McCue EU Terms & Conditions

General, Scope of Application. These General Terms and Conditions of Sale (“Terms”) apply to all contracts between McCue Europe GmbH. Magirus-Deutz-Straße 14 89077 UIm. Germany, herein referred to as “Seller” of products (“Products”) or services (“Services”) and the person or entity purchasing Products or Services is referred to herein as “Buyer”. These Terms are applicable to all offers, acceptances, acknowledgments, confirmations, sales and deliveries of Products and performance of Services by Seller and will form an integral part of the contract for the purchase and sale of the Products and Services between Seller and Buyer (this “Contract”). Any additional or different terms or conditions in Buyer’s order or other purchasing documents are hereby objected to by Seller. The Terms will apply in their latest applicable version to all future contracts with Buyer, without Seller having to refer to these again in each individual case.

1. Conclusion of Contract. Seller’s offers are non-binding and subject to change. This shall also apply if Seller has provided the potential Buyer with technical documentation (e.g. drawings, plans, calculations, estimates,). Buyer's order for Products shall be considered a binding offer of contract. A Contract shall only be concluded upon Seller’s written or electronic order confirmation (text form sufficient) or implicitly through the delivery of the Products and shall be governed exclusively by the contents of the order confirmation and by these Terms.
   
   
2. Prices. Unless specifically stated otherwise in this Contract, prices are exclusive of any tax, duty or other governmental charge imposed or assessed on or in connection with the sale of Products or Services by Seller to Buyer or the use thereof by Buyer, and if any such tax, duty or charge is paid by or assessed against Seller or is required by law to be collected by Seller from Buyer (other than taxes based on Seller's net income or profit), Seller may add the same to the price of the Products and Services or invoice Buyer separately therefor. If Seller or one of its subcontractors will install the Products and, after entering into this Contract, performs a ground penetrating radar scan of the installation site which identifies subsurface conditions or obstacles (such as, without limitation, gas, electric, water, sewage, telephone, internet or other utility lines) that will impair or interfere with Seller’s ability to perform such installation, Seller reserves the right to increase the price of the Products or Services to account for any additional costs to be incurred by Seller to work around or address such conditions or obstacles or to otherwise mitigate their impact.
   
   
3. Payment Terms. Unless stated otherwise in this Contract, payment for Products and Services is due no later than 30 days from the date of Seller's invoice in the currency specified by Seller in its invoice or otherwise. If Buyer fails to make any payment when due, Seller will have the right to either terminate this Contract or to suspend further performance under this and/or other contracts with Buyer. If any amount owed to Seller is not paid when due, it will bear statutory interest from the due date until paid, default interest at 9 percentage points above the base rate (§ 288 para. 2 German Civil Code (BGB). Further claims for damages remain reserved. Buyer will be liable for all expenses, including attorneys’ fees, incurred by Seller to collect past-due amounts. Should Buyer's financial condition become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller before providing further Products or Services under this Contract. If such cash payment or security is not provided, Seller may discontinue further deliveries of Products and further performance of Services. Buyer hereby grants Seller a security interest in all Products delivered to Buyer, which security interest will continue until such Products are fully paid for in cash and Buyer, upon Seller's demand, will execute and deliver to Seller such instruments as Seller requests to evidence or perfect such security interest.
   
   
4. Delivery, Title & Risk. Shipment, delivery or performance dates quoted, acknowledged or agreed by Seller are dependent on Seller having received all necessary shipping instructions and other required information and documentation from Buyer. If the shipment of the Products or performance of Services is postponed or delayed by Buyer for any reason, Buyer will reimburse Seller for any and all storage costs and other additional expenses resulting therefrom. Unless otherwise stated in this Contract, the Products will be delivered EXW Seller’s dock (as defined by the ICC’s latest edition of Incoterms). Risk of loss will transfer to Buyer upon delivery. Seller shall retain ownership of the Products until the receipt of all payments arising from the business relationship with Buyer. Prior to this, Buyer must not assign the Products as security. In the event of a breach of contract by the customer, in particular in the case of payment default, Seller shall be entitled to reclaim the Products. Reclaiming of Products shall constitute withdrawal from the contract. After reclaiming and receipt of the Products, Seller shall be authorized to sell the Products, and the proceeds of sale shall be set off against Buyer's liabilities – less reasonable costs of sale.
   
   
5. Confirmation of Quantities Delivered. It shall be Buyer’s responsibility to confirm in a timely manner that all quantities of Products ordered have been delivered by Seller. Therefore, Buyer shall have a period of 5 business days after an order has been delivered to notify Seller in writing of any quantities of Products that were included in such order but were not delivered. Should Buyer fail to timely notify Seller as required by the preceding sentence, such failure shall constitute a waiver of Buyer’s claims and remedies in respect of the missing quantities, and any replacement products desired by Buyer in such instance must be ordered and paid for separately by Buyer.
   
   
6. Defect liability/Warranty.
   1. The Products and Services shall be as contractually agreed and suitable for ordinary use/ quality which is usual for items of the same type and which Buyer can expect according to the nature of the Products and Services. Samples, brochure specifications or information arising from other advertising material are all non-binding reference material. Any agreement regarding quality that deviates from these Terms or the assumption of any guarantee shall only be valid if confirmed in writing by Seller. Seller's employees are not authorized to make or give any quality agreements or guarantees extending beyond the written contract and these Terms.
   2. Seller warrants that it will have good title to the Products at time of delivery to Buyer. Furthermore, Seller warrants that, during the Warranty Period (as defined below): (a) the Products shall (i) be free from defects in materials and workmanship and (ii) conform to Seller’s standard written specifications; and (b) if such Products are installed by Seller or by one of its subcontractors, they shall be so installed (i) using proper equipment and qualified personnel and (ii) in accordance with the written specifications or instructions contained in the Contract or, if none, with Seller’s standard written specifications. “Warranty Period” means 1 year from the date Products are delivered to Buyer, unless Seller or one of its subcontractors installs such Products, in which case the Warranty Period shall be 1 year from the date of Product installation.
   3. Seller shall remedy material defects in the Products and Services, at its sole option, by repair, replacement, or by providing a credit or refund for the purchase price of such Product. To enable Seller to perform repairs or provide replacement deliveries under the warranty, Buyer shall grant Seller a reasonable period of time and shall, by returning the Products or granting access to its premises, provide Seller with the opportunity to remedy the defect. Buyer bears the burden of proof for all claim requirements, in particular for the defect itself and for the time at which the defect was discovered.
   4. Buyer shall be entitled to remedy a reported defect itself or have it remedied by third parties and to demand reimbursement of costs only in the following cases: (i) urgent cases of hazard prevention, (ii) where there is a threat to operational safety and to prevent disproportionately large damage, (iii) with Seller's prior written consent. In such cases, Buyer shall notify Seller in advance without undue delay. Otherwise, any remedy of defects or attempts to remedy defects by Buyer or a third party engaged by Buyer shall result in the expiration of Seller’s warranty obligations.
   5. Buyer's rights in case of defects in the Products require that Buyer inspects the delivered Products upon delivery without undue delay and notifies Seller of any defects in writing and without undue delay, but no later than five (5) business days following delivery; hidden defects must be notified to Seller in writing without undue delay upon their discovery.
   6. Buyer acknowledges any applicable Product-specific materials (the “Product Specific Materials”) located at mccue.com/product-materials. The Product Specific Materials are hereby incorporated into and are made a part of these Terms. Seller does not make any warranties regarding the installation of the Products unless Seller or one of its subcontractors performs the installation, in which case only the express warranty written above regarding such installation shall apply. PRODUCTS THAT ARE BOLLARDS ARE NOT RATED TO PROTECT AGAINST VEHICLE IMPACTS EXCEPT ONLY TO THE EXTENT EXPRESSLY STATED IN THE APPLICABLE PRODUCT SPECIFIC MATERIALS.
   7. The customer's rights in case of defects shall be excluded in the following events: (a) defects in or damage to Product paint, coatings, or any replaceable cover (in each case including any scratches or abrasions) in any way resulting from normal wear and tear, misuse or abuse; (b) damage to the Product cover as a result of vehicular or other impact where such Product otherwise performs as designed. Furthermore, if any Product is installed by someone other than Seller or one of its subcontractors, this warranty does not cover or apply to failure of such Product to otherwise perform as warranted where such failure is caused by improper installation. Finally, this warranty is void where Buyer, the owner or user of the facility at which the Products are installed or any of their other contractors or subcontractors alters the Products, uses the Products in a manner or application for which they were not designed, or fails to observe applicable Seller written instructions regarding shipping, storage, handling, assembly, installation, use and/or required maintenance.
      
      
7. Limitation of Liability.
   1. Seller’s statutory liability for damages shall be limited as follows: (i) Seller shall be liable for damages caused by a negligent breach of a material contractual obligation only up to the amount of damage typically foreseeable at the time of conclusion of this Contract; (ii) Seller shall not be liable for damages caused by a negligent breach of a non-material contractual obligation.
   2. The limitation of liability as set out above does not apply to any mandatory statutory liability (in particular to liability under the German Product Liability Act), if and to the extent Buyer has assumed a guarantee, intentionally concealed defects, nor to any liability for culpably caused personal injuries or any damages caused with intent.
   3. Buyer shall take all reasonable measures necessary to avoid and reduce damages.
      
      
8. Excuse of Performance. Notwithstanding any provision in this Contract to the contrary, Seller will not be liable for any delay in performance or non-performance if performance is prevented, hindered or made commercially impracticable, directly or indirectly, by: flood, fire, explosion, weather, natural disaster or Act of God; act or omission or Buyer, its affiliates or their independent contractors; riot, civil commotion, sabotage, war or act of terrorism; epidemic or pandemic; compliance with law or government request or requirement; plant or equipment malfunction or shutdown in anticipation of malfunction; unavailability of adequate Products, raw materials, fuel, power, utilities, containers or transportation from usual sources on usual terms of supply; failure or delays of suppliers, carriers or independent contractors; strike, lock-out or other labor trouble; or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller. In the event of any of the foregoing, Seller may, upon written notice to Buyer, delay, suspend or cancel deliveries and other performance hereunder without liability, but the balance of this Contract will otherwise be unaffected. Further, if Seller determines that its ability to supply the total demand (from all sources, not just Buyer) for the Products, or to obtain raw materials used directly or indirectly in the manufacture of the Products, is prevented, hindered or made commercially impracticable, Seller may allocate its available supply of Products or raw materials (without obligation to acquire other supplies of any such Products or raw materials) among itself, its affiliates and its non-affiliate customers, including regular customers not then under contract, on such basis as Seller determines, in good faith, to be fair and reasonable without any liability for any delay in performance or non-performance that may result therefrom.
   
   
9. Further Export. Buyer shall not, and shall ensure that its affiliates and (if applicable) reseller customers do not, export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped, or diverted, directly or indirectly, any of the Products to any prohibited country specified by export control laws of the United States or to any foreign national, country, end-use, or end-user that requires an export license or other approval without first obtaining such license or approval.
   
   
10. Miscellaneous.
    1. Individual agreements made with Buyer in specific cases (including collateral agreements, supplements, and amendments) shall take precedence over these Terms and Conditions. Unless proven otherwise, the content of such individual agreements shall be determined by a written contract or our written confirmation, which shall be deemed decisive.
    2. If a provision of the Contract and/or these Terms is invalid, in whole or in part, the validity of the remaining provisions shall remain unaffected hereby. In such case, the parties undertake to replace the invalid provisions by a valid provision coming closest to the commercial purpose of the invalid provision.
    3. Neither party will be deemed to have waived or released any condition, right or remedy stated in or arising out of this Contract except to the extent such waiver or release is expressly stated in a writing signed by an authorized representative of such party. Buyer will not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller, and any purported assignment or delegation without the prior written consent of Seller will be void.
    4. The laws of the Federal Republic of Germany shall apply exclusively to these Terms and the parties' contractual relationship with the exclusion of Convention on Contracts for the International Sale of Goods (CISG). Exclusive venue for any and all disputes arising from or in connection with the parties' contractual relationship shall be Munich, Germany.
    5. English is the language of this Contract. Any translation of this Contract into a different language is solely for the convenience of the parties and is neither intended to have legal effect nor to alter or supplement in any way the terms and conditions of the English version of this Contract.