GENERAL TERMS AND CONDITIONS (AGB)
1. validity of the general terms and conditions, offers and conclusion of contract
1.1 The following contractual terms and conditions shall apply exclusively to all offers and orders. MEHRKANAL shall not recognize any terms and conditions of the customer that conflict with or deviate from these Terms and Conditions of Sale unless MEHRKANAL has expressly agreed to their validity in writing. Our General Terms and Conditions shall also apply if we execute the order without reservation in the knowledge of terms and conditions of the customer that conflict with or deviate from our General Terms and Conditions.
1.2 The following General Terms and Conditions shall also apply to all future contractual relationships between us and the Customer, even if this is not expressly referred to in individual cases.
1.3 The following General Terms and Conditions shall apply only to entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and public special funds.
1.4 Offers made by MEHRKANAL are subject to change. Orders placed shall only become binding upon MEHRKANAL's confirmation in writing or text form.
1.5 If it is a commercial transaction for both contracting parties within the meaning of § 343 of the German Commercial Code (HGB), the principles of commercial letters of confirmation shall apply. In this case, the content of the order confirmation written by MEHRKANAL shall be decisive for the content and scope of the contract unless the customer objects without delay.
1.6 MEHRKANAL shall retain title to cost estimates, drawings and other documents. They may not be made accessible to third parties.
2. Scope of the Delivery Obligation
2.1 The scope of delivery shall be determined by MEHRKANAL's order confirmation.
2.2 Illustrations and drawings as well as other documents belonging to the offers shall only be approximately authoritative unless they have been expressly designated as binding in the order confirmation by MEHRKANAL.
3. Prices and Payments
3.1 Prices shall be ex MEHRKANAL's works, excluding packaging, which shall be invoiced separately.
3.2 The statutory value-added tax shall not be included in MEHRKANAL's prices; it shall be shown separately on the invoice at the statutory rate applicable on the day of invoicing.
3.3 Unless otherwise agreed in writing, invoices of MEHRKANAL shall be payable within 8 days without cash discount; the deduction of cash discount shall require special written agreements.
3.4 Insofar as MEHRKANAL renders partial services, it shall be entitled to issue partial invoices, which shall also be payable within 8 days without deduction of any discount.
3.5 In the case of new business relations and larger orders, advance payment may be requested.
3.6 If the customer is in default of payment, MEHRKANAL shall be entitled to charge default interest in the amount of 9 percentage points above the respective official prime rate per annum. If MEHRKANAL is able to prove higher damages caused by default, it shall be entitled to claim such damages.
3.7 The customer shall not be entitled to any right of retention, irrespective of its legal basis. The client shall not be entitled to set-off against claims of the client, unless such claims are undisputed or have been established by a court of law.
4. Retention of title
4.1 The goods shall remain the property of MEHRKANAL until full payment has been made. MEHRKANAL shall retain title to all delivered items until full payment of all claims to which MEHRKANAL is entitled from the business relationship with the customer. In the case of a current account, the entire goods subject to retention of title shall serve as security for the balance of the account.
4.2 If the value of the securities existing for MEHRKANAL exceeds the claims against the customer by more than 10% of the goods subject to retention of title, MEHRKANAL shall be obligated to release securities of its choice upon request of the customer or a creditor of the customer.
4.3 The customer may neither pledge the delivered items nor assign them as security. In the event of seizure or confiscation or other disposition by third parties, he shall notify MEHRKANAL in writing without delay and support MEHRKANAL in every way in asserting its claims.
5. Shipment and Transfer of Risk
5.1 All deliveries shall be made ex works of MEHRKANAL or third party companies.
5.2 The risk shall pass to the customer when the delivery item is handed over to a forwarding agent, carrier or collector or when it is transported by MEHRKANAL's means of transport, however, at the latest when it leaves MEHRKANAL's premises or those of a third party company commissioned by MEHRKANAL. Transport insurance shall be taken out only upon express instruction of the customer and at the customer's expense.
5.3 If shipment is delayed due to circumstances for which MEHRKANAL is not responsible, the risk shall pass to the customer as of the day on which MEHRKANAL has notified the customer that the goods are ready for shipment.
5.4 Partial deliveries shall be permissible.
6. Delivery Periods
6.1 Compliance with a delivery deadline shall always depend on timely self-supply. If we ourselves are not supplied, although we have placed congruent orders with a reliable supplier, we shall be released from the obligation to perform and may withdraw from the contract. We are obliged to inform the customer immediately about the non-availability of the service and to reimburse any consideration already paid by the customer immediately. The customer shall not be entitled to claim damages in this case.
6.2 Compliance with our delivery obligation requires clarification of all technical and design issues. It further presupposes the timely and proper fulfillment of the customer's obligations. We reserve the right to plead non-performance of the contract.
6.3 In the event of labor disputes and the occurrence of unforeseen obstacles beyond MEHRKANAL's control or obstacles for which third parties are responsible, the delivery period shall be reasonably extended. This shall also apply if the obstacles have arisen during an already existing delay. We shall notify the customer of such a case without delay. Any exceeding of the delivery period caused thereby shall not entitle the customer to withdraw from the contract or to assert claims for damages.
6.4 If the customer incurs damages due to a delay for which MEHRKANAL is responsible, in particular in the case of a delivery date agreed upon in writing with MEHRKANAL, MEHRKANAL shall be liable only within the scope of the following provisions under 8.
6.5 If MEHRKANAL is in default of delivery, the customer shall in any case only be entitled to exercise the rights to which he is entitled by law after setting a reasonable grace period.
7. copyrights and rights of use
7.1 To the extent that MEHRKANAL's contractual services are protected by copyright, MEHRKANAL shall transfer the respective rights of use exclusively in accordance with the agreed purpose of the contract, which thus determines the scope of the rights of use in terms of space, time and content.
7.2 Any use of contractual services exceeding the purpose of the contract shall constitute a separate obligation to pay remuneration which, in the absence of an agreement, shall be assessed at a reasonable amount according to general guidelines.
7.3 If the customer uses designs developed by MEHRKANAL in the form of films, pictures, graphics, music, sound, productions, dummies, programmed software beyond the contractual purpose, a separate remuneration in an appropriate amount shall also be paid for this.
7.4 In the case of a software version protected by a source code, the source code shall be issued at the request of the Customer - for an appropriate fee.
7.5 Rights of use to designs which are rejected by the customer or which have not been paid for upon termination of the contract shall be at MEHRKANAL's disposal for free use elsewhere, unless otherwise expressly agreed in writing.
8. obligations of the client
The customer shall be obligated to provide MEHRKANAL with all information, data and documents necessary for the proper execution of the order. The customer shall be obligated to ensure that these are correct in terms of content and do not contain any errors. The customer shall be responsible for any discrepancies or errors. MEHRKANAL shall not be obliged to check, prepare or complete the information, data and documents.
9 Warranty and Liability
9.1 If the contract is a mutual commercial purchase, the customer's right to claim for defects shall be subject to the condition that the customer has duly complied with the obligations to examine the goods and to give notice of defects as stipulated in § 377 of the German Commercial Code (HGB). If MEHRKANAL's performance consists of a work capable of acceptance, MEHRKANAL may set the customer a reasonable deadline for acceptance after completion of the work. If the customer does not make any declaration within the deadline, the work shall be deemed accepted.
9.2 Apparent defects of the delivery (including wrong and short delivery) and/or of MEHRKANAL's performance shall be notified to MEHRKANAL in writing within a period of 14 days. This shall also apply if the defects become apparent later. MEHRKANAL shall be notified immediately in writing of the discovery of such defects.
9.3 Insofar as there is a defect in the object of purchase or the work, MEHRKANAL shall be entitled to choose between subsequent performance in the form of rectification of defects or delivery of a new item free of defects. If the subsequent performance fails, the customer shall be entitled to demand a reduction of the purchase price or to withdraw from the contract at his discretion.
9.4 If the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence of our representatives or vicarious agents, or if MEHRKANAL culpably violates a material contractual obligation, MEHRKANAL shall be liable in accordance with the statutory provisions. If MEHRKANAL is not accused of intentional breach of contract, the liability for damages shall, however, be limited to the foreseeable, typically occurring damage.
9.5 Liability for culpable injury to life, body or health shall remain unaffected; this shall also apply to mandatory liability under the Product Liability Act.
9.6 Any further liability for damages - regardless of the legal nature of the asserted claim - shall be excluded.
9.7 Insofar as liability is excluded or limited, this shall also apply to the personal liability of MEHRKANAL's employees, representatives and vicarious agents.
9.8 MEHRKANAL shall not be liable for damages caused by the breach of the customer's duty to cooperate.
9.9 MEHRKANAL shall not be liable for the legal existence and free use of all statements made and materials provided by the customer, in particular regarding rights to films, pictures, graphics, music, sounds, trademarks, company and product names. If claims are asserted against MEHRKANAL by third parties due to the violation of rights, the client shall indemnify MEHRKANAL for all resulting expenses including the costs of legal defense.
10 Term of Contract and Termination of Continuing Obligations
10.1 If the contract between the customer and MEHRKANAL is a continuing obligation and a fixed contract term has not been agreed upon, the contractual relationship may be terminated no earlier than December 31 of the third year following the year in which the contract was concluded. Termination must be in writing and must be declared by 30.06. of the same year at the latest.
10.2 If the contractual relationship is not terminated in due time, it shall be extended by one year in each case until 31.12. of the following year.
10.3 The statutory provisions on extraordinary termination without notice for good cause shall remain unaffected for both parties.
11. Exclusion of competition
If the customer demands an exclusion of competition, MEHRKANAL shall not be obliged to enter into such an agreement unless this has been expressly stipulated in writing.
12. Applicable Law
All legal relations between MEHRKANAL and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
13. Place of Jurisdiction/Place of Performance
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of performance and jurisdiction for all claims and legal disputes arising from this contractual relationship, including proceedings based on bills of exchange and documents, shall be MEHRKANAL's place of business, Essen. MEHRKANAL shall, however, also be entitled to sue the customer at the court of his place of residence.
14. Severability Clause
Should individual provisions of these terms and conditions be legally invalid, this shall not affect the validity of all other provisions and agreements.