2 Formation of contracts
2.1 M+H’s of fers are not binding. A contract shall only come into force upon M+H’s order conf irmation in writing or text form. Solely M+H’s order conf irmation in writing or text form is relevant for the date, kind andquantity ofthedelivery.IftheorderisnotconfirmedbyM+Hin writing or in text f orm the contract shall come into f orce upon perf ormance of the order at the latest. Statements made orally or by phone by M+H’s representatives shall be legally binding only if conf irmed in writing or in text f orm.
2.2 M+H reserv es all proprietary rights and copyrights to cost estimates, concepts, designs, draf ts, drawings and other documents; these may bemodifiedormadeavailabletothirdpartiesonlywithM+H’s explicitapproval.Drawingsandotherdocumentsprovidedaspartof an of fer must be returned to M+H upon request at any time and in any ev ent if the order is not placed with M+H. In case M+H delivers items according to drawings, models, samples or other documents prov ided by the Customer, the Customer shall ensure that industrial property rights of third parties are not infringed. If a third party, by inv oking proprietary rights, prohibits in particular the manufacturing and deliv ery of such items, M+H shall be entitled to suspend all relev ant activities and to claim damages without being obliged to analy se the legal situation (see also clause 8.3). In addition, the Customer shall immediately indemnify M+H from any third-party claims related to documents prov ided to M+H by the Customer.
2.3 M+H reserv es the right to charge the costs f or construction, (including e.g. drawings) samples and testing parts as well as for tools required f or their manufacturing. In case of doubt, payment shall be due and payable after acceptance of the first sample, test component or tool. Costs will be charged for procuring and manufacturingthetoolsrequiredforserialproduction,unlessagreed otherwise. In any case M+H maintains title to all tools made or procured by M+H even if the procurement or manufacturing costs are wholly or partially cov ered by the Customer.
2.4 M+H shall be entitled to procure the materials for the entire order and to manufacture the total order quantity immediately. Any Customer requests f or changes af ter order placement can, theref ore, not be taken into consideration, unless explicitly agreed otherwise.
3 Performance description
3.1 The quality of the delivered goods or services is finally described by the explicitly agreed specifications. Any other qualities of goods and serv ices are subject to a f urther explicit written agreement.
3.2 Details of the delivery item (e.g. as provided in catalogues, product information, electronic media or on labels,) are based on M+H’s general experience and knowledge and are for purposes of reference value or labelling only. These product details as well as expressly agreed features or application purposes shall not relieve the Customer f rom the obligation to test the product f or the Customer’s intended purpose and to take the respective measures f or appropriate storage.
4. Delivery and delivery periods
4.1 Lead times are prov ided for information purposes only and shall be non-binding, unless it is explicitly agreed that the delivery date shall be f ixed, i.e. it is put in writing that the Customer has no further interest in the delivery after the agreed date. Confirmed delivery dates are subject to the correct, complete and timely receipt of supplies by M+H. Delivery deadlines shall be considered as met if prior to deadline expiry the deliv ery item has left M+H’s f acility or if M+HhasinformedtheCustomerthattheorderisreadyforshipment. DeliveryperiodsshallnotstarttorununtiltheCustomerhasproperly f ulf illed its respective contractual obligations, such as f urnishing technical data and documents, approvals, making a down payment or prov iding a pay ment guarantee.
4.2 M+H is entitled to make partial deliveries.
4.3 Ev ents of force majeure or other circumstances bey ond M+H’s
control that render the timely execution of accepted orders impossible shall relieve M+H from delivery commitment as long as these ev ents continue to exist. As force majeure is also deemed strikes and raw material shortage. M+H will inf orm the Customer without delay about the f orce majeure ev ent.
4.4 In case the Customer becomes subject to insolvency proceedings, or comparable proceedings, the Customer will inform M+H immediately and provides a formal information of financial status, experiences payment difficulties or in case M+H becomes aware of a signif icant deterioration of the Customer’s financial situation, M+H shall be entitled to suspenddeliveries immediately and to refuse the f ulf ilment of current contracts unless the Customer prov ides the respective consideration or, upon M+H’s request, provides appropriate securities or adv anced pay ment.
4.5 In case the products are sent to the Customer or a third party at the Customer’s request, the risk of accidental loss or accidental damage of theproductsshallpasstotheCustomeroncetheproductshave lef t M+H’s facility/warehouse at the latest, irrespective of the agreed dispatch place and irrespective of which party bears the transport costs.
4.6 Unless explicitly stated otherwise, any delivery shall be made FCA according to INCOTERMS 2020 as published by the International Chamber of Commerce (ICC).
4.7 M+H obligationtoprovideforeigntraderelateddataisrestrictedto non-pref erential origin as def ined in Art. 59 et seq. of European Union Customs Code Regulation (EU) No 952/2013 and the Combined Nomenclature subheading both indicated in our invoices. M+H does not issue declarations of preferential origin (supplier’s declarations / movement certificates / preferential declarations on inv oices).
5.1 M+H reserv es title to all delivered products until all M+H’s existing claims, including conditional and accessory claims against the Customer resulting f rom M+H’s business relation hav e been satisfied; for this purpose, all deliv eries shall be considered as one single delivery transaction. In case of a current account, the reserv ation of title shall serve as security f or M+H’s outstanding balance claim. All af orementioned prov isions shall also apply to f uture claims. In case of a material breach of contractual obligations by the Customer, M+H may immediately retrieve the products without f urther notice, reasonably taking into account the legitimate interestsoftheCustomer;theCustomerherebyconsentsinadvance to return the products in such instances. Retrieving the products shall only be deemed a withdrawal f rom the contract if explicitly so stated by M+H. All costs resulting from retrieving the products (in particular transport costs) shall be borne by the Customer. To the extent M+H does not explicitly declare M+H’s withdrawal from the contract the Customer may request delivery of the products only once the purchase price and all costs have been paid in full.
5.2 The Customer must not pledge or assign as security any products deliv ered under reservation of title or any products processed or manuf actured on M+H’s behalf . The Customer shall notify M+H immediately of any pledge or any other interference with M+H’s ownership rights by third parties and shall confirm M+H’s title in the respective product in writing, both to M+H and the third party. Any costs arising from resulting legal action shall be borne by the Customer.
5.3 Incasethereservationoftitleunderclause5.1needstobepublicly registered or requires any other kind of cooperation by the Customer in order to be v alid, the Customer hereby irrevocably consents to such registration and agrees to take all necessary actions at its own cost.
6. Prices and payment
6.1 M+H’s prices are as quoted in the respective of fer, including statutory VAT, transport and packing costs are not included if not stated otherwise in the of f er.
6.2 UnforeseenchangesincostsbeyondM+H’scontrol,suchascosts f or raw materials, wages, energy and other costs shall entitle M+H to adjust prices accordingly. For partial deliveries each delivery may be inv oiced separately. If no specific prices have been agreed in the contract, M+H’s prices v alid at the respective delivery date shal apply .
6.3 M+H’s invoices are due immediately and payable without discount to M+H’s bank account. Any discount has to be specifically agreed in writing.
6.4 The date of receipt of payment shall be the day on which the amount isreceivedbyM+Honitsbankaccount.IncasetheCustomerisin default of payment M+H may charge interest at the rate of 9 percentage points above the base interest rate published by the respective Federal Bank of the M+H entity the goods are delivered f rom for the duration of the default. This shall not restrict M+H’s right to claim additional damages or costs.
6.5 In addition, in case the Customer is in default of payment, M+H may choose to call due any outstanding purchase price instalments or other existing claims against the Customer as well as to make future deliv eries under this or other contracts subject to prov ision of a security in adv ance or simultaneous pay ment against delivery or adv ance pay ment bef ore deliv ery .
6.6 The Customer may set of f or withhold pay ments only if his counterclaim is undisputed or legally binding. This restriction shal not apply to claims of the Customer f or corrective measures in
General Terms and Conditions of Delivery and Payment of the MANN+HUMMEL Group relation to a def ective product or completion of an unfinished product.
6.7 Upon request, the Customer shall provide M+H with any
documentary evidence for tax purposes which are required under the applicable statutory provisions. In case of non-compliance the Customershall,afterreceiptofacorrectedinvoice,coveranyVAT claims and interest imposed on M+H by the tax authorities. The Customer shall inform M+H about the invalidity or any changes in its VAT identif ication number without undue delay .
6.8 In case the purchase price is paid by way of the credit note procedure for VAT purposes, the Customer shall be solely responsible f or compliance with the VAT related prov isions on inv oices. M+H shall not be liable f or damages resulting from the credit note procedure, e.g. any refunds of input tax and payment of interest by the Customer to the competent tax authorities.
7. Claims for defects
7.1 M+H shall be liable f or defects of products delivered by M+H only according to the f ollowing prov isions.
7.2 The Customer shall inspect the products without undue delay and shall notify M+H of any defects without undue delay, and, if a defect is discov ered later in the ordinary course of business, shall notify M+H of such def ect without undue delay af ter discov ery .
7.3 If def ective products are deliv ered, M+H shall be giv en the opportunity, prior to the start of manufacturing (processing or installing), to sort out such products and to remedy the defect or to make a substitute delivery, unless this cannot reasonably be expected f rom the Customer. In case M+H is unable to accomplish thisorfailtocomplyinduecourse,theCustomermaywithdrawfrom the contract to this extent and may return the products at M+H’s risk. In case of urgency, the Customer may, following consultation with M+H, remedy the defects himself or instruct a third party to do so. Expenses incurred by such remedial activities shall be reimbursed by M+H according to clause 8.
7.4 If the defect is discovered only after the start of manufacturing or initial operation, despite the f ulf ilment of all duties according to clause 7.2, the Customer may demand subsequent performance (rework or substitute delivery at M+H’s discretion). The delivery of def ective products results in a right of retention only insofar as it is in due proportion to the respective defect and the expected costs of the subsequent perf ormance, and prov ided that the Customer’s counterclaim is based on the same contractual relationship.
7.5 Any claims for damages for defective products shal be subject to two useless attempts of subsequent performance. In case of substitute delivery the Customer is obliged to return the defective products upon request.
7.6 Awithdrawalfromthecontractoraclaimforreductionofpurchase price shall be granted only if the defect cannot be remedied within an appropriate period, if subsequent performance will incur disproportionate costs, is unreasonable or must be considered as failedforotherreasons.TheCustomershall,however,havenoright to withdraw f rom the contract in case of minor def ects.
7.7 The Customer shall allow M+H to inspect any rejected products without undue delay ; in particular these products shall be made av ailable to M+H upon request and at M+H’s cost. If complaints are unf ounded, M+H may charge the transport costs and inspection expenses to the Customer.
7.8 Noclaimsfordefectsmayberaisedincaseofmerelyinsubstantial dev iations f rom the agreed quality , insubstantial impairment of serv iceability, or if the def ect can be put down to a v iolation of operating, maintenance or installation instructions, unsuitable or improper use or storage. This shal also apply in case of faulty or negligent handling or assembly, normal wear and tear or tampering with the deliv ery item by the Customer or a third party .
7.9 No costs may be claimed regarding the subsequent performance, the withdrawal from the contract or damage-repair because of def ective products, in particular costs for shipment, transportation, labour and material, insofar as these claims and costs result from the f act that the products have been transferred to a place different fromtheagreedplaceofperformanceafterpassingofrisk.However, this does not apply in case such transf er corresponds with the normal use of the products known to M+H.
7.10Damages and reimbursement of expenses may only be claimed according to clause 8.
7.11The Customer may not make the aforementioned claims for any products, which, according to mutual agreement, M+H does not deliv er as new products.
8.1 M+H shall be liable for any damages, in particular resulting from a breach of duty of care when entering into a contract, from a breach of obligations or f rom unlawful acts, only to the extent that M+H, M+H’s employ ees or v icarious agents have acted intentionally or grossly negligent.
8.2 For damages resulting from death or bodily harm or a violation of material contractual obligations, M+H shall also be liable for ordinary negligence. Contractual obligations shall be deemed as “material” if their f ulf ilment is a prerequisite f or proper perf ormance of the contract and the Customer regularly trusts in their fulfilment and also may do so. In case of a v iolation of a material contractual obligation ourliability shallbelimitedtothedirectaveragedamage,predictable and ty pical for the respective type of product. This shall also apply to a breach of obligations by our employees or v icarious agents .
8.3 M+H shall be liable f or the inf ringement of third parties’ industrial property rights in connection with the sale of M+H’s products under the f oregoing prov isions only if the inf ringement results f rom the proper use of the product, and only to the extent such third parties’ industrial property rights are valid in the country of delivery and have been published at the time of delivery . This shall not apply if M+H has manuf actured the product according to drawings, models, or other descriptions or data provided by the Customer and if M+H did not know or did not have to know of any infringement of industrial property rightsinconnectionwiththedevelopedproduct.Inthiscase M+H’s Customer is liable for any current or future infringement of third parties’ industrial property rights. The Customer undertakes to inf orm M+H without undue delay of any potential and alleged cases of infringement of third parties’ industrial property rights he may become aware of , and to indemnif y M+H f rom any third parties’ claims, costs and expenses incurred.
8.4 Claims f or defects of delivered products, including any damages relating to such defects – irrespective of the legal grounds – shal become time-barred 1 y ear af ter deliv ery .
8.5 M+H’s liability regarding Product liability shall remain unaffected by the f oregoing prov isions.
8.6 M+H shall only be liable for claims of recourse by the Customer if andtotheextenttheCustomerhasnotacceptedobligationstowards his own Customer beyond the mandatory statutory provisions on remediesfordefectsandliability.Unlessagreedotherwiseinwriting, clauses 7 and 8 shall apply accordingly to any claims of recourse raised by the Customer.
8.7 M+H does not accept any f urther liability .
9.1 Customer shall keep any knowledge and inf ormation of a technical or economical nature it has received from M+H in connection with the business relationship (“Conf idential Inf ormation”) strictly confidentialtowardsthirdpartiesatanytime,evenaftertheendof the business relationship, unless the Customer proves that the Conf idential Information is (i) already known to the Customer or in thepublicdomainatthetimeofdisclosureorsubsequentlybecomes public knowledge other than through a fault of the Customer, (i) subsequently developed by the Customer completely independent f rom the Confidential Information, or (iii) received by the Customer f rom a third party without breach of a conf identiality obligation.
9.2 M+H remains the sole owner of any documents, in particular drawings, containing Confidential Information, which are disclosed inthecourseofthebusinessrelationship.Anysuchdocumentsmust be returned to M+H upon M+H’s request but at the latest at the end of the business relationship. The Customer has no right of retention regarding Conf idential Inf ormation or documents or materials containing Conf idential Inf ormation.
9.3 The disclosure of Confidential Information does not establish any industrial property rights, rights to knowhow or copy rights of the Customer and does not constitute a prior publication or right of prior use according to the applicable patent, design and utility model laws. Any kind of license is subject to a written agreement.
10. Data Protection
10.1The contracting parties may provide each other with personal data in the course of the performanceduring the contractual relationship. Theprocessingandtransferofwhichwillbedoneinaccordancewith applicable data protection law. Each contractual party is a data controller in respect of personal data processing.
10.2The Customer is obliged to comply with data protection regulations by receiving its deliveries and services. In particular it will oblige its employ ees to maintain data confidentiality according to applicable data protection law, if these employees have access to personal data.
10.3Further inf ormation by M+H regarding personal data processing of Customers are accessible under: (link).
11. Place of performance and jurisdiction, miscellaneous
11.1Should any prov ision of the present General Terms and Conditions be inv alid, this shall not affect the validity of the remaining provisions thereof .
11.2For all claims resulting from M+H’s business relationship with the Customer, in particular regarding their deliveries, the site from which the deliv ery originates shall be deemed the place of perf ormance.
11.3The Customer may assign its claims arising f rom the contractual relationship only with M+H’s prior written approv al.
11.4Unless otherwise agreed, the local laws of the distributing company should be the governing law. Application of the United Nations Conv ention of 11 April 1980 on Contracts for the International Sale of Goods shall be excluded.
11.5The place of jurisdiction shall be the placeof the registered office of the distributing company. However M+H has the right to f ile claims
General Terms and Conditions of Delivery and Payment of the MANN+HUMMEL Group against the Customer also at the placeof his registered office. These Terms and Conditions are the basis of the business relationship.