General Terms and Conditions
General Terms and Conditions for the Performance of Services of Mitsubishi Eelectric Europe B.V.
(Competent Authority EMC Act/EMC Laboratory)
1. General
[1.1]
Mitsubishi Electric Europe B.V. (hereinafter referred to as
"Mitsubishi") transacts business as an accredited testing laboratory for
electromagnetic compatibility and as a "competent authority" pursuant to the EMC
Act and provides the following services: consulting, performance of EMC tests,
certification.
[1.2]
The following General Terms and Conditions between Mitsubishi and
its customer shall apply to all performances pursuant to Item 1.1 insofar as no
other terms and conditions are expressly agreed.
[1.3]
Any general terms and conditions of the customer shall also not
become component parts of the contract even if Mitsubishi does not again
expressly object thereto and, in particular, shall not be recognized by
implication.
2. Offers
[2.1]
Mitsubishi offers shall be binding for 30 days. All individual
amounts and interim sums are understood to be net, without the statutory value
added tax which shall be calculated additionally.
[2.2]
Performance of services shall be offered calculated on the basis of
hourly rates for the various services areas and an appropriately estimated
number of hours. Insofar as not otherwise expressly agreed in writing, invoicing
shall then be based on the actual hours worked.
3. Scope of Performance
[3.1]
The description of the concrete scope of performance and the actual
aims shall be set forth in the individual contracts.
[3.2]
The services shall be performed on the basis of a description of
function and performance of the product to be made by the customer which must be
complete and correct. Should Mitsubishi, with the agreement of the customer,
take over work products of third parties as the basis or as a component part of
its performance, then it can use this work product, untested, for its further
performance of services unless the customer expressly orders in writing that
these work products which are taken over be tested.
4. Performance Dates/Due Dates
[4.1]
The agreed dates for performance/due dates shall only be binding if
they are expressly designated to be binding in writing and the pre-contractual
details of the customer which were necessary for the estimation of the scope of
performance are correct. Delays which are caused by incorrect or incomplete
technical data of the customer shall extend agreed due dates respectively.
[4.2]
Should extensions of the scope of performance or other requests for
changes occur during the contractual term, Mitsubishi shall coordinate the
resulting date postponements with the customer without undue delay.
[4.3]
Should services be performed outside the normal business hours of
Mitsubishi upon the express request of the customer (night/weekend work), then a
surcharge herefor in the amount of 25 % of the list prices shall be paid..
[4.4]
The customer shall be responsible for the arrival and delivery
transport of the product to be tested which shall be coordinated with Mitsubishi
with regard to the dates. Should no pickup of the product to be tested be made
after a request therefor by Mitsubishi, then the return shall be arranged at the
cost of the customer.
5. Cooperation
[5.1]
The scope and the quality of Mitsubishi’s performances are
determined by the scope and the quality of the cooperation of the customer and,
if applicable, the product manufacturer and/or user.
The customer shall undertake all necessary cooperation actions therefore on its part or by its employees in a timely manner for Mitsubishi at no cost. In
addition, it shall assure that, upon the demand of Mitsubishi, the necessary
cooperation actions on the part of the product manufacturer and/or user are made
in a timely manner and at no cost; the customers shall cause and procure that
the installations or components possibly necessary for the performance of
measures are placed at the disposal of Mitsubishi from or by the product
manufacturer and/or user also in a timely manner and at no cost.
[5.2]
The customer shall bear the costs for additional expenditures which
occur as a result that work from Mitsubishi must be repeated or delayed as a
consequence of late, incorrect or incomplete information or otherwise not proper
cooperation actions. With the calculation of a binding fixed or maximum price,
Mitsubishi shall also be authorized to additionally calculate such resultant
additional expenditures.
[5.3]
Mitsubishi shall not be liable for damages for expenditures which
were caused by the defective or incomplete prior performances or incomplete
cooperation actions of the customer. Agreed deadlines shall be interrupted if
cooperation actions are not performed in a timely manner.
[5.4]
After consultation with the customer, Mitusbishi shall be
authorized, if necessary, to call in third parties for the processing of the
contracts.
6. Warranty
[6.1]
According to the state of the art, it is generally not possible to
determine all defects or deviations in products or systems under all application
conditions.
Taking into account this fact, Mitsubishi warrants the orderly processing and
documentation of the performance services agreed with the customer without
guaranteeing that, as a result of the measures of Mitsubishi, all product or
system defects or deviations could be determined.
Insofar as the customer has knowledge or gains knowledge of product or system
defects or deviations during the term of the contract and the warranty period,
these shall be notified to Mitsubishi in writing without undue delay.
[6.2]
As a warranty, the customer can first demand the remedy of any
defects of the agreed performance at no cost. Should the remedy not be made
within a reasonable period of time or should the remedy fail, then the customer
can cancel the contract or demand reduction of the payment price..
[6.3]
Claims based on warranty shall be time-barred after 12 months.
7. Liability
[7.1]
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.
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.
[7.2]
Insofar as the customer is entitled to damages pursuant to this
Item, these shall be time-barred with the expiration of the statute of
limitations applicable for claims based on warranty (Item 6.3). If a claim for
damages is based on the Product Liability Law the statutes of limitations shall
apply.
[7.3]
Insofar as Mitsubishi is liable in addition to other parties as
joint and several debtor, then it shall always be liable only subsidiarily in
the last position.
[7.4]
The restriction of liability in favour of Mitsubishi shall apply in
the same way also to its employees, employees with managerial functions and
organs.
8. Payment / Payment Terms
[8.1]
Insofar as a fixed price is agreed, this shall be based on the
precontractual information of the customer and the scope of performance
determined therefrom. Should modifications to the scope of performance result
due to requests for additional performances or requests for modifications, then
the fixed price shall be adjusted respectively to the changed scope of
performance..
[8.2]
In addition to the agreed price, value added tax respectively
applicable at the date of the invoicing shall be charged.
[8.3]
Payment shall be payable and due upon the receipt of the invoice
without deduction. Discounts shall only be granted if they are agreed upon in
writing.
[8.4]
Should a fixed price be agreed, after it has presented the
concluded part of the contract as partial performance for acceptance, Mitsubishi
shall be authorized to invoice the performed part of the total contractual
performance owed in proportional partial payments on account. The customer of
Mitsubishi shall be obligated to accept without undue delay. Should the customer
of Mitsubishi fail to meet its acceptance obligation without undue delay, then
acceptance shall be deemed to have occurred four calendar weeks after the
performance.
[8.5]
Objections to Mitsubishi’s invoice shall be notified to Mitsubishi
in writing with a statement of the grounds within a preclusive period of one
month after the date of the invoice.
[8.6]
Should the customer of Mitsubishi be in default of payment, then he
shall be liable, reserving the claim of additional damages, for lump-sum damages
in the amount of 0.5 % of the invoice amount per week up to a maximum amount of
30 % of the invoice amount. Damages shall be set at a lower amount if it exceeds
the amount of the expected damages or shall be adjusted if Mitsubishi proves an
increased charge or the customer of Mitsubishi proves a lesser charge.
[8.7]
With the granting of the contract, the customer declares its
agreement to an examination of its credit-worthiness, if applicable, by means of
a credit agency. With non-confirmed credit-worthiness, upon the demand of
Mitsubishi, a pre-payment by the customer shall be due in a sum up to the amount
of the contract value, prior to the performance of the contract by Mitsubishi.
Upon default of payment, Mitsubishi shall be authorized to first postpone
further performance on the contract until the pre-payment is made. Damages on
the part of the customer shall be excluded in such a case.
9. Assignment
The contractual parties can assign, in whole or in part, rights and obligations from the contract with the prior written consent of the other contractual party.
10. Copyrights/Ownership Rights/ Confidentiality
[10.1]
All ownership rights, copyrights and co-copyrights to processes,
documentation, programs, calculations, other presentations, etc. developed by
Mitsubishi shall remain with Mitsubishi.
[10.2]
The customer may only use the results achieved within the
framework of the contract for the purposes which were determined for these
pursuant to the contract.
[10.3]
Both contractual partners and their employees shall be obligated,
in addition, to treat all information and documents as confidential, to use
these only for their own company purposes and not to allow third parties access
to such. The customer shall be obligated, in addition, to impose this
confidentiality obligation on every product manufacturer and/or user which is
consulted in connection with the performance or otherwise cooperates in another
manner or provides the necessary installations or components for performance.
11. Termination
Should the customer fail to undertake the necessary cooperation actions, fail to
assure the cooperation of product manufacturers and/or users, should the
information or details provided by the customer, product manufacturer and/or
user be incomplete or should requests for modifications require an additional,
non-calculated expenditure of work, the extra costs of which shall not be borne
by the customer, then Mitsubishi shall be authorized to terminate the contract
immediately after setting a reasonable time period to provide appropriate
prerequisites or for the assumption of additional costs by the customer and this
deadline has passed unsuccessfully.
Costs which Mitsubishi incurs as a result of the immediate termination shall be reimbursed by the customer.
12. Miscellaneous
[12.1]
Insofar as the customer is a merchant, jurisdiction shall be the
registered office of Mitsubishi in Ratingen.
[12.2]
Place of performance is the place where the contractual
performance occurs, otherwise at the registered office of Mitsubishi in
Ratingen.
[12.3]
Oral additional agreements must be confirmed in writing to be legally valid.
[12.4]
Modifications and additions, including the modification to this
requirement of a writing clause, must be in writing to be legally valid.
[12.5]
Should a provision or a part of a provision of these Terms and
Conditions not be legally valid, such shall not affect the validity of the
remaining Terms and Conditions and parts thereof. The legally invalid (partial)
Term and Condition shall be replaced by a legally admissible (partial) term
which comes closest to its economic purpose.
(Version: July 2007)