The following is a translation intended for information purposes only. In case of dispute, the original German text shall prevail.
1. Conclusion of Contract
a) Delivery contracts shall be concluded solely in accordance with the terms and conditions contained herein. These shall also apply to future business relationships without being expressly agreed upon again at a later date.
b) Offers by us are subject to change without prior notice. Our obligations are limited to those stipulated in our written order confirmation. Any changes and amendments shall also require written form.
c) Conflicting terms and conditions of the Customer, particularly conditions of purchase, do not become an integral part of the contract, unless the terms and conditions are expressly and individually recognized by us in written form.
d) Our terms and conditions of sale and delivery shall also apply exclusively in cases in which we carry out delivery without reservation despite knowing that the Customer's conditions are adverse to or deviate from our terms and conditions of sale and delivery.
e) Members of our sales force are not authorized to conclude contracts.
f) We retain full ownership and copyright to illustrations, drawings, calculations, and other documents and objects. This also applies to documents and objects provided to the Customer on the basis of confidentiality. Transfer to third parties is permitted only if the Customer has obtained express written approval from us to effect such transfer.
2. Delivery Periods, Obligation to Accept Delivery of Goods
a) Delivery dates and periods are agreed upon individually. The delivery period is generally calculated from the date on which the order confirmation is sent, but not until all details relating to execution of the order have been agreed upon and the Customer has supplied all documents, samples, models, data, drawings, authorizations, approvals, etc. that are to be furnished by the Customer. The delivery deadline is deemed to have been met when the item to be delivered has been given over to the carrier or readied for shipment and the availability for shipment communicated.
b) In general, the timely and proper fulfillment of contractual obligations by the Customer, in particular timely payment, shall be the precondition for fulfillment of our obligation to deliver. The right to object on grounds of non-performance shall be reserved. We are entitled to carry out partial deliveries and provide partial services.
c) Even if a deadline has been agreed upon, we shall be considered in default only upon renewed attempt to provide notice hereof.
d) If the Customer is in default of accepting delivery or negligently violates other obligations to cooperate, we shall have the right to charge storage costs of 1% of the invoice amount per month. The right to pursue further claims is reserved, namely all such claims as provided for by law.
e) To the extent the preconditions under 2(d) apply, the risk of accidental loss or deterioration shall pass to the Customer from the moment the Customer is in default of accepting delivery or payment.
f) We shall have the right to postpone the delivery date if timely delivery is prevented by events beyond our control, namely cases of force majeure (for example, wars, embargoes, fires, labor disputes, or operational disruptions arising through no fault of our own at our site or at those of carefully chosen suppliers), unforeseeable official measures or difficulties in material procurement despite having carefully chosen suppliers who are known to be reliable. In such cases the delivery date shall be postponed by the duration of the impeding event. We shall immediately notify the Customer of the occurrence of any such event. If the impediment lasts longer than one month, both parties shall have the right to withdraw from the part of the contract that has not yet been fulfilled. The Customer, however, shall have this right only after specifying a reasonable extension of at least eight weeks and if no action is taken before the extension period elapses.
g) If we are in default, the Customer shall have the right to withdraw from the contract or to demand a reduction after specifying a reasonable extension of at least eight weeks and if no action is taken before the extension period elapses. The Customer shall be entitled to claim damages for delayed delivery only if the delay is due to willful or grossly negligent breach of contract for which we are responsible or if essential contractual obligations have been violated negligently or to the extent that we have provided a guarantee. Any fault of our representatives or agents shall be deemed our responsibility. If a delayed delivery is not due to breach of contract for which we are responsible or a guarantee has been provided, our liability for damages shall be limited to foreseeable, typical damage. Any liability for loss of earnings shall be excluded except in cases of willful intent or gross negligence.
h) For blanket orders, for which no timeframe, production lot sizes, and acceptance dates have been agreed, we may request binding specification of such three months at the latest after confirmation of the order. If the Customer does not respond to this request within three weeks, we shall have the right to specify an extension of three weeks, after which we may withdraw from the contract or refuse delivery and claim damages.
i) If the Customer requests that we perform necessary tests, the nature and scope of these tests must be agreed upon. If this is not done by the time the contract is concluded, the costs shall be borne by the Customer.
j) If a technical acceptance test according to special conditions has been agreed upon, the Customer shall, at his own expense, have the test carried out at our site immediately after readiness for the acceptance test has been announced. If the acceptance test is not performed despite specification of a reasonable extension together with notification that acceptance shall be implied if no action is taken before the extension period expires, we shall have the right to ship the goods or store them at the expense and risk of the Customer. In this case, the goods shall be deemed accepted.
3. Transfer of Risk, Shipping, Packaging
a) Unless the order confirmation states otherwise, risk shall pass to the Customer (EXW – Ex Works, Incoterms 2000) the moment the goods leave our factory.
b) If shipment is delayed for reasons for which the Customer is responsible, risk shall pass on the day the goods are ready for shipment.
c) If we have agreed to arrange for shipment and transportation, we will bill the Customer for these costs separately. We shall not be held liable for failure to adhere to the Customer’s general shipping conditions. Shipment via special route, by a shipping agency, or to other destinations than the Customer’s registered office shall be expressly stipulated for each individual case.
d) Unless otherwise expressly agreed upon, we shall not be obligated to insure the shipped goods. If requested by the Customer, we will obtain transportation insurance to cover the delivery. Costs incurred in this connection shall be borne by the Customer.
e) With the exception of pallets, returned transportation packaging and all other packaging pursuant to applicable packaging regulations will not be accepted. The Customer is obligated to dispose of the packaging at his own expense.
4. Liability for Defective Delivery
a) Claims made by the Customer based on defects assume that the Customer has properly fulfilled his duty to examine the goods and give notice of any defects found. The Customer shall immediately inform männer in writing of any defects found. This information is to be communicated no later than one month (four weeks) after receipt of delivery. If the Customer fails to give timely notice of a defect, the delivered goods shall be deemed accepted, thus excluding the Customer's rights with respect to defects. In particular, notice of hidden defects shall be given immediately once such defects have been discovered. We shall be given the opportunity to verify found defects on site.
b) Warranty claims shall be excluded if the notice of defect is late, if the goods have been used in an unsuitable or improper manner, or if they have been incorrectly installed or put into operation by the Customer or a third party. Furthermore, warranty claims shall be excluded in the case of natural wear and tear or inadequate maintenance – in particular, in cases in which operation and maintenance instructions have not been properly followed – as well as in cases in which unsuitable operating materials have been used or the goods are used in unusual conditions – particularly where chemical influences, electrochemical influences, or similar are present.
c) If the notice of defect is justified, männer may choose to provide remedy in the form of repair/refurbishment or replacement of the defective goods. If performance obligations are not met within a reasonable period, the Customer may request abatement of payment (reduction) or choose to rescind the contract. The Customer shall not have any right to withdraw from the contract in cases where the service provided represents only an immaterial breach of contract – particularly in the case of immaterial defects.
If the Customer chooses to withdraw from the contract due to a legal defect or defect in the goods after a failed subsequent attempt to meet performance obligations, the Customer shall not additionally be entitled to claim damages due to a defect.
d) If type samples are sent to the Customer for examination, we shall be liable solely for ensuring that the delivery conforms to the type sample, taking into consideration any corrections.
e) If the Customer has received advisory services from us, we shall be liable for the functioning and suitability of the mold/part only if expressly confirmed in writing and on condition that the Customer supplies all information, documents, and data necessary for proper provision of the service.
f) Only direct customers shall be entitled to assert warranty claims against männer. Such warranty claims are not transferable.
g) All warranties shall be rendered void if repairs or similar work is carried out on the defective goods without our approval.
h) The period of limitation for warrantee claims shall be 12 months under single-shift operation, calculated from the date of transfer of risk (see Section 3).
5. General Limitation of Liability
a) In all cases in which we are obligated to indemnify for damages on the basis of contractual or statutory claims, we shall be liable up to a maximum amount equivalent to the price paid by the Customer for the goods or service, and only to the extent that it can be shown that we or our employees and representatives have acted with willful intent or gross negligence or violated essential contractual obligations, or if we have provided a guarantee. If it cannot be shown that we have intentionally violated the contract or if a guarantee has been provided, the liability for claims shall be limited to foreseeable, typical damage.
b) If we accept the contractual obligation to test our products to verify that they have certain characteristics, we shall only be liable for damage that we have caused as a result of our not observing the Customer’s testing instructions.
c) Any liability for damages beyond that provided for under Section 4 and the preceding paragraphs (a) and (b) shall be excluded irrespective of the nature of the claims. This applies in particular to claims for damages on the basis of culpa in contrahendo, other breaches of obligations, or tortious claims.
d) If claims for damages against us are excluded or limited, this shall also apply with respect to the personal liability for damages of our employees, workers, collaborators, representatives, and agents.
6. Death and Personal Injury; Product Liability
Any liability to be assumed by us due to negligence resulting in death or personal injury shall not be affected or impaired in any way. The same applies to compulsory liability pursuant to German Product Liability Law.
7. Number of Shots / Cycle Times
To the extent that we guarantee a certain number of shots and/or cycle time for molds or hot runner systems in specific cases, this means that the mold or hot runner system, in principle, is suitable for producing the specified number of parts within this time under normal use. This assumes professional operation and proper, careful use as well as adequate, professional, and sufficiently frequent maintenance and does not constitute a guarantee of invariable quality or the dimensions of the produced parts.
8. Terms of Payment
a) Unless otherwise stated in the order confirmation, our prices are EXW "Ex Works" (Incoterms 2000) Bahlingen.
b) Our prices are based on the personnel and material costs at the time the contract is concluded. We shall be entitled to raise agreed-upon prices for our services to reflect increases in our personnel and material costs since conclusion of the contract if more than six weeks have passed between conclusion of the contract and performance or our service, and if the cost increase is not attributable to us.
c) Our prices do not include statutory value-added tax. Value-added tax is charged separately at the statutory amount on the date the invoice is issued. Sales discounts require a separate written agreement.
d) Unless otherwise agreed upon individually, payments are to be made to one of our accounts, without discount, as follows:
- 30% down payment after receipt of our order confirmation,
- 60% after notification is given that the goods are ready for shipment (for hot runner systems) or after presentation of the sample parts/first molded plastic parts (for molds),
- 10% within 30 days after delivery.
e) If the payment dates specified in (d) or agreed upon separately are exceeded, the statutory rules stipulating the consequences of delayed payment shall apply. We reserve the right to prove damage at a larger amount. The Customer has the right to prove damage at a smaller amount.
f) The Customer shall have the right to a set-off only if his counterclaims are final and conclusive, undisputed, or have been acknowledged by us. The Customer shall also have the right of retention, provided his counterclaim is based on the same contractual relationship.
g) If the Customer’s payment represents a material amount and it is overdue by more than one week or if circumstances arise that justify doubts as to the creditworthiness of the Customer, all outstanding payments shall be payable immediately without consideration of accepted promissory notes. In such cases we shall also have the right to proceed with delivery only against advance payment or collateral security, or to refuse further performance of the contract after a reasonable extension period has elapsed.
9. Reservation of Title
a) All delivered goods shall remain our property until all of the Customer’s payment obligations have been fulfilled. Ownership shall pass to the Customer only after all outstanding payments resulting from the business relationship with us have been paid. This also applies if the purchase price has been paid for a certain delivery of goods specified by the Customer. In the case of a running account, the reserved title shall be regarded as a collateral security for the current balance due.
b) The Customer may resell the goods in the proper and ordinary course of business under reservation of title. In this case, the Customer shall cede to us the payments due to him from his customers for the resold goods, including all subsidiary rights, until all amounts due have been fully paid. At our request, the Customer shall be obligated to announce the cession to his customers, supply us with the information necessary to assert our claims against these customers, and provide us with the relevant documents.
c) The Customer shall collect and administer for us cash and non-cash proceeds from the sale of goods realized in the proper and ordinary course of business in a trustee function. Such proceeds shall be kept clearly separate from the Customer’s own money.
d) The Customer may process, modify, and mix the goods in the proper and ordinary course of business. Processing or modification shall be carried out for us as the manufacturer, but without resulting in any obligations for us. If our (co)ownership should expire due to a business combination, it shall be agreed now that a proportionate share of the Customer’s (co)ownership of the uniform property shall be transferred to us (based on invoice value). The Customer shall keep our (co)property free of charge with due commercial care and diligence.
e) The Customer shall not be permitted to pledge or transfer goods as collateral that are owned by us pursuant to the present reservation of title clause or otherwise. The Customer shall immediately notify us of any pledge or other type of impairment of our rights by third parties.
f) The Customer shall not be permitted to sell goods which remain our property pursuant to this clause, or for any other reason, outside of his proper and ordinary course of business, or to cede any claims to which we are entitled pursuant to this clause.
g) If the value of the collateral granted pursuant to this clause or for other reasons due to purchase price claims or a balance due should exceed the specified claim by more than 20%, we shall be obligated to retransfer for such purpose collateral of our choice at the request of the Customer.
h) The Customer agrees to insure goods subject to reservation of title against damage resulting from theft, burglary, fire, water, or other reason at his own expense, and to provide proof that such insurance has been obtained. The Customer cedes to us any insurance claims arising from destruction, damage, or other reductions in the value of the goods subject to reservation of title.
i) If the Customer’s payment is delayed by more than one week, we shall have the right to demand that goods subject to reservation of title be surrendered at the Customer’s expense and held by us until the amounts due have been fully paid. The demand to surrender the goods serves solely as a means of securing our claims. Other obligations of the parties under the delivery contract – with the exception of the provisional right of ownership of the Customer – shall be fully preserved.
j) If agreement provisions relating to reservation of title are not permitted, or permitted only in part, by the law of the country in which the delivered item is located, we may reserve other rights to the delivered item. The Customer is obligated to cooperate in carrying out all measures (such as registration) necessary to enable reservation of title, or other rights in the place of reservation of title, and to protect these rights.
10. Workpiece-Related Models and Processing Equipment
a) To the extent the Customer makes available models or processing equipment, these shall be sent to us free of charge. We may request that the Customer collect such equipment from us at any time. If the Customer does not respond to this request within three months, we shall have the right to return the equipment at the Customer’s expense. The costs for maintenance, changes, and replacement of the Customer’s equipment shall be borne by the Customer. The Customer shall be liable for ensuring technically correct designs and executing the model in such a way as to ensure fulfillment of the processing purpose. Absent a separate agreement, we shall not be obligated to test whether the equipment provided conforms to the supplied drawings or samples.
b) If models, tools, and other processing equipment are produced or procured by us at the Customer’s request, we shall charge all incurred costs to the Customer.
c) We shall treat all models and processing equipment with the same care and diligence that we apply to our own affairs. At the Customer’s request, we shall be obligated to insure the Customer’s equipment at the Customer’s expense. Claims for subsequent damages shall be excluded.
d) If deliveries are based on drawings or other information given by the Customer, and if these violate the intellectual property rights of third parties, the Customer shall free us from all claims. We reserve ownership and copyright to drawings and other documents provided to the Customer as well as to our proposals for advantageous design and manufacture of the molds. These may not be made available to third parties and may be reclaimed by us at any time. With respect to models and processing equipment that are sent in or made or procured at the request of the Customer, the Customer may assert claims against us arising from copyrights or other rights only if he has informed us of the existence of such rights.
e) Designs that we prepare at the request of the Customer and for which we have provided all functional guarantees, shall remain our property. Copyrights and other rights shall rest exclusively with us.
11. Place of Performance and Jurisdiction, Applicable Law
a) Unless otherwise stated in the order confirmation, the place of performance shall be our place of business in
b) If the Customer is a registered merchant, a legal entity under public law, or a public special fund, or if the Customer's general place of jurisdiction is not in
c) The law of the Federal Republic of Germany shall govern the legal relationship between the parties. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
d) If individual parts of this agreement are deemed invalid, the validity, legality, and enforceability of the remainder of the agreement shall not be affected or impaired in any way. Provided that this does not concern the General Terms and Conditions, it is hereby agreed that any invalid terms of the agreement shall be substituted by valid terms that come closest to the economic content of the invalid clause. The same applies to any omissions.
Bahlingen, 2008
Otto Männer Vertriebs GmbH, Unter Gereuth 9-11, 79353 Bahlingen, Germany
Last updated: 2008