General Business Terms and Conditions of
Josef Mack GmbH & Co. KG,
Gießener Str. 49, 35305 Grünberg
§ 1 Sphere of Validity
1. Exclusively these Business Terms and Conditions shall be valid for contractual agreements with Josef Mack GmbH & Co. KG. Objection shall be made to any deviating provisions. Other provisions than those contained herein shall become valid only subject to the express acknowledgment of Josef Mack GmbH & Co. KG.
2. These General Business Terms and Conditions shall also be valid for future business relationships even if they are not once again expressly agreed.
3. Oral ancillary agreements shall only then be considered to be binding if they have been confirmed in writing by Josef Mack GmbH & Co. KG. Amendments of the Terms and Conditions, including of this confirmation clause as well as the provision agreed with regards to delivery timeframes or delivery deadlines which may be agreed in binding or non-binding fashion, shall require confirmation from Josef Mack GmbH & Co. KG.
§ 2 Offers, Conclusion of the Contractual Agreement
1. Offers shall be considered to be non-binding and shall be valid for an immediate decision. Orders shall only then be binding if Josef Mack GmbH & Co. KG confirms them or it implements the order by shipping the goods.
2. The contractual agreement shall be considered to have been concluded based upon the order submitted by the Customer and the sending of a letter of confirmation or the implementation of the order by Josef Mack GmbH & Co. KG.
§ 3 Performance Obligation and Delivery
1. Delivery timeframes are always only approximate and non-binding. The delivery shall be considered to have been promptly made if the goods have left the factory or notification has been made of the readiness for shipping within the agreed timeframe. In the event of a delayed delivery, the Customer shall be entitled to no right to assert claims for a reduction of the purchase price, a rescission of the contractual agreement or damage compensation claims.
2. If the adherence to a delivery timeframe is dependent upon prompt delivery being made by one of Josef Mack GmbH & Co. KG’s own suppliers and this delivery from its own supplier fails to be made owing to reasons for which Josef Mack GmbH & Co. KG is not responsible, then Josef Mack GmbH & Co. KG shall be entitled to an appropriate extension of the delivery timeframe or a rescission of this contractual agreement. The same shall be valid for cases of force majeure or operational disruptions, particularly shortages of raw materials or energy, machine or tool failure, strikes, lockouts, transport problems or other sets of circumstances for which Josef Mack GmbH & Co. KG is not responsible. In the aforementioned cases, the Customer shall be promptly notified of the impossibility of making delivery.
3. Josef Mack GmbH & Co. KG shall be entitled to make partial deliveries.
§ 4 Cooperation Obligations of the Customer
The Customer shall be obliged to provide Josef Mack GmbH & Co. KG with the information which is required for the production of the ordered goods. This includes particularly information about the planned use of the product and/or special framework conditions under which the goods are supposed to be used.
§ 5 Prices and Payment Terms and Conditions
1. The prices are understood to be in euro ex operational headquarters of Josef Mack GmbH & Co. KG excluding the respectively valid statutory VAT without any costs for packaging and shipping. The prices for follow-up orders shall not be binding.
2. Partial deliveries shall be considered to be individual business transactions in and of themselves and shall thus be separately billed.
3. If the Customer orders a certain maximum quantity of goods (framework order) and calls them off at its designated points in time in partial quantities from Josef Mack GmbH & Co. KG (call-off orders), then Josef Mack GmbH & Co. KG shall be obliged to make delivery merely at the agreed conditions insofar as the call-off orders overall do not extend beyond the scope of the ordered quantity from the framework order. The current daily prices of Josef Mack GmbH & Co. KG shall be valid for the ordered quantity exceeding this scope or the parties shall conclude a new contractual agreement in this regard.
4. Invoiced amounts shall become payable upon the delivery of the goods and must be paid by no later than within ten days with a 2 % discount or within 30 days after the invoicing date without any discounts. The invoiced amounts up to EUR 25 shall be immediately payable without any discounts.
5. If the Customer enters into payment default, then Josef Mack GmbH & Co. KG reserves the right to bill payment default interest in the amount of 8 % above the base lending rate. In the event that the payment due date fails to be met, then payment default interest shall be incurred even without the sending of a warning letter. The right of Josef Mack GmbH & Co. KG to assert more extensive damage compensation claims shall remain unaffected.
6. The goods shall remain the property of Josef Mack GmbH & Co. KG until payment in full is made. The reservation of ownership shall be extinguished when payment in full is made for the goods. The Customer shall not be entitled to dispose of the goods which are subject to the reservation of ownership. If the reservation of ownership is extinguished through the processing of the supplied goods, then the Customer already now assigns co-ownership to the goods created through the combining/processing to Josef Mack GmbH & Co. KG. Such a conveyance shall also be replaced by the Customer providing co-storage to Josef Mack GmbH & Co. KG upon a free-of-charge basis for the new goods created through the combining/processing.
7. The Customer shall be permitted to offset only with payment claims which have been legally upheld or are undisputed or, insofar as the Customer is an entrepreneur, to exercise rights of retention owing to such payment claims.
§ 6 Shipping, Packaging, Transfer of Risk
1. The goods shall be packaged in a manner which is customary for the industry. The packaging costs shall be billed to the Customer.
2. If nothing to the contrary has been specially agreed, then Josef Mack GmbH & Co. KG shall have the discretion to choose the shipping method.
3. The risk of the destruction of the goods shall be transferred to the Customer as soon as Josef Mack GmbH & Co. KG has surrendered the goods to the transport person. This shall also then be valid if Josef Mack GmbH & Co. KG has assumed the shipping costs upon an exceptional basis. If the shipment is delayed upon the Customer’s request, then risk shall be transferred to the Customer upon the date that notification of the readiness for shipping is made.
§ 7 Tools
If tools are specially made for the Customer, then Josef Mack GmbH & Co. KG shall be entitled to bill the corresponding tool cost components separately from the price for the goods. The Customer shall acquire no rights of ownership or use and/or proprietary rights to the respective tools owing to the fee paid for the cost components for the tools.
§ 8 Notification of Defects, Warranty
1. Upon receipt of the goods, the Customer must promptly inspect them and make prompt notification in writing of any existing defects unless they are not recognisable. Delivery overages or underages of up to 10 % shall not be considered to be defects.
2. In the event that a defect is discovered, then Josef Mack GmbH & Co. KG shall have the right to choose either to make rectification or a replacement delivery. Any more extensive claims upon the part of the Customer shall be excluded.
3. If the rectification or the replacement delivery is not successful within an appropriate timeframe, then the Customer may demand a corresponding reduction of the purchase price or the rescission of the contractual agreement. The timeframe shall amount to at least four weeks.
§ 9 Liability
Josef Mack GmbH & Co. KG shall be liable in unlimited fashion in cases of intentional wrongdoing and gross negligence as well as in cases of mandatory liability and/or product liability under the law. Moreover, any liability for indirect damages or consequential damages as well as for lost profits is excluded. The liability for simple negligence shall be limited per claim to the sales price for the respective contractual object insofar as a liability limit is legally possible. Josef Mack GmbH & Co. KG shall be at liberty to avail itself of the defence of contributory negligence, particularly in the event of a violation upon the part of the Customer of its cooperation obligations specified in § 4 of these General Business Terms and Conditions.
§ 10 Industrial Property Rights, Usage Rights
1. If the goods are produced and supplied based upon a design specifically prescribed by the Customer (based upon a sketch, model or other specific requirements), then the Customer shall ensure that no industrial property rights (particularly patents, utility models or other proprietary rights and copyrights) of third parties are being violated by so doing. In this context, the Customer shall indemnify Josef Mack GmbH & Co. KG from all third-party claims which are asserted owing to such a violation and grant Josef Mack GmbH & Co. KG all required usage rights to them.
2. Josef Mack GmbH & Co. KG reserves all rights of ownership and industrial property rights to sketches, models, catalogues and other documents which it creates and supplies. The Customer is expressly not permitted to make them available to third parties, particularly competitors of Josef Mack GmbH & Co. KG.
§ 11 Miscellaneous
1. The place of performance for all performances of both parties to the contractual agreement is agreed to be the commercial residence of Josef Mack GmbH & Co. KG.
2. Insofar as this is legally permitted, the legal venue shall be the Municipal Court of Gießen.
3. Individual or all rights and obligations from this contractual agreement may be assigned to third parties only with the approval of the other party.
4. In the event that individual provisions of these General Business Terms and Conditions should be or become null and void, then the rest of the Terms and Conditions shall remain valid.