1.    Scope, definitions

The present General Terms and Conditions of Sales and Delivery (hereinafter: "GTC") apply exclusively to contracts concluded by MANN+HUMMEL GmbH or its affiliated companies  (hereinafter: "M+H") and the Customer for the sale and delivery of   products presented in the M+H webshop  in Europe (hereinafter: "Products"). The GTC only apply if the customer is an entrepreneur, a legal entity of public law or a special fund of public law. The GTC are deemed accepted upon placement of an order or at the latest, once the Products are received. M+H hereby expressly objects to any deviating or supplementary terms and conditions of the customer. The customer's terms and conditions only apply if M+H has expressly agreed to them in writing. Individual written agreements and information in the order confirmation of M+H take precedence over the GTC. In the scope of these GTC, affiliated company means any legal entity that directly or indirectly controls, is controlled by, or is under common control with a party, with "control" meaning direct or indirect ownership of more than 50% of the voting rights or capital of the legal entity concerned.

 

2.    Contract conclusion

2.1 Any quotes of M+H displayed on the webside are subject to change and non-binding until confirmation by e-mail to the Customer. The displayed Products are subject to a submission of a binding offer by the Customer to M+H. The Customer submits the offer by using the online order form which is integrated in the M+H webshop. Therefore the Customer places the product in the virtual shopping cart and followes the electronic ordering process. By clicking the button "Order", the Customer submits a legally binding offer to M+H. The Customer will receive a notice that M+H received Customer’s offer by e-mail which is no order confirmation. . M+H accepts Customer’s offer  by confirmation via e-mail, delivery of  the ordered Products or by sending the Customer an invoice. If several of the alternatives mentioned above take place , the contract shall be concluded at the time one of the mentioned alternatives occurs first. Delivery date as well as type and quantity of the delivery are determined exclusively by the order confirmation issued via e-mail. . Any declarations made verbally or by telephone by representatives of M+H are legally binding only if they are confirmed in writing or in text form.

2.2 M+H reserves all property and copyrights to price estimates, concepts, designs, drafts, drawings and other documents. They may be changed or made available to third parties only with the express permission of M+H. Drawings and other documents provided in the context of a quote must be returned to M+H at any time upon request in compliance with the statutory retention periods and in any case if the order is not placed with M+H. If M+H delivers items according to drawings, models, samples or other documents provided by the customer, the customer must ensure that no third-party industrial property rights are infringed. If a third party invokes property rights to prohibit, in particular, the production and delivery of such items, M+H will be entitled to suspend all relevant activities and to claim damages, without being obligated to analyze the legal situation (also see Sec. 8 Para..3). Moreover, the customer will indemnify M+H without undue delay against any third-party claims relating to documents which the customer has made available to M+H.

2.3 M+H is entitled to procure the materials for the entire order and to produce the entire order quantity without undue delay. Any change requests made by the customer after placing the order therefore cannot be considered, unless expressly stipulated otherwise.

 

3.    Statement of work

3.1 The quality of the Products is described exclusively by the specifications expressly stipulated or defined on M+H’s webshop. No further warranties and representations regarding the quality and fitness for a particular purpose are agreed and hence are excluded. All other Product features require an additional express written agreement. In this regard, in particular, the ordinary use of the product or the condition of the product, the accessories or the instructions that the customer can expect without further agreement are not relevant. .Apart from that, the risk of suitability and use is borne exclusively by the Customer.

3.2 Product details (e.g. as stated in the webshop, any catalogues, product information, electronic media or on labels) as well as information in designs, drawings, calculations and other documents are based on the general experience and knowledge of M+H. They only serve as reference values or identification and are non-binding. These Product details as well as any expressly stipulated features or application purposes, do not release the Customer from the obligation to test the Product for the Customer's intended purpose and to take suitable measures for adequate storage.

 

4.    Delivery and delivery deadlines

4.1 Products are generally delivered on dispatch route and to the delivery address stated by the Customer in the order, unless agreed otherwise. During the processing of the transaction, the delivery address indicated in the Customers order processing is crucial.
4.2 The delivery times are provided for information purposes only and are not binding. This does not apply if a fixed delivery date is expressly stipulated, i.e. if a written communication is issued and M+H confirms in writing that the Customer has no further interest in the delivery after the agreed date. Confirmed delivery dates presuppose correct, complete and timely pre-supply and material availability at M+H’s production process. Delivery deadlines are deemed met if the delivery item has left the M+H plant prior to expiration of the deadline or if M+H has informed the Customer that the order is ready for dispatch. The delivery deadlines start to run only once the Customer has duly met its respective contractual obligations, such as, for example, the provision of technical data and documents, approvals as well as compliance with the stipulated terms of payment or other obligations.

4.3 M+H is entitled to make partial deliveries. M+H also reserves the right to make excess or short deliveries within 1%.

4.4 Force majeure or other circumstances which are out of the control of M+H and entail unforeseeable consequences for the performance will release M+H from the contractual obligation while these events continue, even if M+H is in default. This includes, in particular, interruptions of operation, fire, labor disputes - including labor disputes affecting suppliers, delays in delivery as well as non-performance or inadequate performance by suppliers, labor shortages, raw material shortages, epidemics and pandemics, official orders, curfews, import and export restrictions, war, terrorist attacks, floods, earthquakes, cyberattacks and other natural events. This does not entail an automatic termination of the contract. M+H will inform the Customer without undue delay about the event of force majeure and the discontinuation thereof.

4.5  If M+H is unable to meet binding delivery deadlines for reasons for which M+H is not responsible (non-availability of the performance), M+H will inform the Customer thereof without undue delay and at the same time will provide the anticipated new delivery period. If the performance again is not available by the new delivery period, M+H will be entitled to rescind the contract as a whole or in part; M+H will without undue delay refund any consideration already paid by the Customer. Non-availability of the performance in this sense includes in particular the failure to receive own deliveries by a supplier, if M+H has concluded a congruent hedging transaction, neither M+H nor M+H’s supplier are at fault, or M+H is not under any procurement obligation in the individual case.

4.6 If the Customer is in default in acceptance, fails to cooperate or if the delivery of M+H is delayed for other reasons for which the Customer is responsible, M+H will be entitled to demand compensation for the resulting damage, including for additional expenses (e.g. storage costs). To this end, starting from the delivery deadline or the notification that the Products are ready for shipment, M+H will charge a lump-sum compensation in the amount of 0.5% of the net remuneration (value of the delivery items) per calendar week, up to a maximum total of 5% of the net remuneration. Evidence of greater damage and the statutory claims (in particular compensation for additional expenses, adequate compensation, termination) will not be affected; however, the lump sum will be offset against any further monetary claims. The Customer has the right to demonstrate that M+H has not incurred any damage at all or only significantly less damage than the above lump sum.

4.7 The occurrence of a default in delivery is determined in accordance with the respective applicable statutory provisions. In any case, however, a reminder from the Customer is required.

4.8 If the Products are sent to the Customer, or at Customer's request to a third party, the risk of loss or damage to the Products is transferred to the customer once the Products have left the M+H plant or warehouse, at the latest. This applies irrespective of the stipulated shipping point and irrespective of which party bears the transport costs.

4.9 Unless expressly stated otherwise, each delivery will be made FCA pursuant to INCOTERMS 2020, as published by the International Chamber of Commerce (ICC).

4.10 The obligation of M+H to provide data relevant to foreign trade is limited to non-preferential origin as defined in Article 59 et seq. of Regulation (EU) No 952/2013 of the European Union's Customs Code and the subheading of the combined nomenclature, both of which are indicated in our invoices. M+H does not issue declarations of preferential origin (supplier declarations/movement certificates/declarations of origin on invoices).

4.11 Unless otherwise agreed deliveries will be made FCA according to INCOTERMS 2020. 

 

5.    Prices and payment

5.1 The price stated on the webshop is  the price excluding the statutory value added tax and the  price with value added tax. The Customer’s price depends on the entitlement to deduct pre-tax. Transport and packaging costs are not included, unless indicated otherwise in the webshop.

5.2 Unforeseen changes in costs over which M+H has no control, e.g., the costs for raw materials, salaries, energy, entitle M+H to adjust the prices on the webside accordingly.

5.3 In the case of partial deliveries, each delivery may be invoiced separately.

5.4 The purchase price for the Products is due immediately by choosing advance payment or by choosing payment via invoice within 14 days from the invoice date and payable into M+H’s the bank account without any discounts. Any discount must be expressly stipulated in writing. A delivery to the Customer "on account" requires that the credit check of the Customer was not negative or that M+H has doubts regarding the creditworthiness of the Customer. M+H can refuse delivery on account at any time and demand "payment in advance" from the Customer.

5.5 Upon expiry of the payment period laid down in Sec. 5 Para. 3, the Customer will be in default without the need for a separate reminder. If the Customer is in default in payment, M+H may charge interest for the duration of the default at a rate of 9 percentage points above the applicable base rate. The right of M+H to assert additional damages or other costs will not be affected.

5.6 Moreover, in the event of a default in payment by the Customer, M+H will be entitled to either call in any outstanding part payments of the purchase price or other claims against the Customer due and payable and to offset against Customer's counter-claims. M+H will furthermore be entitled to demand security from the Customer for future deliveries under this or other contracts, advance payment prior to delivery or delivery against payment.

5.7 The Customer may offset or retain payments only if its counter-claim is undisputed or has been finalized.

5.8 In the event that customers are entitled to deduct value-added tax, the customer will provide M+H with all supporting documents required for tax purposes by the applicable statutory provisions. In case of non-compliance, upon receipt of an adjusted invoice, the Customer will cover all value added tax claims and interest imposed on M+H by the tax authorities. The Customer must inform M+H without undue delay in case of invalidity or any changes of its VAT identification number.

5.9 If the purchase price for VAT purposes is paid by way of credit memo, the Customer bears the sole responsibility for compliance with the value added tax provisions on invoices. M+H is not liable for any damage resulting from the credit memo procedure, e.g., refunds of input tax and payment of interest by the customer to the competent tax authorities.

5.10 The petition for the opening of insolvency proceedings or similar proceedings under foreign law, issuing an asset disclosure, emerging payment difficulties or the discovery of a major deterioration in the customer's financial situation will entitle M+H to suspend deliveries immediately and to refuse the performance of current contracts, unless the Customer pays the relevant consideration or, at the request of M+H, offers corresponding securities or advance payments. The Customer is obligated to notify M+H without undue delay of the circumstances specified in sentence 1 and to disclose the financial status as well as its creditworthiness.

 

6.    Reservation of ownership

 

6.1 M+H reserves ownership of any and all delivered Products until all claims of M+H against the Customer under the respective order have been met, including conditional and ancillary claims. All of the above provisions also apply to future claims.

6.2 The Customer is entitled to resell the reserved Products in the regular course of business. However, the Customer hereby assigns to M+H all claims in the amount of the purchase price stipulated by and between M+H and the Customer (including VAT), which the Customer acquires from the resale to third parties, irrespective of whether the Products are resold without or after processing. M+H accepts this assignment. After the assignment, the Customer is authorized to collect these claims. The authority of M+H to collect the claims itself will not be affected. M+H undertakes not to collect the claims while the Customer duly meets its payment obligations and is not in default in payment. If such a case occurs, M+H may demand the Customer to disclose the assigned claims and their debtors, to furnish all information required for collection, to surrender the related documents and to notify the debtors (third parties) of the assignment. Moreover, M+H reserves the right to revoke the consent to resale for good cause (e.g. in case of default in payment by the customer).

6.3 The reservation of ownership also extends to products created by processing, commingling or combining the Products at their full value, with M+H deemed the manufacturer in such case. If third-party property rights survive the processing, commingling or combination with products of such third parties, M+H will acquire co-ownership in the ratio of the value of the delivered products relative to the other processed objects at the time of such processing, commingling or combining. Moreover, the provisions applicable to the delivery of reserved goods also apply to the resulting product.

6.4 The Customer will keep the items (co-) owned by M+H with the diligence of a prudent businessman free of charge for M+H and insure them against fire, burglary and other usual risks. Upon request, the Customer will furnish M+H with adequate proof of the above insurance policy/policies.

6.5 In the event of a material breach of contractual obligations (e.g. in case of default in payment) by the Customer, M+H may demand that the Products be returned without undue delay, giving adequate consideration to the Customer's legitimate interest. The Customer hereby agrees in advance to return the Products in such cases. The return of the Products will be considered a rescission of the contract only if this is expressly indicated by M+H. All costs arising from the return of the Products (in particular the transport costs) will be borne by the Customer. Unless M+H expressly rescinds the contract, the Customer may demand delivery of the Products only once the purchase price and all costs have been paid in full.

6.6 The Customer must not pledge or assign as security any delivered reserved Products or any Products processed or manufactured on behalf of M+H. The Customer must inform M+H without undue delay of any pledge or other impairment of the property rights of M+H by third parties and confirm the property right of M+H to the respective Product both to M+H and also to third parties in writing. The Customer will bear all resulting costs for legal measures.

6.7 In the event that the reservation of ownership under Sec. 6 Para. 1 must be publicly registered or if some other form of cooperation on the part of the Customer is required for it to be effective, the Customer hereby irrevocably consents to such registration and acknowledges and agrees to take all required steps at its own expense.

 

7.    Defects

7.1 For defects of Products delivered by M+H, M+H will only be liable in accordance with the following provisions.

7.2 The Customer must inspect the Products without undue delay upon receipt and notify M+H without undue delay about any obvious defects. If a hidden defect is subsequently detected in the regular course of business, the Customer must inform M+H of such defect without undue delay upon its detection. If the Customer fails to duly perform an inspection and/or to report the defects, any liability on the part of M+H for a defect not notified in good time or not duly notified will be excluded.

7.3 The liability for defects is primarily based on the agreement made on the quality of the Products (see Sec.. 3).

7.4 The Customer gives M+H permission to inspect allegedly defective Products without undue delay. The Customer has to give M+H access to the Products upon  request and at the expense of M+H. M+H may demand that the Customer reimburses M+H for the costs incurred due to an unjustified request for defect removal (in particular, inspection and transport costs).

7.5 If the Product is defective, the Customer may demand subsequent performance. In such case, M+H may at its own discretion decide to rectify the defect or to make a replacement delivery. The right of M+H to refuse subsequent performance under the statutory conditions will not be affected. In case of a replacement delivery, the Customer will be obligated to return the defective Products upon request. Subsequent performance does not include the dismantling, removal or disassembly of the defective item or the installation, fitting or assembly of a defect-free item if M+H was not originally obligated to perform these services; claims of the Customer for reimbursement of corresponding costs ("dismantling and assembly costs") remain unaffected (cf. Clause 7.9).

7.6 In the event of a defect, the Customer will have a right of retention only if this is reasonably proportionate to the respective defect and to the expected costs of subsequent performance and if the Customer's counter-claim is based on the same contractual relationship. Besides M+H is entitled to make the subsequent performance owed to the Customer dependent on the Customer’s payment of the  due purchase price.

7.7 The Customer may rescind the contract or reduce the purchase price if the defect has not been removed even after two subsequent performance attempts, if subsequent performance is associated with disproportionate costs, is unreasonable or must be deemed failed for other reasons. Rescission is excluded, however, if the breach of duty by M+H is only minor.

7.8 Claims for defects cannot be asserted in case of only minor deviations from the stipulated quality or a minor impairment of the fitness for use or if the defect is due to a violation of the operating, maintenance or installation instructions or to unsuitable or improper or excessive use, or storage. This also applies in case of incorrect or negligent handling or assembly, natural wear and tear or any interference with the Products by the customer or a third party or use contrary to the specifications defined by M+H.

7.9 The Customer cannot assert costs in the context of subsequent performance, reversal or claims processing, in particular, installation and removal costs, testing, validation, transport, travel, labor and material costs: (a) insofar as such costs have been incurred because after the transfer of risk, the delivered Products have been moved to a location other than the stipulated place of performance, or (b) when the costs were incurred, i.e., usually upon delivery, and in any event at the time of installation, processing or modification of the goods, at the latest, the Customer knew of or could have detected the defect. However, this will not apply if such a movement is in line with the normal use of the Products and if M+H is aware of this.

7.10 Claims due to defects of quality and title of the delivered Products, including Claims for damages related to a defect – for any legal grounds whatsoever – will lapse within one (1) year from delivery of the Products. In case an acceptance has been agreed, the limitation period shall start with the acceptance at the latest. A mere statement by M+H regarding a claim for defects asserted by the Customer cannot be considered an entry into negotiations regarding such claim or the circumstances giving rise to such claim and has no suspensive effect in this regard. In the event of subsequent performance, the limitation period will not begin to run again. 

7.11 Damages and reimbursement of costs may only be asserted pursuant to Sec. 8.

7.12 The Customer cannot assert the above claims for Products that M+H, upon mutual agreement, does not deliver as new Products.

7.13 In the event of a possible recall of Products, the parties will coordinate closely, with the decision on a recall ultimately to be made by M+H, unless a recall is ordered by the public authorities. The Customer will inform M+H without undue delay if it receives complaints that may relate to a potential recall. In the event of a recall, the Customer will assist M+H in any reasonable and necessary manner. The Customer will in such case issue a press release or make any other public announcement or communication to authorities in relation to a recall only without the prior consent of M+H.

7.14 Claims regarding supplier recourse under German law are excluded if the defective goods have been further processed by the customer or another entrepreneur, e.g. by incorporation into another product.

 

8.    Liability

8.1 For any damage, in particular due to a breach of the duty of care upon conclusion of the contract, a breach of duty or an unlawful act, M+H will only be liable in case of willful intent or gross negligence.

8.2 For any damage due to culpable injury to life, limb, or health or due to a breach of material contractual obligations, M+H will also be liable in case of slight negligence. Contractual obligations are deemed "material" if meeting them is a prerequisite for the due performance of the contract and if the customer usually does and indeed may rely on them being met. In the event of a breach of a material contractual obligation, the liability of M+H will be limited to the typical damage that is usually reasonably foreseeable at the time of concluding the contract. This will also apply in case of any breach of duty by employees or vicarious agents

8.3 M+H will be liable for infringements of third-party industrial property rights in relation to the sale of the Products of M+H according to the above provisions, only if industrial property rights that are valid and published at the time of delivery in the country of delivery are infringed during proper use of the Products. This will not apply if M+H has produced the Product pursuant to drawings, models or any other descriptions or data provided by the Customer and if M+H did not know of, or it was not the case that it should have known of, any infringement of industrial property rights in relation to the developed Product. In this case the customer of M+H will be liable for any already occurred or future infringements of third-party industrial property rights. The Customer undertakes to inform M+H without undue delay of any possible and suspected cases of infringement of third-party property rights that the customer is aware of and to indemnify M+H against the claims, costs and expenses of third parties.

8.4 The liability of M+H in respect of product liability and in case of malicious non-disclosure of a defect will not be affected by the above provisions.

8.5 The Customer will have right of recourse against M+H only if the Customer has not concluded agreements with its own Customers that go beyond the statutory mandatory warranty claims and liability provisions. Unless stipulated otherwise in writing, Sec. 7 and 8 will apply accordingly to any redress claims asserted by the Customer. The liability of M+H will be excluded if the Customer has effectively limited the liability towards its own Customers. The Customer will in this regard use its best efforts to stipulate limitations of liability to the extent permitted by law, including for the benefit of M+H.

8.6 Any further liability for indirect damage, consequential damage or other intangible damage related to this contract is excluded. In particular, M+H will not be liable for lost profit, futile expenses, interruption of operations or loss of production.
 

9.    Confidentiality

9.1 The Customer must keep all technical and commercial knowledge, trade secrets and other information it has obtained from M+H in connection with the business relationship ("Confidential Information") at all times strictly confidential from third parties, including after the termination of the business relationship, unless the Customer is able to demonstrate that the Confidential Information (i) is already known to the customer or is in the public domain at the time of disclosure or that it subsequently becomes publicly known without any fault on the part of the Customer, (ii) that it was subsequently fully developed by the Customer, independently of the Confidential Information, or (iii) that the Customer became aware of it through a third party, without breach of any confidentiality obligation. The Customer undertakes to protect the obtained Confidential Information in the same way as it protects its own confidential information as a prudent businessman in its own affairs.

9.2 M+H will remain the sole owner of all documents, in particular of drawings containing Confidential Information that are disclosed in the course of the business relationship. Such documents must be returned to M+H upon its request, and in any event at the end of the business relationship, at the latest. The Customer has no right of retention in respect of Confidential Information, documents or materials containing Confidential Information.

9.3 The disclosure of Confidential Information does not establish any industrial property rights, rights to know-how or copyrights on the part of the customer and does not constitute a prior publication or right of prior use pursuant to the applicable patent, design and utility model laws. Any kind of licensing is subject to a written agreement.

 

10.  Data protection

10.1 The contracting parties may provide each other with personal data in the course of the performance during the contractual relationship. The processing and transfer of such data will be done in accordance with applicable data protection laws. In particular, each contracting party will require its own employees to maintain the confidentiality of data pursuant to the applicable data protection laws if such employees have access to personal data. Each contracting party is a controller in respect of personal data processing.

10.2 Further information on the processing of personal data by M+H is available in our information on this webside under the following link: www.mann-hummel.com/dataprocessing 

 

11.  Place of performance and jurisdiction, miscellaneous

11.1 The contract or subsequent amendments to the contract as well as other declarations of intent have to be in writing to be effective. The written form shall be complied with by electronic form (at least simple electronic signature of providers such as Docusign), unless the law or the contract stipulate a stricter form requirement. The formal requirement is also met by signing a scanned PDF version and sending it by e-mail or by sending a PDF document with a facsimile. A waiver of this formal requirement requires the same form. Verbal agreements are not permitted and shall not be made.

11.2 Should any provision of these GTC or a future supplement be wholly or partially invalid or unenforceable or subsequently lose its legal validity or enforceability, this shall not affect the legal validity of the remaining provisions. The same shall apply if it were found that the GTC contain a loophole. In place of the invalid or unenforceable provisions or in order to close the loophole, an appropriate provision shall apply which, as far as legally possible, comes as close as possible to what the parties intended, or would have intended in accordance with the meaning and purpose of the GTC, if they had considered the point when concluding this contract or when subsequently including the provision.

11.3 M+H has the right to change these GTC on a regular basis.  Customer's order is subject to the respective GTC at the moment the Customer places the order, which are available on the website and attached to the order confirmation.

11.4 Unless the parties have agreed otherwise, for all claims arising under the business relationship between M+H and the Customer, in particular with regard to deliveries of Products, the place from which the delivery originates will be deemed the place of performance.

11.5 The Customer may assign its claims under the contractual relationship only with the prior written consent of M+H.

11.6 If permissible, the relevant applicable law is German law Application of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods is excluded.

11.7 Exclusive place of jurisdiction, if permissible, for all disputes arising from the business relationship between M+H and the Customer is Stuttgart, Germany. However, M+H also has the right to assert claims against the Customer at its registered office.

 

Status: 2023