Our business relationships with customers shall be governed exclusively by the following General
Terms and Conditions of Sale, Delivery and Repair, unless otherwise agreed in writing in the
individual case; this shall also apply with regard to deviating general terms and conditions of our
customers even if such are not expressly contradicted by us.
Offers, orders as well as oral commitments by our representatives or sales personnel shall first be
binding upon us upon our written confirmation thereof. Offers and orders of customers must be
accepted by us in writing. With immediate delivery undertaken by us, however, a written confirmation
of order can be replaced by our invoice.
Our offers are always subject to change without notice. Illustrations, descriptions, details with regard
to measurements or weight in brochures or similar documents are not binding insofar as such are not
expressly designated in writing to be binding by us.
Partial deliveries are permitted to the extent that they are reasonable with regard to the customer.
If not otherwise expressly agreed in writing, agreed prices shall be deemed to be as from our
respective distributing warehouse without value added tax and other auxiliary costs which do not
constitute the pure invoiced value of the goods and are normally shown separately.
Invoicing shall be made on the basis of our prices in effect on the date of delivery. In addition to the
agreed price, the customer shall pay the statutory value added tax.
Should freight charges, insurance costs, public charges (as, e.g. customs, import or export fees, etc.)
or other charges be newly introduced or increased after conclusion of the contract, we shall be
authorized in such cases, also with freight pre-paid or duty paid delivery, to add such additional
charges to the agreed purchase price.
We shall make an effort to meet delivery deadlines as foreseen; delivery date commitments are,
however, only binding upon us if confirmed by us in writing. We shall not be in default as long as the
customer is in default with the performance of its obligations (e.g. supply of documentation by the
customer, required approvals and clearance, in particular plans, as well as compliance with agreed
payment conditions). If these conditions have not been met by the customer in due time, then the
respective time periods shall be prolonged appropriately; this shall not apply if we are responsible for
the delay.
If the cause of the failure to observe the delivery term is due to force majeure which exists for us or
our suppliers such as, e.g. fire, earthquake, official directives such as export restrictions, general
mobilization, war, unrest, strike, lock-out or similar circumstances outside the scope of our influence,
then the delivery term shall be extended by a reasonable period.
The customer may only claim damages due to delay in delivery in addition to performance of delivery
or services if our liability is based on intent or gross negligence. Any liability for ordinary negligence
shall be excluded; however, this shall not apply if we are liable due to mandatory law for injury to life,
limb or health. The customer can only cancel the contract within the framework of statutory provisions
insofar as we are responsible for the delay of delivery. No modification to the burden of proof to the
disadvantage of the customer is associated with the afore-mentioned regulations.
Upon our demand, the customer is obligated to declare within a reasonable deadline whether it shall
cancel the contract due to delay of the delivery or whether it shall insist upon the delivery.
The risk shall be transferred to the customer also with freight prepaid delivery if the goods for delivery
are brought to the shipping carrier or are collected:
Should it be notified that the goods for delivery are ready for shipment and the shipping is delayed
due to circumstances for which we are not responsible, we shall then entitled but not obligated to
undertake all measures deemed to be suitable and appropriate for the maintenance of the goods for
delivery, at the cost and risk of the customer. Should the delivery be delayed due to circumstances for
which the customer is responsible or should the customer not have accepted deliveries in a timely
manner, then we shall be entitled, after fixing an additional deadline of fourteen days, to sell the
goods on the open market at the cost and risk of the customer and to demand the immediate payment
of the purchase price; we can also instead cancel the contract and/or demand reimbursement of
damages.
Insofar as no other term for payment is agreed, 30 days after the invoice date, we shall be entitled to
calculate to the customer, without a warning notice, interest and commissions pursuant to the
respective bank rates for short-term credit however not less than the statutory interest. All of our
accounts receivable shall be (regardless of agreed payment dates or additional payment time)
immediately payable and due if the payment terms are not observed by the customer or if
circumstances become known to us which would be, in our opinion, appropriate to reduce the
creditworthiness of the customer. In such cases, we shall also be entitled to perform still outstanding
deliveries only upon the condition of payments in advance.
A right of retention of the customer or set-off of the customer against counterclaims shall be precluded
unless the counterclaim of the customer is undisputed or legally determined with final res judicata
effect.
We can cancel the contract with import and export transactions insofar as we or our suppliers are not
granted the necessary official approvals of authorities or insofar as the performance of the contract as
a consequence of official prohibition of authorities is or shall be impossible. The customer shall not be
able to derive any rights against us herefrom.
To the exclusion of any additional warranties, we shall provide a warranty for defects of quality as
follows:
a) At our discretion, those parts or services which show defects of quality shall be improved or
remedied or a replacement delivery or a replacement performance of those parts or services shall
occur at no cost insofar as the cause thereof existed already at the time of the transfer of risk.
With the agreement of the customer, the repairs can also be made by it itself in the manner that
we place the necessary parts for the elimination of the defect at the customer’s disposal and/or
compensate it with a flat rate amount for the work hours necessary for the elimination of the
defect.
b) Claims for subsequent performance (Nacherfüllung) shall be time-barred after 12 months and
begin to run from the statutory beginning of the period of limitation; this shall apply to the
remedies of cancellation of the contract and reduction of the purchase price accordingly. This
period of limitation shall not apply to the extent that the law provides in § 438 para. 1 No. 2
(buildings and movable things destined for buildings), § 479 para. 1 (recourse
claim/Rückgriffsanspruch) and § 634a para. 1 No. 2 (defect of construction) of the German Civil
Code longer periods of limitation in connection with intentional behaviour, malicious nondisclosure
of the defect as well as non-compliance with a guarantee on quality (Beschaffenheitsgarantie).
Statutory provisions on suspension of the running of time, suspension and/or recommencement
regarding periods of limitation shall not be affected hereby.
c) Obvious defects are to be notified in writing without undue delay at the latest 14 days after receipt
and all other defects without undue delay after their discovery. The control documents attached to
the goods by us are to be simultaneously sent to us or the customer services workshop named by
us together with the objection of defects.
d) We shall first be given the opportunity to subsequent performance within a reasonable time period.
e) Should the subsequent performance fail to succeed, the customer can – notwithstanding any damage claims pursuant to Item 11 below – cancel the contract or reduce the price.
f) No claims for defects of quality shall exist with only immaterial deviations from the agreed quality,
with only immaterial impairment of usefulness, with natural wear and tear or damages which
result, after the transfer of risk, as a consequence of defective or negligent treatment, excessive
demand thereon, inappropriate equipment and facilities, defective construction work, unsuitable
building land, electrical influences and due to particular exterior influences which were not
foreseen pursuant to the contract. Should improper modifications or repair work be undertaken by
the customer or third parties, then also no defect claims shall exist in respect of such
modifications or work and/or the consequences resulting therefrom.
g) Claims of customers due to expenses necessary for the purpose of subsequent performance, in
particular, transport, labor and material costs are excluded insofar as the expenses are increased
because the subject matter of the delivery is later brought to another location than that of the
customer unless the transfer corresponds to its use according to the terms.
h) Recourse claims of the ordering party against us according to § 478 of the German Civil Code
(right to recourse of an entrepreneur/Rückgriffsrecht des Unternehmers) shall only exist to the
extent that the customer has not made any agreements which extend beyond the statutory defect
claims with its customers. For the scope of the recourse claim of the customer against us
according to § 478 para. 2 of the German Civil Code, the provision of the afore-mentioned letter
g) shall apply also respectively.
i) Claims for damages of the customer against us due to a defect of quality are precluded. However,
this shall not apply in case of malicious nondisclosure of the defect, non-compliance with a
guarantee on quality (Beschaffenheitsgarantie), injury to life, limb or health and breach of contract
due to intention or gross negligence by us. No modification to the burden of proof to the
disadvantage of the customer is associated with the afore-mentioned regulation. Further claims or
claims other than those regulated in this Item 8 of the customer due to defects of quality shall be
precluded.
a) Insofar as not otherwise agreed, we are obligated to perform the delivery merely in the country of
the place of delivery free from industrial property rights and copyright rights of third parties
(hereinafter referred to as “Protected Rights”). Insofar as a third party files justified claims against
the customer due to infringement of Protected Rights by deliveries used pursuant to the contract
as delivered by us, we shall be liable to the customer within the term named in Item 8, letter b) as
follows:
(1) At our choice and at our cost, we shall cause either a right of use for the respective goods
delivered, so modify the goods delivered so that the Protected Rights are not infringed or
exchange such goods delivered. Should this not be possible for us at reasonable conditions,
then the customer shall be entitled to a statutory cancellation right and right of reduction of the
price.
(2) Our obligations regarding damages are governed by Item 11.
(3) Our afore-mentioned obligations shall only exist insofar as the customer informs us in writing
of the claims made by third parties, has not recognized an infringement and we are reserved
the right to undertake all defense measures and settlement negotiations. Should the customer
discontinue the use of the goods delivered for damage mitigation reasons or other important
reasons, it shall be obligated to point out to third parties that, with the discontinuation of use,
no recognition of an infringement of Protected Rights is associated therewith.
b) Customer claims shall be precluded insofar as it is responsible for the infringement of the
Protected Rights.
c) Customer claims shall further be precluded insofar as the infringement of the Protected Rights is
caused by special specifications of the customer, by a use not foreseeable by us or caused due to
the fact that the goods delivered are changed by the customer or are used together with products
not delivered by us.
d) In the case of infringements of Protected Rights, for the customers’ claims regulated above in
letter a) (1), the provisions of Item 8, letters d) and h) shall apply respectively.
e) With the existence of other defects of title, the provisions of Item 8 shall apply respectively.
f) Claims of the customer in addition to or different from those regulated in this Item due to defects of
title are precluded.
Our liability for damages occurring to the equipment transferred to us for repair shall be limited to
intent and gross negligence. In the case of the mislaying or loss to repair goods due to our fault, we
shall make replacement by delivery of comparable equipment. Should the customer be in default with
the acceptance of the equipment to be repaired, we shall then be entitled, after prior notification, to
sell the repaired equipment and to settle our repair claims from the sales proceeds. Otherwise, for the
performance of repair work, the warranty provisions according to the above-mentioned Item 8 as well
as the other provisions of these terms shall apply respectively.
a) Claims for damages and expenses of the customer (hereinafter referred to as “Damage Claims”),
regardless of their legal grounds, in particular, due to breach of obligations from the contract
relationship and tort, are precluded.
b) This shall not apply insofar as mandatory liability exists, e.g. pursuant to the Product Liability Law,
in case of intent, gross negligence, due to injury to life, limb or health, due to breach of
fundamental contract terms. The damage claim for the breach of fundamental contract terms is
limited, however, to damages which are typical for the contract and foreseeable, insofar as no
liability exists due to intent or gross negligence or due to injury to life, limb or health. No
modification to the burden of proof to the disadvantage of the customer is associated with the
afore-mentioned regulation.
c) Insofar as the customer is entitled to damages pursuant to this Item 11, these shall be time-barred
with the expiration of the statute of limitations applicable for defects of quality pursuant to Item 8,
letter b). The same shall apply with regard to customer claims in connection with measures to be
taken to avert an imminent danger (e.g. recall actions). If a claim for damages is based on the
Product Liability Law the statutes of limitations shall apply.
In case unpredictable events within the meaning of Item 3 para. 2 (force majeure) change the
economic importance or the contents of the performance to the made considerably or seriously
impact on our business, then the contract shall be appropriately adjusted respectively according to the
requirements of good faith. In case an adjustment of the contract is not reasonable from the economic
point of view, we shall be entitled to cancel the contract. In case we intent to exercise this right, then
we shall inform the customer without undue delay when having obtained knowledge about the
consequences of the event even if – prior to this – an agreement was made with the customer on a
prolongation of the delivery period.
We reserve the ownership title to the goods delivered up until the receipt of all payments from the
delivery contract (goods subject to reservation). Further, the goods subject to reservation remain our
property until the performance of all claims existing against the customer from the business
relationship. Otherwise the following shall apply:
a) The customer shall be entitled to combine our products with other products within the framework
of proper business operations. As security for our claims mentioned at the outset, we shall
acquire co-ownership title in the products resulting from the combination which the customer
transfers to us already now. The customer shall keep the objects subject to our co-ownership title
in safe custody at no cost. The extent of our co-ownership share shall be determined according to
the value which our product has in the product resulting from the combination.
b) The customer may only sell the goods subject to reservation pursuant to its normal business
conditions and as long as it is not in default with the performance of its obligations to us, however,
upon the condition that the accounts receivable from the further sale are transferred to us
according to the following provisions. The customer shall not be entitled to make other
dispositions concerning the goods subject to reservation. The accounts receivable of the
customer from the resale of the goods subject to reservation are assigned to us already now.
They shall serve in the same scope as security as the goods subject to reservation. Should the
goods subject to reservation of the customer be sold together with goods not sold by us, then the
assignment of the accounts receivable from the resale shall apply only in the amount of the
invoice amount for the goods subject to reservation sold by us. The customer shall be entitled to
collect the assigned accounts receivable as long as we have not revoked this authorization. The
collection authorization shall dissolve without express revocation if the customer discontinues
making its payments. Upon our demand, the customer shall be obligated to inform its customers
immediately of the assignment to us insofar as we do not do so ourselves and to provide us with
the information and documents necessary for the collection.
c) The customer shall inform us without undue delay in writing of all attachments of third parties of
the goods subject to reservation or the accounts receivable assigned to us. With conduct of the
customer in breach of the contract, in particular, with default in payment, we shall be entitled to
take back the goods subject to reservation or cancel the contract upon expiry of an appropriate
period of time given to the customer during which the breach has not been remedied; the
statutory rules which provide that setting of additional periods of time are not required shall not be
affected hereby. The customer shall be obligated to return the goods subject to reservation.
Asserting return of the goods subject to reservation or retention of title by us shall not be
considered as cancellation of the contract; however this shall not apply if we expressly state this
in writing.
d) Insofar as the afore-mentioned security agreements are invalid pursuant to the law of the country
in which the goods delivered by us are located, then every other security measure permissible
pursuant to this law which shall lead to a respective security result for us shall be deemed to be
agreed. If the cooperation of the customer is necessary herefor, then it shall undertake all
measures which are necessary for the establishment and maintenance of such security rights
according to the applicable law.
e) Should the value of the security existing for us pursuant to the afore-mentioned provision exceed
the value of the secured accounts receivable by more than 10 %, then we shall be obligated,
upon the demand of the customer, to release a part of the security rights.
Insofar as software is contained in the scope of the delivery, the customer shall be granted a nonexclusive right to use the software delivered including its documentation. It shall be transferred for use
on the delivered product foreseen therefor. A use on more than one system is prohibited.
The customer may reproduce, reprocess, translate or reorganize from the object code to the source
code only within the scope allowed by law (§§ 69 a et seq. Urhebergesetz/Copyright Act). The
customer agrees not to remove or to modify manufacturer details – in particular, copyright notations –
without our prior express approval. However, the customer may make a backup file of standard
software without express approval.
We or, respectively, the software supplier, reserve all other rights to the software and the
documentation including the copies. The granting of sub-licenses shall not be permissible.
Insofar as the contract does not state otherwise, the place of performance shall be our registered
office.
Sole jurisdiction, if the customer is a merchant, for all disputes directly or indirectly resulting from the
contractual relationship shall be in Ratingen; we shall be authorized to choose to also file a complaint
at the registered office of the customer.
German substantive law shall apply for legal relationships in connection with this contract to the
exclusion of the U.N. Convention for Contracts for the International Sale of Goods (CISG).
In the case of the invalidity of individual contractual terms, the remaining terms shall be completely
valid. Invalid provisions shall be replaced by such which come closest to the economic result pursued
by the respective invalid provision.
This contract shall remain legally effective even if individual provisions are or have become invalid.
This shall not apply if compliance with the contract constitutes an unreasonable hardship for one party.
As of Feb. 2008
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Mitsubishi Electric Europe B.V.
Semiconductor European Business Group
Mitsubishi-Electric-Platz 1
D - 40882 Ratingen
Phone: +49 (0) 2102 / 486 – 0
Fax: +49 (0) 2102 / 486 – 4140
E-Mail: semis.info@meg.mee.com
Internet: www.meu-semiconductor.eu