General terms and conditions
The terms of delivery and payment of ManufactIS GmbH, Essen (NRW), Federal Republic of Germany, apply exclusively and for all, also future legal transactions with the customer. Conflicting or deviating terms and conditions of the Buyer shall not be accepted by manufactIS GmbH, unless manufactIS GmbH has agreed to their validity in writing. The terms and conditions of manufactIS GmbH shall also apply if manufactIS GmbH carries out the delivery without reservation in knowledge of conflicting or deviating terms and conditions of the Buyer. All agreements made between manufactIS GmbH and the Buyer for the purpose of performance of the contract shall be put down in writing. Changes and amendments must be made in writing.
1. Offers and order confirmation
a. All offers for manufactIS GmbH products, also those of any commercial agents of manufactIS GmbH, are subject to change and subject to alterations and corrections at any time. To conclude a contract a written order confirmation by manufactIS GmbH is required in any case.
b. manufactIS GmbH products are intended for use in the Federal Republic of Germany and for export and resale to all countries for which no special export licenses from the USA and/or the Federal Republic of Germany are required.
c. manufactIS GmbH reserves the right to correct prices and/or conditions of offers and orders if these prices and/or conditions are incorrect due to typing or transmission errors, including an incorrect interpretation of customer specifications.
2.Prices, invoices, payments, retention of title
a. The prices of our offers and invoices are in EURO, excluding packaging ex manufactIS GmbH, Essen (NRW), Federal Republic of Germany.
b. The minimum value of goods per shipment is EUR 40,- or the equivalent value plus transport costs, insurance charges etc.
c. All invoices are payable net without deduction according to our invoicing in Euro or another freely convertible currency, within 30 days of the date of issue. The occurrence of default is determined according to § 286 para. 3 BGB, the default interest rate according to § 288 para. 2 BGB. The Buyer shall only be entitled to set-off rights if his counterclaims are legally binding, undisputed or accepted by manufactIS GmbH. The exercise of a right of retention or right to refuse performance by the Buyer is only allowed if the same conditions are fulfilled and furthermore his counterclaim is based on the same contractual relationship. The possible acceptance of bills of exchange and cheques is only on account of performance. Costs of bills of exchange and cheques shall be borne by the purchaser.
d. If an order is processed in partial deliveries, invoicing shall be based on these partial deliveries. If the Buyer does not keep to the schedule of call-offs, manufactIS GmbH may invoice the goods on the originally agreed dates as if delivery had taken place on these dates. Any additional costs incurred by manufactIS GmbH, including those in connection with a possible processing of special designs, shall be borne by the buyer; the same applies with regard to the risk and costs for items held at the disposal of the buyer.
e. Complaints of quantity and defects as well as complaints of errors in invoices have to be made immediately to manufactIS GmbH by the Buyer; otherwise they will not be accepted.
f. manufactIS GmbH reserves the title to the delivered goods until receipt of all payments resulting from the business relationship with the Buyer. In case of breach of contract by the buyer, especially in case of default of payment, manufactIS GmbH shall be entitled to demand the return of the delivered products in accordance with the legal regulations. After taking back the delivered products manufactIS GmbH is authorized to use them. The proceeds of the realization shall be set off against the liabilities of the buyer – less reasonable costs of realization. The Buyer shall be obliged to treat products subject to the reservation of title with care, in particular to insure them at his own expense against fire, water and similar damages as well as against burglary/theft at replacement value. If maintenance and inspection work is necessary, the buyer must carry out this work or have it carried out in good time at his own expense. In case of seizure or other interventions of third parties the Buyer shall inform manufactIS GmbH immediately in writing. The Buyer shall be liable to manufactIS GmbH for the reasonable costs of any judicial and extrajudicial measures necessary to enforce the reservation of title. The Buyer is entitled to resell the delivered products in the ordinary course of business. However, he herewith assigns to manufactIS GmbH all claims in the amount of the final invoice amount (including VAT) to which the Buyer is entitled from the resale against his customers or third parties, irrespective of whether the delivered goods have been resold without or after processing. The buyer remains entitled to collect these claims even after the assignment. Unless mandatory law is opposed, manufactIS GmbH shall however be entitled to collect the claim itself, if the Buyer does not meet his payment obligations with regard to the reserved goods, in particular by forwarding the proceeds from the resale, or if he has filed a petition for the opening of insolvency proceedings or if such a petition has been filed by a third party or if payments have been suspended. In these cases manufactIS GmbH may demand that the Buyer discloses the assigned claims and their debtors and gives all other information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. The processing or transformation of reserved goods by the buyer is always done for manufactIS GmbH. If the delivered goods are processed with other goods not belonging to manufactIS GmbH, manufactIS GmbH shall acquire co-ownership of the new goods in proportion of the value of the delivered goods to the other processed goods at the time of processing. The same shall apply to the object resulting from the processing as to the goods delivered under reservation. manufactIS GmbH undertakes to release the securities to which it is entitled at the request of the buyer to the extent of its choice if their value exceeds the outstanding claims of manufactIS GmbH by more than 20%. If the goods subject to retention of title by manufactIS GmbH are not located in Germany, the Buyer is obliged to make those agreements or take those measures with manufactIS GmbH which are necessary or advisable to provide manufactIS GmbH outside Germany with the security provided for in the above mentioned or with a security as equivalent as possible.
3.Shipping and insurance
a. Shipment is at the expense and risk of the buyer. The shipment will only be insured at the request of the buyer, in which case the costs will be borne by the buyer.
b. Delivery dates or delivery periods given by manufactIS GmbH are only approximate, unless a firm deal has been agreed in writing. The beginning of a time limit is subject to the clarification of all open questions and the compliance with all obligations of the Buyer. Delays in delivery due to force majeure or other unforeseen circumstances beyond the control of manufactIS GmbH, in particular breakdowns, strikes, lockouts, lack of means of transport, difficulties in obtaining raw materials, official orders, untimely delivery by suppliers etc. do not lead to liability of manufactIS GmbH for delay or other reasons. An agreed delivery period shall be extended by the duration of the hindrance. If the hindrance lasts longer than two months, manufactIS GmbH and the Buyer shall be entitled to withdraw from the contract with regard to the unfulfilled part of the contract after having granted a reasonable period of grace in writing. Claims for damages are excluded, except for claims for damages for non-performance in the amount of the foreseeable damage in cases where the delay is based on intent or gross negligence or the violation of essential contractual obligations or cardinal obligations by manufactIS GmbH, a commercial transaction for delivery by a fixed date has been agreed upon in writing or the interest of the Buyer in the performance of the contract has ceased due to a delay for which manufactIS GmbH is responsible. In these cases the liability of manufactIS GmbH is limited to the foreseeable damage typical for the contract.
a. The Buyer shall only be entitled to claim for defects if he inspects the goods immediately after receipt and notifies manufactIS GmbH in writing of any visible defects immediately after inspection or hidden defects immediately after their discovery, specifying the defect. In case of a defect for which manufactIS GmbH is responsible, manufactIS GmbH shall be entitled at its own choice – except in the case of § 478 BGB and taking into account the Buyer’s legitimate interests – to remedy the defect or to deliver a replacement. If manufactIS GmbH is not willing or able to remedy the defect, in particular if the remedy is unreasonably delayed for reasons for which manufactIS GmbH is responsible or if the remedy fails otherwise, the Buyer shall be entitled to withdraw from the contract or to demand a corresponding reduction of the purchase price (abatement) at his own choice. Unless otherwise provided below, further claims of the buyer – for whatever reason – are excluded. Therefore manufactIS GmbH shall not be liable for damages which have not occurred on the delivered goods themselves, especially not for loss of profit or other financial losses of the buyer. The aforesaid limitation of liability shall not apply, if the cause of damage is based on intent or gross negligence of manufactIS GmbH. Furthermore it does not apply if manufactIS GmbH has given a written guarantee of quality or durability. In any case the liability for compensation is limited to the foreseeable damage typical for the contract. If manufactIS GmbH culpably violates an essential contractual obligation or cardinal obligation, the liability to pay compensation is limited to the typical contractual foreseeable damage. Claims of the buyer for defects of the delivered products shall become time-barred after one year, calculated from delivery.
b. As far as the liability of the manufactIS GmbH for defects is excluded or limited herein, this also applies to all other claims of the buyer, including claims based on culpa in contrahendo, breach of secondary obligations and claims based on tortious producer liability.
c. Claims under the product liability law remain unaffected.
d. Any warranty or liability of manufactIS GmbH is excluded in case of inappropriate or improper use of manufactIS GmbH products, as well as in case of insufficient or wrong maintenance or inappropriate or improper interventions of the buyer or third parties. manufactIS GmbH also does not guarantee or assume liability that the manufactIS GmbH products comply with certain accident prevention and/or health protection regulations.
e. An exclusion or limitation of liability in the manufactIS GmbH Conditions shall not apply, if manufactIS GmbH is responsible for (i) damages resulting from injury of life, body or health due to negligent breach of duty by manufactIS GmbH or grossly negligent breach of duty by one of its legal representatives or vicarious agents or (ii) other damages resulting from grossly negligent breach of duty by manufactIS GmbH or intentional or grossly negligent breach of duty by one of its legal representatives or vicarious agents.
5.Return of goods
a. Returns for credit or replacement shall only be accepted if the prior written consent of manufactIS GmbH has been obtained.
b. Returns (see section 5 A) must be made with a delivery note which shows the customer order number and the manufactIS GmbH invoice number referring to it.
c. Returns (see number 5 A) have to be made carriage paid, unless the return is due to an error for which manufactIS GmbH is responsible or manufactIS GmbH has committed itself to take back the goods for other reasons.
6.Place of performance, place of jurisdiction, applicable law
Place of performance and place of jurisdiction is Langen (Hessen), whereas manufactIS GmbH is in any case entitled to sue the buyer also in the place of jurisdiction of his registered office. The law of the Federal Republic of Germany shall apply, excluding the UN Sales Convention. If any provision of the contract or these terms of delivery and payment is invalid, the validity of the remaining provisions shall not be affected. In such a case, the parties shall replace any ineffective provisions by such effective provisions that come as close as possible to the economic purpose of the ineffective provision. The same shall apply accordingly in the event that the contract contains a loophole.