Phone: +49 – (0)201 – 27303 0
Fax: +49 – (0)201 – 27303 33
Responsible for the content of this site according to German law § 10 MDStV (state treaty on media)
Place of business: Essen, Germany
Entry in the commercial register of Germany: Local Court Essen HRB 17210
General Business Terms and Conditions of MEHRKANAL GmbH
1. Applicability of the General Business Terms and Conditions, offers and conclusion of contracts
1.1 The following contractual terms and conditions shall exclusively govern all offers and orders. MEHRKANAL does not acknowledge any terms and conditions of the customer that conflict with or deviate from these contractual terms and conditions, unless MEHRKANAL has expressly consented to their applicability in writing. Our General Business Terms and Conditions shall apply even if we execute an order, without reservation, in knowledge of any terms and conditions of the customer that conflict with or deviate from our General Business Terms and Conditions.
1.2 The following General Business Terms and Conditions shall also apply to any future contractual relationships between the customer and us even if no express reference is made to this in any individual case.
1.3 The following General Business Terms and Conditions shall apply only to business customers (Unternehmer) within the meaning of § 14 of the German Civil Code (Bürgerliches Gesetzbuch), legal entities under public law and special funds under public law.
1.4 The offers of MEHRKANAL are non-binding. Any order that is issued shall be binding only a confirmation by MEHRKANAL that is in writing or composed in text form.
1.5 If the transaction concerns a commercial transaction within the meaning of § 343 of the German Commercial Code (Handelsgesetzbuch, “HGB”) for both contracting parties, the principles of a commercial letter of confirmation shall apply. In any such case, the content of MEHRKANAL’s written order confirmation shall be decisive for the content and scope of the contract, provided that the customer does not immediately object.
1.6 For any cost estimate, drawings or other document, MEHRKANAL shall reserve the right of ownership. They may not be made available to third parties.
2. Scope of the obligation to deliver
2.1 MEHRKANAL’s order confirmation shall govern the scope of a delivery.
2.2 Any pictures, drawings or other documents belonging to the offer are only approximately decisive, to the extent that they have not been expressly designated as binding in MEHRKANAL’s order confirmation.
3. Prices and payments
3.1 Prices are ex MEHRKANAL’s factory; they exclude packaging, which shall be invoiced separately.
3.2 The statutory value-added tax is not included in MEHRKANAL’s prices; it will be shown separately in the invoice at the statutory rate on the date of invoicing.
3.3 Unless otherwise agreed in writing, MEHRKANAL’s invoices are payable within 8 days without a cash discount deduction; any cash discount deduction requires a separate written agreement.
3.4 To the extent that MEHRKANAL furnishes partial services, it shall be entitled to issue partial invoices, which are likewise payable within 8 days without a cash discount deduction.
3.5 For new business relationships and larger orders, a prepayment may be required.
3.6 If the customer defaults on payment, MEHRKANAL shall be entitled to charge default interest in the amount of 9 percentage points above the official base interest rate per annum. If MEHRKANAL is able to prove higher losses caused by a payment default, it shall be entitled to assert such damages.
3.7 The customer shall not be entitled to any right of retention, regardless of its legal basis. The customer shall not be entitled to any set-off of its claims, to the extent that such claims are not undisputed or legally established.
4. Retention of title
4.1 Until complete payment, the goods shall remain the property of MEHRKANAL. MEHRKANAL shall retain title to all goods delivered until full payment of all of the claims to which it is entitled arising from the business relationship with the customer. For any current account, the entire retained property shall serve as security for the outstanding balance.
4.2 If the value of the items of collateral existing for MEHRKANAL exceeds the claims for the customer by more than 10% of the reserved goods, MEHRKANAL shall be obligated to, at the request of the customer or a creditor of the customer, release the items of collateral to this extent, at its selection.
4.3 The customer may neither pledge the goods delivered, nor assign them as security. In the event of a pledge, attachment or any other action of constraint by a third party, it must notify MEHRKANAL of this immediately in writing, and assist it in enforcing its claims in every possible way.
5. Shipping and transfer of risk
5.1 All deliveries shall take place ex factory of MEHRKANAL or a third-party company.
5.2 Risk is transferred to the customer upon the handover of the goods delivered to a freight forwarder, carrier or collecting agent, or upon their transport with means of conveyance of MEHRKANAL, but at the latest upon their leaving the factory of MEHRKANAL of a commissioned third-party company. Transport insurance shall be taken out only at the express instruction of the customer and at its expense.
5.3 If the shipment is delayed due to circumstances for which MEHRKANAL is not responsible, the risk shall be transferred to the customer on the day on which MEHRKANAL has notified the customer of the readiness for shipment of the goods.
5.4 Partial deliveries are permitted.
6. Delivery periods
6.1 Adhering to any delivery period is always dependent on timely delivery by our suppliers. If our suppliers have not delivered to us, despite our having placed covering orders with a reliable supplier, we shall be released from the obligation to deliver and may withdraw from the contract. We shall be obligated to immediately inform the customer of the non-availability of the service, and immediately provide reimbursement for any consideration of the customer that has already been furnished. Upon such an event, the customer shall not be entitled to compensation.
6.2 Adherence with our delivery obligation requires the clarification of all technical and design issues. It further requires the customer’s timely and proper fulfilment of its obligations. The objection of a non-fulfilled contract remains reserved.
6.3 Upon a labour dispute or the occurrence of an unforeseen obstacle that is outside of the control of MEHRKANAL, or if there is an obstacle for which a third party is responsible, the delivery period shall be extended accordingly. This shall also apply even if such obstacle arose during a delay that already exists. We shall immediately inform the customer of such an event. Any exceeding of the delivery period that is caused by this shall not entitle the customer to withdraw from the contract or to assert compensation for damages.
6.4 If the customer incurs damages due to a delay for which MEHRKANAL is responsible, in particular for a delivery date firmly agreed in writing with MEHRKANAL, MEHRKANAL shall be liable only within the framework of the following provisions under item 8.
6.5 To the extent that MEHRKANAL is in delay with a delivery, upon such an event, the customer shall be entitled to the rights to which it is entitled under the law only after the setting of a reasonable grace period.
7. Copyrights and rights of use
7.1 To the extent that MEHRKANAL’s contractual services are subject to copyright protection, MEHRKANAL transfers the respective rights of use exclusively in accordance with the agreed contractual purpose, which consequently determines the geographic, temporal and substantive scope of the rights of use.
7.2 Any use of contractual services going beyond the contractual service shall establish a separate payment obligation, which, in the absence of an agreement, is to be assessed in the appropriate amount according to general guidelines.
7.3 To the extent that the customer uses designs prepared by MEHRKANAL in the form of films, images, graphics, music, sound, productions, dummies or programmed software beyond the contractual purpose, separate compensation in a reasonable amount is likewise to be paid for this.
7.4 With any software version protected by a source code, at the request of the customer, the source code shall be released against a reasonable fee.
7.5 Unless otherwise expressly agreed in writing, MEHRKANAL shall be entitled to freely otherwise use rights of use in designs that are rejected by the customer or are not paid for upon the termination of the contract.
8. Obligations of the customer
The customer shall be obligated to make available to MEHRKANAL all information, data and documents that are necessary for the proper execution of the contract. The customer shall be obligated to ensure that they are accurate in terms of content and free of errors. The customer shall be responsible for any discrepancies or errors. MEHRKANAL shall not be obligated to review, generate or complete the information, data and documents.
9. Warranty and liability
9.1 If the transaction is a commercial transaction, a prerequisite for the customer’s rights regarding defects is that the customer has duly complied with the duties of examination and to give notice of defects governed in § 377 of the HGB. If MEHRKANAL’s service consists of a work that is capable of acceptance, after the completion of the work, MEHRKANAL may set a reasonable deadline for the customer’s acceptance. If the customer does not deliver a statement within the period, the work shall be deemed to be accepted.
9.2 Any obvious defects in a delivery (including any incorrect or shortfall delivery) and/or MEHRKANAL’s service must be reported in writing to MEHRKANAL within a period of 14 days. This shall also apply if a defect becomes obvious at a later time. The discovery of any such defect must be immediately reported in writing to MEHRKANAL.
9.3 If there is a defect in the purchased item or the work, MEHRKANAL shall be entitled to choose between subsequent performance in the form of a remedy of defects, or the delivery of a new defect-free item. If the subsequent performance fails, the customer shall be entitled to, at its selection, demand a reduction in the purchase price or withdraw from the contract.
9.4 If the customer asserts a claim for damages that is based on an intentional act or gross negligence, including an intentional act or gross negligence on the part of our representatives or vicarious agents, or if MEHRKANAL has culpably violated a material contractual obligation, MEHRKANAL shall be liable according to the statutory provisions. If MEHRKANAL is not held liable for an intentional contractual breach, the liability for damages shall be limited to foreseeable damages that typically arise.
9.5 Liability based on any culpable injury to life, limb or health shall remain unaffected; this shall also apply to mandatory liability under the German Product Liability Act (Produkthaftungsgesetz).
9.6 Any further liability for damages – regardless of the legal nature of the asserted claim – is barred.
9.7 If liability is barred or limited, this shall also apply to the personal liability of MEHRKANAL’s employees, workers, representatives and various agents.
9.8 MEHRKANAL shall not be liable for damages caused by any violation by the customer of its duties to cooperate.
9.9 MEHRKANAL shall not be liable for the legal existence and the free use of all information and materials made available by the customer, in particular regarding rights to movies, images, graphics, music, sounds, trademarks, company designations and product descriptions. To the extent that any claims against MEHRKANAL are asserted by third parties based on the infringement of rights, the customer shall indemnify MEHRKANAL for all expenses that result from this, including the costs of legal defence.
10. Term of the contract and termination in the event of continuing obligations
10.1 To the extent that the contract between the customer and MEHRKANAL is a continuing obligation and a fixed contractual term has not been agreed, the contractual relationship may be terminated at the earliest of 12/31 of the third year following the year of concluding the contract. The termination must be in writing, and must be declared no later than 6/30 of the same year.
10.2 If the contractual relationship is not terminated on a timely basis, it shall be extended by one year, until 12/31 of the following year.
10.3 The statutory provisions relating to extraordinary termination without notice for good cause shall remain unaffected for both parties.
11. Exclusion of competition
If the customer requires an exclusion of competition, MEHRKANAL shall not be obligated to conclude such an agreement, to the extent that this has not been explicitly stated in writing.
12. Applicable law
The law of the Federal Republic of Germany, to the exclusion of U.N. sales law, shall apply to all legal relationships between MEHRKANAL and the customer.
13. Area of jurisdiction / place of performance
If the customer is a merchant (Kaufmann), a legal entity under public law or a special fund under public law, the place of performance and area of jurisdiction for all claims and disputes arising from this contractual relationship, including actions for bills of exchange and instruments, shall be the place of business of MEHRKANAL, Essen. However, MEHRKANAL shall also be entitled to sue the customer at the local court of its place of business.
14. Severability clause
If any of these terms and conditions is legally invalid, this shall not affect the validity of all of the other provisions and agreements.