General Terms and Conditions
Note: Purchases and sales of Menk Apparatebau GmbH and Schmehmann Rohrverformungstechnik GmbH are effected by
Menk-Schmehmann GmbH & Co. KG as sales and administrative company.
GENERAL TERMS AND CONDITIONS FOR SALES CONTRACTS AND CONTRACTS FOR WORK AND SERVICES
I. General information/Field of application
- These General Terms and Conditions (AGB) apply and are pertinent to all sales contracts and contracts for work and services covering all products and devices distributed by Menk-Schmehmann GmbH & Co. KG (hereinafter referred to as "MSG") including accessories and spare parts as well as to services such as installation, maintenance and trainings excluded. They correspondingly apply to contracts for work and services as far as their application is not excluded by the nature of the contract for work and services. Any deviating regulations, especially customers' contradictory general terms and conditions are only deemed to be valid if they have been expressly confirmed in writing to apply instead of these conditions. These General Terms and Conditions also apply in the case that MSG - having knowledge of customers' contradictory or deviating conditions - effects delivery to the customer without any reservation.
- These General Terms and Conditions do not apply in personal respect towards consumers in the sense of BGB § 13 (German Civil Code).
- MSG's business correspondence, such as order confirmations, invoices, credit notes, statements of bank accounts and payment reminders, printed or e-mail-sent by electronic data processing, are valid and shall have legal effect without being signed.
II. Offers and conclusion of contract
- MSG's offers are without obligation and are subject to the availability of supplies and raw materials unless expressly otherwise provided in writing. Orders will be binding only after written order confirmations, except where the ordered service has already been carried out or invoiced by MSG.
- In electronic business correspondence the parties waive the application of the regulations under BGB § 312e, par. 1, cl. 1 no. 1 to 3. Confirming the receipt of electronic orders (email) does not represent a binding acceptance of the order. The confirmation of receipt can however be connected with the declaration of acceptance. In case of orders under electronic correspondence, the contract text will be stored by MSG and sent by email to the customer on request together with these General Terms and Conditions.
- If MSG requires an export licence for fulfilling its duties to perform, the contract shall come into effect under the postponing condition that an export licence shall be granted. MSG is obliged to apply for such a corresponding export licence with the responsible authority. If the application is rejected, MSG shall have no further duties to fulfil.
- Property rights and copyrights, especially the right of reproduction and distribution as to illustrations, drawings, calculations and other documents which the customer has received in relation to MSG's offer, remain reserved. These documents must not be disclosed to third parties and have to be returned to MSG upon his request in case of a non-conclusion or failure of the contract.
- The customer shall be liable for the correctness of the documents to be supplied by him such as samples and drawings. Should any industrial property rights be violated when producing the goods according to the customer's drawings, samples or other information, the customer shall exempt MSG from any claims from the proprietor of these rights.
III. Prices and payment conditions
- Unless otherwise agreed, MSG's prices are quoted without packing ex works Bad Marienberg / Norken. Costs for packing and transport are borne by the customer. In business contact with companies, the prices are furthermore to be understood net plus VAT as applicable. Confirmed prices are only valid for purchases covering the confirmed quantities.
- If the sales price valid at the time of delivery is higher than the price agreed with the customer due to any occurring price increase of material, wages or other costs, this higher sales price shall be valid unless otherwise expressly agreed, provided that the delivery is effected later than three months after conclusion of the contract for reasons under the customer's responsibility, this shall not apply if the invoice has already been issued and paid by the customer.
- Unless otherwise agreed, the sales price is due for payment within 14 days with a discount of 2%, within 30 days after the date of invoice without any discount. Any deviating dates of payment are indicated in the invoice. MSG reserves the right to request an advance payment from the customer.
Payments for subcontracts have to be effected within 14 days without any discount.
- Acceptance of drafts and cheques requires MSG's consent and is only accepted as payment. Discount charges and other additional costs are borne by the customer.
- If the customer is in arrears with due payments, MSG shall be entitled to retain the customer's deliveries covered by other orders. As far as the payment of outstanding amounts is effected at a later time , MSG shall be entitled to carry out a new delivery considering other delivery obligations according to equitable discretion (BGB § 315).
- If the customer fails to fulfil his payment obligations (for example fails to pay a cheque or a draft) or insolvency proceedings are initiated, MSG will be entitled to claim immediate payment of outstanding payments in total without considering the term of accepted undue drafts. Furthermore MSG will be entitled in this case to effect outstanding deliveries only against payment in advance or provision of a security. If advance payments or securities are not provided even after having set a reasonable deadline, MSG shall be entitled to withdraw from the contract with regard to deliveries which have not yet been effected with the consequence that all the customer's claims with regard to goods not yet delivered will terminate. In such cases, MSG can in addition to the withdrawal also claim damages as well as retention of title according to section V below.
IV. Performance Data Tolerances
- MSG's or if applicable the manufacturer's product description shall hereby be accepted as defining the nature of the goods or services. Any assurances and guarantees provided by MSG are only valid if they have been provided expressly and in writing. MSG shall only be responsible for public statements, especially those published in advertising, if they had been initiated by MSG, actually resulting in the customer's decision to buy the product. Any information, drawings, illustrations, specifications, dimensional and weight data or other performance data contained in catalogues, price lists, brochures, newsletters, other advertising material and publications or in documents related to the offer are within the framework of accepted practice in the industry, approximate in their correctness and therefore prevail to a limited extent. They only contain guarantees if they are explicitly designated as such by MSG in writing. References to DIN standards, in-house standards, material data sheets or test certificates are only intended to describe the goods in detail and do not constitute a guarantee unless this has explicitly been agreed.
- Reasonable deviations (tolerances) from performance data do not constitute a material defect.
- MSG reserves the right to make design modifications to devices without prior notice as far as they are customary in trade and reasonable for the contracting party. The customer cannot demand the retrofitting of devices which have already been supplied in case of design modifications within an ongoing batch.
V. Provision of material
- As far as the customer provides the material in whole or in part for fulfilling the contract, he is obliged to provide this material to us timely, completely, free of faults and free of charge with reasonable notice (including test reports). MSG assumes no liability and no insurance coverage for the provided material.
- The customer is responsible for the inspection of the goods as well as for the usability of the provided material for the purpose envisaged by him. The customer's obligations according to §§ 377, 378 HGB (German Commercial Code) remain in any case unaffected and remain fully valid.
VI. Retention of title
- MSG shall retain the title to moveable items until the purchase price has been paid in full.
- Within an ongoing business relationship with the customer MSG shall retain the title to moveable items until fulfilment of all obligations resulting from the business relationship.
- Within the framework of normal business activities, the Purchaser is entitled to resell or transfer the goods supplied by MSG. As early as now, the customer transfers his receivables to MSG from the resale of the goods supplied by MSG. If the customer places the receivables from the resale of the goods into a current account, he shall assign the receivables from the final balance to MSG, their amount being limited to the sales price demanded by MSG for the goods which are resold by the customer. MSG shall accept these assignments.
- As far as the customer processes the goods supplied by MSG, MSG will become the owner of the produced new moveable items. If the item is not solely produced from MSG's goods, MSG will be co-owner of the produced goods; the co-ownership share is determined by the rate of his goods' value to the value of the other goods which were used for producing the new goods.
- Within the framework of normal business activities, the customer is entitled to resell or transfer the new goods produced as a result of the processing. The customer assigns his receivables from such a resale to MSG in proportion to MSG's co-ownership share in the sold goods. If the customer places his receivables into a current account, he shall assign his receivables from the final balance to MSG, their amount being limited to the customer's receivables which correspond to MSG's co-ownership share in the sold goods. MSG shall accept this assignment.
- MSG revocably authorizes the customer to collect the receivables assigned to MSG. The collection authorization terminates without being revoked as soon as the customer is heavily indebted, insolvent, imminently insolvent or in case of a substantial deterioration of his assets. If the collection authorization terminates, the customer shall be obliged to immediately notify third-party debtors in writing about the assignment of receivables to MSG and to notify MSG about this notice of assignment. Furthermore, the customer is obliged to provide on request all the information and documents to MSG which are required to assert the assigned receivables.
- If requested by the customer, MSG shall surrender its security interests if the recoverable value of the items still owned by MSG and the receivables assigned to MSG exceed 110% of MSG's receivables from the ongoing business relationship with the customer. MSG shall take the customer's legitimate interests into account when selecting the securities to be surrendered.
- The customer is obliged to examine the goods upon receipt with due care. All noticeable damages, shortages or wrong deliveries have to be immediately advised to MSG in writing by the customer's note on the delivery note and/or the bill of consignment upon receipt, or five working days after receipt at the latest and in any case before the processing or installation of the goods. Failure to do so will be deemed as acceptance of the goods.
- The warranty period shall be one year from the transfer of risk. The regulations on the limitation period for the company's right of recourse regarding the supplier under § 479 BGB (German Civil Code) remains unaffected.
- The warranty does not cover damage resulting from inappropriate and incorrect use, incorrect or inappropriate installation and/or commissioning by the customer or third parties, the usual wear and tear, faulty or careless handling, unsuitable operating materials, inappropriate storage as well as climatic, chemical, electrochemical and electric impact as far as they are not caused through MSG's fault. The same shall apply to defects resulting from the non-observance of instructions for assembly, operation and maintenance as well as from improper changes or repairs by the customer or third parties and from influences of parts manufactured by third parties and continued operation despite the occurrence of obvious defects.
- A warranty obligation shall only exist on the condition that the devices and other delivery items have been properly installed by MSG. A warranty obligation shall cease to exist if the delivered items have been changed by third parties or by installing parts manufactured by third parties, except where the reported defect has not been caused by such changes. The warranty obligation shall also cease to exist if the customer disregards instructions for commissioning, thus causing a defect.
- The warranty obligation will lapse if - after MSG's notification about the defect - MSG shall not be granted the required time or opportunity which MSG considers necessary for doing repairs or making replacement deliveries. Only in urgent cases where operating safety is at risk, and to prevent disproportionately large damages, or in the event that MSG delays in repairing the defect, does the customer have the right to remedy the defect himself or have it remedied by a third party, and to demand reimbursement from MSG of the necessary expenses. Even in such a case it is a precondition that MSG must immediately be informed about the damage.
- The warranty is at MSG's discretion either limited to replacement delivery or rectification of a defect - free of charge - and carriage paid within the area of the European Union and within the European Economic Area. MSG shall be entitled to make the supplementary performance conditional on the prior payment of a reasonable part of the remuneration considering the defect and to have the rectification done by the manufacturer. In the event of a replacement delivery, the title in the rejected goods shall pass to MSG at the time when MSG accepts the complaint. Additional expenses arising from a difficult access to the plant or insufficient workspace or a delivery to an area beyond the European Union or the European Economic Area will in any case be charged to the customer. If the customer receives incorrect assembly instructions, MSG shall only be obliged to supply correct assembly instructions. This obligation does not apply if the shortcoming in the assembly instructions does not impede the proper assembly.
- If the rectification of a defect fails and the customer chooses to withdraw from the contract because of an existing defect, he will not be entitled to any compensation for damages. If the rectification of a defect fails and he chooses compensation for damages, the goods shall remain with the customer, if this is reasonable for him. The compensation for damages is then limited to the difference between the purchasing price and the value of the defective object. This does not apply if the infringement has been caused by MSG by deceit. The customer can claim compensation for damages only under the preconditions mentioned in chapter IX.
- For defects of items specified only as to kind shall MSG only be liable to the same extent as for defects in specified items, in particular does MSG's procurement obligation not constitute any liability regardless of negligence or fault on the part of MSG for a damage caused by the defect.
- Insofar as the parties have not ruled out the customer's right of indemnity for reimbursement of expenses incurred according to § 478 par. 2 BGB by granting equal compensation, the customer shall be obliged to refuse supplementary performance in case of a resale of the object to a user according to § 439 par. 3 BGB if this is only possible at disproportional costs. In case of a resale of the object by the customer to a company he also has to commit the latter to refuse supplementary performance in case of a resale of the object to a user if this is only possible at disproportional costs. MSG shall only reimburse the customer's expenses required for supplementary performance under § 478 par. 2 BGB if theses expenses are not disproportional under § 439 par. 3 BGB.
- None of the preceding warranty terms shall constitute a limitation of a business person's duty to examine the received goods and to give notice according to § 377 HGB (German Commercial Code).
VIII. Delivery and acceptance
- The dates and deadlines mentioned by MSG for deliveries or performances are only approximately applicable unless they have been confirmed in writing with calendar specification. Stated delivery terms shall basically only commence after having sent the written order confirmation, but not before having furnished the documents and releases to be provided by the customer, and not before having received authoritative certificates or licences which may be required. If the customer is obliged to provide advance performance, the delivery period will commence after MSG has received the advance performance.
- The delivery and performance periods shall be regarded as kept if the items to be delivered have left MSG's company or stock by expiry of the period or if the customer has been informed about the readiness for despatch or the performance has been provided. MSG has the right to perform part deliveries as far as this is reasonable for the customer. If an acceptance is required - justified refusal to accept the goods excepted - the acceptance date and alternatively the notification about readiness for acceptance, shall be decisive.
- Should MSG be unable to meet the agreed delivery dates through no fault of his own, for example due to force majeure, intervention by public authorities, disasters, war, uproar, in-house strikes, strikes in shipping organisations, supplier companies or transporting companies, he shall be entitled to perform delivery at a later stage after the hindrance has ceased. If the delivery is delayed for more than four months, the customer shall have the right to refuse the delivery and withdraw from the contract. The customer shall have no further rights or claims because of non-performance or late delivery for such reasons, this does also apply even if these reasons only commence to exist after the delivery period is exceeded or MSG is in default.
- If the customer is in default of acceptance, costs resulting from storage will be charged to him, starting one month after having announced the readiness for despatch, MSG being entitled to assume 0.5% of the goods' invoice amount for each commenced month. The customer reserves the right to furnish evidence of lower storage costs as well as MSG reserves the right to claim a higher damage caused by default.
- The compliance with a term of delivery or performance is subject to the customer's observance of his contractual duties. On request he shall be obliged to provide written confirmation concerning his readiness to accept delivery and to fulfil any required preparatory action before the goods are delivered. His refusal to do so or his rejection to accept the goods will result in default of acceptance.
- MSG's delivery is made ex works (EXW). If the parties agree otherwise in particular cases, the following regulation shall apply: MSG can choose method of transport, shipping means, transport route, kind and scope of the required means of protection as well as the forwarding agent or carrier and packing after due consideration with due business care under exclusion of any liability. At the customer's request MSG will insure the consignment at the customer's charge against theft, breakage, damages caused by transport, fire and water as well as against any other insurable risks.
- If the business transaction is based on a contract for work and services, the customer's acceptance of the goods will be in default if he does not accept the goods within one week after delivery, notification about completion or invoicing. The acceptance is considered to have been effected if - after delivery, notification about completion or invoicing - the customer takes the goods into operation for a period of fourteen days without complaint and if MSG has pointed out this consequence with delivery, notification about completion or invoicing.
IX. Passing of risk
- The risk shall pass to the customer upon delivery ex works (EXW). If any different kind of delivery is agreed, the risk shall pass to the customer - even for delivery carriage paid or delivery free domicile - upon delivery to the forwarding agent, carrier or collector. In case of delivery by MSG, MSG shall bear the risk until delivery is effected at the place of receipt. This shall also apply to partial deliveries.
- Delivered goods must be received by the customer, notwithstanding his rights under section VI, even if they show insignificant defects. Any complaints because of transport damages have to be claimed by the customer himself in due time with the forwarding agents, carriers and their insurance companies or the like.
X. Liability for damages
- MSG's liability is limited to EUR 10 million for property damage and to EUR 10 million for financial damage. This liability limitation does not apply to
a. damage resulting from injuries to life, physical injury or damage to health as a result of culpable violation of duty on the part of a legal representative or ordinary assistant of MSG;
b. other damage resulting from intentional or grossly negligent breach of duty on the part of a legal representative or ordinary assistant of MSG;
c. damage resulting from the realisation of a risk which is typical for the contract as far as it was foreseeable with regard to reason and amount
d. damage resulting from a defect in the sold goods if MSG has assumed warranty for the condition of the goods.
- MSG shall not be liable for loss of profits, unrealized savings, damage resulting from third party claims, other indirect or consequential damage as well as for the loss of recorded data unless MSG has insofar created a special situation of trust. MSG shall only be liable for the recovery of data if the customer has made sure that these data can be reconstructed from data material provided in other data material with reasonable effort.
- The above mentioned disclaimers and liability limitations shall apply correspondingly for the non-contractual liability and the pre-contractual liability. They do however not apply to damage resulting from injuries to life, physical injury or damage to health as a result of culpable violation. Nor do they apply to claims arising out of strict liability especially according to the Product Liability Act.
- As far as MSG's liability is limited or excluded shall this also apply to the personal liability of MSG's staff members, representatives and other ordinary assistants.
- The customer's claims for damages fall under the statute of limitations at the end of the warranty period under par. VI. 2, or at the latest six months after the claim arose unless claims are asserted resulting from fraudulent behaviour, from producer liability or under BGB §§ 478 par. 1 no. 2 or 634a par. 1 no. 2.
- Except for claims according to BGB § 439 par. 2 and 635 par. 2, this section IX. shall also apply to claims for reimbursement of expenses.
- None of the preceding provisions justifies a modification of the statutory or the case-law distribution of the burden of proof.
XI. Setting off and Right of Retention/Right to Withhold Performance
- The customer shall only be entitled to offsettings against counterclaims on the condition that his counterclaims have been established as final and absolute, are uncontested or have been accepted by MSG. Any right of retention or other right to refuse performance can only be asserted against MSG if and to the extent to which they are based on the same contract. Every single order has to be considered as a separate contractual relationship even during ongoing business relationships.
- The customer shall not be entitled to a right to withhold performance according to BGB § 320 or to a right of retention according to BGB § 273, except where these rights are based on a defect in the sales item for which MSG has already received the remuneration equivalent to the value of his performance, or based on the customer's counterclaims which are uncontested, established as final and absolute and which have been accepted by MSG.
XII. Copyrights and infringement of intellectual property rights
- The customer undertakes not to produce any copies or imitations of MSG's products nor to have copies or imitations produced. He acknowledges that MSG's products are protected by patents and other industrial property rights against taking copies and making imitations. An infringement of these rights can result in substantial criminal sanctions and entitles MSG to claims for damages and injunctive relief towards the customer.
- After full payment of the invoice for MSG's delivery, MSG shall - to the extent that the scope of supply also contains operating software which is subject to a licence - grant to the customer a simple, non-exclusive right which is only transferable with the related hardware, to use this software in the program mode (release) valid at the time of delivery on the delivered facility. User software is subject to special terms of a licence which are handed over to the customer together with the respective software. The customer is obliged to use software solely within the scope of the granted authority for installing and using.
- The customer acknowledges that software contains or represents trademark rights, know-how and other intellectual property and that these rights are MSG's or its subsuppliers' rights. Working documents for trainings are likewise protected by copyright and may - even as excerpts - be reproduced only with MSG's express written consent.
- Should MSG believe that a product might be the subject of an infringement of intellectual property rights, MSG shall - at its option - be entitled to the following:
a. at one's own costs obtain the right for the customer to continue the use of the product,
b. at one's own costs replace or modify the product to a reasonable extent in such a way that third party rights are no longer infringed;
c. take back the related software, devices or parts and reimburse the purchasing price to the customer after deducting a reasonable charge for usage.
XIII. Place of performance and venue
- The place of performance for all claims arising from the business relationship with the customer shall be Bad Marienberg; the place of performance for MSG's delivery commitments shall however be the place of business of the site or stock charged to deliver the goods.
- German law is the sole applicable law for the relationship between the parties.
- Provided the contracting party is a business person, legal entity under public law or special fund under public law, the venue shall be Bad Marienberg or the defendant's general venue for all claims arising out of or in relation with the contractual relationship.
As of 12.05.2014
GENERAL TERMS AND CONDITIONS FOR PROCUREMENT
§ 1 Contractual basis
- For a contract between Menk-Schmehmann GmbH & Co. KG (hereinafter respectively referred to as: MSG) and the respective contracting party (hereinafter referred to as: the AN) individual agreements concluded with the AN shall prevail as well as framework agreements concluded with the AN. In addition, the contractual conditions separately agreed in correspondence especially in offers and order confirmations if any shall apply as well as the following General Terms and Conditions. In all other respects, the statutory provisions shall apply.
- Any General Terms and Conditions of the AN shall not become part of the business relationship between MSG and the AN, even if MSG has not explicitly rejected them and/or unconditionally accepts the AN's performance as a whole or in part. Such General Terms and Conditions are pre-formulated and non-negotiated contractual conditions contained in correspondence, especially in the AN's offers and order confirmations if any. This shall not apply in so far and to the extent to which between MSG and the AN a contract has been concluded based on an explicit declaration of intent about the application of the AN's General Terms and Conditions.
§ 2 Scope of application of these General Terms and Conditions
These General Terms and Conditions shall only apply to MSG's business relationships with contractors who are business persons as defined by BGB § 14 sect. 1 within the context of purchase agreements and contracts for work and materials (hereinafter jointly referred to as: procurement contracts).
§ 3 Offer, conclusion of contract, acquisition costs
- Written declarations on the part of MSG designated as orders comprise a binding offer for the conclusion of a procurement contract with the AN. MSG shall be entitled to withdraw an order at any time until acceptance of the offer by the AN. The AN is obliged to accept MSG's offer within one week as far as MSG's offer does not determine a shorter period of acceptance. After expiry of this deadline the binding effect of this offer shall cease. MSG's orders can only be accepted in unchanged condition and in writing. Other declarations provided by MSG which are targeted at concluding a procurement contract represent a request for the respective AN to provide an offer himself.
- The AN is bound to an offer submitted by him for two weeks unless the offer determines a longer period of commitment.The costs incurring to the AN up to the conclusion of contract with MSG shall be borne by the AN. This shall especially apply to the costs for samples, measurement and calculation.
§ 4 Price, payment conditions and invoicing
- The agreed price is a fixed price. If the agreed performance is not effected within MSG's premises, the agreed price shall contain the shipment of the AN's contractual performance to the agreed location, or to MSG if such a location is not agreed. Furthermore the agreed price shall contain packing and freight costs and customs duty if any.
If, notwithstanding the preceding regulations, a price has been agreed which does not contain the delivery of the AN's contractual performance to MSG, MSG shall only bear the lowest costs of a customary shipment. Also in this case shall the AN bear all the costs incurring until delivery to the carrier including charging. Such a price agreement shall have no effect on the agreement about the place of performance.
Even in case of continuing obligations between MSG and the AN, price increase agreements shall only be valid based on individual agreements.
- Invoices have to be addressed in their original version to the address indicated in the order or the declaration of acceptance, indicating the tax number and - provided the AN's performance is subject to VAT - indicating the VAT amount and rate as well as MSG's order number and furthermore indicating MSG's product number and designation, ordered quantity, delivered quantity and the delivery date.
- In the event of a delayed performance, MSG shall be entitled to claim a penalty amounting to 0.2% of the agreed total sales price of the goods which are delayed due to the AN's delayed delivery, per working day (without Saturday) of the delay, in total however not more than 5%. If the invoice is not correct and the due date for MSG's duty to pay will not become due, MSG shall be obliged to inform the AN within 3 days after having obtained knowledge of the missing correctness.
- MSG shall be fully entitled to the statutory right of retention and to the right of set-off.
- The place of performance shall be the place indicated by MSG in the order or in the declaration of acceptance for delivering the AN's performance.
§ 5 Additional performance or under-performance
- The AN is not entitled to deliver any additional performance or under-performance.
- If the AN provides under-performance, MSG shall be entitled, regardless of his further claims, to claim the fulfilment of any remaining contractual performance except that the AN is not in the position to fulfil this remaining performance.
- If the AN delivers additional performance, MSG shall not be entitled to remunerate such additional performance even in case of unconditionally accepting this additional performance unless there is a statutory payment claim on the part of the AN, for example due to unjustified enrichment and/or agency without specific authorisation.
§ 6 Type and time of performance, delayed performance, penalty
- The AN is obliged to deliver his contractual performance free from any material defects or defects of title. As to defects of title the AN is aware of the fact that MSG uses the AN's contractual performance on a worldwide basis.
- The agreed times for delivering the performance are binding.
- As to the delivery of moveable items to MSG, the AN shall be obliged to obtain a written confirmation at the receiving address indicated by MSG in the order or in the declaration of acceptance.
- For ensuring compliance with the performance time and/or performance deadline, the reception of the performance at MSG's premises shall be decisive. If the AN is not obliged to transport the performance at his own costs to MSG or to the agreed place of usage and provided that no other place of performance has been agreed than MSG's registered office or the place of usage, the AN shall be obliged, considering usual time values for transporting the performance to MSG or to the place of usage, to make them available in due time so that they can arrive there within the agreed time of performance or deadline of performance.
- The AN shall be obliged to inform MSG immediately when any circumstances should occur or are noted, showing that the agreed performance time cannot be kept. This shall not affect the AN's obligation to keep the agreed performance time.
- In the event of a delayed performance, MSG shall be entitled to claim a penalty amounting to 0.2% of the agreed total sales price of the goods which are delayed due to the AN's delayed delivery, per working day (without Saturday) of the delay, in total however not more than 5%. MSG shall be entitled to assert penalty in addition to the provision of performance. If MSG unconditionally accepts the AN's delayed performance, this shall not constitute any waiver of any claims resulting from this delayed provision of performance. MSG shall be entitled and obliged to issue a reservation clause towards the AN regarding penalty, this has to be done within 10 working days, calculated as from the time of accepting the delayed performance. Any further statutory claims and rights on the part of MSG remain reserved, especially to claim compensation for damages exceeding penalty.
§ 7 Provision of material
- The provided material (tubes, parts, finished products, data or drawings) are and remain the purchaser's property and may only be used for fulfilling the contract.
- The contractor is obliged to store the provided material separately and in due form and to take out an insurance sufficient in value.
- Pending full return of the material mentioned under § 8.1 to the purchaser, the contractor shall bear the risk of damage, loss and destruction for the full replacement value.
§ 8 Delivery conditions, passing of risk
- Partial deliveries are not allowed.
- Any delivery shall be accompanied by a delivery note, indicating the exact designation of kind and quantity of the delivered goods as well as MSG's order number and product number.
- The risk in the goods to be delivered shall pass on to MSG not before delivering the goods at the agreed place. This does not apply if MSG is in default of acceptance and the AN owes the delivery of items specified only as to kind.
§ 9 Quality, standards, certification
- The goods to be delivered by the AN have to comply with the agreed qualities especially with MSG's specified in-house standards disclosed to the AN.
- The goods delivered by the AN have to reflect the general state of the art. If no general state of the art exists for an item, the goods have to comply with the generally accepted standards. If the AN is committed to a quality standard (such as Iso 9001) when concluding the contract, he shall be obliged to maintain this quality standard during the business relationship with MSG and to provide the required certifications according to this standard. This shall also apply if the requirements of the respective quality standard will change during the existence of the contract. The AN shall be obliged to immediately inform MSG, indicating the reasons, if a certification will be refused to him.
§ 10 Defects
- Should the performance to be provided by the AN show deficiencies, MSG shall be entitled to the full extent of statutory claims. This shall also apply if MSG has a right of option according to statutory regulations regarding the exercise of claims for defects.
- The statutory regulations on the limitation period shall apply for claims for defects. By way of derogation, MSG's claims towards the AN shall fall under the statute of limitations - due to the existence of third party rights in the goods delivered by the AN - after a period of 10 years.
- If the AN or MSG inseparably combines the item to be delivered by the AN with other items as intended and if the delivered item contains a defect which cannot be remedied and which had not to be detected by MSG within the scope of an examination which mandatorily had to be effected according to HGB (German Commercial Code) § 377, the AN shall be obliged to reimburse the costs for the item which continues to be inseparably combined with the AN's defective item and the costs for combining the item. Should the defective item provided by the AN be separable, the costs for separating shall be reimbursed by the AN.
§ 11 Product Liability
- If a claim is made on MSG due to product liability, the AN shall be obliged to indemnify MSG from and against all claims resulting from product liability provided that the AN is the manufacturer as defined by the product liability act and provided that MSG is liable under the product liability act because of a defect in the goods supplied by the AN. MSG's claims resulting from the existing contract concluded with the AN remain unaffected.
- If and to the extent that the AN according to the preceding regulations is obliged to indemnify MSG from and against claims resulting from product liability, he shall also be obliged to reimburse MSG all costs and expenses including the costs of a possible prosecution or product recall.
- The AN shall be obliged to take out a reasonable product liability insurance regarding kind and scope of his justified duty to perform towards MSG and to maintain this insurance during the existence of product liability regarding his duties to perform resulting from the contractual relationship with MSG.
- MSG shall be obliged to inform the AN within a reasonable period of time if a claim is made on MSG under the product liability act which may result in the AN's obligation for indemnification.
§ 12 MSG's goods and information
All items such as in particular illustrations, drawings, calculations, samples, image and sound carriers as well as data carriers which are placed at the AN's disposal by MSG within the scope of contract negotiation and/or during the contract term, remain MSG's property.
The AN shall be obliged to use these items exclusively within the scope of the performance relationship with MSG as intended and with due care, and not to disclose them to third parties without the express written consent from MSG.
The AN shall be obliged to take out an insurance for these items against damage caused by fire, water and theft at an insurance amount of EUR 5 million. As early as now assigns the AN to MSG all claims for compensation resulting from this insurance. MSG herewith accepts this assignment.
The AN shall be obliged to carry out all possibly required maintenance and inspection works of the items as well as servicing and repair at his own costs and in due time. Furthermore the AN shall be obliged to immediately inform MSG about any reduced functionality of the items.
The AN shall on request be obliged to immediately return the information and items, received from MSG during the contract negotiation, after the negotiation period has finished and to immediately return the information and items received from MSG during the term of the contract after completion of the performance for MSG for which he uses the respective items. A right of retention on the part of the AN is respectively excluded to this effect.
Any industrial property rights on the provided information and items such as in particular copyrights, patent rights, rights in registered designs and utility models as well as the rights related to these industrial property rights, such as the right to registration, are exclusively MSG's rights.
§ 13 Non Disclosure Agreement for the AN
The AN shall be obliged to the following during the term of the performance relationship towards MSG as well as for a period of two years after the termination of the performance relationship towards MSG:
- not to disclose any company and business secrets as well as other confidential information and documents of MSG to third parties, no matter in which way and no matter whether with or without remuneration and/or
- not to use this information beyond the contractual relationship with MSG or not to enable the use by third parties.
Third parties in terms of this regulation are all those persons who have no need to know the respective company and business secret or the respective confidential information or document for fulfilling the AN's performance duties towards MSG. The AN undertakes to impose these confidentiality provisions on all persons who legitimately get knowledge of such information from the AN.
Confidential information and documents refer to such as designated by MSG as far as they are not known to the public and/or have been already known to the AN and this knowledge is not based on an unlawful act on the part of AN or third parties. Confidentiality shall cease if the information or documents are disclosed again to the AN after having received them from MSG and this is not based on an unlawful act on the part of the AN and/or third parties.
The AN shall be obliged to pay a penalty amounting to 10,000.00 € for any failure to observe one of the above regulations, excluding continuation of offence. This shall not affect MSG's right to claim damages exceeding the penalty as well as to demand the future fulfilment of the preceding obligations.
§ 14 Liability
- The AN shall be liable towards MSG without limitation according to statutory regulations.
- In the event of a violation on the part of MSG as to his existing obligations towards the AN, MSG's liability shall be limited to Euros 10 million. This does not apply if the violation of duty caused by MSG's legal representatives and/or ordinary assistants was due to intentional or grossly negligent behaviour. Furthermore, this liability limitation does not apply to the case that MSG's violation of duty causes injury to life, physical injury or damage to health and/or MSG infringes his main obligations towards the AN.
§ 15 The AN's Duty to Notify
The AN shall be obliged to immediately inform MSG about facts and circumstances coming to his knowledge which could become a risk for the purpose of the performance to be provided by the AN to MSG or which could result in an improved use and/or increased profitability of the contractual performance for MSG.
§ 16 MSG's Right of Withdrawal
MSG shall be entitled to withdraw from the contract existing with the AN by written notification insofar as an unsatisfied execution has been carried out against the AN's assets or insolvency proceedings are initiated for the AN's assets with the bankruptcy court of competent jurisdiction.
This shall not apply if one of the preceding reasons for withdrawal was perceivable for MSG when concluding the contract.
MSG shall be entitled - unaffected by the preceding right of withdrawal - to withdraw from the contract concluded with the AN for other statutory or contractual reasons.
§ 17 Cancellation
If cancellation is possible under the contract or under the law, it must be effected in writing on the part of MSG as well as on the part of the AN.
§ 18 Data storage
The AN agrees to the storage and processing of data related to the AN's provision of performance which are necessary for further using the AN's performance on the part of MSG. This shall also apply to data which will be necessary for a follow-up order which MSG may place with the AN.
§ 19 Retention of Title of the AN
- MSG recognises a possible simple retention of title of the AN as defined by BGB § 449.
- Any further retention of title such as in particular the AN's extended retention of title is excluded.
§ 20 Place of Performance, venue, choice of law
- The place of performance shall be the place indicated by MSG in the order or in the declaration of acceptance for delivering the AN's performance. If the order indicates no place, the place of performance shall be MSG's place of business.
- The venue shall be MSG's place of business. MSG shall however also be entitled to institute proceedings against the AN at the latter's place of business.
- The law of the Federal Republic of Germany shall exclusively apply to the legal relationship between MSG and the AN.
§ 21 MSG as reference performance
The AN undertakes not to advertise on the basis of the contract concluded with MSG or the performance provided under the contract between MSG and the AN, without written consent from MSG as far as the advertising material might reveal MSG's identity.
§ 22 Severability Clause
Should the provisions of this contract be or become invalid or void in full or in part, the validity of the remaining provisions shall be unaffected. The contracting parties are obliged to replace an invalid or void provision by a valid provision which commercially comes closest to the intention of the invalid or void provision.
§ 23 Place of Performance and Venue
- The place of performance for all claims arising from the business relationship with the customer shall be Bad Marienberg; the place of performance for MSG's delivery obligations shall however be the place of business of the site or stock charged by MSG to deliver the goods.
- German law is the sole applicable law for the relationship between the parties.
- Provided the contracting party is a business person, legal entity under public law or special fund under public law, the venue shall be Bad Marienberg or the defendant's general venue for all claims arising out of or in relation with the contractual relationship.
As of 12.05.2014