Terms and conditions
1 General information; quotation and conclusion of the contract; copyright; minimum order value; data protection
1.1 These Conditions of Sale (General Contract Conditions) are the basis for all deliveries and services of MAHLKÖNIG GmbH & Co. KG (hereinafter called ‘MAHLKÖNIG’). Conditions of purchase in derogation hereof shall not become the subject of the contract even if the order has been accepted and shall only be valid if they have been agreed expressly in writing. Customers within the meaning of these General Terms and Conditions are exclusively companies and legal entities or a special fund under public law. Companies are natural persons and legal entities that, upon conclusion of the contract, act in execution of their commercial and independent professional capacity.
1.2 MAHLKÖNIG's quotations are non-binding. In the absence of a special agreement, a contract will not be concluded unless it is confirmed by MAHLKÖNIG's written order acknowledgement.
1.3 The pictures, drawings and descriptions, as well as measurements and weight specifications contained in MAHLKÖNIG's contracts, quotations and brochures, shall be binding only if they are the subject matter of a special written agreement with the Customer. MAHLKÖNIG shall reserve the copyright of all documents. Said documents may not be copied or made accessible to third parties without MAHLKÖNIG's written consent, nor may they be used for the self-made production of corresponding items and systems. Said documents are to be returned to MAHLKÖNIG upon request.
1.4 The Customer agrees that MAHLKÖNIG uses and processes contact information (among other things, names, business addresses, e-mail addresses) for the purpose of implementing the agreement and for supporting business relations (including marketing purposes) between the Customer and MAHLKÖNIG in accordance with the applicable data protection regulations.
2 Prices
2.1 Except as otherwise expressly agreed, prices, including packaging, shall be ex-works Hamburg. Prices are subject to the statutory rate of VAT.
2.2 A minimum order value of EUR 100.00 net shall apply. For orders below this threshold MAHLKÖNIG reserves the right to charge a processing fee of EUR 10.00.
2.3 For orders with a value below EUR 1000.00 packaging costs of EUR 20.00 will be charged in addition to the actual costs of delivery.
2.4 Services, which are not included in MAHLKÖNIG's order confirmation, will be invoiced separately. Custom and stamp fees, contract taxes, fees for import, export and transit authorisations, as well as all other taxes and costs relating to import and export, such as bank charges, insurance premiums, etc., shall be borne by the Customer.
3 Period of delivery
3.1 The period of delivery arises from the agreements of the contracting parties. If prepayment has been agreed the period of delivery starts upon receipt of the prepayment by MAHLKÖNIG.
3.2 MAHLKÖNIG shall not be held liable for a delay in delivery, should such delay be due to force majeure or other unforeseeable events. The same applies, if the delivery is delayed due to a reason for which the Customer is responsible. MAHLKÖNIG shall reserve the right of the plea of unfulfilled contract. In all of the above cases, MAHLKÖNIG has the right to withdraw from the contract without liability for damages, in case the Customer does not agree to the adjusted delivery price and the contract terms that have to be adapted if conditions of delivery change beyond control of MAHLKÖNIG.
3.3 Compliance with the period of delivery is subject to correct and timely self-delivery by MAHLKÖNIG’s suppliers. This shall apply only in the case of MAHLKÖNIG not being responsible for the non-delivery, especially upon conclusion of a congruent supply arrangement with MAHLKÖNIG’s suppliers. The Customer shall be notified immediately of the non-availability of the performance.
3.4 A delay in delivery according to sub-clause 3.2 shall not authorise the Customer to withdraw from the contract or to a replacement of the direct or consequential damage.
3.5 If MAHLKÖNIG is in delay with its delivery deadline for a reason for which it is not responsible, the Customer – in consideration of the legal exceptions – shall be authorised and obligated to grant MAHLKÖNIG a reasonable time limit for retroactive performance. Failure to meet the grace period shall authorise the Customer to withdraw from the contract within the scope of the statutory regulations. The Customer agrees upon MAHLKÖNIG's request to state within a reasonable time limit whether it will exercise its right to withdraw from the contract.
Should MAHLKÖNIG be in default and if this will cause the Customer damage, the Customer is authorised to request a flat-rate compensation for delayed performance. For each week of delay this will be 0.5%, overall however a maximum of 5% of the value of the respective section of the overall delivery, which cannot be used in due time or not in accordance with the agreement as a result of late delivery.
Further damage claims by the Customer shall be determined exclusively according to sub-clause 10.1. of these General Contract Conditions.
4 Payments
4.1 If no special terms and conditions of payment have been agreed, prepayment less 2% discount shall apply as agreed.
4.2 Payments must be made in the invoiced currency to the bank designated by MAHLKÖNIG, except as otherwise agreed. Payments in another currency will be converted at the exchange rate applicable on the day on which the received payment is converted.
4.3 The timely fulfilment of the negotiated terms and conditions of payment will not be influenced by any warranty. Further, the setoff of payments shall be excluded, unless the Customer's counterclaims have been recognised by declaratory judgment or expressly acknowledged by MAHLKÖNIG. The Customer may exercise a right of retention only if its counterclaim is based on the same contract.
4.4 If the Customer remains in arrears with a payment or, if agreed, with the submission of bills of exchange, bank guarantees or other securities for longer than ten days, the entire residual amount shall become due immediately. Any default interest, stamp duties and collection expenses related to the processing of bills of exchange shall be borne by the Customer. If the Customer fails to comply with the agreed upon dates of payment, it shall pay interest in the case of default, which will be calculated according to Sec. 288 German Civil Code.
5 Reservation of ownership
5.1 The goods delivered by MAHLKÖNIG shall remain in MAHLKÖNIG’s ownership until obligations arising from the business relationship have been met in full, in particular until all cheques and bills of exchange offered in payment have been redeemed and, in the event of a default in payment on the part of the Customer, can be claimed back by MAHLKÖNIG at the Customer’s expense. Until this point in time, the Customer is not authorised to pledge or mortgage the goods to third parties or to transfer them as security; the Customer is authorised to resell or process the goods only within the scope the Customer’s current business transaction. The Customer is obligated to advise MAHLKÖNIG immediately of any access by third parties of the goods supplied subject to the retention of ownership.
5.2 According to Sec. 950 German Civil Code, the Customer shall not acquire ownership in the goods supplied by MAHLKÖNIG in the case of modifications of MAHLKÖNIG products by the Customer. Any potential modification by the customer will be performed on MAHLKÖNIG’s behalf and the modified article shall serve as MAHLKÖNIG’s security up to the amount of our total claim arising from the business connection. It will be kept safe for MAHLKÖNIG by the Customer, and is deemed to be a product within the meaning of these general contract conditions.
5.3 If the Customer sells the goods supplied by MAHLKÖNIG, irrespective of their condition, it shall already at this time, until the complete redemption of all MAHLKÖNIG claims arising from the deliveries of goods, assign to MAHLKÖNIG all claims against its purchasers, including all secondary rights. At MAHLKÖNIG’s request, the Customer shall be obligated to inform its sub-customers of such assignment, gives MAHLKÖNIG the necessary information and hand over the documents required to assert MAHLKÖNIG’s claim against such sub-customer.
5.4 If the value of the securities given to MAHLKÖNIG exceeds MAHLKÖNIG’s receivables by a total of more than 20%, MAHLKÖNIG shall be obligated to a retransfer at the Customer´s demand.
6 Shipping
6.1 In the absence of special instructions from the Customer, MAHLKÖNIG shall procure the packing and handling of the consignments to the best of its knowledge and ability, but without any responsibility.
6.2 All consignments shall travel uninsured at the Customer´s risk. The Customer shall accept the full risk as of dispatch ex-works or warehouse (in the case of pickup of goods: at the time of making the goods available), the full risk for their damage, destruction or loss, even if the delivery is carriage-paid or assembly is included in the delivery. MAHLKÖNIG will insure the goods if demanded by the Customer. All insurance costs will be charged to the customer.
7 Packaging
The packaging will not be taken back, unless it is designated as MAHLKÖNIG´s property. In that case, it must be returned free of freight charges to MAHLKÖNIG. In other cases, the Customer is obliged to reutilize or recycle the packaging.
8 Assembly and installation
8.1 If assembly and/or installation are included in the delivery price, this shall not include the auxiliary staff to be provided at the Customer’s request, which will be provided at the Customer’s own expense. Any waiting times or supplementary time expenses incurred by MAHLKÖNIG’s assembly staff, which were not incurred due to MAHLKÖNIG’s fault, will be charged separately, which also applies to all additional expenses that go beyond the agreed upon assembly costs.
8.2 The Customer shall accept full responsibility for liability and accident risks that are caused by its personnel or assistants it provides, even when the assembly work is MAHLKÖNIG’s responsibility. If, in connection with the assembly, said persons suffer injuries, MAHLKÖNIG shall be responsible only in cases of intent or gross negligence.
9 Warranty
9.1 The warranty period for all new parts, parts subject to wear and tear as grinding discs, is 12 months as of the date of delivery of the product.
9.2In the case of defects, MAHLKÖNIG shall have the option of offering a subsequent improvement or replacement delivery.
9.3The Customer must immediately examine the supplied goods for deviations in quantity and quality and report obvious and identifiable defects immediately, at the latest within a time limit of five working days upon receipt of the goods; otherwise, the assertion of the warranty claim shall be excluded. Hidden defects are to be reported within five working days upon discovery. The Customer has the full burden of proof with respect to all claim requirements, in particular with respect to the defect itself, the time of discovering the defect and the timeliness of the notice of defect.
9.4Should the retroactive performance fail, the Customer has the option to reduce payment (price reduction) or cancel the contract (repudiation of contract), as well as to claim damages within the scope of the limitation of liability (refer to sub-clause 10), instead of demanding performance. In the case of a negligible breach of contract, in particular in the case of negligent defects, the Customer has no right to cancel the contract.
9.5If MAHLKÖNIG is not responsible for a breach of duty based on a defect, the Customer shall not be entitled to withdraw from the contract. No liability will be assumed, especially in the following cases: Unsuitable or improper use, faulty installation and/or repair/modification by the Customer or third parties without MAHLKÖNIG's approval, natural/normal wear and tear, faulty or negligent treatment, improper maintenance, unsuitable operating means, noncompliance with the operating instructions, excessive use, use of third-party spare parts, in particular grinding disks supplied by third parties, chemical, electromechanical or electrical influences for which MAHLKÖNIG shall be responsible.
9.6MAHLKÖNIG’s right of compensation for the services rendered and goods delivered shall lapse in five years.
9.7In principal, only MAHLKÖNIG’s product description shall apply as to the quality of the goods. Public statements, praise or advertising do not represent any contractual properties of the goods.
10 Exclusion of further liability
10.1 In the case of ordinary negligence of duties our liability shall be limited to foreseeable, typical, direct average damage due to the nature of the goods. This shall apply also to ordinary negligence of breaches of duty on the part of our legal representatives or vicarious agents. MAHLKÖNIG shall not be liable to the Customer in the case of ordinary negligence relating to minor breaches of contract.
10.2 The above limitations of liability shall not apply to customer claims from product liability or from the warranty. Furthermore, the limitations of liability shall not apply to personal injury and injury to health or loss of life of the Customer for which MAHLKÖNIG is liable.
10.3 The Customer's damage claims due to a defect become statute-barred one year from delivery, unless MAHLKÖNIG is charged with intention to deceive or gross negligence or in the case of personal injury or injury to health or in the case of the Customer's loss of life.
11 Concluding provisions; place of performance and jurisdictional venue
11.1 The contract between MAHLKÖNIG and the Customer is subject to the laws of the Federal Republic of Germany, excluding the UN Convention on International Sales of Goods and - as far as legally permissible - the conflict-of-laws rules.
11.2 Unless other agreements exist from the respective order confirmation, the place of performance and jurisdictional venue for both parties shall be Hamburg, Germany. MAHLKÖNIG however has the option to assert its rights also at the Customer's place of business.
11.3 Side agreements to the contract or these General Contract Conditions are valid only in writing.
12 Severability
If any provision of this agreement is invalid or unenforceable or prohibited by the law of the country where it is to be performed then unless such provision materially affects the interest of any party under this agreement such provision shall be considered divisible and shall be inoperative and shall not be part of the consideration moving from either party hereto to other. The remainder of the agreement shall be binding and valid and of like effect as though such provision was not included herein. If any provision of this agreement which materially affects the rights or interest of either party under this agreement is invalid or unenforceable or prohibited by law, then the party shall have the right or terminate the agreement forthwith.
Hamburg, 1 November 2011
MAHLKÖNIG GMBH & CO. KG
Tilsiter Strasse 142
D-22047 Hamburg
² domicilium disputandi