General Terms and Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery

Mankiewicz Gebr. & Co. (GmbH & Co. KG), referred to in the following as “the Seller”.

1. Scope of the Terms and Conditions

The supplies and quotations of the Seller are made exclusively on the basis of these General Terms and Conditions of Sale and Delivery (GSDC). These GSDC shall also apply to all future transactions without further express agreement. These GSDC shall be deemed to be accepted upon receipt of the goods at the latest. Any general terms and conditions of the Buyer to the contrary are hereby expressly contradicted. The general terms and conditions of the Buyer shall not become part of the contract even if they are not expressly contradicted in individual cases, except where the Seller has expressly agreed thereto in writing in individual cases.

2. Conclusion of Contract, Quotation

(1) The quotations of the Seller are not binding, but are to be understood as an invitation to the Buyer to make a purchase order to the Seller. The contract is concluded by the Buyer's order (quotation) and the Seller's acceptance. If such acceptance deviates from the order, it is regarded as the Seller's new non-binding quotation.

(2) All agreements made between the parties are fully recorded in writing in the contract concluded between them, including these GSDC. The Seller's employees are not authorized to make oral modification agreements.

(3) Cost estimates and freight information are not binding.

(4) The Seller reserves the right to make changes to the goods in the course of further development provided that these do not lead to a reduction in value and are otherwise also reasonable for the Buyer.

3. Properties of the Goods, Documents and Samples

(1) Unless otherwise agreed, the quality of the goods is stated in the data sheets. Properties of samples and specimens, information in test protocols or analysis data are only binding if they have been expressly agreed as the quality of the goods. Quality and durability descriptions and other information are only guarantees if they are agreed and expressively designated as such.

(2) The information in the descriptions, brochures, etc. prepared by the Seller and/or used as a basis for  our  quotations  is  to  be  regarded  as  approximate  only,  unless  otherwise  stated  in  the  order confirmation. In the case of sale according to sample, these only ensure professional testing. Improvements in the meantime are possible and do not lead any entitlements of the Buyer, e.g. to withdraw from the contract, etc.

4. Examination of the Fitness of the Goods, Technical Application Guidance

(1) It is the responsibility of the Buyer to check whether the goods are fit for the purpose intended by the Buyer.

(2) Any technical application recommendations of the Seller within the scope of sales negotiations are made to the best of his knowledge. Information provided by the Seller on the fitness, application and use of the goods is not binding and does not release the Buyer from the obligation to check or test whether the goods are suitable for the intended processes and to determine a layer structure on his own responsibility.

5. Prices

(1) All prices are generally EXW Hamburg-Wilhelmsburg (Incoterms 2010) plus the statutory domestic value added tax or comparable foreign tax applicable on the day of delivery or other performance.

(2) Should cost increases occur in the time between conclusion of the contract and delivery for which the Seller is not responsible and which lead to an increase in the total costs incurred by the Seller for the execution of the contract, the Seller is entitled to increase the prices agreed here accordingly. In the event of a price increase of more than 5%, the Buyer is entitled to withdraw from the contract within a period of two weeks after notification of the price increase.

(3) The prices in quotations and invoices refer to standard containers.

(4) For small quantities, custom-made goods and Buyer requested deviations from standard containers and standard modes of transport surcharges will be added to the list prices. Additional costs for express and express shipments shall be borne by the Buyer.

6. Payment

(1) Invoices are due 30 days after the invoice date. Payments shall only be deemed effected upon receipt of the amount on the Seller's bank account.

(2) Discountable bills of exchange and checks shall only be accepted by written agreement against payment of all expenses on account of performance.

(3) Bills of exchange and checks amounts shall not be credited until the equivalent value including incidental costs is unconditionally available.

(4) The Buyer is only entitled to offset or withhold payment in the case of undisputed or legally established claims. The aforesaid limitation does not apply to claims of the Buyer due to defects or partial non-performance resulting from the same contractual relationship as the claims of the Seller.

7. Default of Payment, Deterioration of Financial Circumstances

(1) The Buyer is in default of payment if he does not settle the claim on the agreed due date. In the event of default in payment, the Seller shall be entitled to charge interest on arrears of 9 percentage points above the respective base interest rate for the amount owed. Further legal claims remain unaffected.

(2) In the event of default in payment on the part of the Buyer, the Seller shall also be entitled, after prior reminder, to demand immediate payment of all other outstanding invoices. This does not apply if the amount the Buyer is in default of payment is to be regarded as insignificant in relation to the claims that are not due. This is the case if the amount is less than 5 % of the receivables not yet due. All rebates, bonuses, discounts and other remunerations granted become null and void with the justified total due date of the invoice claims. Furthermore, the Seller reserves the right to withdraw from the existing contracts under the statutory conditions if the Buyer does not meet his payment obligation.

(3) In the event that after conclusion of the contract the Seller becomes aware of circumstances concerning the financial circumstances of the Buyer which endanger the fulfilment of the Seller's claims (credit unworthiness according to corresponding credit information, exceeding the credit limit by calling off the goods etc.), the Seller is entitled to withhold delivery, unless the Buyer makes an advance payment of the agreed purchase price or provides security. If the Buyer does not comply with the Seller's request to provide security or an advance payment within a reasonable period, the Seller may withdraw from the contract.

8. Delivery Period, Force Majeure

(1) Delivery periods stated by the Seller only represent an approximate delivery period, unless otherwise agreed. The day of delivery is the day on which the goods leave the factory or a warehouse; if the goods are not dispatched, notification of readiness for delivery shall suffice. Maintenance  with  the  delivery  period  by  the  Seller  requires the  fulfilment  of  the  contractual obligations and the cooperation of the Buyer.

(2) Events and circumstances which hinder the Seller's performance and the occurrence of which is beyond the Seller's control, such as natural events, war, official orders, industrial disputes, embargoes, shortages of raw materials and energy, traffic and operational disruptions release the Seller from its contractual obligations for the duration of the disruption and to the extent of its effects and lead to a reasonable extension of the delivery period. This also applies if these circumstances occur at the Seller's suppliers. In such a case, each of the parties shall be entitled to withdraw from the contract in whole or in part with regard to the part not yet fulfilled if the withdrawing party can no longer reasonably be expected to adhere to the contract due to the duration of the hindrance, taking into account the interests of both parties. This is usually the case if the disability exceeds three months.

(3) The Seller is entitled to make partial deliveries insofar as this is reasonable for the Buyer.

9. Packing

If the delivery is made in returnable packaging, these must be returned completely empty and carriage paid within 90 days of receipt of the delivery. Loss and damage of loaned packaging shall be borne by the Buyer as long as it has not been returned to the Seller. Returnable packaging may not be used for other purposes or to contain other goods. They are only intended for the transport of the delivered goods. Labels must not be removed.

10. Transfer of Risk, Shipping Costs

(1) Deliveries - also carriage paid - are made at the Buyer's risk ex works Seller’s warehouse in Hamburg-Wilhelmsburg. Risk of loss and damage shall pass to the Buyer when the product is handed over to the persons carrying out the transport. Shipment is at the Buyer's expense. If dispatch becomes impossible through no fault of the Seller, the risk shall pass to the Buyer upon notification of readiness for dispatch. Goods which have not been accepted shall be stored at the Buyer's expense and risk.

(2) Unless expressly agreed otherwise, the Seller shall determine the mode and route of transport as the Buyer's agent. The Seller shall take out insurance for the goods only at the Buyer's instruction and expense.

11. Retention of Title

(1) The Seller retains title to the delivered goods until all (including future) payment obligations of the Buyer have been fulfilled and is entitled to withdraw from the contract until full payment has been received, if the Buyer is in arrears with payment.

The retention of title shall also remain in force if individual claims of the Seller are included in a current invoice and the balance is struck and acknowledged.

(2) The buyer is entitled to process or sell the reserved goods in the ordinary course of business. This entitlement ends if the Buyer is in default with the fulfilment of his payment obligations or if the opening of insolvency proceedings against his assets is applied for.

(3) If the goods subject to retention of title are processed by the Buyer into a new moveable item, the processing is carried out for the Seller without the Seller being obliged to do so. The new item becomes the property of the Seller. In the event of processing, mixing or blending with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in accordance with the ratio of the final gross invoice amount of its reserved goods to the total value.

(4) The Buyer shall store the reserved goods for the Seller free of charge. He must insure them against the usual risks such as fire, theft and water to the customary extent.

The Buyer assigns to the Seller by way of security all claims arising from a resale of the reserved goods as well as his claims for compensation to which he is entitled from damages of the above-mentioned kind against insurance companies or other persons liable for compensation in the amount of the gross final invoice amount of the goods.

(5) If goods are sold in which the Seller is entitled to a share of co-ownership, the assignment in advance shall include a claim share in the amount of the invoice value of the share of co-ownership.

(6) The Buyer is entitled to collect assigned claims. The authority of the Seller to collect the claim himself remains unaffected by this. However, the Seller undertakes not to collect the claim as long as the Buyer meets his payment obligations and insolvency proceedings have not been opened against his assets. In this case, the Buyer's authorization to collect expires without express revocation.

(7) The reserved goods or the assigned claims may not be pledged or assigned by way of security. The Seller is to be notified immediately of seizures or other interventions by third parties, stating the pledgee. If the third party is not in a position to reimburse the Seller for the costs associated with an action for defence against the intervention, the Buyer shall be liable for the loss incurred by the Seller. (8) The Seller undertakes to release the securities to which it is entitled at the Buyer's request if their realisable value exceeds the claims to be secured by more than 20%.

12. Buyer's Rights in the Event of Defects

(1) The assertion of warranty claims presupposes that the Buyer has complied with his statutory obligations to inspect and give notice of defects. Complaints of defects which are recognisable within the framework of a proper inspection shall only be considered if they are raised in writing immediately before use or mixing of the goods and at the latest within 14 days after receipt of the goods. Hidden defects which only become apparent at a later date must be notified immediately after discovery, but at the latest within one year after delivery of the goods. The notification of defects must always be made in writing, enclosing receipts, the packing slip and stating the invoice number, the invoice date and the signature on the packages. If the Buyer does not comply with his obligations to give notice of defects, warranty claims are excluded, unless the Seller has maliciously concealed the defect.

(2) Short or excess deliveries of up to 10 % of the agreed quantity shall be deemed to be in accordance with the contract.

(3) If there is a defect, the Seller is entitled to choose between subsequent delivery and rectification of the defect within the scope of subsequent performance. The Seller reserves the right to make two attempts at subsequent performance. If subsequent performance fails, is impossible or unreasonable for the Buyer taking into account the mutual interests, the Buyer is entitled to reduce the purchase price or to withdraw from the purchase contract. Claims for damages shall only exist in accordance with the provisions of Clause 13.

(4) Claims for defects resulting from the use of thinners, hardeners, additional paints or other components contrary to the data sheet specifications are excluded. The Seller is not liable for the improper processing of the delivered goods.

(5) The Seller shall only be liable for transport damages to the extent that he has expressly assumed the corresponding risk and is put in a position to take recourse against the carrier. The liability of the Seller presupposes in any case that the Buyer has done everything possible to safeguard the claims for recourse against the carrier (e.g. railway official statement of facts, certificate of shortfall).

(6) Measures taken by the Seller to mitigate damages shall not be deemed an acknowledgement of defects.

(7) The warranty period shall be twelve (12) months, calculated from delivery of the goods. In the case of claims for damages due to intentional or grossly negligent breaches of duty or due to culpable injury to body, health and life, the statutory limitation period of two years from delivery shall apply instead of the aforementioned period.

(8) In the event of a company recourse (Section 445a German Civil Code) it is assumed that there were no defects at the time of the transfer of risk to the Buyer, if the Buyer has duly examined the goods in accordance with clause 12 (1), but has not reported any defects, unless this assumption is incompatible with the nature of the goods or the defect.

(9) If the Buyer asserts claims for recourse, he must be treated as if he had implemented all legally permissible contractual possibilities vis-à-vis his contractual partner (e.g. refusal of subsequent performance due to disproportion or limitation of reimbursement of expenses to an appropriate amount).

(10) The Seller is entitled to reject claims for recourse with the exception of claims for new delivery of the goods, provided that the Seller grants the Buyer equivalent compensation for the exclusion of his rights. The Seller shall only be liable for compensation for consequential damage caused by a defect if he is (co-)responsible for the occurrence of the defect due to intentional or grossly negligent conduct.

13. Liability

(1) Subject to the following provisions, the Seller shall be liable in the event of intent or gross negligence on the part of the Seller, his legal representatives or persons whom he uses to perform his obligation and in the event of culpable  breach  of  material  contractual  obligations  in  accordance  with  the  statutory  provisions. Essential contractual obligations are those whose fulfilment is necessary for achieving the purpose of the contract and on whose compliance the contractual partner regularly relies and may rely.

(2) Insofar as the Seller has not acted intentionally or grossly negligent, his liability in the aforementioned cases is limited to four times the order value per case of damage. This does not apply if the foreseeable damage typical for the contract is exceptionally higher. In this case the liability is limited to this higher contract-typical foreseeable damage. A change in the burden of proof to the detriment of the buyer is not associated with the above provisions.

(3) Liability for lost profit or downtime costs is excluded with the exception of intentional or grossly negligent breaches of duty.

(4) Claims for damages in the event of culpable injury to life, body or health, acceptance of a guarantee or fraudulent concealment of a defect as well as mandatory statutory liability under the Product Liability Act remain unaffected.

(6) Further claims for damages - on whatever legal grounds - are excluded, in particular compensation for damage which has not occurred to the delivered goods themselves.

(7) The above provisions apply accordingly if the Buyer asserts a claim for reimbursement of futile expenses instead of a claim for damages instead of performance.

14. Export Regulations

(1) Conclusion and execution of the contract are subject to admissibility under export control law under applicable German and EU law; this also applies with regard to applicable US law, unless German or European law precludes this. If an approval according to German or European foreign trade law or the applicable US export control regulations is required for the fulfilment of the quotationed legal transactions, deliveries or services, the contractual fulfilment is conditional.

(2) If from the Seller's point of view it is unclear whether restrictions under export control law intervene, he may obtain legally binding information from the competent export control authority (e.g. zero notification) to clarify these ambiguities.

(3) If it transpires that the performance of the transaction is prohibited under the applicable export control regulations or if a licence required for export is not granted or complied with or if the conditions associated with the granting of the licence cannot be fulfilled without the Seller being responsible for this, this shall release the Seller from the obligation to fulfil the contract. The Seller is not obliged to take legal or extrajudicial action against negative decisions of the export control authorities. Claims against the Seller for delay or non-performance due to export control restrictions or the clarification of doubts in this respect are excluded, except in cases of intent and gross negligence.

(4) The Buyer undertakes to cooperate constructively in the approval procedure and in particular to procure all necessary documents. Any costs and fees incurred are to be borne by the Buyer. If the Buyer does not comply with the request by the Seller to procure the necessary documents or records within three weeks, the Seller is entitled to withdraw from the contract in whole or in part.

(5) If no decision is taken by the licensing authorities within a period of six months and one of the parties can no longer reasonably be expected to adhere to the contract taking into account the interests of both parties, each of the parties shall be entitled to withdraw from the contract. This shall not apply if the duration of the proceedings is attributable to any action or omission on the part of the party requesting rescission.

(6) The foreign trade information provided by the Seller to the best of his knowledge is non-binding. They do not release the Buyer from checking compliance with foreign trade regulations with regard to the goods themselves.

15. Confidentiality

(1) The Buyer undertakes to treat all commercial or technical information in connection with the goods and the business operations of the Seller, which the Seller makes available to him in connection with the contract and which is recognisably confidential or which is marked by the Seller as confidential, as confidential without restriction and to use it exclusively for the fulfilment of the contract. The Buyer undertakes to oblige employees or other third parties to whom information is disclosed with the Seller's consent to maintain confidentiality in the same manner and to limit disclosure to the extent necessary to fulfil the purpose of the contract.

(2) The duty of confidentiality does not apply to information which

(a) are already publicly known when the contract is concluded or become publicly known at a later date without breaching the duty of confidentiality;

(b) were already in the possession of the Buyer before disclosure without any obligation to maintain secrecy; or

(c) must be disclosed on the basis of an official or judicial order or mandatory legal provisions.

The burden of proof for the existence of one of the aforementioned exceptions lies with the Buyer. In the case mentioned under c), the Buyer must inform the Seller in advance of the disclosure and limit it to the necessary extent.

(3) The Buyer undertakes not to analyse the chemical composition of the goods, samples and specimens received from the Seller, in whole or in part, or to have them analysed by third parties, without the Seller's prior written consent, for the purpose of developing a product of the same or similar composition.

16. Place of Performance, Jurisdiction, Applicable Law

(1) The laws of the Federal Republic of Germany shall apply exclusively to the terms and conditions and all legal relationships between the parties. The UN Sales Convention (CISG) shall not apply.

(2) Place of performance for all deliveries as well as place of jurisdiction is Hamburg, Germany, provided that the Buyer is a merchant, a legal entity under public law or a special asset fund under public law. This place of jurisdiction applies exclusively to the Buyer. Alternatively, the Seller is entitled to assert his own claims at the place of jurisdiction of the Buyer.

17. Final Provision

Should any provision of these GSDC be or become invalid, this shall not affect the validity of all other provisions.

Last update: 02/2020