General Terms and Conditions Mahlwerck porcelain

General Terms and Conditions Mahlwerck porcelain

1. General

These terms and conditions apply to all current and future contracts between the customer and us, regardless of whether they are referred to in individual cases.
General terms and conditions of the customer are not valid, even if the customer refers to them when ordering or in correspondence. General terms and conditions of the customer are hereby contradicted.

Our offers in catalogues, offer and information letters or similar are always subject to change and non-binding (invitatio ad offerendum). The purchase contract is concluded with the acceptance of the order.
The provisions of the order confirmation apply exclusively to the scope and execution of the contract, provided that such is sent to the buyer and the latter does not object in writing within 3 days of receipt of the order confirmation. Subsidiary agreements of our employees who are not authorized to represent require their
effectiveness of our written confirmation.

2. delivery time

Delivery periods do not begin until the technical details of the ordered products have been finally clarified. The specification of delivery periods or delivery dates does not result in a fixed transaction. The customer can request delivery from us six weeks after exceeding a non-binding delivery date. We will be in default once the request has been received. If no delivery dates have been agreed, but a delivery time measured according to certain periods of time, this begins on the day the order confirmation is sent. It ends on the day on which the goods were dispatched or stored due to the impossibility of dispatch. The delivery time is interrupted for the duration of the examination of the proofs, production samples, etc. by the customer, namely from the day of dispatch to the customer until the day of receipt of a statement. If, after the order has been placed, the customer requests changes to the order that affect the production time, a new delivery time begins with the confirmation of the change. If the delivery time is exceeded due to circumstances for which we are not responsible, the customer is not entitled to withdraw from the contract or to hold us responsible for any damage incurred.

If the buyer is entitled to compensation for damage caused by delay, this is limited to a maximum of 5% of the agreed purchase price in the case of slight negligence. If the buyer also wants to withdraw from the contract and/or demand damages instead of performance, he must set the seller a reasonable deadline for delivery after the relevant deadline in this section has expired. If the buyer is entitled to damages instead of performance, the claim in the case of slight negligence is limited to a maximum of 25% of the agreed purchase price. If the buyer is a legal entity under public law, a special fund under public law or an entrepreneur who, when concluding the contract, is exercising his commercial or self-employed professional activity, claims for damages instead of performance are excluded in the case of slight negligence. If the seller is unable to deliver by accident while he is in default, he shall be liable with the liability limitations agreed above. The seller is not liable if the damage would have occurred even if the goods had been delivered on time.
The liability limitations and exclusions of liability in this section do not apply to damages based on a grossly negligent or intentional breach of obligations on the part of the seller, his legal representative or his vicarious agent or in the event of injury to life, limb or health.

3. Deterioration of the financial circumstances of the customer

If an order has been accepted and there is a significant deterioration in the customer's financial situation or if this only becomes known after the conclusion of the contract, we are entitled to refuse our services until the consideration has been rendered or security has been provided for it. If the customer is not willing to do this, we are entitled to withdraw from all existing contracts with the customer. We can also prohibit the resale of the goods delivered under retention of title and the surrender at a cost
demand from the customer immediately.

4. corrections

Corrections of any kind (e.g. texts, colors, shapes, decors) including corrections to delivery addresses etc. require the written form. Proofs and proofs are to be checked by the customer for typesetting and other errors and returned ready for printing. We are not liable for errors overlooked by the client. Changes made by telephone require the written confirmation of the client. In the case of smaller orders (volume less than €1.000) and typeset manuscripts, we are not obliged to send the client a proof. If the sending of a proof copy is not requested, the liability for typesetting errors is limited to gross negligence. Set and proof are always charged and are to be paid for regardless of the status of the order.

5. Print proof

If, for whatever reason, the commercial client waives a proof, any right to liability for material defects with regard to the correctness of the text, decorative colors and decorative elements shall lapse.

6. quality

We deliver in standard quality. Standard corresponds to the conventional oven sorting by the dozen. Samples represent a qualitative average. Percentages of non-round or surface glaze-porous variations of up to 10% within the run/batch are to be accepted.
We generally deliver coffee mugs in bulk quality, usually from Eastern Europe. Items delivered by the dozen with up to 3 pinholes and/or blemishes etc. are not worthy of a complaint. We deliver flatware in import quality.
All of our ceramic items are products that are made from natural products using traditional ceramic processes, which results in low tolerances. We only deliver sorted A and B quality.
Print quality (ceramic color printing): A 100% homogeneous print image and exact register cannot be guaranteed in direct printing due to tolerances of the object to be printed. Deviations from the provided color copy or
for proof samples are therefore possible. The decal method offers the highest possible security of the printing result.

7. Colour reproduction

Ceramic colored printing inks are not manufactured according to Pantone or HKS scales. They can only be adapted to these to a limited extent. Also due to thermal influences (decor firing at 840° C), resulting chemical reactions and additive color mixing of the decor colors with the underlying glaze, decor color deviations cannot be ruled out.
Color Variation Guidelines:

  • in the case of white glazes, deviations of up to 5% from the proof sample that is subject to a charge
  • For colored glazes, deviations up to 10% of the fee-based proof pattern.

8. printing inks

In the case of colored reproductions in ceramic color printing, slight color deviations from the original, as well as within the overlay and between printing and printing can occur. They do not entitle to the complaint.

9. phone

For data transmitted by telephone no guarantee can be given.

10. Prices

Our written offers are decisive for the sales prices of our products. Our published price lists, in whatever form, are only intended as a guide. Unless otherwise agreed, our prices are in € without VAT, without insurance and without other additional costs ex our works in the Czech Republic, Teplice or our contractual partner.
The prices quoted by us are calculated on the basis of the wages and material costs applicable at the time the contract was concluded. Exchange rate changes, changes in freight and customs duties and other charges are not taken into account. If the goods are not delivered within 4 months of the conclusion of the contract, we are entitled to increase the prices accordingly if there are cost increases for which we are not responsible.
Copyrights and other industrial property rights are not transferred by us in connection with the concluded supply contracts or made available for use. This applies in particular to layouts, graphic designs, shaping, etc.

11. Warranty

The customer must inspect the goods for defects immediately after delivery and report any defects in writing immediately, at the latest within 3 days of receipt. The customer's obligation to inspect the delivered goods also exists if outturn samples have been sent. Technical or other defects in part of the delivery or service cannot lead to complaints about the entire delivery or service. If the customer is a merchant within the meaning of the Commercial Code, hidden defects must be reported in writing immediately after their discovery, at the latest within 6 months of receipt of the goods. If the customer fails to provide the previously stipulated written notification of both obvious and hidden defects, the delivered goods are deemed to have been approved.
In the case of defects that are reported and justified in a timely manner, we provide a guarantee through supplementary performance. Here we decide on the type of supplementary performance. If the rectification fails or if a replacement delivery is not possible, the customer can either demand a reduction in payment (reduction) or withdraw from the contract (change). The buyer is responsible for the correctness of the dimensions and properties specified by him, as well as for the technically flawless solution of plans and drawings provided by him. In commercial business transactions, we shall be liable on a subsidiary basis for corresponding defects. Our buyer undertakes to take legal action against third parties (particularly manufacturers or our suppliers) before we make any claims. To the extent necessary, we will assign to the buyer the claims we are entitled to against the third party. Only after unsuccessful judicial assertion is the buyer entitled to assert corresponding claims against us. Costs that cannot be collected from the third party will be borne by us, insofar as they are justified.

12. shipping

Unless otherwise agreed, shipping is at the expense and risk of the customer. In the absence of specific instructions, the shipment will be made at our best discretion without guarantee for the cheapest shipping method. Insurance will only be taken out if expressly ordered and at the expense of the buyer.
The delivery is effected by us with delivery of the goods to the railways, post office, forwarder, carrier or the other carrier intended for shipment. The same applies if the goods are advised by the buyer of us as ready to ship, but can not be expelled because of strike, lockout, transport lock or force majeure. In this case, we store the goods at the expense and risk of the buyer in our factory or at a third party.
In the event of transport damage, the buyer must take the necessary measures to determine the damage and to accept any liability for compensation on the part of the transport company. We are entitled to make partial deliveries and to issue partial invoices. The buyer undertakes to provide a suitable area at the delivery address for unloading the delivered goods, to create suitable access options for the delivery truck and to ensure safe unloading with a truck crane or lifting platform. He must ensure that persons authorized to accept the delivery are present at the time of delivery. Should a new delivery be necessary due to the lack of an unloading option corresponding to this agreement or due to the fact that no authorized representative is present at the delivery, the buyer must bear the costs incurred by the new delivery.
In the event of unjustified refusal of acceptance by the buyer, we are entitled, after setting a grace period of 14 days, to either withdraw from the contract or to demand compensation for non-performance. Without specific proof of damage, we are entitled to
80% of the net price of the unaccepted goods as a lump sum as compensation. The purchaser and we are at liberty to prove and assert a higher, lower or no damage.
We reserve the right to choose the shipping method and route. Damaged goods are only to be accepted from the transport company once the damage has been acknowledged. Self-collectors who do not exchange a Euro pallet when picking up will be charged €20,00 plus VAT. invoiced per Euro pallet.

13. delivery volumes

In the case of custom-made products and printed matter, excess/shortage quantities of up to 10% are to be accepted for production-related reasons. Order quantities can be commercially rounded to a minimum purchase quantity and/or to the nearest packaging unit.

14. Advertising and company name

The client authorizes us to use products created on behalf of the client for advertising purposes. This applies in particular to advertising at trade fairs, the Internet,
catalogues, brochures, etc. The client waives any copyrights and other industrial property rights to which he is entitled with regard to layouts, graphic designs, shaping, etc. for use in advertising purposes. We accept the waiver.
The client grants us a non-exclusive right to use it within the framework of our business operations for advertising purposes. The granting of the right of use is free of charge as long as this right is not passed on to third parties.
The client assures that if he himself is not the owner of the copyright or the individual property rights or is not entitled to transfer the corresponding simple right of use, that he will ensure with the actual right holders that the relevant rights are granted to the contractor/on the corresponding right is waived.
We are entitled to indicate our company name on the product, the label and the printed materials, unless the client expressly refers to the neutral manufacture of the goods and assumes all liability as the distributor.

15. limitation

15.1 The limitation period for claims and rights due to defects in the services (regardless of the legal reason) is 1 year. This does not apply in the cases of § 438 I 1 BGB, § 438 I 2 BGB, § 479 I BGB or § 634 a I 2 BGB. The limitation period in these cases is 3 years.
15.2 The limitation periods according to paragraph 1 also apply to all claims for damages directed against us that are connected with a defect, regardless of the legal basis of the claim.
Mahlwerck Porzellan GmbH General Terms and Conditions as of 2022 3
15.3 The limitation periods according to paragraphs 1 and 2 apply with the following proviso:
a) The limitation periods generally do not apply in the case of intent.
b) The limitation periods also do not apply if we have fraudulently concealed the defect or if we have assumed a guarantee for the quality of the goods. In the event of fraudulent concealment of a defect, the statutory limitation periods that would apply in the absence of fraudulent intent shall apply instead of the periods specified in paragraphs 1 and 2.
c) The limitation periods do not apply to claims for damages in cases of injury to life, limb, health or freedom, claims under the Product Liability Act, grossly negligent breach of duty or breach of essential contractual obligations.
15.4 The limitation period for all claims begins when the goods are handed over to the transport company.
15.5 Unless otherwise expressly stipulated, the statutory provisions on the start of the limitation period, the suspension of expiry, the suspension and the new start of periods remain unaffected.
15.6 A change in the burden of proof to the detriment of the client is not associated with the above regulations.

16. Retention of Title

16.1 The goods delivered by us (reserved goods) remain our property until all our current claims against the partner from the business relationship and future claims, insofar as they are related to the delivered goods, have been fulfilled.
16.2 The buyer is entitled to resell the goods owned by us in the ordinary course of business. He hereby assigns to us all claims from this resale in the amount corresponding to the value of the resold item invoiced by us. We accept this assignment. The portion of the claim assigned to us has priority over the remaining claim. If the buyer has a current account relationship with his customer, the current account balance is already assigned. We accept this assignment. If the reserved goods are resold together with other items that do not belong to us, the buyer's claim against his customers is already assigned to us in proportion to the market value of the reserved goods to the value of the other items at the time of resale. We accept this assignment. The share of the claim assigned to us
priority over the rest of the claim.
16.3 The buyer is authorized to collect this claim even after the assignment. Up to the amount of our claim to be secured, the buyer is not entitled to dispose of the claim to be collected, in particular to assign it. Our authority to collect the claim ourselves remains unaffected; however, we undertake not to do so as long as the buyer has his
properly meets payment obligations, does not fall into arrears with payments and, in particular, does not apply for the opening of composition or other insolvency proceedings or payments are suspended. If the buyer makes use of the authorization to collect, we are entitled to the proceeds collected
in the amount of our claim to be secured. At our request, the buyer is obliged at any time to name the third-party debtors of the claim in question, to inform them of the assignment, to disclose the retention of title and to provide us with the documents and information necessary to collect the claims.
16.4 If the realizable value of all security rights to which we are entitled exceeds the amount of all secured claims by more than 10%, we will release a corresponding part of the security rights at the request of the buyer; we are entitled to choose the release between the various security rights.
16.5 The buyer must store the reserved goods with the usual care and insure them against the usual risks. The buyer is obliged to notify us immediately of any seizure of our securities or other claims that third parties raise with regard to our securities.
In the case of attachments, a copy of the attachment report and an affidavit must be sent at the same time, stating that our retention of title still exists and that the goods subject to retention of title are subject to our retention of title; if claims are attached, it must be sworn in lieu of an oath that these are claims that arose from the resale of the reserved goods and that these claims are due to
have ceded to us. The buyer is obliged to provide us with information about the whereabouts of the reserved goods and the claims arising from the resale of the reserved goods at any time upon request. The costs arising from the assertion of our rights shall be borne by the buyer. This applies in particular to judicial and extrajudicial
Costs in connection with a lawsuit pursuant to § 771 ZPO and damage incurred in this respect.

17. Liability

17.1 Due to violation of contractual and non-contractual obligations, we are only liable for ourselves and our vicarious agents in cases of intent and gross negligence. If this breach of duty was not committed by us, our legal representative or our managerial staff, but by other vicarious agents, liability is limited to the
damage that was foreseeable and typical for the contract at the time the contract was concluded. In the event of injury to life, limb and health, we are also fully liable for damage caused by negligent breaches of duty by us or due to a negligent breach of duty by a legal representative or vicarious agent. We are not liable for lost profits or
other financial losses of the buyer.
17.2 This exclusion and limitation of our liability does not apply in the event of a culpable breach by us or our vicarious agents of essential contractual obligations, in the absence of guaranteed properties or in cases of mandatory liability under the Product Liability Act.
17.3 If guaranteed properties are missing, we are not liable for such consequential damages that are not covered by the guarantee.
17.4 If claims are made against the buyer by his business partners for liability for material defects in the context of the resale of our goods in accordance with §§ 437 et seq. The buyer immediately forwards the notification of defects to us. After deciding on the right to demand supplementary performance, this will be done directly by us
executed. In return, the buyer waives any claims for liability for material defects to which he is entitled against us in this regard. This provision only applies to defects that have been reported in due time or that could not be detected within the scope of the buyer's obligation to inspect and report defects.

18. terms of payment

18.1 Mahlwerck Porzellan GmbH is entitled to transfer claims against customers located in Germany and EU countries to abcfinance GmbH, Kamekestr. 2-8, 50672 Cologne.
When the contract is concluded, the buyer will be informed whether the claim will be assigned. In these cases, payments with a debt-discharging effect can only be made to abcfinance GmbH. Their bank details will be communicated to the buyer upon conclusion of the contract.
18.2 Unless otherwise agreed with the buyer, deliveries and services are due for payment within 10 days of the invoice date without deduction.
18.3 In the event of non-payment despite the due date, the buyer will be charged the statutory default interest (for merchants 8 percentage points above the respective base interest rate) without a reminder. In addition, we are entitled to refuse to fulfill all further contracts until payment has been made.
18.4 The buyer is only entitled to assert rights of retention and offsetting if the claims against us are undisputed or have been legally established. The assertion of a right of retention by the buyer, insofar as a counterclaim is based on the same contractual relationship, is not affected by this.

19. Partial delay, partial impossibility

If the debtor has effected a partial performance, the creditor can only withdraw from the entire contract if he has no interest in the partial performance. If we are partially in default with the delivery or if the delivery becomes partially impossible for reasons for which we are responsible, the buyer may withdraw from the contract with respect to the part not yet fulfilled and / or claim damages for non-performance. Only if the partial fulfillment is not of interest to him, the buyer can withdraw from the whole contract or / and claim damages for non-fulfillment of the whole contract.

20. Exchange and cancellation

If the parties agree on an exchange or cancellation of the ordered or delivered goods, the buyer is obliged to pay a fee of 30% of the net list price.
The buyer is expressly permitted to prove that less damage or no damage at all has occurred.

21.Place of Performance, Place of Jurisdiction, Applicable Law, Partial Invalidity

If the partner is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of performance for all delivery and payment obligations is Rosenheim, and Rosenheim is the exclusive local and international place of jurisdiction for all contractual or non-contractual disputes. Any other responsibility provided for by law due to a personal or factual connection is excluded. However, we are entitled to bring an action at the partner's place of business in individual cases.

22. Applicable Law, Severability Clause, Written Form Requirement

22.1 If the partner is a merchant within the meaning of the Commercial Code, a legal entity under public law or a special fund under public law, the law of the Federal Republic of Germany shall apply. The Vienna UN Convention on Contracts for the International Sale of Goods dated April 11, 04.1980, as well as the UN Sales Convention and standards of international private law that refer to it, are expressly excluded.
22.2 Should one of the above provisions be or become invalid, the validity of the remaining provisions shall remain unaffected. Instead of the ineffective provisions, the parties will make an effective provision that conforms to the general terms and conditions as a whole and to the contractual ones
come as close as possible to agreements in factual, legal and economic terms. The same procedure applies if there is a gap in the General Terms and Conditions.
22.3 Changes or additions to these general terms and conditions and other additions, in particular the change to this clause itself, must be in writing to be effective.

 

Mahlwerck Porzellan GmbH
Managing directors Heike Hampel-Rudolph and Tobias Köckert
Updated 2022

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Mahlwerck porcelain

Mahlwerck porcelain