General Terms and Conditions
I. General provisions
- Unless otherwise agreed in writing, our contracts shall be governed solely by our General Terms and Conditions. If the terms and conditions of the customer deviate from our General Terms and Conditions, the customer’s terms and conditions shall not be applicable even if not contradicted by us.
- Our offers and quotations shall be without obligation.
II. Scope of our delivery obligation
- Our order confirmation shall be authoritative. Information contained in technical documents such as drawings, diagrams, etc. shall be deemed to be approximate unless specifically referred to as binding. Information of this type, in particular, performance data, descriptions of working methods, etc., is intended to define what is to be considered to be specific performance on our part. Unless specifically stated, it shall not represent a warranty of properties.
- We reserve the right to make changes to the goods with regard to design and finish in line with further technological developments.
III. Payment conditions
- Interest shall be due on overdue amounts at a rate of five (5) percentage points over the respective base interest rate in accordance with Section 247 of the German Civil Code (BGB) in the case of the customer, who is the consumer as defined by Section 13 of the German Civil Code, and eight (8) percentage points over the relevant base rate in the case of the customer, who is a company as defined by Section 247 of the German Civil Code.
- Setoff or a right of retention can only be claimed if the corresponding counterclaims are undisputed or have legal force.
- If the customer is more than two weeks in default, or if there has been a material adverse change in its financial circumstances, any amounts payable by the customer shall become due and payable. We shall have the right to make further deliveries subject to cash in advance or the provision of security.
IV. Delivery period
- If there is a delay on our part, the customer shall initially allow us an appropriate grace period. If the default is not remedied within this period, the customer may withdraw from the contract. Delivery dates shall be postponed by any period in which such agreement has not been reached. If the customer does not supply the documents necessary to execute the order, for example, drawings or samples for the design or test materials for product trials, to us in a timely manner, or does not fulfil its contractual obligations (for example, payment obligations) by the due date, the delivery periods and/or dates shall be postponed by at least the period of the delay. The same provisions shall apply mutatis mutandis to changes in the goods for which the customer is responsible. Unforeseen circumstances outside our control, such as strikes, production stoppages, delays in supplies, etc., shall delay the delivery periods and/or dates by the period during which they have effect.
- If there is a delay on our part, the customer shall have the right to give us an appropriate grace period in which to remedy this default. If the default is not remedied within this period the customer shall have the right to withdraw from the contract. Corresponding notice of this should be given when a grace period is set. Damages for non-performance cannot be demanded.
- If the contract is incapable of performance and if we are responsible for this, the customer may withdraw from the contract. Damages for non-performance cannot be demanded.
V. Passage of risk
- Shipment shall be ex works or warehouse at the risk of the customer even if carriage paid delivery has been agreed or we have assumed responsibility for assembly or installation. We shall not be under an obligation to take out transport insurance.
- If the customer is responsible for the delay in shipment, the risk shall pass to the customer when notification is given that the shipment is ready for dispatch.
VI. Reservation of title
- We will reserve title to the goods delivered by us (goods subject to reservation of title, “reserved goods”) until all amounts payable to us arising from the business relationship with the customer have been satisfied and we have been released from any contingent liabilities to the customer. Transfer of title of the reserved goods to a third party shall only be permitted if it takes place in the ordinary course of the customer’s business and on condition that the customer reserves title to the reserved goods until all amounts payable to it arising from its business relationship with the third party have been paid. The customer hereby assigns its claims arising from the resale of the reserved goods to us. The customer shall have the right to collect the assigned claims until such right is revoked.
- If the reserved goods are combined with other goods such that they become an integral component of a new article, we shall become the joint owner of the new article. If our ownership is extinguished, the customer hereby grants us co-ownership of the new article. It shall hold the article in safekeeping for us free of charge. Our share of the jointly owned article shall be determined in both cases by the ratio of the invoice value of the reserved goods to the sales value of the new article. In the event of the sale of the new article, paragraph 1 shall apply mutatis mutandis, and that part of the amount receivable corresponding to our share shall be assigned to us by the customer.
- In the event that the sum of the value of the reserved goods held by the customer and the value of the amounts receivable that have been assigned to us exceeds the total amount payable to us by the customer by more than 20 %, we will release the excess security at our discretion.
- If the goods or services supplied by us are defective, the customer may demand that we remedy the defect or deliver replacement goods free of defects at our discretion. If, following a first demand without a remedy, the customer has given us a further period of grace or if it has not been possible to remedy the defect or to deliver replacement goods free of defects, the customer shall have the right at its discretion to require a reduction in the price or cancellation of the contract. It shall not be possible to demand damages on account of non-performance of the contract.
- If a defect is attributable to a defective product of a supplier, which has become a component of the goods as a complete unit, and if our customer is a company as defined by Section 14 of the German Civil Code (BGB), we will assign our claims against the supplier to the customer, who has an obligation to institute court proceedings against the supplier before he institutes proceedings against us.
- If the goods or services supplied are deficient in a property that has been expressly warranted, in addition to our liability referred to in paragraphs 1 and 2 we shall also be liable within the scope of our awareness of the purpose of the warranty for damages for non-performance. Our liability shall be limited to the loss that would be foreseeable in the ordinary course of events.
- We shall have the right to refuse to remedy the defect or to deliver replacement goods until the customer has paid us a percentage of the advance payment amount defined by us that is commensurate with the economic significance of the defect or the warranted characteristics in relation to the agreed remuneration.
VIII. Data protection
We shall have the right to process data within the meaning of the Federal Data Protection Act (Bundesdatenschutzgesetz) that we have received in connection with the business relationship with the customer, regardless of whether it has been received from the customer or a third party.
IX. Other rights of the customer – Claims for damages – Revocation of contract
- In so far as liability for damages is excluded or limited in these General Terms and Conditions, this shall not apply if the loss arises from injury to life, bodily injury or damage to health, which can be attributed to a negligent breach of an obligation on our part or deliberate or negligent breach of an obligation on the part of our legal representatives or vicarious agents.
- In so far as liability for damages is excluded or limited in these General Terms and Conditions, this shall not apply if the loss can be attributed to a grossly negligent breach of an obligation on our part or a deliberate or grossly negligent breach of an obligation on the part of our legal representatives or vicarious agents.
- If, apart from possible claims governed in Items IX.1 and IX.2 in an individual case, the exclusion or the limitation of the statutory rights and claims of the customer appears to be extremely inequitable in relation to a particular fault on our part having regard to the particular interests of the customer and other circumstances, we shall be liable for the loss that was foreseeable in the ordinary course of events, but only up to the level of the value of the goods delivered.
- In other respects, all rights and claims of the customer that are not expressly referred to in these General Terms and Conditions shall be excluded to the extent permitted by law. Accordingly, the following rights and claims shall be excluded in particular: statutory notice or revocation rights, claims for damages on account of default, frustration, positive breach of contract, culpa in contrahendo and tort in connection with this contract.
X. Dispute resolution procedure
The company August Mink GmbH & Co. KG does not participate in extrajudicial dispute resolution proceedings before a consumer arbitration body in accordance with the German Consumer Dispute Resolution Act (VSBG).
XI. Final provisions
- This contract and its performance shall be governed by German law.
- In the event that a provision of this contract is or becomes invalid, this shall not affect the validity of the remainder of the contract.
- The place of performance und jurisdiction shall be that of our principal place of business.
August Mink GmbH & Co. KG
Manufacture of industrial brushes