General Terms and Conditions
§ 1 Scope of application
The following General Terms and Conditions („GTC“) shall apply exclusively. Any other terms and conditions of the customer shall not be accepted unless their validity has been expressly agreed in writing.
Insofar as vicarious agents or sales representatives of M.a.n.z. GmbH make special agreements deviating from these Terms and Conditions, these shall only be binding once M.a.n.z. GmbH has agreed to the changes in writing.
Customer in the sense of these terms and conditions is the entrepreneur according to § 14 BGB.
Agreements between M.a.n.z. GmbH and the customer shall be concluded in writing by way of acceptance of offers („commercial letter of confirmation“). Regardless of the form in which the contract is concluded, the customer accepts that the following terms and conditions of business form part of the contract.
§ 2 Offers
The offers made by M.a.n.z. GmbH are non-binding, unless they are expressly designated as binding or this results from the circumstances. The documents belonging to the offers, such as illustrations, drawings, weight and dimensional data, are only approximate and non-binding, unless they are expressly described as binding.
M.a.n.z. GmbH reserves all property rights and copyrights to its offer documents; the offer documents – unless they are generally accessible brochures and product information – may not be made available to third parties or used in any other way without the agreement of M.a.n.z. GmbH.
In the case of justified doubts about the customer’s creditworthiness, M.a.n.z. GmbH shall be entitled to refuse to fulfil the contract with the customer. This shall also apply in relation to new offers if outstanding invoices to the customer are not paid despite a warning.
§ 3 Prices and terms of payment
The stated prices are net amounts. The prices are subject to change without notice; in the case of changes in the cost situation, in particular fluctuations in material prices and currency fluctuations, M.a.n.z. GmbH reserves the right to make price changes. In each case, the price stated in the concrete offer shall apply. Offers may be limited in time. The customer may not refer to previous or subsequent offers.
Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due immediately. The deduction of a discount requires a special written agreement. The customer undertakes to pay the purchase price to the bank account of M.a.n.z. GmbH within 14 days of receipt of the invoice, unless a different term of payment or advance payment has been agreed in writing. If the customer is in default, he shall be obliged to pay interest on arrears to M.a.n.Z. GmbH at a rate of 10% above the base interest rate in respect of the outstanding debt in addition to the latter. The parties may agree on a different arrangement in individual contracts.
Bills of exchange or cheques will only be accepted on account of performance and shall only be deemed to be payment when all ancillary costs have been redeemed and settled. M.a.n.z. Ltd. reserves the right to refuse payment by bill of exchange or cheque.
Any right to refuse performance or right of retention on the part of the customer shall be excluded unless the claim on which the right to refuse performance is based is legally valid, undisputed or acknowledged in writing by M.a.n.z. GmbH.
Offsetting by the customer is excluded unless the counterclaim is legally valid, undisputed or accepted by M.a.n.z. GmbH in writing.
§ 4 Delivery
Compliance with agreed delivery dates requires the timely and proper fulfilment of all obligations of the customer. If non-observance of an agreed delivery date is due to force majeure, e.g. industrial disputes such as in particular strikes and lockouts or other circumstances beyond the control of M.a.n.z. GmbH, e.g. operational disruptions, difficulties in procuring materials or logistical delays, the delivery date shall be extended – irrespective of whether the obstacles occur at M.a.n.z. GmbH or its subcontractors – taking into account the delay caused by the events. M.a.n.z. GmbH also reserves the right to withdraw from the contract in such a case. In either case, the customer shall not be entitled to claim for damages. In particular, claims for interest on arrears or reimbursement of potentially loss of profit are excluded.
The time of delivery is respected, if the goods have been dispatched or are ready for dispatch by the end of the delivery time and the customer has been notified of this.
§ 5 Passing of risk
Unless otherwise agreed in writing, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover, or in the case of sale to destination, upon the goods leaving the business or storage premises of M.a.n.z. GmbH or its subcontractors.
If the customer is in default of acceptance, this shall be deemed equivalent to handover. If dispatch is delayed due to circumstances for which the customer is responsible, the risk shall pass to the customer on the day of readiness for dispatch.
§ 6 Retention of title
Deliveries are made exclusively under reservation of title, i.e. the delivered goods remain the property of M.a.n.z. GmbH until the purchase price has been paid in full. § 1006 BGB is not applicable in this respect.
The resale of the goods subject to retention of title may only take place in the normal course of business. By reselling the goods subject to retention of title, the customer assigns to M.a.n.z. GmbH any claims arising from the resale against the purchaser. M.a.n.z. GmbH accepts the assignment (extended reservation of title). However, the customer is entitled to collect the assigned claims from the resale, unless the customer is in default of payment to M.a.n.z. GmbH. Insofar as M.a.n.z. GmbH claims against the customer are due, the customer shall be obliged to immediately transfer the amounts collected from his customers to M.a.nz. GmbH.
The customer shall only be entitled to assign the receivables with the consent of M.a.n.z. GmbH. M.a.n.z. GmbH shall not refuse consent if the customer has an interest worthy of protection in the assignment and the interests of M.a.n.z. GmbH do not conflict with it.
If the customer acts in breach of the contract, in particular in the event of default of payment or in case of an enforcement measure that has been unsuccessful due to insolvency, M.a.n.z. GmbH shall be entitled, after a reminder and setting a payment deadline of 10 working days, to withdraw from the contract and to demand the return of the goods still owned by M.a.n.z. GmbH on the basis of the reservation of title. M.a.n.z. GmbH also reserves the right to claim damages from the customer.
The customer hereby declares his agreement that the persons commissioned by M.a.n.z. GmbH to collect the goods may enter and drive to the storage location of the goods for the purpose of handing them over.
The customer may neither pledge the goods nor assign them as security. The customer must inform M.a.n.z. GmbH immediately in the event of seizure or other dispositions by third parties.
M.a.n.z. GmbH shall release the securities to which it is entitled at the request of the customer to the extent that their realisable value exceeds the claims to be secured – insofar as these have not yet been settled – by more than 20%.
§ 7 Remedy of defects
M.a.n.z. GmbH warrants for material defects and defects of title of the goods at its own discretion by supplementary performance in the form of repair or replacement. If the rectification/replacement fails, the customer is entitled to demand a corresponding reduction of the purchase price (decrease) or to declare his withdrawal from the purchase contract. The customer shall not be entitled to withdraw from the contract in case of minor defects. Insofar as the customer claims supplementary or exclusive damages in the context of the removal of defects, the limitations according to the following § 8 apply in this respect.
M.a.n.z. GmbH does not accept any liability for damage caused by improper use, the use of unsuitable equipment or as a result of natural wear and tear. The same applies to damage not resulting from a manufacturing defect on the part of M.a.n.z. GmbH or its subcontractors.
The warranty period is one year from delivery of the goods, unless longer periods of limitation are prescribed by law.
M.a.n.z. GmbH does not provide any guarantees in the legal sense, unless these are expressly agreed in writing in individual cases.
§ 8 Liability for damages
The following regulations concern both contractual claims of the customer, in particular, but not exclusively, in the context of rectification of defects, delay and impossibility, as well as legal claims, in particular pre-contractual and tort legal claims.
M.a.n.z. GmbH shall be liable without limitation in the event of intent and insofar as the health, body or life of persons have been injured due to breaches of duty by M.a.n.z. GmbH. In addition, M.a.n.z. GmbH shall have unlimited liability for claims under the Product Liability Act.
For grossly negligent breaches of duty as well as breaches of essential contractual obligations (so-called „cardinal obligation breach“), M.a.n.z. GmbH shall be liable limited to three times the order amount and with the restriction that liability shall be limited to foreseeable, typically occurring damage.
M.a.n.z. GmbH shall only be liable for consequential damage and indirect damage, i.e. in particular for damage that did not occur to the delivery item itself, for loss of profit, loss of production, loss of use, expert costs, etc. in the event of breaches of cardinal obligations caused by gross negligence and then only up to three times the order amount and the foreseeable, typically occurring damage.
In all other cases, liability of M.a.n.z. GmbH is excluded.
§ 9 Disposal
In order to comply with the legal obligations in relation to the Packaging Ordinance, M.a.n.z. GmbH concludes a licence agreement for the take-back of packaging materials with a nationwide collection and disposal system of its choice. M.a.n.z. GmbH shall disburse the licence fee and invoice it to the customer separately.
Insofar as the goods are subject to the Electrical and Electronic Equipment Act, the manufacturer shall assume the obligation to properly dispose of the delivered goods after termination of use at its own expense in accordance with the statutory provisions.
§ 10 Data protection
Insofar as necessary for business processing, order-related customer data is collected, stored via EDP, statistically processed and transmitted internally as well as to sub-service providers of M.a.n.z. GmbH, for which the customer already gives his consent with the order. The customer data is collected, stored and used exclusively in connection with the sale of the goods. The customer agrees that his/her data may also be used for the purpose of sending information about M.a.n.z. GmbH products and services. If the customer does not agree, he/she may revoke his/her consent in writing to M.a.n.z. GmbH at any time.
§ 11 Place of jurisdiction – place of performance
Place of jurisdiction for all disputes arising from the business relations is Munich/Germany.
Place of performance is Munich/Germany, unless otherwise agreed.
The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
§ 12 Final provision
The General Terms and Conditions apply in their current version.
Amendments and supplements to the contract as well as collateral agreements must be made in writing.
Should a provision of the contract or the General Terms and Conditions be or become invalid or incomplete, this shall not affect the remaining content of the contract.
Munich, Dec. 2009