General terms and condition

Microplane International GmbH & Co. KG
GTC for companies, as at: December 2015

SCOPE OF APPLICABILITY
1. Our terms and conditions of sale apply exclusively. We do not recognise terms and conditions of the principal which are contrary to or differ from our terms and conditions of sale, unless we have explicitly agreed to their applicability in writing. Our terms and conditions of sale also apply if we carry out the delivery to the principal without any reservations despite being aware of terms and conditions of the principal which are contrary to or deviate from our terms and conditions of sale.
2. All the arrangements which are made between us and the principal for the purpose of performing this contract are set out in this contract in writing.
3. Our terms and conditions of sale only apply to companies in the meaning of Article 310.1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB).
OFFERS AND PRICES
1. Our offers and prices are non-binding and shall only become binding through our written purchase order confirmation. The order submitted by you constitutes a legally binding offer for the conclusion of a purchase contract. On our website, the conclusion of the contract occurs through an e-mail sent to you marked as a purchase order confirmation. A simple order confirmation does not constitute a purchase order confirmation but only reproduces the details of your order as submitted to us. We have the right to accept the contract offer inherent in the order from you within two weeks after we receive it and thereby conclude the contract.
2. The weight and dimension data, drawings, clarifications, descriptions and images contained in the product descriptions are approximate values such as are customary in the industry and therefore do not constitute a guarantee of those properties.
3. Any subsequent changes (changes subsequent to approval of the sample) at the principal’s instigation, including production stoppages resulting from this, shall be charged to the principal.
4. If you place an order through our website, you can find and store the contractual provisions in the confirmation of the receipt of your order sent by us by e-mail before or upon the conclusion of the contract or in the purchase order confirmation. The relevant GTCs can be accessed and stored in reproducible form before and upon the conclusion of the contract under the link “Our GTC”. The text of the contract will not be separately stored by us after the conclusion of the contract, so it will no longer be possible for you to access or retrieve it after the conclusion of the contract.
5. When you place an order through our website, you can correct input errors in your e-mail with the aid of the “delete” key.
6. We reserve the right to adjust our prices in an individual case if, up to the time when the order is fulfilled, price adjustments are necessary due to exchange rate fluctuations and/or a change in the prices of raw materials occurs. If material costs or wages increase following the purchase order confirmation, we shall also have the right to increase our prices in line with the increase in costs which has occurred. The principal shall have a right of extraordinary termination if the increase exceeds 10% of the agreed price. The expenses incurred by us up to that point on material and labour costs shall be refunded by the principal.
7. The purchase contract shall be concluded subject to the condition that the performance will not be rendered or will only be rendered partially in the event that our suppliers deliver to us incorrectly or improperly. This only applies if MICROPLANE is not responsible for the failure to make delivery to us, particularly where a matching cover transaction has been concluded with our suppliers. If the performance is unavailable or only partially available, the principal shall be immediately informed and the counterperformance shall immediately be reimbursed to it.
8. As a rule, the place of performance for all contractual and legal claims is MICROPLANE’s registered office in Hamburg, unless stated otherwise in the order confirmation.
9. The language of the contract and communication is German.
PAYMENT TERMS
1. The invoice will be issued on the date when the goods are shipped.
2. Our invoices are payable within 30 days net cash without deductions, unless otherwise agreed in writing. In the event of late payment, we reserve the right to demand prepayment from the principal in the future. We reserve the right to demand prepayment from principals who are not known to us.
3. If a payment deadline is exceeded, the principal shall immediately be deemed to be in default and we shall therefore have the right to charge interest for delay in the amount of 9 percentage points over the currently applicable base interest rate of the German Central Bank (Bundesbank) per annum, from the date of default. The assertion of further claims for losses caused by delay is not excluded by this.
4. Cheques will only be accepted on account of performance and can be returned at any time. Cheques issued will only be considered payment once they have been redeemed. For foreign cheque payments we shall charge a processing fee of €15.
5. If the financial position of the principal significantly deteriorates in objective terms and this gives rise to doubt regarding its ability to make payment, we shall have the right to suspend our deliveries and services and set the principal an appropriate time limit to make prepayment or provide security, according to our choice. After the expiry of that time limit, we shall have the right to rescind the contract.
6. If the principal fails to fulfil its payment obligations, particularly if it fails to honour a cheque or if it can be proved that enforcement measures have been ineffective, the principal has ceased making its payments or insolvency proceedings have been applied for, we shall have the right to demand immediate settlement of the entire outstanding debt under the contract, including if we have accepted a cheque. In such a situation, we shall also have the right to demand advance payments or security for all other contracts.
7. The principal is only permitted to set off with possible counterclaims if they are undisputed claims or have been acknowledged by us or established with legally binding effect. The assertion of a right of retention by the principal is excluded if those claims are not based on the same contractual relationship.
8. Any errors in our invoices must be reported within eight days from the receipt of the invoice. If the recipient of the invoice fails to make any objection for a longer period, this shall be deemed to constitute implicit acknowledgement of the correctness of the invoice.
RETENTION OF OWNERSHIP
1. We shall retain the ownership title to the purchased goods until all the payments under the supply contract have been received. If the principal breaches the contract, particularly if it defaults on payments, we shall have the right to take back the purchased goods. If we take back the purchased goods, it will constitute rescission of the contract. After we have taken back the purchased goods, we will have the right to utilise them. The proceeds of such utilisation shall be credited to the principal’s liabilities, less reasonable utilisation costs.
2. The principal must handle the purchased goods with due care. In particular, it must adequately insure them, at its own expense, (for the replacement value) against losses in the event of fire or water damage or theft. If maintenance and inspection work is necessary, the principal must carry it out at its own expense and in good time.
3. In the event of attachments or other interventions by third parties, the buyer must immediately notify us in writing, so that we can take legal action under Article 771 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO). If the third party is unable to reimburse us for the court and out-of-court costs of a lawsuit under Article 771 ZPO, the principal shall be liable for the loss we have incurred.
4. The principal has the right to resell the purchased goods in the course of normal business. However, it assigns to us already now all receivables, in the amount of the final invoice amount (including VAT) of our receivables, which arise for it from the resale against its customers or third parties, irrespective of whether the purchased goods have been resold without or after processing. The buyer shall still have the right to collect those receivables after the assignment. Our authorisation to collect the receivables ourselves remains unaffected. However, we undertake not to collect the receivables as long as the principal fulfils its payment obligations from the collected proceeds, does not default on payments and, in particular, no application has been submitted for arrangement or insolvency proceedings to be opened and no cessation of payments has occurred. However, if this is indeed the case, we will be able to demand that the principal inform us of the assigned claims and the debtors, provide us with all the information necessary to collect the claim and the relevant documents, and notify the debtors (third parties) of the assignment.
5. We undertake to release the security to which we are entitled at the principal’s request to the extent that the realisable value of our security exceeds the claims to be secured by more than 10%. The choice of which security to release will be made by us.
DELIVERY CONDITIONS
1. Where delivery is to Germany and the order value amounts to €250.00 net or if delivery is to Italy, France or Ireland and the order value amounts to €350.00, delivery will be carriage paid. For orders under €250.00 / €350.00 net, a low-quantity surcharge in the form of a freight and shipping fee of €5.00 net for Germany and €15.00 net for Italy, France and Ireland will be charged.
  Where delivery is to Great Britain and the order value amounts to £250.00 net, delivery will be carriage paid. For orders under £250.00 net, a low-quantity surcharge in the form of a freight and shipping fee for Great Britain of £10.00 net will be charged.
  In the rest of the EU, delivery will be carriage paid from an order value of €1,000.00 net. For orders under €1,000.00 net, €50.00 net will be charged in the form of a freight and shipping fee.
2. Delivery deadlines and periods are only effective if we have explicitly confirmed them. Delivery periods begin on the date of our purchase order confirmation, but not before all the details of the purchase order have been fully clarified and not before the receipt of the documents to be provided by the principal or before the receipt of any agreed advance payment.
3. If no delivery deadlines have been agreed but instead a delivery term based on specific periods of time, it shall begin on the date of approval. Correction templates, print proofs and similar items by the principal should be considered approximate. If the principal requests changes to the purchase order after the purchase order confirmation which affect production time, a new delivery period shall begin upon confirmation of the changes.
4. The delivery period shall end on the date when the goods leave the supplying factory or are placed in storage if it is not possible to ship them.
5. Blanket orders are considered fixed orders and must be called off with binding effect within three months, unless otherwise agreed.
6. Shipping will be carried out for the principal’s account and at its risk, including in the case of “free shipments”. The risk transfers to the principal as soon as the shipment is handed over to the party responsible for transportation. If handover or shipment is delayed due to circumstances for which the principal is responsible, the risk shall transfer to the principal from the date when the goods are ready to be shipped.
7. We reserve the right to select the type and route of the shipment, unless otherwise agreed in the respective order. Transit insurance will only be taken out if it is explicitly requested by the principal and at its expense.
8. We have the right to carry out partial deliveries (which will be due for payment under our payment terms), provided that the partial deliveries are reasonable for the principal.
9. If there is an event of force majeure or other unforeseeable circumstances beyond our control, such as difficulties in obtaining materials, industrial disputes, operational disruptions, vandalism, interventions by governmental authorities or energy shortages, whether in our company or at our upstream suppliers, which obstruct us in the fulfilment of our delivery obligation, the delivery period shall be extended by the duration of the obstruction, taking into account a reasonable lead time. If the obstruction is not expected to end within a reasonable period of time, we shall have the right to rescind the contract in part or in whole, without any obligation to provide an additional delivery or pay compensation. Such rescission shall not affect our claims from any partial deliveries carried out.
10. Claims of the principal for compensation for losses due to late delivery and claims for compensation for losses in lieu of performance which exceed the limits referred to in section 5.10 shall be excluded in all cases of late delivery, including after the expiry of a time limit for additional delivery set for us. This does not apply in the event of mandatory liability in cases of wilful misconduct or gross negligence or due to loss of life or injury to the body or health. The principal will only be able to rescind the contract under the provisions of law if we are responsible for the late delivery. The above provisions do not imply any change in the burden of proof to the principal’s detriment.
11. The principal shall be obliged, at our request, to declare within a reasonable period of time whether it wishes to rescind the contract due to the delay or insists on receiving the delivery.
12. If, at the principal’s request, the shipment or delivery are delayed for more than one month after notification that the goods are ready to be shipped, we will be able to charge the principal a storage fee for each commenced month in the amount of 0.5% of the price of the delivered goods, but no more than a total of 5%. The parties’ right to provide proof of higher or lower storage costs remains unaffected.
ACCEPTANCE DEFAULT BY THE PRINCIPAL
1. If the principal defaults on acceptance or on its payments, the risk of accidental loss or accidental deterioration of the goods shall transfer to it at the moment from which it is late in accepting delivery, in which case we shall also have the right to set it a reasonable additional time limit and after the expiry thereof either (at the principal’s expense) place the uncollected goods in storage ourselves, charging a storage fee in accordance with section 5.13, or place them in storage with a carrier. Our rights to rescind the contract and demand compensation are not affected by this.
2. In connection with a claim for compensation for losses, we will be able to demand 15% of the agreed price as compensation without providing proof, unless the principal proves that we incurred no losses at all or losses significantly lower than the flat charge.
WARRANTY
1. The contract partner must examine the goods immediately after delivery to ensure they are free from defects. Any complaints regarding obvious defects or obvious discrepancies in the quality/characteristics of the goods or due to the delivery of obviously different goods than those ordered must be submitted to us by the contract partner in writing without delay and no later than within three business days after delivery or, if the defect was not identifiable in the course of an immediate examination, one week after the discovery of the defect. If obvious defects are not reported in good time and in accordance with formal requirements, the warranty shall be forfeit in that respect. The examination and complaint obligations under Article 377 of the German Commercial Code (Handelsgesetzbuch) remain unaffected.
2. The warranty period amounts to one year from the delivery of the goods. This does not apply if the purchased goods are usually used for a building structure and caused the defect. The time limitation periods for claims in the event of recourse against the supplier in accordance with Articles 478 and 479 BGB and for claims for compensation based on loss of life or injury to the body or health are not affected by this and continue to exist without limitation.
3. Claims for defects shall not exist with regard to only minor deviations from the agreed characteristics/quality or with regard to only a minor impairment of usability. Tolerances which are customary in the trade and industry do not constitute grounds for complaints. Short or excess deliveries by up to 10% must be accepted by the principal. In the manufacturing of plastic products and similar goods, it is technically impossible to avoid a relatively limited number of defective goods and a share of up to 5% of the total volume is exempt from complaint, irrespective of whether the defect lies in the processing or in the printing.
4. In the event of legitimate complaints submitted in good time, we reserve the right to first provide a supplementary performance according to our choice, i.e. to eliminate the defect or replace the defective goods (which must be returned to us by the principal) free of charge with new goods which are compliant with the contract (replacement delivery). If the supplementary performance fails twice, according to its choice the principal will be able to demand the rescission of the contract or a reduction in the remuneration.
5. If the principal is otherwise entitled to a claim for compensation for losses in lieu of the performance due to a negligent breach of obligation, our liability shall be limited to compensation for the foreseeable, typically occurring losses.
6. Claims for compensation for losses are also subject to section 8. Claims of the principal against us or our vicarious agents due to material defects which are more far-reaching than or different to those regulated under section 7 are excluded.
7. If the principal complains about the delivery or parts thereof, no item of the goods subject to the complaint may be used, processed or passed on. If this nevertheless occurs, the principal is thus depriving us of our right to examine the goods subject to complaint and therefore makes its complaint invalid. This provision has no effect on the allocation of the burden of proof.
OTHER CLAIMS FOR COMPENSATION
1. More far-reaching liability for compensation for losses than that provided for in section 7 is excluded, irrespective of the legal status of the claim asserted. This particularly applies to claims for compensation for losses based on culpability upon the conclusion of the contract, due to other breaches of obligation or due to tortious claims for compensation for property damage in accordance with Article 823 BGB.
2. The limitation under section 8.1 also applies if, instead of a claim for compensation for losses, the principal demands the reimbursement of unnecessary expenses in lieu of the performance.
3. If liability for compensation for losses is excluded or limited with regard to us, this will also apply with respect to the personal liability for compensation for losses of our employees, contractors, representatives and vicarious agents.
4. This shall not apply in the event of mandatory liability, for example in accordance with the German Product Liability Act (Produkthaftungsgesetz), in cases of wilful misconduct or gross negligence, in the event of loss of life or injury to the body or health, or due to a breach of key contractual obligations. In the event of such damage for which mandatory liability applies, there will therefore also be no shortening of the time limitation period.
5. The claim for compensation for losses for a breach of key contractual obligations is limited to the foreseeable losses under a typical contract up to the insured amount under our liability insurance, up to the amount of €500,000 per event of damage, provided that this insured amount is in reasonable proportion to the risk of losses under a typical contract and provided that neither wilful misconduct nor gross negligence occurred and no liability has arisen due to loss of life or injury to the body or health. The above provisions do not imply any change in the burden of proof to the principal’s detriment.
COPYRIGHT
1. MICROPLANE holds the copyright to all product images, product descriptions, trademarks and other promotional materials provided by it and shall grant the principal a usage right to them for its website exclusively in a separate written contract, appropriately taking into account the other brand presentation / quality standards of the MICROPLANE brand. The usage right can be revoked at any time.
2. The downloading of content from the website http://home.microplaneintl.com is only permitted for private use and not for commercial use. The use of the content of that website on another website or in network environments is not permitted.
3. Irrespective of the above provisions, information, brand names and other content of the website http://home.microplaneintl.com cannot be altered, copied, reproduced, supplemented or otherwise utilised without prior written approval. Besides the usage rights granted in these provisions, the user of the website http://home.microplaneintl.com will not be granted any other rights of any type whatsoever, particularly to the business name or intellectual property rights.
DISPLAY USAGE
Any displays provided free of charge by MICROPLANE remain the property of MICROPLANE. MICROPLANE grants the customer an anytime revocable license for the displays provided . The displays are to be populated exclusively with products from MICROPLANE. MICROPLANE sales representatives are entitled to change the product placement within the display and remove any products other than MICROPLANE products.
PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW AND FINAL PROVISIONS
1. The place of performance for all obligations stemming from the contractual relationship is Hamburg, unless otherwise stated in the order confirmation.
2. For all current and future claims stemming from the business relationship with traders, including cheque claims, the exclusive place of jurisdiction is Hamburg. However, we also have the right to take legal action against the principal at its jurisdiction of domicile. This also applies if the principal has no general place of jurisdiction in Germany or if its place of residence or habitual residence are not known at the time when the action is filed.
3. The legal relationships between the contract parties are exclusively subject to German law. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
4. Should individual provisions of this contract be void or ineffective, in part or in whole, the effectiveness of the other provisions hereof shall not be affected.