GTC
General Terms and Conditions of Sale, Delivery and Payment (GTC)
General Terms and Conditions
General Terms and Conditions of Sale, Delivery and Payment (GTC)
of miunske GmbH (hereinafter referred to as „miunske“)
1. General
1.1
All offers, sales contracts, deliveries and services made by miunske on the basis of
any orders by customers (hereinafter referred to as “Purchaser“ or “Customer”)
shall be governed by these GTC.
1.2
Product and service offerings of miunske are directed exclusively to
Business Customers as defined in § 14 (1) of the German Civil Code (BGB), legal entities
under public law or to special funds under public law,
but not to Consumers as defined in § 13 of the German Civil Code (BGB).
1.3
Standard business conditions of the Customer or third parties do not apply, regardless of
whether or not miunske objects to them in a particular case.
1.4
Customers of miunske are responsible for ensuring that they
use and/or resell the goods delivered by miunske only in compliance
with the respective applicable statutory provisions.
2. Conclusion of Contract
2.1
Offers of miunske are subject to change and non-binding with regard to price, date of delivery and other contents,
unless they are expressly marked as binding
or contain a particular deadline for acceptance. Sending out
price lists, catalogues, brochures, etc. shall not oblige miunske to effect delivery.
Miunske assumes no responsibility for information given orally.
2.2
DThe order for the goods placed by the Customer shall be deemed a binding offer to enter into a contract.
Unless otherwise stated in the order, miunske shall be entitled to
accept this offer within 14 days after its receipt.
Orders are only considered as accepted if they are confirmed in writing or
carried out. If no written confirmation is made, the delivery
or invoice is deemed a confirmation of the order. The legal relationship
between miunske and the Customer is solely governed by the written
agreement entered into including these GTC. This agreement reproduces all understandings
concerning the subject matter of the agreement between the contracting parties. Oral
assurances made by miunske made prior to the conclusion of this contract shall not be legally binding and
oral agreements between the parties shall be replaced by the written agreement,
unless they expressly state that they continue to
be binding.
2.3
Any illustrations, dimensions and weights or further performance data indicated in
catalogues or other documents of miunske only serve as approximates,
unless the use for the purposes intended by the contract
requires a precise conformity. Such specifications shall not be construed
as warranties of quality, but rather as a description or identification of
delivery or services. Commercially customary divergence and deviations
due to legal stipulations or the result of technical improvements, as well as the substitution of components or materials by equivalent
parts or materials, are permitted, unless this impairs the usability for the General Terms and Conditions (GTC) Version: June 2017 2/8
contractually envisaged purpose. In case of errors contained in catalogues, price lists,
offers, invoices and other declarations, miunske shall be
entitled to correct and adjust such documents under the statutory pre-requisites.
2.4
As far as special packaging units are envisaged for certain goods,
such goods could only be delivered in the indicated delivery quantity
or in integer multiples thereof.
2.5
A sampling of the articles supplied by miunske is possible in the form of a
cover sheet sampling in accordance with the procedure according to VDA 2 at no
extra charge. Additional requirements with regard to the
sampling are subject to a separate agreement and are usually
associated with the calculation of costs.
3. Delivery
3.1
Periods and dates indicated by miunske for deliveries and
services shall be considered as approximate, unless a fixed date
or period is expressly confirmed or arranged. All agreed
delivery periods shall begin (a) if advance payment has been agreed,
upon receipt of the full purchase price (including VAT,
shipping and packaging costs) or (b) if cash on delivery
or payment after delivery has been agreed, upon the conclusion of the sales contract.
3.2
The expected delivery date will be stated in the documents. If no
date for the expected delivery of goods could be determined,
this will be pointed out in the miunske documents. Miunske will inform customers about changes
to the expected delivery date.
3.3
Miunske shall be entitled to make partial deliveries if the partial delivery can be used by the Customer
within the scope of the contractually intended use and if delivery of the
remaining goods ordered is assured.
3.4
Miunske is not liable for impossibility of delivery or for delays in delivery
in so far as these have been caused by
force majeure or other events which were not foreseeable at the time of concluding the contract (e. g. operating disruptions of all kinds,
difficulties in procuring materials or power,
transport delays, strikes, lawful lockouts,
shortages of workforce, energy or raw materials, difficulties in procuring
necessary official approvals, official measures or
non-delivery or incorrect or late delivery by suppliers),
for which miunske is not responsible. In so far as such events
make it considerably more difficult or impossible for miunske to provide supplies or services
and the obstacle is not merely of a temporary duration, miunske is entitled to withdraw
from the contract. Miunske shall immediately notify the Customer about
the above-mentioned hindrance of performance and refund immediately any remuneration already
received in the event of withdrawal. In case of obstacles of a temporary duration, the terms for supplies and services will be extended or the delivery and completion deadlines will be postponed by the period of the obstruction plus an
appropriate run-in period. In so far as the Customer cannot be expected to accept the
supply or service as a result of the delay, he may
withdraw from the contract by means of an immediate written notification to miunske.
4. Shipping and Packaging
4.1
The delivery is generally carried out ex works where the place of performance is located as well. At
the request of the Customer the goods shall be
sent to another place of destination (contract of sale involving the carriage of goods, ‘Versendungskauf’) This also applies if in the individual case miunske
bears the freight charges.
4.2
The risk of the accidental loss or the accidental deterioration of the goods
is transferred to the Customer not later than with the hand-over of the goods to the freight forwarder,
the carrier or the service provider for the purpose of dispatch. In the
event of sale involving the carriage of goods (‘Versendungskauf’), however,
the risk of accidental loss and accidental deterioration of goods as well as risk of delay
is already transferred when the goods are handed to the carrier, forwarder or the person
or organization charged with carriage of the goods. If the Customer defaults on acceptance,
this shall be deemed equivalent to hand-over.
4.3
In the event of sale involving the carriage of goods (‘Versendungskauf’),
solely decisive for the meeting of the dispatch date is the day on which the goods are handed-over by miunske to the carrier;
in the event the transport is arranged by the Customer, solely decisive for the meeting of the dispatch date is the moment
at which the readiness for despatch is notified. Miunske shall not be responsible for any delays
caused by the shipping company. Therefore the designated
shipping time is not binding. If shipping is delayed at the request of the Customer,
the risk of accidental loss or the accidental deterioration of the goods is transferred to the Customer at the moment
of the notification of readiness for despatch.
4.4
Costs for shipping of the goods (packaging, transport,
if applicable transport insurance, customs declaration etc.) shall be charged separately.
4.5
The transport will be effected by a forwarder/ carrier to be chosen by miunske.
If the goods shall be delivered at the explicit request of the Customer
by another forwarder/ carrier than the one chosen by miunske,
the Customer shall bear all additional costs
(e. g. arising from application of collection). Such additional costs will be charged separately to the Customer.
4.6
The export customs declaration will generally be executed by miunske at the expense and
risk of the buyer.
4.7
If necessary, miunske ensures the loading of the means of transport at the cost
and risk of the buyer.
5. Prices
5.1
The agreed prices shall be valid ex works and are stated in
our local currency (EUR/€), plus shipping costs according to sections 4.4 and 4.5, statutory value-added tax (VAT), customs, fees and other public duties.
All such costs shall be borne by the Customer, unless expressly
agreed otherwise in writing.
5.2
For orders or individual deliveries, which were caused by the Customer, with a
with a goods value of less than EUR 25.00 net a minimum quantity surcharge of
EUR 16.50 net will be charged to the Customer.
5.3
Miunske reserves the right to make price adjustments due to errors on
invoices and delivery notes that are obvious for the Customer. The statutory
rights of avoidance remain unaffected.
6. Warranty and obligation to notify defects
6.1
The warranty period
is one year as from delivery or, in so far as acceptance is necessary,
as from acceptance.
6.2
The goods supplied are to be carefully inspected immediately after their delivery to the Customer or
to the third party specified by it. They are considered
to have been approved by Customer if no written notice of defects is received by miunske
with respect to apparent defects or other defects which were identifiable during an immediate,
careful inspection within five working days after delivery
of the good supplied. This also applies to any delivery of too few or
other goods than the goods contractually agreed. With regard to other defects,
in particular hidden defects, the items supplied are considered to have
been approved by Customer if no written notice of defects is received by miunske
within five working days of the discovery of the defect or,
if earlier, the time when the defect was recognisable for the Customer
during normal use of the item supplied. If the Customer fails to carry out
the proper inspection and/or the notice of defects the liability
of miunske for the defect which was not notified is excluded. On request of
miunske the item of supply to which the complaint relates is to be sent back to miunske carriage paid. If
the notice of defects is justified, miunske will reimburse the costs of the cheapest method
of dispatch; this does not apply in so far as the costs rise because the
item of supply is located somewhere else than the place it has been delivered
to by miunske. Returns without clearance by miunske or freight collect returns
will not be accepted. Supplied packing and control slips
shall be enclosed to returns.
6.3
In case of material defects of the items supplied miunske shall have an adequate period of time
to remedy the defect. Miunske shall have the right to choose
between any such remedies (repair or replacement supply). In
the event of failure, i.e. repair or replacement supply is impossible
or unreasonable or in case of refusal or inappropriate delay, the Customer may
withdraw from the contract or reduce the purchase price appropriately. A
repair is regarded as failed after the second unsuccessful attempt, unless anything else takes effect resulting from the type of the item or the defect or the other
circumstances in particular.
6.4
If a defect is caused by fault of miunske, the Customer may demand
compensation under the conditions stipulated in section 9.
6.5
Insofar as the item supplied fails due to normal wear or a failure
of the item supplied is caused by improper installation, incorrect handling, poor
maintenance or excessive operational demands by Customer or
third parties authorized by him, this shall not constitute a defect
of the item supplied. The warranty shall not apply in cases the Customer
modifies the item supplied without approval by miunske or allows this to be done by third parties
and the remedying of the defect is made impossible or unreasonably
harder because of this. In any case the Customer shall bear the
additional costs of remedying defects caused by modifications. Furthermore the warranty shall not apply if
mounting and treatment instructions (statutory or set by miunske or its suppliers)
are not followed by the Customer, unless the failure does not
result from this non-observance.
7. Reservation of title and distraints
7.1
The goods are delivered under reservation of title. They shall remain
in the ownership of miunske until complete satisfaction of all present and future claims of miunske
from the business relationship with the Customer. This shall also apply if the
purchase price for certain goods deliveries designated by the Customer has been paid.
Bills of exchange or cheques will only satisfy the claims
of miunske upon their crediting. The goods, as well as the goods included in the reservation of title
to take their place in accordance with the following terms,
are referred to as ‘reserved goods.’
7.2
The Customer is entitled to process the reserved goods in the normal course of business
as long as no enforced recovery event arises (see section 7.6). If the
reserved goods are processed by the Customer it is agreed that the processing is done
in the name and for account of miunske as manufacturer, without obligation for miunske,
and that miunske directly acquires the ownership or – if the processing
is carried out with materials from different owners or the value of the processed objects
is higher than that of the reserved goods – the joint ownership (fractional share of property)
of the newly produced objects in relation of the value of
the reserved goods to the value of the newly produced objects. In the event that no such
acquisition of ownership should occur with miunske, the Customer hereby transfers his
future ownership or – in the above-mentioned relationship – joint ownership of the newly produced
objects as security to miunske. If the reserved goods are combined or inseparably mixed
with other objects to form an integral object and if one of the
other objects is to be considered as the main object, then, in so far as the
main object, then, in so far as the main object belongs to him,
the Customer transfers the proportional joint ownership of the integral object to miunske in the ratio stated in the second sentence above. Customer shall keep safe the
(joint) property free of charge on behalf of miunske.
7.3
The Customer is entitled to resell the reserved goods in the normal course of business
as long as no enforced recovery event arises (see section 7.6).
This authorization may be withdrawn. Resale shall only be effected against cash payment
or subject to reservation of title. Transfer by way of security, pledging
and other disposals impairing the rights of miunske are
not permitted to the Customer. The Customer herewith assigns any present or future claims
based on a resale concerning the goods
against the acquirer – or in case of joint ownership of miunske of the reserved goods in proportion to the proportion of joint ownership –
to miunske by way of security. The same applies for other claims which take the place of the
reserved goods or which arise with reference to the reserved goods, such
as insurance claims or claims arising from actions in tort in case of
loss or destruction. Upon request, Customer shall provide a list
of all claims assigned to miunske and notify the debtor
of such assignment. Customer shall be empowered to collect
the claims transferred to miunske in his own name on behalf of miunske, as long as Customer
meets his payment obligations. All collected amounts shall be immediately
transferred to miunske as long as miunske has due claims
against Customer.
7.4
The collateral issued shall be released at discretion of miunske
at the Customer’s request, insofar as the collateral value exceeds the value of the
receivables by more than 10%.
7.5
In the event of distraint or other interventions by third parties with regard to the reserved goods,
the Customer is obliged to inform the third party immediately about the property of miunske
and to inform miunske immediately in writing to enable miunske to initiate an action
in accordance with § 771 German Code of Civil Procedure (ZPO). Insofar as the third party is unable to reimburse
the judicial and extra-judicial expenses of miunske arising from such action pursuant to § 771
German Code of Civil Procedure (ZPO), the Customer shall be liable for such costs of miunske.
7.6
If, in the event of behaviour by the Customer contrary to the contract – in particular
delayed payment – miunske withdraws from the contract (enforced recovery event) miunske
is entitled to demand the reserved goods.
8. Payments and payment terms
8.1
Invoices of miunske shall be due and payable by the Customer within 14 days
upon receipt of the invoice,
unless a longer payment period is agreed or stated
in the invoice.
8.2
The Purchaser of goods delivered on the basis of an intra-community supply of goods
undertakes to provide an Entry Certificate (Gelangensbestätigung) as defined under § 17a of the
German Turnover Tax Implementing Regulation (Umsatzsteuerdurchführungsverordnung – UStDV),
or alternative documentary proof. If a proper Entry Certificate or
equivalent alternative documentary proof cannot be furnished, miunske is
obliged to issue an invoice that includes the respectively applicable value-added tax (VAT).
8.3
In the case of deliveries to new Customers, miunske reserves the right to deliver cash on delivery or
subject to prior payment, unless Customer’s order is accompanied by references that are
deemed satisfactory by miunske.
8.4
The Customer shall only be entitled to discounts if such is expressly
agreed and miunske’s other receivables have been fully met at the time
of issuing of the discount. If the Customer deducts discounts from the payment of invoices,
the discount shall be offset accordingly when settlement of
credit items is made. If the Customer falls into arrears regarding due payments, Customer shall be
liable for interest on arrears at the statutory rate. The statutory right of miunske to claim higher interest and additional damages
in cases of arrears of payment shall remain unaffected. The timeliness of a payment shall be determined based on the time of
receipt of the money by miunske.
Unauthorized discounts will be demanded by miunske.
8.5
Payments shall be offset irrespective of possible payment terms of the Customer in accordance with
§§ 366, 367 German Civil Code (BGB). Bills of exchange will only be accepted subject
to prior agreement.
8.6
Miunske shall be entitled to make deliveries or provide services only against
prior payment or deposit if, after the conclusion of the contract,
circumstances become known to miunske which are
of a nature to considerably reduce the Customer’s credit worthiness and on account of which
the payment of miunske’s outstanding demands from the
relevant contractual relations (including those from other individual orders for which the same GTC applies)
is put at risk. The statutory rights of miunske to
refuse performance and – if applicable after setting a deadline –
to withdraw from the contract
remain unaffected.
8.7
Sales staff of miunske (sales representatives) shall only be entitled
to accept payments with a special power of attorney.
8.8
If the Customer does not accept the goods or if the delivery cannot be effected due to other reasons
the Customer is responsible for, miunske shall, under exemption of its delivery obligation,
be entitled to claim a compensation amounting to 10% of the order value. The Customer shall be
entitled to prove that damage did not occur or did not occur
in the amount claimed.
9. Liability
9.1
Any claims for compensation shall be excluded independent of the type of breach of duty
including tort insofar as intentional or gross negligence
of miunske’s company bodies, legal representatives,
employees or other vicarious agents is not involved. In the case of breach of an essential
contractual obligation, miunske shall be liable for each incidence of negligent behaviour, but only to the extent
of the foreseeable damages. Considered essential to the contract are the obligations
Considered essential to the contract are the obligations for prompt delivery of the delivery item, its freedom from defects, which
do not only marginally affect the function or usage, as well as
duties of consultation, protection and care, which shall enable the Customer’s use of the delivery item in accordance with the contract or
which serve the purpose of protecting the life and limb of the Customer or its personnel
or the Customer’s property against considerable damage. Claims in
respect of loss of earnings, expenses saved,
arising from claims of third parties as well as other indirect and consequential damages
can only be made if such damage can be typically expected when the
delivered object is used in conformity with its intended purpose. The liability and its limitations described above
do not apply to claims arising from deceptive behaviour on the part of miunske,
from liability applying to guaranteed quality characteristics, or to claims arising from the product liability law of Germany,
or damages to life, body, or health. Insofar as liability of miunske is excluded or limited,
this shall also apply to the personal liability of staff,
employees, representatives and vicarious agents of miunske
9.2
The Customer shall only be entitled to set off or withhold payments, if the
counterclaims have been determined by a final and binding decision or are beyond dispute. However,
the Customer is also entitled to retention of payment on account of counter-claims arising
from the same contractual relationship. The Customer may not assign claims against miunske
to third parties without miunske’s approval.
10. Place of jurisdiction
10.1
If the Customer is a corporation, limited liability company or commercial partnership or
otherwise operates a commercial business (“Kaufmann” within the meaning of § 1 (1) of the German Commercial Code, HGB)
Ior is a legal entity or special fund organized under public law or has no general place of jurisdiction in the Federal Republic of Germany the courts in Bautzen,
Germany shall have exclusive jurisdiction in respect of all disputes arising
out of or in connection with the relevant contract.
In all other cases, miunske or the Customer may file suit before
any court of competent jurisdiction under applicable law. Mandatory legal provisions
concerning the exclusive place of jurisdiction for disputes shall
not be affected by this provision
10.2
The law of the Federal Republic of Germany, under exclusion of German International Private Law, shall apply exclusively,
even in the case of transactions with Customers outside Germany or deliveries outside Germany. The
provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
11. Final provisions
11.1
In so far as the contract or these GTC contain any regulatory gaps,
those legally effective provisions which the contracting partners
would have agreed according to the commercial aims of the contract
and the purpose of these GTC if they had been aware of the regulatory gap
are deemed to be agreed for filling these gaps. The inefficacy or invalidity
of one of the above provisions shall not affect the validity of the
remaining provisions.
11.2
Individual agreements reached with the Customer in individual cases (including
side agreements, additions and amendments) shall have precedence
over these GTC. A written contract or the written confirmation of miunske
is decisive for the content of such agreements. Legally relevant declarations
and notifications, which are to be submitted towards miunske by the Customer after
conclusion of the contract (e. g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction of purchase price),
require written form in order to be valid.
miunske GmbH
Oberlausitzer Straße 28
02692 Großpostwitz
GERMANY
Version: June 2017
GTCB
General Terms and Conditions of Purchase (GTCP)
General Terms and Conditions of Purchase
General Terms and Conditions of Purchase
of miunske GmbH (hereinafter referred to as „miunske“)
1. General - scope of application
1.1
The Terms and Conditions of Purchase of miunske (GTCP) apply exclusively. Any terms and conditions of the
Supplier that conflict with or differ from these GTCP are not accepted,
unless miunske has expressly agreed in writing to their application. These
GTCP shall also apply even if miunske unconditionally
accepts the delivery of the Supplier whilst being aware of
conditions which vary from or conflict with these GTCP.
1.2
All agreements concluded between miunske and the Supplier for the purpose of performance
of a contract shall be recorded in writing in the contract.
1.3
These GTCP of miunske apply only to Business Customers as defined
in § 14 (1) of the German Civil Code (BGB), legal entities under public law or
to special funds under public law.
2. Further applicable provisions
2.1
Supplier shall comply with the applicable accident prevention rules and shall in particular consider the requirements
set out in § 5 of Workplace Guidelines for Health and Safety in the Workplace (BGV A1) issued by the
German employer’s liability insurance association (Berufsgenossenschaftliche Vorschrift für Sicherheit und Gesundheit bei der Arbeit, BGV A1)
during the performance of the order.
2.2
The Code of Behaviour of miunske GmbH is part of
these GTCP.
2.3
Supplier shall ensure that all items delivered comply with the
‘Regulation (EC) No. 1907/2006 on the Registration, Evaluation, Authorization and
Restriction of Chemicals (REACH)’. Supplier shall
inform miunske immediately if – for any reason –
items delivered to miunske contain a substance included in the candidate list according to article 59 sections (1) and (10)
of the REACH-Regulation. This duty shall apply in particular in case of any expansion or extension
of the candidate list.
2.4
Supplier shall further ensure, that all items delivered comply with the regulations of the ‘Directive 2011/65/EU … on the restriction of the use of certain hazardous substances in electrical and electronic equipment’ (RoHS) in the latest version.
2.5
Supplier undertakes to inform miunske prior to any delivery in accordance with its best knowledge and belief,
Supplier undertakes to inform miunske prior to any delivery in accordance with its best knowledge and belief, if, on the basis of a review
of his supply chain and by means of comprehensible evidence, Supplier has grounds to believe
that items or materials delivered to miunske contain ‘conflict minerals’ according to the definition contained in
“Dodd-Frank Wall Street Reform and Consumer Protection Act” (raw materials
uswed for the production of tantalum, tin, gold and tungsten from crisis regions in Africa).
Supplier shall inform miunske in this case which specific conflict minerals are involved and which products are affected. If conflict minerals are used,
measures shall be initiated immediately and completed in due time to replace the conflict minerals by unobjectionable raw materials,
provided this is possible and reasonable for the Supplier.
3. Inquiries and orders
3.1
Supplier shall confirm or reject incoming orders in writing
immediately upon receipt.
3.2
With regard to documents provided by miunske (illustrations, drawings, calculations etc.)
miunske retains all ownership rights and copyrights. Sie dürfen Such documents must not be made accessible to third parties without miunske’s
express, written approval. The documents shall be exclusively used to process the inquiry or order and must be returned
to miunske without request after complete execution of the order. They are to be kept secret from third parties,
the provisions of section 10.4 apply additionally.
4. Prices - terms of payment
4.1
The price stated in the order is binding. Where no written agreement to the contrary exists, the price shall include the cost of delivery and transport to the delivery address specified in the order, as well as the packaging costs. The return of packaging material needs to be agreed separately.
4.2
The statutory value-added tax (VAT) shall be stated separately. The provisions of
§ 14 German Turnover Tax Act (UStG) on mandatory details of invoices shall be observed.
4.3
All documents relevant for order processing
(order confirmations, delivery notes, invoices etc.) must include the following details: miunske order number, miunske article number, delivery quantity and miunske delivery address. Should one or more of these details be missing and processing is delayed for this reason by miunske in its normal business operations, the payment periods mentioned in section 4.4
are extended by the period of the delay. 4.4 Unless otherwise
4.4
Unless otherwise agreed in writing, miunske is entitled to pay the purchase price within
14 days after delivery and receipt of invoice, applying a 2% discount, or within 30
days after receipt of invoice, net.
5. Delivery time
5.1
The delivery time contained in the order shall be binding.
5.2
The supplier undertakes to notify miunske immediately in writing if
circumstances occur or become apparent which prevent him from
complying with the set delivery time.
5.3
In the event of delay in delivery miunske shall be entitled to statutory claims. In particular
miunske is entitled, after fruitless expiration of a grace period, to claim for damages instead
of the performance and to withdraw from the contract. If miunske demands compensation for damages,
the Supplier has the right to prove that he is not responsible for the
breach of duty.
6. Transfer of risk - documents
6.1
If no other agreement has been made in writing, delivery shall be effected carriage paid
to the delivery address stated in the order. If the delivery address has not been stated and nothing
else has been agreed, the delivery must be made to miunske’s place of business
in Großpostwitz, Germany. The respective place of destination is deemed to be the place of performance as well (obligation that Supplier has to perform at miunske’s place of business or the address agreed otherwise).
6.2
The supplier shall state the complete miunske order number on all consignment documents and delivery notes. Miunske is not to be held responsible for processing delays
if the Supplier fails to comply with this obligation.
7. Inspections for defects - liability for defects
7.1
Miunske is obligated to examine the goods for any deviations in quality
and quantity within a reasonable period of time. A complaint will be considered made in due time if it is received by the Supplier within
a period of five working days after receipt of the goods or, in case of hidden defects,
after these are detected. In the event of company holidays the complaint period is extended by
the duration of such shutdown.
7.2
Miunske is entitled to the statutory defect claims without restriction. In any case miunske is entitled at its sole discretion either to demand elimination of the defect or replacement supply of a new item. The right to claim for damages, particularly for damages instead of performance of the service is expressly reserved.
7.3
Miunske shall have the right to rectify the defects at Supplier’s costs
if there is risk in delay or there is special urgency.
7.4
The limitation period for any claims arising from defects shall be 36 months from
the transfer of risk.
8. Product liability - indemnification - liability insurance
8.1
Insofar as the Supplier is responsible for a product defect, he is obligated to indemnify miunske against third-party claims for damages upon first request
if the cause is to be found in Supplier’s range of control and organization and if the Supplier is liable in
in relation to third parties.
8.2
In the scope of his liability for claims as defined in section 8.1, the Supplier shall
shall refund miunske any expenses as defined in §§ 683, 670 BGB German civil code
(BGB) and §§ 830, 840, 426 BGB German civil code (BGB), which incur through or in context with
any recall action initiated by miunske. Miunske will inform the Supplier – to the extent such is possible and reasonable –
about the content and scope of the recall action and will give him
the opportunity to comment. This shall not adversely affect any other statutory claims.
8.3
The Supplier undertakes to take out a product liability insurance with a flat rate sum insured
of at least 10 million € per personal
injury/property damage. Should miunske be entitled to more extensive claims for damages, such claims
shall remain unaffected.
9. Industrial property rights
9.1
The Supplier warrants pursuant to section 9.2 that the goods or materials supplied infringe no third-party industrial property rights in countries of the European Union
or other countries, in which the goods or materials are produced by the Supplier
or on behalf of the Supplier
9.2
Should any claims be put forward against miunske by third parties for violation of
industrial property rights as stated in section 9.1, the Supplier shall indemnify miunske
against these claims and shall reimburse miunske for all necessary expenses
in connection with the assertion of such claims. Such entitlement shall not apply insofar as the Supplier provides evidence
that he is not responsible for the infringement of industrial property rights and that he has not been obliged to be aware of such infringement
when acting with due commercial care at the time of delivery.
9.3
Any further statutory claims of miunske against Supplier based on
defects of title remain unaffected.
9.4
The limitation period for any claims of miunske against the Supplier in connection with infringements of industrial property rights shall be five years from the
date of full performance of the contract.
10. Retention of title - provision of materials - tools - obligation to maintain secrecy
10.1
Miunske retains ownership of all substances and materials (e.g. finished and semi-finished products), templates,
samples and other items provided to Supplier
for production (reserved goods). Processing or conversion by the Supplier
is done for miunske. In case the reserved goods of miunske are processed with items
on which miunske has no ownership rights, miunske acquires joint ownership
rights in the new item in proportion of the value of the item of miunske (purchase price plus VAT)
to the other processed items at the time
they are processed. Such items must – as long as they are not processed – be
stored separately and insured to the usual extent against
destruction and loss at the Supplier’s cost
10.2
If a reserved good provided by miunske is intermixed inseparably with other items not belonging to miunske,
miunske shall acquire joint ownership of the new article in proportion to the value of the reserved good (purchase price plus VAT)
to the other intermixed items at the time of intermixture. If the
intermixture is performed in such a way that the Supplier’s article must be regarded as the main article,
it is agreed that the Supplier hereby transfers pro rata joint ownership to miunske. Supplier
shall keep safe the sole ownership or joint ownership on behalf of miunske.
10.3
Tools provided to Supplier remain property of miunske. The supplier is obligated to
use the tools exclusively for the production of the items ordered by miunske.
The supplier shall insure tools of miunske against
fire, water and theft at reinstatement value at his own expense. At the same time, the Supplier already now assigns
all claims for compensation from this insurance to miunske. Miunske hereby accepts
such assignment. With regard to the tools provided the supplier is obligated
to have any required maintenance work and inspections
as well as all repair and service work done in due time at his own expense. The supplier shall immediately
notify miunske about any defects. Should he culpably fail to do such, this shall
not adversely affect any claims for damages of miunske.
10.4
The Supplier must keep all depictions, drawings,
calculations and other records and information provided to him by miunske strictly confidential. They
may be disclosed to third parties only with the explicit written approval by miunske. T This
obligation to maintain secrecy is also in effect after expiration of this agreement. The obligation ceases if
and to the extent the manufacturing know-how incorporated in the provided depictions, drawings, calculations and other
records becomes general knowledge.
10.5
To the extent the collateral rights of miunske as defined in section 10.1 and/ or 10.2 exceed the purchase price of all reserved goods of miunske not yet paid by more than 10 %,
miunske shall, upon request by the Supplier,
release the collateral rights at miunske’s discretion.
11. Place of jurisdiction - place of performance
11.1
If the Supplier is a corporation, limited liability company or commercial partnership or
otherwise operates a commercial business (“Kaufmann” within the meaning of §1 (1)
of the German Commercial Code, HGB) or is a legal entity or special fund organized under public law or has no general place of jurisdiction in the Federal Republic of Germany the courts in
Bautzen, Germany shall have exclusive jurisdiction in respect of all disputes arising out of or in
connection with the relevant contract. In all other cases, miunske or the
Supplier may file suit before any court of competent jurisdiction under applicable law.
Mandatory legal provisions concerning the exclusive place of jurisdiction for disputes shall
not be affected by this provision.
11.2
Unless otherwise provided in the order, the registered office of miunske shall be the
place of performance.
11.3
The relationship between the parties to the Agreement shall be governed exclusively by the law of the Federal Republic of Germany,
under exclusion of German International Private Law. The provisions of the UN Convention on Contracts for the International Sale of Goods
shall not apply
12. Final provisions
If a provision of these GTCP or a provision within the framework of
other agreements is or becomes invalid, the validity of the
remaining provisions or agreements will not be affected thereby.
miunske GmbH
Oberlausitzer Straße 28
02692 Großpostwitz
GERMANY
Version: January 2017
