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Terms and Conditions
Miditemp GmbH
Conditions of Supply
(Not applicable to export transactions)
Issue date of Conditions: October 2009
Definitions
Conditions
Prices
Payment
New accounts
Orders
Delivery
Inspection, defects and non delivery
Returns
Distance selling regulations
Description
Risk and ownership
Quality Assurance
Performance and fitness for purpose
Warranty/Guarantee
Exclusion of Liability
ProductWatch and Miditemp ProductFind
Intellectual property rights
Use of Personal Data
Promotions
Country of origin
Trade counter
Export
US Stock
Business customers
Age requirements for certain Goods
Prohibited Applications
Force Majeure
Recording of telephone calls
Legal construction
General
1. Definitions
“Company” means Miditemp GmbH
“Conditions” means these terms and conditions.
“Customer” means the person(s) or company whose order for the goods is accepted by the Company.
“Goods” means any goods supplied or to be supplied by the Company to the Customer.
“Services” means any services supplied or to be supplied by the Company to the Customer.
“Supplies” means any Goods or Services.
“in writing” includes electronic communications.
2. Conditions
All orders are accepted by the Company subject to and in accordance with these Conditions.
These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer’s standard terms and conditions.
Together with any terms accepted by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the goods ordered. No variation to these Conditions is permitted unless expressly authorised in writing by an authorized member of the Company.
3. Prices
Prices for all goods on our webshop are in Euro (€), including VAT (19%)
The Company has used all reasonable endeavours to ensure that prices for the goods are accurately set out on the homepage but reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted.
4. Payment
Payment has always to be done as prepayment by transfer.
The Company’s bankers’ details are:
Bayerische Hypo & Vereinsbank
Untere Hauptstrasse 5
D- 85354 Freising
Sort code: 700 202 70
Account number 4470171869
SWIFT: HYVEDEMMXXX
IBAN: DE29 7002 0270 4470 171869
If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to cancel the order.
5. Orders
The Company reserves the right to decline to trade with any company or person.
6. Delivery
Save as set out below, the Company will use all reasonable endeavours to despatch Goods ordered as soon as possible. Delivery days: Monday to Friday. Miditemp charges for delivery as standard on certain accounts. Any such charge will be notified to the Customer at the time of establishment of its account or placing of the order to which such charge applies.
For more urgent deliveries the Company offers the “next day delivery” by UPS Express, the details and cost of which can be obtained on request. Delivery will be made to the address specified by the Customer.
The Company may use any method of delivery available to it. The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in 7 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and/or performance by the Company will not be of the essence. The Company reserves the right to delay despatch for a number of reasons, including to perform any necessary credit or anti-fraud checks or procedures or to ensure that payment has been received in cleared funds in full. Where despatch is delayed for such reasons, the Company will use reasonable endeavours to inform the Customer.
7. Inspection, defects and non delivery
The Customer must inspect the supplies as soon as is reasonably practicable after delivery or, in the case of Services, performance and, except as set out in 14 below, the Company shall not be liable for any defect in the Supplies unless written notice is given to the Company within 10 days of such date. The Company does not write software comprised in the Goods and it is the Customer’s responsibility to check for the presence of computer viruses before the Goods are used.
The quantity of any consignment of Goods, as recorded by the Company upon despatch from the Company’s place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events. Subject to Condition 15(i), any liability of the Company for non-delivery or non-performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this Condition 7 will be limited to replacing the Goods or re-performing the Services within a reasonable time or to refunding the price then paid in respect of such Supplies.
8. Returns
Prior to returning any Goods to the Company for any reason, the Customer should contact the Company to obtain a returned materials authorisation number (‘RMA’). All Goods are returned at the Customer’s risk and expense and should be undamaged by the Customer and in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return.
This Company operates on a 14 day return policy. To be accepted for return on this basis, Goods should be returned for receipt by the Company within 14 days of despatch. The Customer should return the Goods to
“Miditemp, Am Pfanderling 60, D-85778 Haimhausen”.
Any static-sensitive Goods supplied in sealed packaging may not be returned if the blister or ‘peel’ packs in which they are supplied have been opened, tampered with or damaged.
The Company reserves the right to amend its returns policy at any time.
9. Distance selling regulations
If, notwithstanding the terms of Condition 24, the Customer is buying as a ‘consumer’, as defined in the European Communities (Protection of Consumers in respect of Contracts made by means of Distance Communications) Regulations 2001, the Customer may, provided he or she has taken reasonable care of the Goods, return the Goods and be repaid the price paid in respect of them within 7 working days (excluding Saturday and Sunday and any German Bank Holidays) of their delivery.
To return Goods on this basis, the Customer returns the Goods, in their original packaging, within the 7 day period to “Miditemp, Am Pfanderling 60, D-85778 Haimhausen”. Goods should be returned first class with proof of posting and the Customer is responsible for payment of all postage costs. In respect of certain Goods the Company may prefer to arrange collection itself and, if requested, the Customer will allow the Company to collect the Goods and will assist in the arrangements for the Goods’ collection. All reasonable costs of collection will be borne by the Customer. The Customer is responsible for the care and custody of the Goods pending their return or collection. Following receipt of Goods which comply with this Condition 9, the Company will refund to the Customer the price paid in respect of the Goods.
This Condition 9 shall not apply to software that has been unsealed by the Customer.
10. Description
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together “Descriptions”) wherever they appear (including without limitation on this homepage on, data sheets, application notes, despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and accepts no liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company’s negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation. Without prejudice to this Condition 10, Customers are recommended to check the Company’s website for the latest descriptions of the Goods, in particular, but without limitation, with regard to statements regarding RoHS.
11. Risk and ownership
The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company’s carriers at the Customer’s premises. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer on any account whatsoever. Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company’s bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an order to that effect, or a receiver or administrator is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Company shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer.
12. Performance and fitness for purpose
Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company’s negligence or otherwise. The responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s, unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer’s risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed. Except as set out in Condition 14(i), the liability of the Company to the Customer, should any warranty, statement, advice or recommendation confirmed in accordance with this Condition 12 prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid for the Goods or, at the Company’s option, the supply of replacement Goods which are sufficient and suitable.
13. Warranty/Guarantee
The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods.
In addition, the Company will, free of charge, repair or, at the Company’s option, replace Goods or, in the case of Services, re-perform Services which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design. This obligation will not apply:
if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company; because the Customer did not follow the manufacturers’ instructions for storage, usage, installation, use or maintenance of the Goods; if the Customer has failed to notify the Company of any defect in accordance with Condition 7 where the defect should have been reasonably apparent on reasonable inspection; or
if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods or performance of the Services.
Any replacement Goods made or Goods repaired under this Condition 13 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.
The Customer grants to the Company and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this Condition 13. The Customer shall ensure that the Company’s employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making back-up copies of any information on such computers or processors before the Company’s arrival on site. Except as set out in Condition 14(i), the Company’s sole obligation and liability, should any Supplies prove damaged or defective in accordance with this Condition 13, shall be limited to, at the Company’s option, the repair or replacement of the relevant Goods or the re-performance of the relevant Services or the refund of the price paid for the relevant Supplies.
Except as set out in 14(i) below and 7 above, this Condition is the Company’s sole obligation and the Customer’s sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.
14. Exclusion of Liability
For personal injury or death arising as a result of the Company’s negligence; under Section 10 of the Liability for Defective Products Act 1991.
For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
For fraud including fraudulent misrepresentation.
Except as provided in Conditions 7 (Inspection, defects and non delivery), 12 (Performance and fitness for purpose), and 13 (Warranty / Guarantee) and Condition 15(i) the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with:
Any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on part of the Company’s employees, agents or sub-contractors;
Any breach by the Company of any of the express or implied terms of the Contract;
Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies;
Any acts or omissions of the Company at the Customer’s premises;
Any statement made or not made or advice given or not given by or on behalf of the Company including as to compliance with legislation or regulation;
or
Otherwise under the Contract.
and stipulations, express (other than those set out in these Conditions or given in accordance with Condition 12) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer.
The Company’s total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods or in the case of Services, re-performing the Services or, at the Company’s option, refunding monies already paid in respect of the Supplies.
Save as set out in Condition 14(i), the Company enters into Conditions 7, 10, 12, 13, 14 and 15 on behalf of itself and on behalf of the Company’s employees, agents and sub-contractors. Therefore each of the Company’s employees, agents and sub-contractors may rely on and enforce the exclusions and restrictions of liability in Conditions 7, 10, 12, 13, 14 and 15 in that person’s own name and for that person’s own benefit.
15. ProductWatch and Miditemp ProductFind
The Customer acknowledges that these services are provided free of charge. Without limiting the generality of Condition 14:
In relation to ProductWatch
The Company will make all reasonable efforts to inform the Customer of the pending obsolescence or replacement of any Goods but accepts no liability for failing to do so in a timely manner or at all, nor for failing to provide details of possible or appropriate substitutes or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods suggested are suitable for the Customer’s intended use and no representations or warranties are provided in this regard.
ii. In relation to Miditemp ProductFind
The Company will make all reasonable efforts to assist the Customer in identifying and/or procuring suitable Goods but accepts no liability for failing to do so in a timely manner or at all nor for failing to source possible or appropriate Goods or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods are suitable for the Customer’s intended use and no representations or warranties are provided in this regard.
16. Intellectual property rights
The Supplies in this Catalogue may be subject to the intellectual and industrial property rights including patents, knowhow, trademarks, copyright, design rights, utility rights, database rights and or other rights of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer’s ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising. In particular, without limiting the above, title in any software program forming all or any part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms its licence or use and paying any royalty payable.
The Company owns full copyright in respect of this Catalogue and its reproduction in whole or part is prohibited without the Company’s prior written consent.
17. Use of Personal Data
“Personal Data” means, in relation to any Customer, or any representative of a Customer who is (in either case) a living individual, any data from which (whether alone or in combination with other information held by the Company) the Company can identify that Customer or that representative, regardless of how and when that data is provided. The Company may process Personal Data for all purposes contemplated in these Conditions or arising in the context of the relationship between the Company and the Customer including:
Deciding whether to enter into any contract or arrangement with that Customer. This may include conducting credit reference searches against a Customer or its representatives and the disclosure of information to the relevant agency as to how that Customer conducts its account, and other anti-fraud or identity checks;
Order fulfilment, administration, customer services, profiling the Customer’s purchasing preferences and to help to review, develop and improve the Company’s business and the goods and services it offers.
Direct marketing of the Company’s products and services and/or of the products and services of other companies of Miditemp GmbH or third parties which the Company believes may be of interest to the Customer or its representatives, whether by post, fax, telephone, email, SMS, MMS or otherwise, to the extent that it is lawfully entitled to do so;
Crime prevention or detection.
The processing of the Personal Data may involve:
The disclosure of that Personal Data to the Company’s service providers and agents;
The disclosure of that Personal Data to other companies of Miditemp GmbH whose products and services the Company believes may be of interest to that Customer or representative;
The disclosure of that Personal Data to third parties whose products and services the Company believes may be of interest to that Customer or representative;
The transfer of Personal Data outside of the EEA, including to countries whose laws may not provide adequate protection to Personal Data. The Company will only transfer Personal Data outside the EEA to companies who have guaranteed to the Company the same level of protection as that Personal Data would have received in Germany.
The Customer agrees that the Company may use and process Personal Data for all these purposes and the Customer further agrees that he or she has the authority of any representative of the Customer to consent to the processing of the Personal Data on their behalf. If, at any time, the Customer or its representatives does not wish his or her Personal Data to be used for any or all of the above purposes, he or she should contact the Sales Manager, Miditemp GmbH, Am Pfanderling 60, D-85778 Haimhausen or notify any of the Company’s sales representatives when placing an order by phone. The cost of such letter or phone call shall be reimbursed to the Customer or representative.
Customers or representatives of a Customer who are living individuals have the right under the Data Protection Acts 1988 and 2003 to request a copy of any Personal Data relating to them. Such Customers also have the right to have any inaccuracies in such data corrected.
18. Promotions
In the event that the Company sends promotional material to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Goods purchased from such material.
19.Country of origin
Unless otherwise confirmed by the Company in writing, nothing on this homepage is to be taken as representation of the source of origin, manufacturer or production of the Goods or any part of them.
20. Export
Separate Conditions of Supply apply to export transactions and are available on request from the Company’s export department. The Customer is responsible at its own expense for obtaining any licence and complying with any export regulations in force within Ireland and in the country for which the Goods are destined. Certain Goods imported from the United States of America by the Company are subject to specific restrictions. With respect to goods manufactured in or originating from the United States, the Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities and shall not import, export or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked or designated person or entity as mentioned in any such U.S. or foreign law or regulation. The Customer represents and warrants that is not on the Denied Persons List and is not otherwise prohibited by law from purchasing the Goods. The Company reserves the right not to supply certain customers or countries and to require from the Customer full details of the end use and final destination of the Goods.
21. Age requirements for certain Goods
Where the law requires a minimum age for the purchase of certain Goods, the Customer confirms that he or she is over the required age and that delivery of the Goods will be accepted by a person over the relevant age limit.
22. Force Majeure
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under these Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.
23. Legal construction
All Contracts shall be governed by and interpreted in accordance with German law and the Customer submits to the jurisdiction of the German Courts, but the Company may enforce such Contract in any court of competent jurisdiction.
24. Place of Jurisdiction
a) German law only shall apply; application of the UN Convention on Contracts for the International Sale of Goods (CISG) is barred.
b) The place of performance and legal venue is Haimhausen, Germany. MIDITEMP shall, also have the right to bring legal action against the customer at his own general place of jurisdiction.
25. General
Any provision of these Conditions of Supply which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions of Supply and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions of Supply will not be constrained as a waiver of any rights under these Conditions of Supply. The Company may assign all or any of its rights and/or obligations under or in connection with these Conditions or any contract for supply entered into pursuant to them to any other company which is the parent company or subsidiary of the Company or any subsidiary of such parent company at any time. Except as set out in Condition 16, the parties to the Contract do not intend that any of its terms will be enforceable by any person not a party to it.
These Conditions supersede all previous issues
October 2009 |
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