Terms and conditions

General Terms and Conditions

1. Overriding Provisions.

These General Terms and Conditions apply to all offers, advisory services, orders, agreements and deliveries between each customer (collectively, for the purposes of the contract, the “Customers”, individually the “Customer”) and MONTI WERKZEUGE GmbH (“MONTI”), insofar as the Customer is a business, a legal entity under public law or a special fund under public law. Deviating or supplementary terms are hereby excluded. In the absence of a written acceptance of these terms by the Customer, any acceptance of a delivery or service based on an order shall be deemed acceptance of these terms. A waiver, amendment or modification of these provisions or of any provision of the order shall only be valid if made in writing and signed by an executive officer or another authorised representative of MONTI. In the event of discrepancies between an order accepted by MONTI and these provisions, the present provisions shall prevail. If MONTI does not enforce any of these General Terms and Conditions at any given time, this shall be deemed neither an amendment of the General Terms and Conditions nor a waiver by MONTI of the application of any of these General Terms and Conditions. These terms and conditions also apply to all future transactions between the parties, and also if MONTI carries out the delivery in the knowledge of deviating or conflicting terms.

1. General Conditions.

MONTI reserves the right to discontinue products (the “Product”) and to revoke or change prices or terms of service, unless otherwise stated in these terms. Should it become necessary at any time to discontinue services for the Customer, to revoke or change provisions in this schedule or to discontinue the distribution of products, MONTI will, at its sole discretion, take measures that are fair and reasonable.

1. Acceptance of Orders.

3.1. All orders for products require written acceptance by MONTI and shall only become binding at the time of acceptance or of shipment of the products – whichever occurs earlier – and, in the case of acceptance by shipment, only with regard to the part of the order actually shipped. Notwithstanding MONTI's acceptance of an order for a product, MONTI shall not be obliged to ship a product if, at the time of the scheduled delivery, the Customer is in breach of any of these provisions or of other contractual obligations towards MONTI. The final shipment of orders to the Customer depends on the extent to which MONTI is able and entitled to make such sales and to obtain the necessary licences and approvals in accordance with all decrees, laws, rules and regulations of the governments of the Federal Republic of Germany and the United States of America and their agencies or authorities, as currently in force or as may come into force in future.

3.2. The Customer undertakes (i) to support MONTI in obtaining the necessary licences or approvals by providing MONTI with the documents or information requested by MONTI; (ii) to comply with the decrees, laws, rules and regulations of the governments of Germany and the United States of America and their agencies or authorities; (iii) to keep the records necessary to comply with these decrees, laws, rules and regulations; (iv) not to export any products unless this is done in accordance with such decrees, laws, rules and regulations; (v) to obtain all official approvals and licences required for the import of the products into a country; (vi) not to sell, transfer or otherwise dispose of the products in violation of the export laws of the United States of America; and (vii) to indemnify and hold MONTI harmless from all fines, damages, losses, costs and expenses (including reasonable legal fees) that MONTI incurs as a result of a breach of this paragraph 3.2 by the Customer or a customer of the Customer.

1. Terms of Payment, Interest.

4.1. Invoices are due and payable within 14 days of the invoice date, unless otherwise specified in the order confirmation or another agreement.

4.2. Payments owed to MONTI under these provisions shall, if not paid when due, bear interest for the duration of the default. The annual default interest rate pursuant to §288 (2) BGB is 9 percentage points above the base rate of the European Central Bank, calculated on the basis of a 360-day year for the number of days actually elapsed, beginning on the day following the due date and ending on the day before the day on which payment is made in full. Interest accruing under this clause 4.2 shall be paid to MONTI on demand. If MONTI charges or receives interest under this subsection, this shall not constitute a waiver by MONTI of its right to declare a default under such an agreement or to terminate such an agreement.

4.3. If the Customer fails to pay an amount due, MONTI may, without notifying the Customer, suspend all services provided under this agreement, and the Customer must hand over to MONTI all products in its possession.

1. Shipping Costs; Taxes.

5.1. Shipping and handling are carried out ex works MONTI Germany, MONTI TOOLS USA or another location at which the product is manufactured or stored on behalf of MONTI. If MONTI arranges shipping on behalf of the Customer, all shipping and handling charges will be calculated separately and shown on MONTI's invoices. Any discount must be agreed in writing.

5.2. MONTI will add all required taxes to all prices and other charges, regardless of how they are designated or levied on the basis of the prices or other charges that become due for the products or services provided or partial deliveries under these agreements. This section does not apply to tax-exempt businesses if they provide MONTI with evidence in a form and with content that MONTI considers sufficient.

1. Set-off, Right of Retention.

The Customer is only entitled to set-off insofar as the Customer's counterclaim has been acknowledged, is undisputed or has been finally established by a court. The Customer is entitled to assert rights of retention only insofar as these rights are based on the same transaction.

1. Deliveries.

7.1. All shipping dates are estimates only and cannot be guaranteed. MONTI undertakes to make good-faith efforts to deliver the product by the date stated in the order confirmation, provided that MONTI assumes no responsibility or liability whatsoever for losses or damage arising from causes beyond its control, including but not limited to: delays due to fire, floods, war embargoes, industrial action, acts of sabotage, riots, accidents, pandemics, delays by carriers, voluntary or mandatory compliance with government laws, regulations or requests, shortages of labour, materials or production facilities, or other similar causes beyond MONTI's control. Any delivery of software is also subject to MONTI's licence agreements. There are no implied licences under these provisions, and all rights not expressly granted to the Customer under these provisions are reserved by MONTI.

7.2. If the Customer does not accept the order, it must nevertheless make payments to MONTI. If the Customer wrongfully rejects or revokes acceptance of the products, or fails to make the payments set out herein, or revokes the contract or part of the contract for the products delivered, MONTI may withhold delivery or stop delivery of the products or terminate the contract and/or, at its sole discretion, claim damages. Monti is entitled to claim liquidated damages of 20% of the purchase price.

7.3. Proof of greater damage and statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected, although the liquidated damages shall be credited against further payment claims. The Customer has the right to prove that no damage, or damage significantly lower than the stated amount, has been incurred.

7.4. If the Customer causes a delay in the delivery of the products or any part thereof, MONTI may, at its own discretion, extend the delivery period by a time appropriate to the circumstances. If the delay causes MONTI significant disadvantages, MONTI is entitled to withdraw from the contract with regard to the products whose delivery is delayed. All costs or damages resulting from such delays shall be borne exclusively by the Customer. Unless otherwise agreed in writing, MONTI reserves the right to make partial deliveries and to invoice partial deliveries.

7.5. MONTI's liability ends upon delivery to the carrier at the specified shipping point, whereby the risk of loss, damage or destruction of any of the products passes to the Customer upon this delivery to the carrier. In no event shall any loss, damage or destruction in any way release the Customer from the obligation to pay under this agreement.

7.6. MONTI's responsibility ends upon delivery to the carrier at the specified shipping point, and the risk of loss, damage, injury or destruction of any of the products passes to the Customer upon delivery to the carrier (“Delivery”). In no event shall loss, damage, injury or destruction release the Customer from the payment obligation set out herein.

7.7. At the Customer's request and expense, MONTI will insure the product against transport damage. The Customer must inform MONTI and the carrier of any transport damage within three (3) working days of delivery or within a shorter period requested by the carrier.

7.8. MONTI undertakes to make good-faith efforts to deliver the product by the date stated in the order confirmation, subject, however, to the proviso that MONTI bears no responsibility or liability whatsoever for losses or damage arising from causes beyond its control, including but not limited to delays due to fire, floods, war embargoes, industrial action, acts of sabotage, uprisings, accidents, delays by carriers, voluntary or mandatory compliance with government regulations, rules or requirements, shortages of labour, materials or production facilities, or other causes beyond MONTI's control. Any delivery of software is also subject to MONTI's licence agreements. There are no implied licences under these provisions, and all rights not expressly granted to the Customer under these provisions are reserved by MONTI.

1. Retention of Title.

8.1. MONTI retains title to all products sold until full payment of the purchase price has been received and all claims arising from the contract have been satisfied. The Customer may only lease, pledge or otherwise encumber the products after title has passed in full to the Customer.

8.2. Any installation or application of the products by the Customer is always carried out in the name and for the benefit of MONTI. If the Customer processes, combines or mixes the products with its own products or those of third parties, MONTI acquires proportionate co-ownership of the part of the goods corresponding to the invoice value of MONTI's products.

8.3. If the Customer combines or mixes the products with the main products of a third party in return for remuneration, the Customer assigns to MONTI its share of the remuneration from this third party in the amount of the value of MONTI's products.

8.4. The Customer is entitled to resell products subject to MONTI's retention of title in the ordinary course of its business. If the Customer does not receive the full purchase price, it shall agree a retention of title with its customer in accordance with these terms. The Customer assigns to MONTI, on a pro rata basis, all claims arising from the resale as well as its proportionate retention of title rights to MONTI's products.

8.5. As long as MONTI is the owner of its products, the Customer must inform MONTI of any risk of (insolvency) attachment or any other claim relating to MONTI's products. If third parties bring actions relating to products in which MONTI holds ownership rights, the Customer must inform these third parties of MONTI's ownership rights without delay.

8.6. MONTI is entitled to demand delivery and return of the products from the Customer if the Customer fails to meet its obligations.

1. Cancellation.

9.1. Orders received and accepted by MONTI may only be cancelled by the Customer with MONTI's written consent prior to shipment and upon the Customer's acceptance of MONTI's cancellation and restocking fees, in order to protect MONTI against all costs and losses.

9.2. Orders requiring special packaging, including packaging for export, and orders that are custom-made or otherwise made “to order” cannot be cancelled or postponed.

9.3. If MONTI nevertheless agrees to delay or otherwise cancel the shipment of products and, at its own discretion, to restock or convert these products, the Customer undertakes to pay MONTI a restocking fee of twenty percent (20%) of the original purchase price.

1. Inspection and Notice of Defects.

10.1. The Customer must inspect the products within three (3) working days of delivery for compliance with the specifications set out in the Customer's delivery orders accepted in writing by MONTI.

10.2. In the event of a non-conformity or defect, the Customer must inform MONTI in writing within three (3) working days thereafter. The Customer is obliged to identify and document defects in detail..

10.3. In the event that the Customer does not inspect or report a defect to MONTI in the manner described above, the product shall be deemed accepted.

1. Warranty.

MONTI warrants for 12 months from delivery of the products to the Customer as defined in §7.5 above that the products are free from defects in material and workmanship under normal use and conform to the product specifications published by MONTI. The above warranty is subject to the proper installation, operation and maintenance of the products in accordance with the installation and/or operating instructions and the user manual. All warranty claims must be asserted by the Customer against MONTI in writing within three (3) days of the occurrence of a defect and before expiry of the warranty period. In the event of non-conformity of the goods, the buyer is entitled to subsequent performance in the form of repair or delivery of conforming goods. If subsequent performance has failed, the buyer is entitled to reduce the purchase price or to withdraw from the contract.

1. LIMITATION OF LIABILITY.

12.1. IN THE EVENT OF INTENT OR GROSS NEGLIGENCE ON THE PART OF MONTI OR ITS REPRESENTATIVES OR VICARIOUS AGENTS, MONTI SHALL BE LIABLE IN ACCORDANCE WITH THE PROVISIONS OF THE APPLICABLE LAW. THE SAME APPLIES IN THE EVENT OF A BREACH OF MATERIAL CONTRACTUAL OBLIGATIONS. INSOFAR AS THE BREACH OF CONTRACT IS NOT INTENTIONAL, THE LIABILITY FOR DAMAGES IS LIMITED TO THE TYPICALLY FORESEEABLE DAMAGE

12.2. MONTI'S LIABILITY FOR CULPABLE INJURY TO LIFE, BODY OR HEALTH AND OUR LIABILITY UNDER THE PRODUCT LIABILITY ACT REMAIN UNAFFECTED.

12.3. ANY LIABILITY NOT EXPRESSLY MENTIONED ABOVE IS EXCLUDED.

1. SAFETY STANDARDS.

The Customer must comply with all laws, rules, regulations and industry standards that exist from time to time in relation to the products and to the Customer's performance of its obligations in the countries in which the Customer carries out activities under these terms and in which products are resold or distributed. Customers must comply with the safety instructions issued by Monti and inform their customers and employees accordingly. The Customer may not export the products unless such export complies with the applicable export laws and regulations. Resellers are obliged to obtain written export approval from MONTI prior to export.

1. Indemnification.

The Customer hereby agrees to indemnify, defend and hold Monti harmless from all claims, demands, costs, liabilities, losses, expenses and damages (including reasonable legal fees, costs and expert fees) arising out of or in connection with a claim which, if the plaintiff's allegations were taken as true, would lead to the conclusion that the Customer has breached these terms or other warranties and representations in connection herewith, including but not limited to safety breaches or export regulations.

1. Proprietary Rights and Trademarks.

The Customer hereby acknowledges MONTI's absolute right, title and right of use in all patents, trademarks, trade names, logos, copyrights and all other proprietary rights contained in products or other materials obtained from MONTI. The Customer has no right to register trade names or trademarks of MONTI in its own name or as its own right, whether as owner, user or otherwise. The Customer undertakes to release all rights it has acquired in MONTI's trade names and trademarks and, where required, to carry out all measures that MONTI considers necessary or advisable to effect this release. Upon termination or expiry of this agreement, the Customer will immediately cease using all of MONTI's trade names and trademarks and will thereafter not use similar marks or names, whether in connection with the products or otherwise. The goodwill arising from these intellectual property rights remains at all times the sole property of MONTI. Upon expiry or termination of this agreement for any reason whatsoever, the Customer shall have no claim whatsoever to compensation for this goodwill. The Customer will inform MONTI without delay of any known or threatened infringement of Monti's patents, trademarks, copyrights or confidential information relating to the products. At MONTI's request and expense, the Customer will support MONTI in all enforcement measures that MONTI takes at its own discretion in the event of such an infringement. During the term of the contract, MONTI is entitled to use the Customer's trade names, logos and trademarks in advertising and promotional literature and on MONTI's website with the Customer's prior consent.

1. Miscellaneous.

16.1. Export regulations. The Customer acknowledges that the licensed products and all direct products thereof are subject to the export laws and regulations and other laws of the United States, and that the Customer will at all times comply with the provisions of these laws and regulations, including obtaining all necessary or required approvals. The Customer may not export or re-export, or otherwise directly or indirectly transfer, the licensed products or the direct or indirect products thereof to any country, or use the licensed products or the direct products thereof in any country, that is subject to prohibitions or restrictions under the export laws and regulations or other laws of the United States of America or other applicable laws.

16.2. Applicable law. The contracts between the parties are governed by the law of the Federal Republic of Germany. In addition, the parties agree that the provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply to this contract.

16.3. Jurisdiction. All disputes arising out of or in connection with these terms shall be heard exclusively before the courts in Bonn, Germany, although MONTI may at any time assert claims against the Customer before the competent courts at the Customer's registered office.

16.4. Notices. All written communications sent by either party under the agreements between the parties must be sent to the other party by post (overnight) or fax.

16.5. Severability clause. The invalidity or unenforceability of any term or provision of the agreements between the parties or of the above terms shall not affect the validity or enforceability of the remaining terms or provisions of the agreement between the parties or of the above terms, which shall remain in full force and effect. The parties will replace any such invalid or unenforceable term or provision with a provision that comes closest to the invalid or unenforceable provision and takes the intentions of the parties into account as far as possible. If either party fails to enforce a provision of the agreement between the parties, or if these provisions are not complied with, this shall not be deemed a waiver of the future enforcement of this or any other provision.

ADDENDUM - Rental Conditions

1. Obligations of Customer

1.1. The rental objects may be used only for their intended pur-pose - including for safety reasons. Customer is obligated to handle the rental object properly and exercise due care while respecting and abiding by all applicable regulations and technical rules pertaining to its use. Customer is obligated to ensure the rental objects are operated exclusively by trained and certified specialists.

1.2. Customer must carefully store the rental object, in particular securing it against theft and protecting it against fire and atmospheric influences. Customer is obligated to inform MONTI of any attempts by third parties to access the rental object, for example by attachment or seizure, as well as any damage to or loss of the rental object without undue delay.

1.3. Customer may not customize, modify or have customized or modified any rental object and / or sublet any rental object. The rental object may only be employed in its original condition..

1. Security deposit

A security deposit, the amount of which shall be determined by MONTI, shall be set by the contracting parties. The security de-posit shall be refunded to Customer while offsetting any claims of MONTI upon return of the rental object in a proper condition. The amount of MONTI's claim shall not be limited by the secu-rity deposit.

1. Handover of the rental object

3.1. Handover of the rental object shall generally be ex warehouse MONTI. Customer shall be responsible for transport of the rental object from MONTI and back. Customer shall bear the risk of transport.

3.2. In the event of a special agreement between MONTI and Customer, the rental object may be delivered to Customer, set up, dismantled and collected again. Delivery and installation as well as dismantling and return transport shall be at the risk of Customer, even if MONTI or its authorized representatives carry out the transport. The costs incurred shall be invoiced to Customer separately.

3.3. All rental objects are in a perfect, reliable operating condition upon commencement of the rental period. When provided the rental objects, Customer must ensure that such are in perfect condition and check to make sure that no objects or accessories are missing. MONTI is ready and willing to help in the inspection of the rental object if so desired.

3.4. If Customer discovers any defects in this inspection - regardless of the type - it must notify MONTI in writing without undue delay. Customer shall confirm with its signature that it has been provided the rental objects in perfect condition; sub-sequent assertion of claims for damage is thus excluded. If any defects are present, Customer may not use the rental object without the express permission of MONTI.

1. Liability on the part of Customer

4.1. Customer shall be liable for all damage to the rental object caused by willful intent, negligence (even the slightest), im-proper use or other circumstances for which it is responsible (use by unauthorized persons). It shall also be liable for any damage caused by third parties.

4.2. Customer shall be liable for loss of the rental object regard-less of whether the loss is due to circumstances for which Customer is responsible. In the event of loss or damage to the rental object or accessories, the respective parts involved shall be charged at the manufacturer's list price unless the damage is due to normal wear and tear. No deductions shall be under-taken based on the principle of "new for old".

1. Notification obligation

Customer is obligated to notify MONTI immediately in writing about any damage to the rental object, irrespective of whether this damage is due to natural wear and tear or is the responsibility of MONTI. It is not permitted to use a damaged rental object or a rental object that is not safe to operate. The rental object may not be opened or repaired by Customer or any third person. Any and all repairs are to be carried out by MONTI or a person commissioned and approved by MONTI. During the period in which the repair is being performed, MONTI shall make available to Customer a comparable rental object insofar as this is possible. During the period in which the repair is being performed, Customer shall not be exempt from its obligation to pay the rent. The same applies if the rental object is lost if Cus-tomer is responsible for the damage or loss. The repair costs shall be borne by Customer if it is responsible for the damage to the rental object.

1. Termination

MONTI is entitled to terminate the Agreement without notice if Customer fails to use the rental unit properly or allows third par-ties to use the rental object without MONTI's written consent or does not immediately pay arrears on rent in the required form of payment despite being so requested by MONTI. In the event of immediate termination of the rental agreement without notice, MONTI shall be entitled to demand return of the rental object without undue delay.

1. Final stipulations

Customer is obligated to notify MONTI immediately in writing about any damage to the rental object, irrespective of whether this damage is due to natural wear and tear or is the responsibility of MONTI. It is not permitted to use a damaged rental object or a rental object that is not safe to operate. The rental object may not be opened or repaired by Customer or any third person. Any and all repairs are to be carried out by MONTI or a person commissioned and approved by MONTI. During the period in which the repair is being performed, MONTI shall make available to Customer a comparable rental object insofar as this is possible. During the period in which the repair is being performed, Customer shall not be exempt from its obligation to pay the rent. The same applies if the rental object is lost if Customer is responsible for the damage or loss. The repair costs shall be borne by Customer if it is responsible for the damage to the rental object.

 

Status March 2019, v 1.0