General Terms and Conditions Mahlwerck porcelain
These terms and conditions apply to all current and future contracts between the customer and us, regardless of whether they are referred to in individual cases.
General terms and conditions of the customer are not valid, even if the customer refers to them when ordering or in correspondence. General terms and conditions of the customer is hereby contradicted. Our offers in catalogs, offer and information letters or similar are always non-binding (invitatio ad offerendum). The purchase contract comes off with the acceptance of the order (order confirmation).
For the scope and execution of the order, only the provisions of the order confirmation shall apply, if such is sent to the buyer and this does not contradict in writing within 3 days after receipt of the order confirmation. Our offers are non-binding. Collateral agreements of our non-authorized employees require our written confirmation to be effective.
2. delivery time
Delivery times do not start before final clarification of the technical details regarding the ordered products. By specifying delivery times or delivery dates no fixed transaction is concluded. If no delivery dates have been agreed, but a delivery time which is determined according to certain periods of time, this begins with the date of dispatch of the order confirmation. It ends with the day on which the goods were shipped or stored for shipping inaccessible. For the duration of the test of the proofs, production samples u. a. By the customer the delivery time is interrupted in each case, and that from the day of the dispatch to the client up to the day of the arrival of an opinion. If the client requires changes to the order after placing the order, which affect the duration of the order, a new delivery time begins, with confirmation of the change. If the delivery time is exceeded due to circumstances for which we are not responsible, the client is not entitled to withdraw from the contract or to compensate us for any damage incurred. The non-compliance with a delivery time entitles the buyer to withdraw only if the delay is our fault and he sets a deadline, but at least 2 weeks, for the delivery time and at the same time in the event of non-delivery within the delivery period the deadline announced the resignation.
3. Deterioration of the financial circumstances of the customer
If an order is accepted and a material deterioration in the financial circumstances of the customer occurs, or if this becomes known only after the conclusion of the contract, we are entitled to refuse our services until the counter-performance or security has been provided for you. If the customer is not ready for this, we are entitled to withdraw from all existing contracts with the customer. We may also prohibit the resale of goods delivered under retention of title and demand the surrender immediately at the expense of the customer.
Corrections of any kind (eg texts, colors, shapes, decors) also corrections of delivery addresses etc. require the written form. Proofs and proofs are to be checked by the client for typesetting and other errors and returned ready for printing. We are not liable for errors overlooked by the client. Remote changes made require the written confirmation of the client. For smaller orders (below an edition of 250 pieces) and set manuscripts, we are not obliged to send the client a proof copy. If the sending of a proof is not required, liability for typesetting errors is limited to gross negligence. The rate and proof are also calculated when an order is withdrawn.
5. Print proof
If, for any reason whatsoever, a proof pattern is waived, then any claim for complaint regarding text appearance, decorative colors and decorative elements expires.
We deliver in standard quality. Standard corresponds to the conventional oven sorting dozen. Patterns represent a qualitative average. Percentages of non-round or surface glaze-porous variations within the overlay / batch are to be accepted.
Generally, we deliver tea cups in dozen quality items, generally from Eastern Europe or the Far East. Delivered dozen products with slight pinholes, impurities etc. is not worthy of complaint. Flatware we deliver in a very good import quality.
All of our ceramic products are products made from natural products using traditional ceramic techniques, resulting in low tolerances. We deliver only in assorted A and B quality. A good quality standard can be expected - even at Dutzendware. Print quality (ceramic color print):
An 100% homogeneous print image and accurate registration can not be guaranteed due to tolerances of the item to be printed in direct printing. Deviations from the color copy or proof pattern are therefore possible. The best possible security of the printing result is the decal process.
7. Colour reproduction
Non-colored ceramic inks are not made to Pantone or HKS scales. They can only be adapted to these conditionally. Also due to thermal influences (decorative firing at 840 ° C), resulting chemical reactions and additive color mixing of the decorative colors with the underlying glaze, color deviations in decor can not be ruled out. Color deviation guidelines:
- for white glazes, deviations up to 15% for the correction template copy.
- for white glazes deviations up to 5% to the paid proof pattern
- For colored glazes, deviations up to 10% of the fee-based proof pattern.
For data transmitted by telephone no guarantee can be given.
9. printing inks
In the case of colored reproductions in ceramic color printing, slight color deviations from the original, as well as within the overlay and between printing and printing can occur. They do not entitle to the complaint.
Decisive for the sales prices of our products is our price list. Unless otherwise agreed, our prices are in € without VAT, without insurance and without additional costs from our warehouse Teplice, Czech Republic or our contractual partner.
The prices quoted on our part are calculated on the basis of the wages and material costs valid at the time of the conclusion of the contract. Price changes, changes in freight and duties and other charges are not included. If the delivery of the goods does not take place within 6 months after the conclusion of the contract, we shall be entitled to increase the prices accordingly in case of cost increases for which we are not responsible.
Copyrights and other industrial property rights are not transferred or made available for use by us in connection with the concluded delivery contracts. This applies in particular to layouts, graphic designs, shaping etc. "
All prices subject to change and without guarantee.
The client must examine the goods for defects immediately after delivery and notify any defects in writing without delay, at the latest within 7 days after receipt. The obligation of the client to examine the delivered goods also exists if default samples have been sent. Technical or other defects of a part of the delivery or service can not lead to the complaint of the entire delivery or performance. If the client is a merchant within the meaning of the Commercial Code, hidden defects must be reported in writing immediately after their discovery, at the latest within 6 months after receipt of the goods. "If the customer omits both the obvious and the hidden If the previously written notice is missing, the delivered goods are considered as approved. In the case of timely complaints and justified defects, we provide warranty. Here we decide on the way. If two rework fail or if a replacement delivery is not possible, then the customer can, at his discretion, demand a reduction of the reimbursement (reduction) or withdraw from the contract (reimbursement).
The buyer is responsible for the correctness of the specified dimensions and characteristics, as well as for the technical perfect solution of the plans and drawings supplied to him. In business dealings we are subsidiary liable for such defects. Our buyer is obligated to take legal action against third parties (in particular manufacturers or our suppliers) prior to our claim. If necessary, we will assign the claims due to us to the third party to the buyer. Only after unsuccessful judicial assertion the buyer is entitled to assert corresponding claims against us. In the case of costs that are not recoverable by the third party, we will take over these as far as they are justified.
Unless otherwise agreed, shipping shall be at the expense and risk of the customer. In the absence of specific instructions, shipping will be made in our sole discretion without guarantee of the cheapest shipping method. An insurance only takes place with explicit order and on account of the buyer.
The delivery is effected by us with delivery of the goods to the railways, post office, forwarder, carrier or the other carrier intended for shipment. The same applies if the goods are advised by the buyer of us as ready to ship, but can not be expelled because of strike, lockout, transport lock or force majeure. In this case, we store the goods at the expense and risk of the buyer in our factory or at a third party.
In the event of damage in transit, the Buyer must take the necessary measures to ascertain the damage and to recognize any liability for compensation by the carrier.
We are entitled to partial deliveries and the provision of partial invoices.
The Buyer undertakes to make available at the delivery address a suitable area for unloading the delivered goods, to provide suitable access possibilities for the delivery truck and to ensure a safe unloading by truck crane or lifting platform. He must ensure that persons authorized to receive the delivery are present at the time of delivery. If, in the absence of any possibility of unloading as provided for in this Agreement or the fact that there is no representative present at the time of delivery, re-delivery is required, the Buyer shall be responsible for the re-delivery costs.
In the case of unjustified refusal of acceptance by the buyer, we are entitled, after setting a grace period of 14 days, either to withdraw from the contract or to claim damages for non-performance. Without concrete proof of damage, we are entitled to demand 30% of the net goods price of the goods not accepted. The proof and the assertion of a higher, lower or no damage remains for the buyer and us.
We reserve the right to choose the shipping method and route. Damaged goods are only to be accepted by the transport company if the damage is acknowledged by the transport company. Self-collectors who do not change the Euro pallet at pick-up will be charged 15 € per Euro pallet.
13. delivery volumes
In general, the ordered quantity will be delivered. Over / under-quantities up to 10% are to be accepted for custom-made products and printed matter for production-related reasons. Order quantities can be commercially rounded to a minimum order quantity and / or to the nearest packaging unit.
14. Advertising and company name
The client authorizes the company Mahlwerck Porzellan GmbH to use the products created on behalf of the client for advertising purposes. This applies in particular advertising in the context of fairs, Internet, catalogs, brochures, etc. The client waives so far in relation to the company Mahlwerck Porzellan GmbH regarding layouts, graphic designs, shaping, etc. for the use of advertising purposes for him copyrights and other intellectual property rights.
The company Mahlwerck Porzellan GmbH receives a simple right to use exclusively in the context of business operations for advertising purposes. This right is entitled to the company Mahlwerck Porzellan GmbH without express consent. The granting of the right of use is free of charge for the company Mahlwerck Porzellan GmbH, as long as this authorization does not pass on to third parties.
The company Mahlwerck Porzellan GmbH is also entitled to note their company name on the product, the label and in the printed materials, unless the client expressly refers to neutral production of the goods.
1. The limitation period for claims and rights due to defects in services (for whatever legal reason) is 1 year. This does not apply in the cases of § 438 I 1 BGB, § 438 I 2 BGB, § 479 I BGB or § 634 a I 2 BGB. The limitation period in these cases is 3 years.
2. The limitation periods according to para. 1 also apply to all compensation claims against us that are related to a defect, regardless of the legal grounds of the claim.
3. The limitation periods according to para. 1 and 2 apply with the following proviso: a) The periods of limitation are generally not valid in the case of intent. b) The periods of limitation do not apply even if the defects were fraudulently concealed from us or insofar as a guarantee for the quality of the goods was assumed on our part. In the event of fraudulent concealment of a defect, the statutory periods of limitation shall apply instead of the deadlines specified in Paragraph 1 and Paragraph 2, which would apply without the existence of malice.c) The periods of limitation do not apply to claims for damages in cases of violation of life, the Body, health or freedom, claims under the Product Liability Act, gross negligent breach of duty or breach of essential contractual obligations.
4. The limitation period begins with all claims with the transfer to the transport company.
5. Unless otherwise expressly determined, the statutory provisions on the commencement of the limitation period, the suspension of proceedings, the inhibition and the new start of periods remain unaffected.
6. A change in the burden of proof to the detriment of the client is not connected with the above regulations.
16. Retention of Title
1. The goods delivered by us (reserved goods) remain our property until all our current claims against the partner arising from the business relationship as well as the future claims in so far as they relate to the delivered goods are fulfilled.
2. The buyer is entitled to resell the goods in our ownership in the ordinary course of business. He now assigns to us all claims in the amount corresponding to the value of the resold item invoiced by us from this resale. We accept this assignment. The claim assigned to us has priority over the other claim. If the buyer has a current account relationship with his buyer, the current account balance is already assigned. We accept this assignment. If the reserved goods are resold together with other items that do not belong to us, the buyer's claim against his buyers is already assigned to us pro rata in proportion of the market value of the reserved goods to the value of the other items at the time of resale. We accept this assignment. The claim assigned to us has priority over the other claim.
3. To collect this claim, the buyer is authorized even after the assignment. Up to the amount of our claim to be secured, the buyer is not entitled to dispose of the claim to be collected, in particular to assign it. Our power to collect the claim ourselves remains unaffected; however, we undertake not to do so as long as the buyer duly meets its payment obligations, does not default on payments and, in particular, does not file for settlement or other insolvency proceedings or suspension of payments. If the buyer makes use of the collection authority, we are entitled to the collected proceeds in the amount of our claim to be secured. At our request, the purchaser is obliged at any time to name us the third party debtors of the respective claim, to inform them of the assignment, to disclose the retention of title and to provide us with the documents necessary for the collection of the claims and to provide information.
4. Insofar as the realizable value of all security interests to which we are entitled exceeds the amount of all secured claims by more than 10%, we will release a corresponding part of the security rights at the request of the buyer; We are entitled to choose between the different security rights.
5. If we accept bills of exchange as means of payment, our retention of title shall continue until it is clear that we can no longer be drawn from these bills. Due to the assigned claims with the buyer incoming changes are hereby assigned to us and endorsed. We accept this assignment. The buyer keeps the endorsed bills for us.
6. The buyer must keep the reserved goods with due care and insure them against the usual risks. The buyer is obliged to notify us immediately of seizures of our collateral or of other claims that third parties make regarding our collateral. In the event of attachment, a copy of the seizure protocol and an affidavit must be sent at the same time, from which it appears that our retention of title still exists and that the seized reserved goods are subject to our retention of title; if claims are seized, it must be affirmed on oath that these are claims that arose from the resale of the reserved goods and that these claims have been assigned to us. The purchaser is obliged to provide us with information about the whereabouts of the reserved goods and the claims arising from the resale of the reserved goods at any time. The costs arising from the assertion of our rights shall be borne by the buyer. This applies in particular to judicial and extrajudicial costs in connection with a claim pursuant to § 771 ZPO and any resulting damages.
1. For breach of contractual and non-contractual obligations, in particular due to impossibility, delay, culpa in contract and tort, we are liable for ourselves and our vicarious agents only in cases of intent and gross negligence. Insofar as this breach of duty was not committed by us, our legal representative or our executives, but by other vicarious agents, the liability is limited to the damage foreseeable at the time of the conclusion of the contract and typical for the contract. In case of injury to life, limb and health, we are also fully liable for damages that have arisen due to negligent breaches of duty by ourselves or due to a negligent breach of duty of a legal representative or vicarious agent. We are not liable for lost profits or other financial losses of the buyer.
2. This exclusion and limitation of our liability shall not apply to culpable infringement by us or our vicarious agents of essential contractual obligations, in the absence of warranted characteristics and in cases of mandatory liability under the Product Liability Act.
3. In the absence of warranted characteristics, we are not liable for such consequential damages, which are not covered by the warranty.
4. If the buyer in the context of the resale of our goods by his business partners on material defect gem. §§ 437 ff. German Civil Code (BGB), the following applies with regard to such defects which would entitle the purchaser against us to assert material defect liability: The purchaser immediately forwards the defect notification to us. After deciding on the eligibility to demand supplementary performance, this will be carried out directly by us. In return, the buyer in this case waives claims for material defect liability towards us in this regard. This regulation only applies to defects which were claimed in due time or could not be recognized within the scope of the purchaser's obligation to verify and notify.
18. terms of payment
1. Mahlwerck Porzellan GmbH is entitled to claim against refiners in Germany and other countries of the EU to abcfinance GmbH, Kamekestr. 2-8, 50672 Cologne, cede. The buyer will be informed at the conclusion of the contract whether an assignment of the claim takes place. In these cases, payments with debt-discharging effect can only be made to abcfinance GmbH. Their bank details will be communicated to the buyer upon conclusion of the contract
2. Unless otherwise agreed with the buyer, deliveries and services are due for payment within 10 days without deduction from the invoice date.
3. In the event of non-payment despite the due date, the purchaser will be charged the statutory default interest without a reminder (for traders 8 percentage points above the respective base interest rate). In addition, we are entitled to refuse to fulfill all other contracts until payment.
4. The buyer is only entitled to assert rights of retention and set-off insofar as it concerns uncontested or legally established claims against us. The assertion of a right of retention of the buyer, insofar as a counterclaim is based on the same contractual relationship, is not affected by this.
5. Bills of exchange will only be accepted if expressly agreed. Discount and bill charges are charged to the buyer. The bills of exchange are only accepted if they are discounted by our banks. The acceptance of bills takes place only on account of payment.
19. Partial delay, partial impossibility
If the debtor has effected a partial performance, the creditor can only withdraw from the entire contract if he has no interest in the partial performance. If we are partially in default with the delivery or if the delivery becomes partially impossible for reasons for which we are responsible, the buyer may withdraw from the contract with respect to the part not yet fulfilled and / or claim damages for non-performance. Only if the partial fulfillment is not of interest to him, the buyer can withdraw from the whole contract or / and claim damages for non-fulfillment of the whole contract.
20. Exchange and cancellation
If the parties agree to an exchange or cancellation of the ordered or delivered goods, the buyer is obliged to pay a fee of 30% of the net list price. The Buyer is expressly permitted to prove that less or no damage has occurred.
21. Place of fulfillment
Place of Performance, Jurisdiction Leistungsungs- u. Place of fulfillment for us and the buyer is Rosenheim, even if the transfer takes place according to agreement at another location. Insofar as the partner is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Rosenheim is the exclusive place of performance for all delivery and payment obligations. Rosenheim is the exclusive place of jurisdiction for all contractual or non-contractual disputes. Any other jurisdiction provided for by law because of a personal or material connection is excluded. However, we are entitled to bring an action in the individual case also at the place of business of the partner
22. Applicable law, Severability clause, Written form requirement
1. It is the law of the Federal Republic of Germany application. The Vienna UN Convention on Contracts for the International Sale of Goods from 11. 04. 1980 is expressly excluded.
2. Should one of the above provisions be or become ineffective, the validity of the remaining provisions remains unaffected. In lieu of the invalid provisions, the parties will come to an effective arrangement that comes as close as possible to the general terms and conditions as well as the contractual agreements in the actual, legal and economic terms. The same applies if the general terms and conditions have a gap.
3. Changes or additions to these General Terms and Conditions as well as other additions must be made in writing in order to be valid. This applies in particular to the repeal of this written form clause itself. "
Mahlwerck Porzellan GmbH Managing Directors Heike Hampel-Rudolph and Tobias Köckert Stand 2010.