Allgemeine Geschäftsbedingungen
1 Generally; quotation and conclusion of the contract; data protection
1.1 The General Terms and Conditions of Delivery are an element of the supply contracts that are concluded with MAHLKÖNIG GmbH & Co. KG. Divergences from the General Terms and Conditions of Delivery are only valid if they have been agreed expressly and in writing. The customer´s conditions that conflict with MAHLKÖNIG GmbH & Co. KG´s General Terms and Conditions of Delivery shall only apply if MAHLKÖNIG GmbH & Co. KG. has acknowledged them expressly.
1.2 The quotations given by MAHLKÖNIG GmbH & Co. KG are non-binding, subject to change without notice and open for acceptance. The supply contract shall only materialize when MAHLKÖNIG GmbH & Co. KG accepts the customer´s purchase order by means of a written declaration or when MAHLKÖNIG GmbH & Co. KG confirms in writing that a contract of sale has been concluded subject to the reservation of consent.
1.3 The illustrations, drawings and specifications that are included in the case of MAHLKÖNIG GmbH & Co. KG´s concluded contracts and quotations as well as in MAHLKÖNIG GmbH & Co. KG´s brochures - as well as information about weights and dimensions - are only binding insofar as they are an object of a separate written assurance. MAHLKÖNIG GmbH & Co. KG reserves the copyright to all documents. These documents are not allowed to be either copied or made accessible to third parties without MAHLKÖNIG GmbH & Co. KG´s written consent, nor are they allowed to be utilized for self-manufacture of corresponding objects and installations. They must be given back to MAHLKÖNIG GmbH & Co. KG on demand.
1.4 A minimum value of € 100 applies to each purchase order.
1.5 MAHLKÖNIG GmbH & Co. KG points out according to article 26, clause 1 of the Federal Data Protection Law, that personal data which is made known to MAHLKÖNIG GmbH & Co. KG for fulfilling the contract shall be stored and treated according to the valid data protection provisions.
2 Prices
2.1 The prices are understood to be in Euro ex-works Hamburg, including packing and packaging but excluding all kinds of tax, insofar as nothing else is agreed expressly.
2.2 Services that are not included in MAHLKÖNIG GmbH & Co. KG´s acknowledgment of order will be invoiced separately. Customs duties and stamp duties, contractual taxes, fees for permission to import, export and cross frontiers, as well as all other costs that are associated with the import and export like bank charges, insurances, etc., shall always be charged to the customer.
3 Period of delivery
3.1 The period of delivery shall begin on the day when the contract is concluded (clause 1.2, line 2), insofar as an advance payment which is due when placing the purchase order has been paid.
3.2 MAHLKÖNIG GmbH & Co. KG shall not be responsible for a delay of reasonable duration with the delivery, if it was caused by an unforeseeable event. Such an unforeseeable event shall be present in the case of a strike, lockout, unrest, mobilization, war or other cases of force majeure among other things; furthermore, if there is a shortage of materials or energy for which it is not responsible, defective castings, rejected large work pieces, or other delays for which it is not responsible, as well as if there are transport hindrances, official prohibitions to export, import or cross frontiers, or difficulties. The same thing applies of the delivery is postponed because of reasons for which the customer is responsible. The right to withdraw from the contract without a duty of compensatory damages is vested in MAHLKÖNIG GmbH & Co. KG in all cases, insofar as the customer has not declared that he is prepared to adjust the delivery price (i.e., contract price) and the contractual conditions to suit the changed circumstances should the occasion arise.
3.3 A delayed delivery that is conditional upon Point 3.2 shall not entitle the customer either to withdraw from the contract or have the right to compensation for the direct or indirect damages which were caused by the delay.
3.4 Nevertheless, if MAHLKÖNIG GmbH & Co. KG falls into delay with its period of delivery because of a reason for which it is responsible, then the customer shall be entitled and obligated to grant MAHLKÖNIG GmbH & Co. KG a time limit of 6 weeks for the subsequent fulfilment. If the delivery is not made within the period of grace, then the right shall be vested in the customer to withdraw from the contract step by step in return for a refund of the advance payments made and surrender of the delivered machines and installations. The provisions of clause 10.1 apply regarding a possible claim for compensatory damages by the customer. The compensatory damages are limited in every case to 10% of the contract price of the delivery for which the withdrawal takes place.
4 Payments
4.1 If no special terms and conditions of payment have been agreed, then an advance payment less a discount of 2% shall apply as agreed.
4.2 The payments must be made in the invoiced currency to the bank that is chosen by MAHLKÖNIG GmbH & Co. KG, insofar as nothing else has been agreed. Payments in another currency will be converted at the exchange rate which applies on the day when the payment is received.
4.3 The timely fulfilment of the agreed terms and conditions of payment will not be influenced by another warranty. The retention of payments or the compensation because of any counterclaims or customer´s complaints (i.e., notifications of defects) is also excluded, unless these have been legally established or expressly recognized in writing by MAHLKÖNIG GmbH & Co. KG.
4.4 I f the customer remains for longer than ten days in arrears with a payment or, if agreed, with handing over bills of exchange, bank guarantees or other securities, then the entire remaining amount shall become payable immediately. All of the penalty interest on arrears, stamp duties and collection expenses shall be charged to the customer entirely. If the customer does not comply with the agreed dates of payment, then he has to pay an interest which will be calculated according to article 288 of the German Civil Code.
5 Reservation of ownership
5.1 The goods that have been delivered by us shall remain in MAHLKÖNIG GmbH & Co. KG´s ownership until all of the liabilities arising from the business connection are paid back completely and especially until all bills of exchange - financial bills of exchange too - and cheques which were given in payment have been cashed; they can also be withdrawn by MAHLKÖNIG GmbH & Co. KG again at the customer´s cost, in the case of defaulted payment. The customer is not entitled until this point in time to pledge or mortgage the goods to third parties, nor to transfer them as security; he is only allowed to resell them or process them within the framework of his current business transaction. The customer is obligated to advise MAHLKÖNIG GmbH & Co. KG immediately about access by third parties to the goods which have been delivered subject to the retention of ownership.
5.2 The customer shall not acquire any ownership according to article 950 of the German Civil Code of the goods that are delivered by MAHLKÖNIG GmbH & Co. KG in the case of processing because any processing by the customer takes place on our behalf. The newly manufactured article shall serve as our security up to the amount of our total debt claim arising from the business connection, irrespective of the right of third-party suppliers. It will be kept safely for us by the customer and it applies as goods for the purposes of these conditions.
5.3 If the customer sells the goods that have been delivered by MAHLKÖNIG GmbH & Co. KG - irrespective of which condition they are in - then he shall assign herewith to MAHLKÖNIG GmbH & Co. KG the debt claims arising from sales which are vested in him against his customer, with all collateral rights, until of all our debt claims arising from the deliveries of goods are paid back completely. The customer is obligated at our demand to make the assignment known to the sub-customers and to give the information to MAHLKÖNIG GmbH & Co. KG which is required for asserting our rights against the sub-customers and to issue documents.
5.4 If the value of the securities that are given to MAHLKÖNIG GmbH & Co. KG exceeds our debt claim for the delivery by more than 20% in total, then MAHLKÖNIG GmbH & Co. KG shall be obligated to the retransfer at the customer´s demand in this respect.
6 Despatch
6.1 In the absence of special instructions from the customer, MAHLKÖNIG GmbH & Co. KG shall procure the packing and packaging as well as despatch the consignments according to the best of its knowledge and belief but without any responsibility.
6.2 All consignments shall travel uninsured at the customer´s risk. The customer shall accept the full risk of them being damaged, destroyed or lost when the goods leave the works or store (or when the goods are provided in the case of collection): namely, even when the delivery takes place franco domicile or when the assembly is included in the delivery.
7 Packing and packaging
The packing and packaging will not be taken back insofar as they are not described as MAHLKÖNIG GmbH & Co. KG´s property. They must be sent back free of freight charges in this case. They must be sent by the customer for renewed utilization or recycling of materials in other cases.
8 Assembly and installation
8.1 Insofar as the assembly or installation is included in the delivery price, this is understood to be without the auxiliary staff that the customer should provide at his own cost on demand and according to requirements. Any waiting times or overtime expenses that are incurred by the assembly staff from MAHLKÖNIG GmbH & Co. KG - as well as the expenses arising from them, which have not occurred because of their own fault, will be charged separately: the same thing applies to all further expenses which extend beyond the agreed expense of assembly.
8.2 The customer shall accept full responsibility for the risks of liability and accident which are caused by his personnel or the auxiliary persons who he provides, even when the assembly work lies in the hands of MAHLKÖNIG GmbH & Co. KG. If the persons who are named in connection with the assembly suffer injuries (i.e., damages) then MAHLKÖNIG GmbH & Co. KG only has to be responsible in cases of (criminal) intent or gross negligence.
9 Warranty
9.1 MAHLKÖNIG GmbH & Co. KG guarantees the operating efficiency of all its deliveries (i.e., delivered articles). The warranty period is 12 months for all new parts, except for those which are subject to wear. It shall begin when the invoice is presented ex-works or when the assembly is completed, insofar as MAHLKÖNIG GmbH & Co. KG has undertaken the assembly.
9.2 The claim against the warranty requires as a prerequisite that there is compliance with the agreed terms and conditions of payment within the stipulated time. It does not cover either the normal wear and tear or the consequences of incorrect assembly, insofar as this has not been carried out by MAHLKÖNIG GmbH & Co. KG. In addition, the guarantee shall lapse in all cases if alterations or repairs are carried out on the deliveries (i.e., delivered articles) by the customer or a third party without MAHLKÖNIG GmbH & Co. KG´s consent. They shall not exist either in the case of damages that have arisen because of faulty, improper or violent handling, non-compliance with the operating instructions, excessive loading, or utilization of third-party spare parts - especially grinding discs - which have not been manufactured by MAHLKÖNIG GmbH & Co. KG, or because of force majeure. Furthermore, the claim against the warranty requires as a prerequisite that the defects will be criticized in writing immediately after their discovery and that the warranty claim will be asserted immediately.
10 Exclusion of further liability; recourse
10.1 All of the customer´s possible claims are regulated in these conditions conclusively. That applies in particular to all claims for compensatory damages, reduction, cancellation of the contract or withdrawal from the contract, which are not stated expressly. The customer´s claims for compensatory damages - like failure in use, or breakdown of production, or loss of orders - as well as other direct and indirect damages, shall not exist in any case if they have not arisen from the object of the service itself. This rule does not apply, insofar as MAHLKÖNIG GmbH & Co. KG is responsible for (criminal) intent or gross negligence.
10.2 If persons are injured or third-party property is damaged by the actions or omissions of the customer, his employees or his auxiliary staff and if a claim is made against MAHLKÖNIG GmbH & Co. KG for this reason, then the unlimited recourse against the customer shall be vested in the customer.
11 Final provisions; place of fulfilment¹ and place of jurisdiction²
11.1 Hamburg is the place of fulfilment for both contracting parties.
11.2 Hamburg is the place of jurisdiction. MAHLKÖNIG GmbH & Co. KG is certainly free to assert its rights at the customer´s legal domicile too.
11.3 The contractual relationship is subject to the Federal Republic of Germany´s law exclusively. The application of international legal standards like CISG for example is excluded.
11.4 Collateral agreements concerning this contract or concerning these General Terms and Conditions of Business require to be made in the written form for their operativeness: this also applies to annulling the requirement for the written form.
12 Salvational clause
If individual provisions of these General Terms and Conditions of Delivery and Payment, or the contract which is supplemented by them, or both, are inoperative or become so, then the operativeness of the other provisions will not be affected because of that. The contractual parties shall endeavour to reach a new agreement which approximates as closely as possible to the inoperative provision´s economic purpose, in the case that an individual provision is inoperative.
Hamburg, 6th August 2009
MAHLKÖNIG GMBH & CO. KG
Tilsiter Strasse 142
D-22047 Hamburg
² domicilium disputandi