1.1 The general terms of sale and delivery of MENNEKES Stecker GmbH & Co. KG (hereinafter "MENNEKES") apply exclusively. Contradictory, differing terms of sale and delivery or the terms of sales and delivery of MENNEKES' contract partner (hereinafter the "Purchaser") are not acceptable unless MENNEKES has explicitly agreed to them in writing. These terms of sale and delivery apply even if MENNEKES makes delivery to the Purchaser without reservation while aware of the Purchaser's contradictory or differing terms of sale and delivery.
1.2 The terms of sale and delivery also apply to all future business with the Purchaser. The Purchaser agrees with these terms of sale and delivery by placing the order, however at the latest by accepting the goods.
1.3 The terms of sale and delivery only apply to companies.
1.4 Side agreements as well as the modification, amendment or cancellation of the contract must be made in writing.
2 Quotation and order confirmation
2.1 MENNEKES' quotations are provided without engagement. An order from the Purchaser is considered to be accepted only once it has been confirmed by MENNEKES in writing. Likewise, changes and other agreements are only binding when they have been confirmed in writing by MENNEKES. Executions of all orders are based on the written order confirmation or quotation by MENNEKES.
2.2 If an order is deemed to be a quotation as per § 145 BGB (German Civil Code), MENNEKES may accept it within 4 weeks. The contract is established by shipping the ordered goods, making partial deliveries and despatching the first delivery.
2.3 If the Purchaser requests individual cost estimates, these are submitted against payment. In the event of an order any such payment will be credited towards the purchase price. If the signed purchase contract becomes ineffective on any legal grounds, the payment obligation for the cost estimate remains valid.
2.4 Documents, drawings, weights and dimensions, samples etc. contained in the quotation are approximate values only and do not present characteristic features. MENNEKES may deviate from descriptions in the order if such deviations are not of a basic or significant nature and the contractual purpose is not affected.
2.5 If MENNEKES produces parts to customers' drawings, the drawings prepared by MENNEKES and approved by the Purchaser are final. Noncompliance with approved drawings must be agreed separately and any resulting extra cost must be paid.
3 Property rights
3.1 MENNEKES reserves the property rights and copyrights to all pictures, drawings, calculations and other documents. This applies in particular to written documents identified as "confidential". These may be disclosed by the Purchaser to third parties only following prior written agreement by MENNEKES.
3.2 If deliveries are made to drawings or other data provided by the Purchaser and if this leads to third parties assuming property rights, the Purchaser shall release MENNEKES from any claims arising from their relationship with the third parties.
4 Parts outside the delivery programme of MENNEKES
If project work or advice granted to MENNEKES refers to parts outside MENNEKES' delivery programme, e.g., drive/power take-off side, such recommendations or advice are not binding for MENNEKES. Any claims for damages on any legal grounds are excluded unless these are based on malicious intent or gross negligence.
5.1 Unless specified otherwise in the order confirmation, prices are quoted "ex works" without packaging; packaging will be billed separately.
5.2 Prices are quoted net plus VAT at legal rate. Cost for approval by classification companies will be billed separately.
5.3 Any extra cost resulting from subsequent change requests may be billed to the Purchaser by MENNEKES.
5.4 If after conclusion of the contract events occur that lead to an increase in MENNEKES' cost of production or despatch of goods, in particular as a result of an increase of MENNEKES' purchase prices due to wage increases, […] may adjust prices accordingly.
6 Terms of payment
6.1 Invoices are payable within 20 days from the date of the invoice date net. Any cash discount may only be deducted with MENNEKES' explicit written confirmation.
6.2 MENNEKES may apply payments to the oldest payment due not supported by an enforcement judgment even if the Purchasers' terms of payment provide otherwise. If costs or interest have already accrued, MENNEKES may apply payments firstly to the costs and then interest and fi-nally the principal item.
6.3 The Purchaser may only set off amounts payable if and insofar as his claims have been legally stated, are uncontested or have been agreed to in writing by MENNEKES. The Purchaser's retention right is limited to claims from the contractual relationship.
6.4 Cheques are only accepted in lieu of payment. Payment by bill of exchange requires a specific agreement. Bills of exchange are only accepted subject to acceptance by the federal state central bank of North Rhine-Westphalia. The acceptance of bills of exchange does not imply any deferral of our receivables; MENNEKES remains authorized to request payment in cash at the due date of a receivable gradually against return of the bill of exchange. Stamp duties on bills of exchange will be borne by the Purchaser. The same applies for discount charges from the due date of invoices onwards.
6.5 MENNEKES may charge, in line with § 347 BGB (German Civil Code), default interest of 8% above the basic interest rate. The right to claim higher default damage is explicitly reserved.
7 Delivery/delivery time/default
7.1 Delivery periods and dates are only considered to be binding if this has been explicitly stated in the quotation in writing. MENNEKES is not bound by the delivery date or delivery time if the Purchaser fails to meet their obligations (down payments, provision of required documents etc.) in good time. The exception of unfulfilled contract remains reserved.
7.2 Delivery times start earliest on the day when the contract has been concluded in writing. Beginning of delivery times requires clarification of all technical matters.
7.3 In the event of later change requests by the Purchaser, MENNEKES is released from the obli-gation to comply with the delivery date or delivery time.
7.4 The delivery time is considered to be met if the goods to be delivered leave MENNEKES' works or if MENNEKES has notified readiness for despatch by the end of the delivery time.
7.5 In the event of delays in delivery which are not due to intent or gross negligence by MENNEKES the Purchaser cannot assert any claims. This applies in particular to delays in de-livery due to force majeure. In such an event, the agreed delivery date or delivery time shall be extended by the duration of the delivery impediment. 7.6 If the Purchaser is in default of acceptance or commits a breach of other cooperation obligations, MENNEKES is entitled to request replacement of the resulting damage including any extra cost. MENNEKES may furthermore grant the Purchaser an appropriate grace period and following its ineffective expiry is entitled to withdraw from the contract and claim damages in lieu of performance.
8 Retention of title
8.1 MENNEKES reserves the title to all delivered items until full receipt of all payments due from the delivery relationship including future liabilities. In the event of a breach of contract, in particular payment default, MENNEKES is entitled to take back the purchased items.
8.2 The Purchaser is under the obligation to treat the delivered items carefully and to take out an insurance policy throughout the duration of retention of title at their own cost against all types of loss covering the replacement value. MENNEKES remains authorized to take out an insurance policy themselves for the goods at the Purchaser's expense.
8.3 Any costs for maintenance and inspection work must be borne by the Purchaser even during the period of retention of title, even if these works are performed by MENNEKES.
8.4 In the event of an embargo or other third party interventions, the Purchaser shall inform MENNEKES in writing forthwith so as to allow them to initiate third-party objection proceedings. If the third party is unable to refund the judicial and extrajudicial cost of such a lawsuit, the Purchaser shall be liable for theses costs.
8.5 The Purchaser may resell the purchased items within normal business transactions; however they hereby transfer to MENNEKES all receivables to the amount of the invoice total (including VAT) of MENNEKES receivables resulting from the resale to their purchaser or third parties, independent of whether the purchased items have been resold with or without further processing. The Purchaser may collect these receivables even after delivery. MENNEKES right to collect the receivables themselves remains unaffected. MENNEKES undertakes however to not collect the receivables as long as the Purchaser meets their payment obligations using collected revenues, are not in default of payment and in particular as long as no insolvency proceedings have been initiated and the Purchaser has not stopped making payments.
8.6 If the delivered items are inseparably blended or combined with other items not belonging to MENNEKES, MENNEKES acquires co-ownership in the new or combined item on a pro-rata basis of the value of delivered items (invoice total including VAT) to the other items at the time of blending or combination. The Purchaser shall store the resulting sole or joint property on MENNEKES' behalf.
9 Despatch, transfer of risk
9.1 Despatch is made at the Purchaser's risk. Even if MENNEKES takes over other services, the risk shall be transferred to the Purchaser at the time the goods are despatched at the latest.
9.2 If despatch is delayed for reasons not attributable to MENNEKES, the risk shall be transferred to the Purchaser on the day of readiness for despatch. At the Purchaser's written request, MENNEKES will take out an insurance policy for the shipment against breakage, transport, fire and water damage at the Purchaser's expense.
9.3 Transport packaging and any other packaging in line with the “Verpackungsverordnung” (regulation on packaging) are not taken back, except for pallets. The Purchaser is under the obligation to dispose of packaging material at its own expense.
10 Warranties for defects/liability
10.1 MENNEKES does not assume any liability for damage resulting from improper treatment, wear, storage or other actions by the Purchaser or third parties.
10.2 Legal claims from warranties for defects shall be time-barred one year after delivery of the goods. This does not imply a durability guarantee.
10.3 The Purchaser is under the obligation to meet their inspection obligations as per § 377 HGB (German Commercial Code) even in the event of a re-sale of the goods.
10.4 MENNEKES may at their discretion repair the items or deliver new ones.
10.5 Expenses resulting from supplementary performance shall not be borne by MENNEKES as far as these expenses are increased due to the items having been transported after delivery to a place other than the commercial location of the Purchaser. This does not apply if such transport is in line with the intended use of the items.
10.6 The Purchaser's right of recovery against MENNEKES due to claims resulting from warranties for defects filed by the Purchaser's clients is excluded if the customer has failed to comply with their obligation of inspection and notice of nonconformity or if the goods have been modified by processing.
10.7 MENNEKES' liability for compensation for damages in line with legal provisions is unlimited if MENNEKES has failed to meet their obligations due to intent or gross negligence. If MENNEKES has failed to meet their obligations due to slight negligence or if a fundamental contractual duty has been violated negligently, liability for compensation for damages is limited to the foreseeable damage that would typically occur in comparable cases. In all other cases, liability is excluded.
10.8 Liability according to the provisions of the “Produkthaftungsgesetz” (Product Liability Act) shall remain unaffected. Liability due to injury to life, body and health shall also remain unaffected.
11 Prohibition of assignment
The Purchaser's claims towards MENNEKES resulting from the contractual relationship must not be assigned.
12 Product liability
12.1 The Purchaser may only use the goods as intended and must ensure that they are only sold to persons familiar with the product risks.
12.2 If the goods are used as basic material or partial product for the Purchaser's own products, the Purchaser must comply with their warning obligations regarding goods supplied by MENNEKES when marketing the end product. Within the internal relationship the Purchaser shall release MENNEKES from the enforcement of claims at first request if this obligation has been infringed.
13.1 The place of performance shall be 57399 Lennestadt, Germany.
13.2 The place of venue for all disputes resulting from the contract shall be 57399 Kirchhundem, Germany. MENNEKES is however entitled to pursue legal action against the Purchaser at a competent court at the Purchaser's general place of performance or that of a subsidiary of the Purchaser.
13.3 The contract is governed by German law excluding the UN Convention on the International Sale of Goods.
13.4 If an individual provision of this contract is unenforceable, the enforceability of the remaining provisions shall remain unaffected. The parties shall strive to replace the unenforceable provision with an enforceable one which comes nearest to the economic purpose of the contract.
Note pursuant to § 36 of the Consumer Discrimination Act (VSBG)
The seller / contractor is neither obliged nor willing to participate in dispute settlement proceedings in front of a consumer arbitration board as defined by § 36 VSBG.
Status of March 2017
Printing errors, amendments, errors excepted.