Mankiewicz Gebr. & Co. (GmbH & Co. KG), referred to in the following as “the Vendor”.
1. Application of the Terms and Conditions
The supplies, services and proposals of the Vendor are provided exclusively on the basis of these General Terms and Conditions of Supply (GTCS). These GTCS apply for all futuretransactions, even without express agreement being repeated. These GTCS are deemed to be accepted at the latest on receipt of the goods or service. Differing General Terms and Conditions (GTCs) of the purchaser are hereby expressly contradicted. The GTCs of the purchaser do not become a part of the contract even if they are not expressly contradicted in the individual case, except where the Vendor has in the individual case expressly agreed to this, in writing.
2. Conclusion of contract / Proposal
The proposals of the Vendor are not binding, but are rather to be understood as an invitation to the purchaser to make a purchase offer to the Vendor. The contract only comes into existence with the order of the purchaser (offer) and its acceptance by the Vendor. If this differs from the order, it constitutes a new proposal of the vendor which is subject to confirmation.
Supplements to the proposal, alterations and auxiliary agreements, together with information, recommendations, advice, agreements and acceptances of the Vendor or his employees or appointees are not binding until confirmed in writing. Cost estimates and shipping information given are not binding. The Vendor reserves the right to undertake alterations to the products by way of further development, insofar as this the purchaser can reasonably be expected to accept them.
All prices are generally EXW (Incoterms 2010) plus the statutory domestic value added tax or comparable foreign tax applicable on the day of delivery or other performance. 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. The prices in quotations and invoices refer to standard containers. For small quantities, custom-made products and desired deviations from standard containers, surcharges are calculated according to the explanations to the GTCS.
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. Discountable bills of exchange and cheques shall only be accepted by written agreement against payment of all expenses on account of performance. Bills of exchange and cheque amounts shall not be credited until the equivalent value including incidental costs is unconditionally available. Only undisputed or legally established claims entitle the Buyer to set-off or retention. The 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.
5. Payment arrears and doubtful creditworthiness
Payment arrears begin when the claim becomes due. In the case of payment arrears, the Vendor is entitled to charge interest on the sum owed at the rate of 8 percentage points above the respective basic rate. Claiming and proving greater or lesser damages remain reserved both to the Vendor and the purchaser. In the event of payment arrears, all open invoices immediately become due for payment. All rebates, bonuses, prompt payment discounts and other benefits lapse. In addition, the Vendor reserves the right to withdraw from existing contracts. The Vendor also has this right when circumstances become known which cast doubt on the creditworthiness of the purchaser (credit unworthiness, application for insolvency, purchaser exceeds his credit limit through calloff of goods, etc.)
6. Delivery schedule, force majeure
Maintenance of the delivery schedule is dependent on performance by the purchaser of contractual obligations and of obligations of co-operation. The delivery schedule is extended accordingly for all events and circumstances whose occurrence is beyond the sphere of influence of the Vendor, such as natural phenomena, war, official directives, industrial strife, embargo, shortage of raw materials or energy, traffic and operational disruptions, and release the Vendor from his contractual obligations for the duration of the disruption and to extent of its effects. This also applies when these circumstances occur at suppliers of the Vendor. In such a case, the Vendor is also entitled to withdraw wholly or partly from that part of the contract which has not yet been fulfilled. The Vendor is entitled to make part deliveries insofar as no disadvantages of use thereby arise for the purchaser. The obligation to supply lapses if the purchaser exceeds his credit limit through call-off of goods.
7. Contract fulfilment
Delivery shortages or surpluses of up to 10 % of the agreed quantity shall be regarded as contract fulfilment.
If supply is made in loaned packaging, this is to be returned within 90 days from receipt of the delivery, emptied of residues, and freight paid. Loss and damage to loaned packaging, insofar as it has not been returned to the Vendor, are at the cost of the purchaser. Loaned packaging may not be used for other purposes or for receiving other products. It is intended only for the transport of the goods supplied. Inscriptions may not be removed.
9. Transfer of risk/despatch costs
Deliveries – even where they are freight paid – are made from works at the risk of the purchaser. The risk transfers to the purchaser with handover of the shipment to the persons carrying out the transportation. Shipment is at the cost of the purchaser. If shipment is impossible, without us being responsible for this, the risk transfers to the purchaser on notification of readiness for despatch. Goods not collected are stored at the cost and risk of the purchaser. Insofar as no differing agreement is expressly made, the Vendor determines the nature and route of the transportation as the agent of the purchaser. The Vendor covers insurance only on the instructions and at the cost of the purchaser.
10. Cancellation costs
If the purchaser without entitlement withdraws from an order already given, the Vendor can, without prejudice to the possibility of claiming higher actual damages, require 10% of the sale price for the costs incurred in processing the order and for lost profit. The right to prove lesser damage is reserved to the purchaser.
11. Retention of ownership
The Vendor retains ownership of the goods supplied until performance of all payment obligations of the purchaser, including future payment obligations, and is entitled to withdraw from the contract if the purchaser falls into arrears with payment, until all payments have been received. The retention of ownership continues to exist even when individual claims of the Vendor are taken up into a running account and the balance is drawn and acknowledged. The purchaser is entitled to process or to dispose of the retained goods in orderly commercial dealings, so long as he is not in arrears. This entitlement ends when the purchaser ceases payment or applies for or opens insolvency proceedings. If retained goods are processed by the purchaser into new goods, the processing is carried out on behalf of the Vendor, without the latter thereby becoming obligated. The new goods become the property of the Vendor. In the case of processing or mixing with goods not belonging to the Vendor, the Vendor acquires co-ownership of the new goods in the proportion of the invoice value of his retained goods to the total value. The purchaser keeps the retained goods safe for the Vendor, without charge. He has to insure against the usual risks, such as fire, theft and water, to the customary extent. As a precaution, the purchaser assigns to the Vendor in the amount of the invoice value of the goods all claims arising from onward sale of the retained goods and the claims to compensation for damages to which he is entitled from damage such as that named above against insurance companies and other persons obligated to compensation. If goods in which the Vendor is entitled to a co-ownership share are sold, the advance assignment includes a share of the claim in the amount of the invoice value of the co-ownership share. Subject to revocation, the purchaser is entitled to collect claims which have been assigned. This does not disturb the entitlement of the Vendor to collect the claim himself. The Vendor undertakes, however, not to collect the claim himself so long as the purchaser fulfils his payment obligations, is not in payment arrears, and insolvency proceedings are not opened against his assets. In this case, the authorisation of the purchaser to collect lapses without expressly being revoked. Pledging the retained goods or the assigned claims or assigning then as security are not permitted. The Vendor is to be informed immediately of distraints, stating the bailee. The Vendor undertakes to release the securities to which he is entitled on the request of thepurchaser insofar as their value exceeds the claim to be secured by more than 20%.
12. Properties of the goods, technical advice, use and processing
Insofar as nothing different is agreed, the properties of the goods are as stated in the data sheets. Properties of samples, specimens, statements in test records and analysis data are binding only insofar as they are expressly agreed as properties of the goods. Properties, descriptions of shelf life and other information only constitute warranties when they are agreed and identified as such. The Vendor gives advice and recommendations on techniques of use within the framework of sales negotiations and within the framework of existing contracts on a best knowledge basis. All statements and information on suitability, application and use of the goods of the Vendor are however without obligation and do not release the purchaser from his own examination of the products for their suitability for the process and purpose intended or from carrying out manufacturing checks.
13. Complaints of defects
Complaints of defects are only taken into account when they are made without delay, in writing, at the latest within 14 days after arrival of the goods, with transmittal of vouchers, samples, packing slips and statement of the invoice number, the invoice date, and the marking on the packaging.
14. Rights of the purchaser in case of defects
As a matter of principle, the Vendor is liable for defects for the period of one year. Where there is a defect, the Vendor is entitled within the framework of subsequent performance to choose between subsequent supply and rectification of the defect. The Vendor reserves the right to two attempts at subsequent performance. Claims of defects are excluded when thinners, hardeners, additional lacquers or other components are used contrary to the specifications in the data sheets. The purchaser only has an entitlement to compensation for damages instead of performance insofar as intentional or grossly negligent infringement of obligations by the Vendor has occurred. Otherwise, the provisions defined under “Liability” apply to the warranty. The purchaser has – if necessary by means of trial processing – to examine in advance whether the goods supplied are suitable for the use intended. Entitlements to warranty are excluded if the purchaser has failed to preserve rights of recourse against third parties (e.g. official railway statements of the facts of the case, certification of quantity shortfalls). Measures of the Vendor for reduction of damage do not constitute acknowledgement of a defect.
In the case of intent or gross negligence by legal representatives or managing employees and in the case of culpable infringement of substantial contractual obligations by these or other staff or agents, the Vendor is liable in accordance with the legal regulations. The Vendor is not liable in the case of infringement of insubstantial contractual obligations by other staff or agents. The Vendor is not liable for damage which is not typical for this type of contract and thus scarcely foreseeable. Entitlements to compensation for damages arising from an offence exist only in the case of intent or gross negligence. This also applies for dealings of agents of the Vendor. The above limitations of liability do not apply for damage arising from injury to life, limb or health. Compulsory legal regulations of liability, such as under the German Product Liability Act (Produkthaftungsgesetz) remain undisturbed. Where culpability is a prerequisite for a claim of the purchaser, the burden of proof is on the purchaser.
All entitlements of the purchaser – regardless of their legal foundation – expire after one year. The legal limitations apply for intentional or fraudulent behaviour and entitlements under the Product Liability Act.
17. Provisions of foreign trade law
Insofar as performance of the legal transactions and supplies offered require permission under German or foreign trade law or the US export control regulations, contractual performance is subject to a condition precedent. If this permission is not granted or maintained or if auxiliary provisions of substance are not fulfilled, this frees the Vendor from the obligation to performance of the contract. The purchaser undertakes to co-operate constructively in the permission proceedings, and particularly to procure all documents necessary. Costs and fees arising from this are to be borne by the purchaser. Observation and execution of the relevant provisions of foreign trade law (e.g. export control regulations, import licences, foreign exchange transfer permissions etc.) and other laws applicable outside the Federal Republic of Germany fall exclusively into the area of responsibility of the purchaser. Information which the Vendor gives to the best of his knowledge on foreign trade law is not binding. It does not release the purchaser from himself inspecting observation of the regulations of foreign trade law with respect to the products. Submission of a boycott declaration in foreign trade is without effect (§ 4a German Foreign Trade and Payments Regulation, AWV, Aussenwirtschaftsverordnung).
18. Place of fulfilment, place of judgement, applicable law
The law of the Federal Republic of Germany applies exclusively for the terms and conditions of business and for all legal relationships. UN sales law (CISG) finds no application. Place of performance for all supplies and place of judgement is Hamburg. In addition, the Vendor is entitled, at his discretion, to claim his own entitlements at the place of judgement of the purchaser. The purchaser is not permitted to enter a counteraction before courts other than the court of the action or to set off his claim against the claim of the action before courts other than the court of the action.
19. Final provision
Should any provision of these General Terms and Conditions of Supply be or become ineffective, the effectiveness of the remaining provisions remains undisturbed by this.