you confirm and acknowledge that you know them and that they are incorporated in the contract.

2. We herewith explicitly declare null and void the buyer`s own terms of business, also for future business. That means that only the General Terms of Business of MIK are to be applied. This is also valid if the customer refers to any other deviating conditions of his own in a letter of confirmation.

3. Any deviating agreements are only binding when MIK has confirmed them in writing. Such deviations are only valid for the particular business agreed upon.

4. For the purposes of these General Terms of Business, business people is to be understood as any natural or legal entity or a personal society with legal capacity, which acts in fulfilment of his/her commercial or free-lance activities when concluding the contract.

5. For the purposes of these General Terms of Business, consumer is to be understood as any natural person, who concludes a legal transaction with an object that can neither be ascribed to his/her commercial nor to his/her free-lance activity.

II. Offer

1. Our offers are without obligation unless a deviating agreement has been made in writing.

2. Technical details, advice or recommendations as well as assurance of qualities by our staff are only binding for us when they have been confirmed in writing.

3. Assurances only exist when they have been described as such in writing by MIK.

4. General product descriptions, drawings, samples, models, illustrations, dimensions or other details of performance are only approximate illustrative pieces. They are only binding when this fact has been explicitly confirmed in writing.

5. We reserve the right of modifications in construction or forms and the like, as long as this does not represent a considerable change of the article to be purchased.

III. Acceptance

Binding orders which have been received by the MIK staff by phone, electronic data transfer (e-mail), by fax or in writing are only to be considered as accepted when the order has been confirmed by MIK in writing.

IV. Prices

1. The prices agreed upon are to be understood ex MIK forwarding department without any installation, training or other additional services. Packing costs as well as the value-added tax which is valid at the date of the invoice have to be added. The value-added tax is at the buyer`s expense. In the case of repeat orders, the prices of the first order are only to be applied after a special agreement in writing.

2. The prices quoted are no longer binding for MIK when a delivery period of more than 3 months has been agreed upon. In such a case, the prices which are valid at the date of the delivery are to be invoiced. If our outside suppliers increase their prices considerably after this period of 3 months, MIK may raise its prices accordingly and even withdraw from the contract if the buyer refuses to accept the new prices.

V. Deliveries

1. MIK is anxious to meet the performance dates and delivery deadlines which have been quoted. But without any written guarantee the information given is to be understood as merely approximate. In addition, these statements are given with the proviso of a punctual, sufficient and proper outside supply.

2. Changes of orders lead to the cancellation of dates and deadlines agreed upon, unless a new delivery date has been given in writing. This also applies for the case that the changes are withdrawn again.

3. Delivery and performance deadlines are postponed by an appropriate period in the case of force majeure (particularly with strikes or lockouts at the suppliers) and any other circumstances that we do not have to take the responsibility for.

4. We are free to choose the mode of dispatch. We use standard packaging; any special packaging which might be required (e.g. seaworthy packaging) is payable by the buyer. This also includes the extra costs arising for special packaging, e.g. for the use of antiseptic gases prescribed for container packaging. We are entitled but not obliged to insure the goods at the buyer's expense. A delivery with the freight prepaid and free of costs is only effected after prior written agreement. Individual agreements are not subject to the guidelines mentioned above. A condition for prices with the freight prepaid is an unhindered traffic flow.

5. If MIK is to blame for not meeting a binding delivery date or delivery period, steps can be taken. 4 weeks after the buyer's written request to produce results, the buyer is entitled to withdraw from the contract.

6. 6 weeks after exceeding a non-binding delivery date or a non-binding delivery period, the buyer can ask MIK to deliver within an appropriate period of time. With this reminder MIK gets behind. Apart from the delivery, the buyer can only demand indemnification for the damages caused by the default if MIK is guilty of acting with intent or gross negligence. At the end of the extension the buyer is entitled to withdraw from the contract by means of a written declaration to MIK or to demand indemnification for the non-fulfilment of the contract.

7. In the case of non-fulfilment as per clauses 5 and 6, the buyer can only demand indemnification when MIK is guilty of acting with intent or gross negligence. In the case of carelessness liability is limited to 10 % of the purchasing price. If the buyer is a public legal entity or a trader for whom the contract is part of his trade, the demand for indemnification is only justified when MIK is guilty of acting with intent or gross negligence. But this does not apply, if liability is compelling due to intent or gross negligence. The demand for delivery is excluded in the cases of clauses 5 and 6.

8. If the buyer is a businessman, MIK is entitled to partial deliveries as long as this is not disadvantageous for the use of the material.


VI. Maturity and payment

1. Net payments have to be effected within 30 days after the date of the invoice without any cash or other discounts.

2. The acceptance of cheques or drafts is only a matter of fulfilment, i.e. the payment is only to be regarded as effected when the amount of the cheque or the draft has been credited to one of MIK's bank accounts.

3. If the buyer falls into arrears with payments, MIK charges default interest amounting to 8 % over the current base interest rate of the Deutsche Bundesbank (German Central Bank) plus VAT. The default interest amounts to 5 % over the current base interest rate of the German Central Bank when the buyer is a consumer. MIK reserves the right of assertion of further damages. It is left to the buyer to prove minor damage.

4. If the buyer does not fully or punctually comply with his liability to pay or with the obligations resulting from the ownership reservation, the total remaining debt - including extended payments - becomes payable at once, also when drafts with a later maturity are concerned. The same applies to cases where MIK has been informed about the buyer's unfavourable financial situation.

5. The buyer is only entitled to balance the costs, if the demands are uncontested or have been declared legally binding. The right of the buyer, who is a businessman, to withhold goods is excluded. If the buyer is a consumer, he is only given the right to withhold goods as far as it concerns demands from this individual, concrete business relationship, which these General Terms of Business are part of.

VII. Notice of defects, warranty and liability

1. Traders have to inform MIK in writing about any visible defects, shortages, wrong deliveries or the absence of assured qualities without any delay, within 5 working days after delivery at the latest and by all means before any resale, use, processing, connection or mixture of the material. Businessmen have to assert hidden defects in writing immediately after detecting them, but within 4 weeks after the delivery at the latest. If the buyer does not comply with this obligation the goods are considered to be approved.

2. In the case of a justified notice of defects within the agreed time limit, MIK carry out some repairs or a compensating delivery at their expenses and according to their choice, any other claims to warranty being excluded. If the repairs or the compensating deliveries come to nothing, MIK is entitled to touch up or deliver once more. If the second repairs or compensating delivery come to nothing, the buyer can - according to his choice - demand a price reduction (depreciation) or his withdrawal from the contract. Claims for damages due to the absence of an assured quality remain untouched.

3. The above-mentioned restrictions of liability also apply for the legal representatives, executives and fulfilment assistants of MIK.

4. The cession of claims to warranty to third parties is excluded.

5. If the buyer is a consumer, he immediately has to notify the person who delivered the article of any goods with visible defects, which also include transport damages. For any other defects arising within the legal period of warranty, the legal demands for re-fulfilment, correction of faults or additional deliveries can be applied according to the consumer's choice, or - when the particular legal conditions are given - the more far-reaching claims to depreciation and withdrawal, or to indemnification, including the compensation of the damage as well as the compensation for wasted efforts.

VIII. Reservation of property

1. MIK reserves the right of property for goods delivered by them until the buyer has settled all claims resulting from the business relationship with MIK, in particular until he has balanced the accounts. With consumers, the reservation of property is only valid until all liabilities from the legal transaction concerned have been balanced.

2. If the buyer behaves contrary to the terms of contract, especially in the case of default of payment, MIK is entitled to take back the delivered article/s, the buyer being obliged to give them back. Taking back the delivered articles does not represent a withdrawal from the contract, unless the terms of the consumers' credit law are to be applied or if MIK have explicitly declared their withdrawal in writing. In the case of seizures or any other encroachments of third parties, MIK has to be informed in writing without delay, so that a suit can be filed as per § 771 ZPO. If a third party is not able to compensate MIK for the court and out-of-court costs within the scope of a file as per § 771 ZPO, the buyer is liable for the losses arising from it for MIK.

3. The buyer has to separately store and mark the articles reserved for MIK. On condition of a proper business management, the buyer is entitled to dispose of the delivered articles, to mount or to sell them. But this right of the buyer becomes void, when he falls into arrears with payments. Extraordinary decrees, such as seizure or preventive transference, are only valid with MIK's approval. The buyer has to inform MIK without delay of any approach of third parties to the articles subject to the reservation of property.

4. The processing or reshaping of the delivered articles by the buyer is done in the name of MIK. If MIK processes, mixes or connects the reserved articles with goods not belonging to them or produces a new article by reshaping, the buyer herewith at this point already and to save the claims towards MIK proportionately (according to the amount of the invoice) transfers his (co-)property of the newly developed article. If the article to be delivered is inseparably combined with other articles which are not MIK's and if the new object is to be regarded as the main article, it is herewith understood that the buyer transfers proportionate co-property to MIK. The buyer guards the sole or co-property for MIK so that claims on MIK arising hereof have to be dismissed.

5. Assuming the case that the buyer sells the reserved goods, it is to be understood as agreed upon by signing the contract of sale, that the price claim resulting from this selling transaction fully passes into MIK's possession. Until further notice, the buyer is entitled to sell the goods, which are MIK's property, within the framework of his ordinary business, but on the condition that the buyer himself effectively reserves the right of property towards the new buyer. He is not allowed to pawn the goods or to assign them as security. The right of re-selling and of using the reserved goods expires in the case of the buyer's insolvency or debt overload. In the case of re-selling the goods which are MIK's property, the buyer now cedes the price claim resulting thereof at the rate of 120% of the net invoice amount plus any costs which might arise from § 171 InsO (German insolvency law) to MIK as security. As long as the buyer meets his liability to pay to MIK, he is also entitled to demand payment.

If the buyer does not meet his financial obligation, he is bound by contract to inform MIK upon request about the names of the third debtors and to notify them of the cession. Irrespective of the above-mentioned security cession, the buyer herewith passes on to MIK all his claims to third parties resulting form re-selling reserved goods. He commits himself to send lists to MIK - upon their first request and without delay - which give information about the reason and the amount of pawned claims.

6. MIK commit themselves to release the securities that they are legally entitled to upon the buyer's request in so far as the value of the securities exceeds the claim to be secured by more than 20 %.

7. If the buyer is a businessman he commits himself to insuring the goods subject to reservation of property against fire, water, larceny and burglary at his own expense. The businessman also commits himself to placing a copy of the insurance contracts at MIK's disposal free of charge. The rights from this insurance are then ceded to MIK. MIK accepts this cession.

IX. Legal domicile and place of fulfilment, applicable law

1. MIK headquarters is the legal domicile and place of fulfilment for payments and deliveries, also for draft and cheque matters, provided that the buyer is a trader, a public legal entity or special means under public law.

2. This is also applicable when the buyer establishes his residence, place of business or his usual place of residence outside the Federal Republic of Germany after the conclusion of the contract or if the buyer's residence or the usual place of residence is not known at the time of the filing of an action.

3. German Federal law is to be applied. The regulations of the UN purchasing laws are not applicable for the relationship between the buyer and MIK.

4. The contractual language is German.

5. Modified General Terms of Business are applicable if the buyer does not contradict them in writing within a period of 4 weeks.

X. Data protection

1. Data which are necessary for business procedure are saved and treated confidentially by MIK. As far as creditworthiness is concerned, MIK exchanges information with companies who give out credit details, always respecting the interests of the buyer which have to be protected and in accordance with the prevailing data protection rules.

2. MIK guarantees that any members of staff who are entrusted with order processing will also keep to the rules mentioned in clause X paragraph 1. But MIK would like to remind you that in the case of online-orders data protection might be offended against by other people due to the structure of the Internet; this fact, however, cannot be influenced by MIK.

XI. Salvatory clause

In case that one of the stipulations of these General Terms of Business is ineffective, this does not impair the effectiveness of the other stipulations.

B. Contracts subject to the use of means of telecommunication

The following General Terms of Business are applicable for the commercial transactions between MIK INTERNATIONAL GmbH & Co. KG (called "MIK" hereafter) and the customer, provided that he is a consumer and as long as the regulations ruling tele-sales contracts as per §§ 312b ff. BGB (German Civil Code) and/or the regulations ruling the purchase of consumer goods as per §§ 474 ff. BGB (German Civil Code) are to be applied. This is the case when the purchase is concluded without a physical presence of the two parties to the contract by using means of telecommunication, e.g. letters, catalogues, phone calls or e-mails.

I. Scope and definitions
1. The following General Terms of Business of MIK INTERNATIONAL GmbH & Co. KG (called MIK hereafter) are always the basis of any contract; with the conclusion of a contract the customer confirms and acknowledges that he knows them and that they are incorporated in the contract

2. The General Terms of Business as well as their modifications can be called on the Internet at any time under www.mik-online.de and can be printed out from that source. With the conclusion of a contract the customer acknowledges that it is satisfactory to make modifications known on that site.

3. We herewith explicitly declare null and void the buyer's own terms of business, also for future business. That means that only MIK's General Terms of Business are to be applied. This is also valid if the customer refers to any other deviating conditions of his own in a letter of confirmation.

4. Any deviating agreements are only binding when MIK has confirmed them in writing. Such deviations are only valid for the particular business agreed upon.

5. For the purposes of these General Terms of Business, consumer is to be understood as any natural person, who concludes a legal transaction with an object that can neither be ascribed to his/her commercial nor to his/her free-lance activity.

II. General description of performance features

1. When some information from MIK's online offer (mik-online.de) is downloaded, this may only be used for private purposes. Any use exceeding this purpose, especially the marketing of the content, is inadmissible.

2. If any contents of the MIK-site are protected by the rights of third parties, the use of the information concerned is not subject to MIK's liability. It is the user's obligation to make sure for each individual case that outside data are free of protection.

3. Where so-called links are offered to other sites, MIK is not responsible for their content and rejects any liability for the content of these sites.

4. For suggestions, questions, wishes or critique the customer may kindly contact the following address:

 

MIK INTERNATIONAL GmbH & Co. KG
Masselbachstr. 22
DE-56235 Ransbach-Baumbach
info@ich-will-keinen-spammik-online.de

III. Terms of Delivery

1. All prices are quoted in Euros. Price quotations are not binding and the compulsory VAT is included.

2. Deliveries will be effected to the address given by the customer or the customer can come and collect the goods at MIK after prior written confirmation. MIK is entitled to send the goods in partial deliveries as long as it is not unreasonable for the customer.

3. Dispatch is effected at MIK's risk.

4. MIK grants the right of return within a period of 14 days after receipt of the goods. A return does not require any justification and is free of charge for the customer. To meet the deadline it is sufficient for the customer to send the article back to MIK in time. For goods which cannot be sent back by parcel post it is sufficient to send a request for return to MIK by letter, e-mail, phone or fax within the agreed time limit of 14 days. Sending and taking back goods is at MIK's costs and risk. If the customer makes use of his right of return, the contract for sale and possibly the contract for hire purchase become void.

5. This right of return is not applicable if the goods have been manufactured according to the customer's special wishes or have undoubtedly been designed to his individual requirements. The same applies if the goods have been used.

IV. Warranty

1. If the customer is a consumer, he has to notify the person who has delivered the articles of any visible defects, including transport damages, without any delay. For any other defects arising within the period of warranty the consumer can choose from the legal demands for later fulfilment, correction of faults or later delivery, and also - the special legal requirements provided - the more far-reaching demands for depreciation or withdrawal and apart from these the claim for damages including the indemnification of the damage instead of fulfilment as well as a compensation for wasted efforts.

2. If MIK grants its customers a seller's guarantee, irrespective of these legal demands, the details thereof are laid down in the guarantee regulations enclosed with each article.

V. Reservation of property clause

1. MIK reserves the right of property for goods delivered by them until the buyer has settled all claims resulting from the business relationship with MIK.

2. If the buyer behaves contrary to the terms of contract, especially in the case of default of payment, MIK is entitled to take back the delivered article/s, the buyer being obliged to give them back. Taking back the delivered articles does not represent a withdrawal from the contract, unless the terms of the consumers' credit law are to be applied or if MIK have explicitly declared their withdrawal in writing

3. MIK commit themselves to release the securities that they are legally entitled to upon the buyer's request in so far as the value of the securities granted to MIK exceeds the claim to be secured by more than 20 %.


VI. Payment

1. Invoices from MIK are payable without any deductions within 30 days after receipt of the invoice.

2. With respect to accounts receivable, the customer falls into arrears 30 days after receipt of the invoice. From this date onwards, MIK will charge interest on arrears amounting to 5 % over the current base interest rate of the Deutsche Bundesbank (German Central Bank).

VII. Data protection

1. Data which are necessary for business procedure are saved by MIK. As far as creditworthiness is concerned, MIK exchanges information with companies who give out credit details, always respecting the interests of the buyer which have to be protected and in accordance with the prevailing data protection rules.

2. MIK guarantees that any members of staff who are entrusted with order processing will also keep to the rules mentioned in paragraph 1. But MIK would like to remind you that in the case of online-orders data protection might be offended against by other people due to the structure of the Internet; this fact, however, cannot be influenced by MIK.

VIII. Miscellaneous

1. MIK is entitled to ask third service providers or fulfilment assistants to produce the work in parts or completely.

2. Modified General Terms of Business are applicable if the customer has not contradicted them in writing within a period of 4 weeks.

3. Only German Federal law is applicable, the regulations of the UN purchasing laws being excluded.

4. If the contract between the customer and MIK has been made by means of telecommunication, no other form is necessary for the effectiveness of the contract.

IX. Salvatory clause

In case that one of the stipulations of these General Terms of Business is ineffective, this does not impair the effectiveness of the other stipulations.