General Terms and Conditions Mahlwerck Porzellan

 

1. General information

These General Business Terms shall apply to all current and future contracts between the customer and us, irrespective of whether reference is made hereto in an individual case.

General Business Terms of the customer shall not be valid, not even if the customer refers hereto in the order or in written correspondence. General Business Terms of the customer are hereby objected to. Our offers in catalogues, offer and information letters etc. are always without obligation and non-binding (invitatio ad offerendum). The purchase contract shall be concluded with the acceptance of the order (order confirmation).

The provisions of the order confirmation shall apply exclusively to the scope and the execution of the order insofar as such is sent to the buyer and he does not object in writing within 3 days after receipt of the order confirmation. Our offers are without obligation. Collateral agreements of our employees who are not entitled to representation require our written confirmation in order to be valid.

2. Delivery time

Delivery deadlines shall not begin to apply before the final clarification of the technical details with regard to the ordered products. No fixed-term deal is concluded by stating delivery deadlines or delivery dates. If no delivery dates have been agreed, however in fact a delivery time assessed after certain periods of time then this shall begin on the day upon which the order confirmation is sent. It shall end on the day, on which the goods were shipped or stored owing to impossibility for shipment. The delivery time is respectively interrupted for the duration of the inspection of the print proofs, production samples etc. by the customer, from the day of the sending to the customer until the day of the receipt of a statement. If the customer requests changes to the order after the placement of the order, which influence the duration of the production, then a new delivery time shall begin with the confirmation of the change. If an exceeding of the delivery time is caused by circumstances, for which we are not responsible, the customer is not entitled to cancel the contract or to hold us responsible for possibly suffered damages. The non-adherence to a delivery time only entitles the buyer to cancellation if we are responsible for the delay and he has set a deadline, which is reasonable for the object of the order, in writing after the occurrence of the delivery date, at least however 2 weeks, for the delivery time and at the same time has announced the cancellation for the event of the non-delivery within the set deadline.

3. Deterioration in the asset circumstances of the customer

If an order has been accepted and if an essential deterioration occurs in the asset circumstances of the customer or if this only becomes known after the conclusion of the contract then we are entitled to refuse our services until the consideration has been effected or security has been provided for it. If the customer is not willing to do this then we are entitled to cancel all contracts existing with the customer. We can in addition forbid the resale of the goods delivered under reservation of title as well as request the hand-over at the costs of the customer immediately.

4. Corrections

Corrections no matter of what kind (e.g. texts, colours, forms, decorations) also corrections of delivery addresses, etc. require a written form. Proofs and print proofs are to be checked by the customer for set and other faults and to be returned and declared ready for printing. We shall not be liable for faults overlooked by the customer. Changes announced by telephone require the written confirmation of the customer. In case of smaller orders and set manuscripts we are not obliged to send the customer a proof. If the sending of a proof is not requested then the liability for setting errors is limited to gross fault. Setting and print proofs are also charged if an order is withdrawn.

5. Proof samples

If a proof sample is waived no matter for which reasons then all rights to file a complaint with regard to the accuracy of the text, decorative colours and decorative elements shall lapse.

6. Quality

We supply in a standard quality. Standard corresponds with the customary furnace sorting mass-produced items. Samples represent an average quality. Percentage shares of non-circular or surface-glaze porous fluctuations within the circulation/batch are to be accepted.

We generally deliver coffee mugs in mass-produced item quality as a rule from Eastern Europe or the Far East. Delivered mass-produced items with slight pinholes, impurities, etc. are not worthy of complaints. We deliver flat crockery in a very good import quality.

All of our ceramic articles concern products, which are produced from natural products according to traditional ceramic processes which can result in slight tolerances. We only deliver in sorted A- and B-quality. A good quality standard can be expected – also with mass-produced items. Printing quality (ceramic colour print):

A 100% homogeneous print image and exact gauge pins cannot be guaranteed owing to tolerances of the object which is to be printed in the direct printing. Deviations to the provided colour copy or to the print sample are therefore possible. The transfer picture process offers the best possible security of the printer result.

7. Reproduction of colours

Ceramic brightly printed colours are not produced according to pantone or HKS scales. They can merely be conditionally assimilated hereto. Also owing to thermal influences (decorating firing at 840° C), thus resulting chemical reactions and additive colour mixing of the decorative colours with the glazes underneath this, decorative colour deviations cannot be excluded. Colour deviation guidelines:

  • with white glazes deviations up to 15 % from the corrected master copy.
  • with white glazes deviations up to 5 % from the print sample which is liable to costs
  • with coloured glazes deviations up to 10% from the print sample which is liable to costs

8. Telephone

A warranty can be assumed for data sent by telephone.

9. Printing colours

In case of coloured reproductions in the ceramic colour printing slight deviations in colour can occur compared with the original as well as within the circulation and between the printproof and the circulation print. They do not entitle to a report of defects.

10. Prices

Decisive for the sales prices of our products is our price list. If not otherwise agreed our prices are deemed in € without VAT, without insurance and without other secondary costs ex our plant in the Czech Republic, Teplice or our contractual partner.

The prices cited on our part are calculated based on the wages and material costs applicable upon conclusion of the contract. Change to exchange rates, changes to freight and customs duties and other duties have not been taken into consideration. Insofar as the delivery of the goods is not carried out within 4 months after the conclusion of the contract we are entitled to increase the prices accordingly in case of increases in costs for which we are not responsible.

Copyrights and other industrial property rights are not assigned or handed over for us by us in connection with the concluded supply contracts. This shall in particular apply to layouts, graphical designs, forms etc.“

11. Warranty

The customer has to examine the goods for defects immediately after delivery and to report possible defects immediately in writing, by no later than within 7 days after receipt. The obligation of the customer to examine the delivered goods shall also exist if type samples have been sent. Technical or other defects to a part of the delivery or service cannot lead to the complaint of the whole delivery or service. If the customer concerns a merchant within the meaning of the HGB [German Commercial Code] hidden defects are to be reported immediately after their discovery in writing, by no later than within 6 months after the receipt of the goods.“ If the customer fails to make the previously stipulated written report both with the obvious as well as with the hidden defects then the delivered goods shall be deemed as approved. In case of substantiated defects which are reported in time we shall provide a guarantee by subsequent satisfaction. We shall decide hereby on the type of the subsequent satisfaction. If the subsequent improvement fails or if a substitute delivery is not possible then the customer can at his choice request reduction in the remuneration (reduction) or cancel the contract (redhibition).

The buyer is personally responsible for the accuracy of dimensions and properties stated by him, as well as for the technically impeccable solution of plans and drawings provided by him. We shall be liable subsidiary in the commercial business transactions for corresponding defects. Our buyer undertakes before a claim is asserted against us to assert a claim against third parties (in particular manufacturers or our suppliers) in court. Insofar as necessary we will assign the claims to which we are entitled against the third party to the buyer for this purpose. Only after an unsuccessful assertion in court is the buyer entitled to assert corresponding claims against us. Costs which cannot be collected from the third party shall, insofar as these are justified, be taken over by us.

12. Shipment

Subject to an agreement otherwise the shipment shall be carried out at the expense and risk of the customer. In the absence of certain instructions the shipment shall be carried out at our best discretion without a guarantee for the cheapest type of shipment. Insurance shall only be carried out with the explicit order and at the expense of the buyer.

The delivery is effected by us with the hand-over of the goods to the German railway company, post, carrier, freight forwarder or the transport company otherwise determined for the shipment. The same shall apply if the goods have been announced as ready for shipment by us to the buyer, however owing to strike, lock-out, transport block or force majeure cannot be expedited. In this case we shall store the goods at the costs and risk of the buyer in our plant or at a third party.

In the event of damages in transit the buyer has to take the measures which are necessary for determining the damages and for recognising the possible obligation for compensation by the transport company.

We are entitled to make partial deliveries as well as to issue partial invoices.

The buyer undertakes to make a suitable area for the unloading of the delivered goods available at the delivery address, to create suitable access possibilities for the delivering lorry and to ensure a danger-free unloading using a lorry crane or lifting platform. He has to ensure that persons authorized to accept the delivery are present during the delivery. Should in the absence of an unloading possibility which corresponds with this agreement or owing to the circumstance that no person authorized to representation is present for the acceptance during the delivery, a renewed service be necessary then the buyer has to bear the costs incurred by a renewed service.

In case of an unjustified refusal of acceptance by the buyer we are entitled, after setting a final deadline of 14 days to either cancel the contract or request damages owing to non-satisfaction. Without a concrete proof of damages we are entitled to request 30 % of the net price for the goods which were not accepted. The buyer and we reserve the right to prove and assert higher, lower or no damages.

We reserve the right to choose the shipping type and route. Damaged goods are only to be accepted from the transport company if the damages have been recognised thereby. Self-collectors, who do not carry out any Europallet exchange upon the collection will be invoiced € 15 per Europallet.

13. Delivered quantities

The ordered quantity is generally delivered. Surplus/shortfalls in quantities up to 10% are to be accepted with special productions and printed matter due to production-technical reasons. Ordered quantities can be rounded commercially to a minimum purchase quantity and/or to the nearest packaging unit.

14. Advertising and company designation

The customer authorizes the company Mahlwerck Porzellan GmbH that it can use the products created by order of the customer for advertising purposes. This in particular relates to advertising within the framework of trade fairs, the Internet, catalogues, brochures, etc. The customer waives insofar towards the company Mahlwerck Porzellan GmbH copyrights and other industrial property rights to which he is entitled relating to layouts, graphical designs, forms etc. for the use of advertising purposes.

The company Mahlwerck Porzellan GmbH shall receive a simple right for the use exclusively for advertising purposes within the framework of the business operation. The company Mahlwerck Porzellan GmbH is entitled to this right without the explicit consent. The granting of the right of use is free of charge for the company Mahlwerck Porzellan GmbH insofar and as long as it does not forward this corresponding entitlement to third parties.

The customer assures that should he himself not be the holder of the copyright or the individual property rights or not be entitled either to assign a corresponding simple right of use that he will ensure with the actual holders of the rights that the decisive rights are granted/a corresponding right is waived towards the supplier.

The company Mahlwerck Porzellan GmbH is in addition entitled to note its company designation on the product, the label as well as in the printed materials unless the customer explicitly refers to a neutral production of the goods.

15. Statute-of-limitations

1. The statute-of-limitations for claims and rights owing to defects to the services (no matter for what legal grounds) is 1 year. This shall not apply in the cases of §438 I 1 BGB [German Commercial Code], § 438 I 2 BGB, § 479 I BGB or § 634 a I 2 BGB. The statute-of-limitations in these cases is 3 years.

2. The statutes-of-limitations according to Par. 1 shall also apply to all claims for damages directed against us, which are associated with a defect, irrespective of the legal grounds for the claim.

3. The statutes-of-limitations according to Par. 1 and 2 shall apply under the following condition: a) The statutes-of-limitations shall generally not apply in the event of the wilful intent. b) The statutes-of-limitations shall not apply either if the defect was maliciously not disclosed on our part or insofar as a guaranteed was assumed on our part for the condition of the goods. For the event of the malicious failure to disclose a defect the legal statute-of-limitations shall apply instead of the deadlines stated in Par. 1 and Par. 2, which would apply without the existence of malicious intent. c) The statutes-of-limitations shall not apply to claims for damages in the cases of the injury to life, the body, the health or freedom, with claims according to the Product Liability Act, with a grossly negligent breach of duty or with the breach of essential contractual duties.

4. The statute-of-limitations shall begin with all claims with the hand-over to the transport company.

5. Insofar as not explicitly otherwise determined the statutory provisions concerning the start of the statute-of-limitations, the inhibition to the flow, the inhibition and the new start of deadlines shall remain unaffected.

6. A change to the burden of proof for the disadvantage of the customer is not associated with the above regulations.

16. Reservation of title

1. The goods delivered by us (reserved goods) shall remain our property until all of our current claims against the partner from the business relationship as well as the future claims, insofar as they are associated with the delivered goods, have been satisfied.

2. The buyer is entitled to resell goods which are our property in the ordinary course of business. He hereby now already assigns us all claims in the amount, which corresponds with the value of the resold object invoiced by us, from this resale. We accept this assignment. The claim share assigned to us has precedence over the other claim. Insofar as the buyer has a current account relationship with his buyer, the current account balance is assigned now already. We accept this assignment. If the reserved goods are resold together with other objects, which do not belong to us, then the claim of the buyer against his buyers is hereby now already assigned to us pro rata in the ratio of the market value of the reserved goods to the value of the other objects at the time of the resale. We accept this assignment. The claim share assigned to us has precedence over the other claim.

3. The buyer is also authorized to collect this claim after the assignment. Up to the amount of our claim which is to be secured the buyer is not entitled to dispose over the claim which is to be collected, in particular to assign it. Our authorization to collect the claim ourselves remains unaffected hereby; however we undertake not to do this as long as the buyer properly satisfies his payment obligations, is not in default of payment and in particular no application has been filed for the opening of a settlement or other insolvency proceedings or payments have been suspended. If the buyer exercises the collection authorization then we are entitled to the collected proceeds in the amount of our claim which is to be secured. The buyer undertakes at our request at all times to inform us of the names of the third party debtors of the claim concerned, to inform them of the assignment, to disclose the reservation of title and to hand over the documents to us which are necessary for the collection of the claims and provide us information.

4. Insofar as the realisable value of all collateral rights, to which we are entitled, exceeds the amount of all secured claims by more than 10 %, we shall release a corresponding part of the collateral rights at the request of the buyer; we are hereby entitled to choose the release among the various collateral rights.

5. The buyer has to store the reserved goods with the customary care and attention and insure these against the customary risks. The buyer undertakes to inform us of attachments to our collateral or of other claims, asserted by third parties with regard to our collateral immediately. In case of attachments at the same a copy of the attachment protocol and an affidavit are to be sent from which it can be seen that our reservation of title still exists and that the attached reserved goods are subject to our reservation of title; if claims have been attached then it is to be sworn in lieu of an oath that it concerns claims, which have been established from the resale of the reserved 
 goods and that these claims have been assigned to us. The buyer undertakes to provide information to us upon request at all times about the location of the reserved goods and about the claims ensuing from the resale of the reserved goods. The costs incurred by the assertion of our rights shall be for the expense of the buyer. This shall in particular apply to the in court and out-of-court costs in connection with an action according to § 771 ZPO [German Code of Civil Procedure] and thus suffered damages.

17. Liability

1. We shall only be liable owing to the breach of contractual and non-contractual duties, in particular owing to impossibility, delay, fault upon conclusion of the contract and illicit act for us and our vicarious agents in cases of wilful intent and gross negligence. Insofar as this breach of duty was not committed by us, our legal representatives or our executives, but by other vicarious agents, the liability is limited to the damages which are typical for the contract and foreseeable upon conclusion of the contract. With the injury to life, the body and health we shall be liable to an unlimited extent also for damages, which have been suffered owing to negligent breaches of duty by us ourselves or owing to a negligent breach of duty of a legal representative or vicarious agent. We shall not be liable for missed profits or other asset damages of the buyer.

2. This exclusion and this limitation to our liability shall not apply with a culpable breach by us or our vicarious agents of essential contractual duties, with the absence of warranted properties as well as in cases of mandatory liability according to the Product Liability Act.

3. With the absence of warranted properties we shall not be liable for such consequential damages from defects, which are not covered by the assurance.

4. f a claim is asserted against the buyer within the framework of the resale of our goods by his business partners for liability for defect of quality according to §§ 437 et seq. BGB then the following applies with regard to such defects which would entitle the buyer to assert liability for defect of quality against us: The buyer shall forward the report of defect to us immediately. After a decision about the entitlement to demand subsequent performance this shall be carried out directly by us. In return the buyer waives in this case claims for liability for defect of quality to which he is entitled against us in this respect. This regulation shall only apply to defects which were reported within the deadline or could not be recognised within the framework of the obligation for inspection and report of a complaint of the buyer.

18. Terms of payment

1. Mahlwerck Porzellan GmbH is entitled to  assign receivables against customers seated in Germany and other countries which belongs to the EU, for refinancing purposes to the abcfinance GmbH, Kamekestr. 2-8 in 50672 Cologne, Germany.

2. Insofar as not otherwise agreed with the buyer deliveries and services are due and payable within 10 days without deduction from the invoice date.

3. In case of non-payment despite the due date the buyer shall be charged without a reminder the statutory interest on default (with merchants 8 percentage points above the respective base lending rate). In addition we are entitled to refuse the satisfaction of all further contracts until the payment.

4.  The buyer is only entitled to assert rights of retention and to offset insofar as it concerns undisputed claims against us or those which have been declared final and binding. The assertion of a right to retention of the buyer insofar as a counter-claim is based on the same contractual relationship, is not affected hereby.

5. Bills of exchange are only accepted if this was explicitly agreed. Discount and bill of exchange charges shall be for the expense of the buyer. A collection of the bill of exchange is only carried out if they are discounted by our banks. The collection of bills of exchange is only carried out as conditional payment.

19. Partial delay, partial impossibility

If the debtor has made a partial service then the creditor can only cancel the whole contract if he is not interested in the partial service. If we are only partly in default with the delivery or if the delivery is partly impossible for us due to reasons for which we are responsible then the buyer can cancel the contract with regard to the not yet fulfilled part and/or insofar request damages owing to non-satisfaction. Only if the partial satisfaction is of no interest for him can the buyer cancel the whole contract and/or request damages owing to non-satisfaction of the whole contract.

 

20. Exchange and cancellation

If the parties agree upon an exchange or a cancellation of the ordered or delivered goods then the buyer undertakes to pay a fee in the amount of 30% of the net list price. The buyer is explicitly permitted to prove that less or no damages at all were suffered.

21. Place of satisfaction, place of jurisdiction, applicable law, partial invalidity

The place of service and performance for us and the buyer is Rosenheim, even if the hand-over is carried as agreed at another location. Insofar the partner is a merchant within the meaning of the HGB, legal entity under public law or special assets under public law, the place of performance for all delivery and payment obligations is exclusively Rosenheim. Rosenheim is the exclusively local and international place of jurisdiction for all contractual or non-contractual disputes. All other places of jurisdiction owing to a personal or factual connection envisaged by law are excluded. We are however entitled to also file an action in the individual case at the registered seat of the partner

Applicable law, escape clause, written form requirement

1. The law of the Federal Republic of Germany shall apply. The Viennese UN Convention on Contracts concerning the International Sale of Goods of 11.04.1980 is explicitly excluded.

2. Should one of the afore-mentioned provisions be or become invalid, this shall have no effect on the validity of the other provisions. The parties shall agree upon a valid provision to replace the invalid provisions, which shall as far as possible correspond with the General Business Terms on the whole as well as the contractual agreements from an actual, legal and financial point of view. The same procedure is also to be applied if the General Business Terms feature a loophole.

3. Amendments or addendums to these General Business Terms as well as other supplements require a written form in order to be valid. This shall in particular apply to the revocation of this written form clause itself.“

Mahlwerck Porzellan GmbH Managing directors Heike Hampel-Rudolph and Tobias Köckert Status 2013