General Terms and Conditions
Manolya purchase terms
Section 1: General provisions and scope of application
- Our purchase terms apply exclusively. We shall recognise opposed or deviating conditions of the supplier only if we have explicitly agreed to them in writing. Our purchase terms shall also apply if we perform the delivery to the supplier without any reservations in spite of knowing of terms and conditions of the supplier which are contrary to or deviate from our purchase terms.
- The currently applicable version of our purchase terms shall also apply to all future business with the supplier.
- Our purchase terms are valid only with purchasers.
Section 2: Orders and order acceptance
- The supplier shall be obliged to accept our order within a period of 24 hours. Once this period has run out, we will no longer be bound by such an order. The content of our written orders alone shall apply. Orders placed verbally or supplementary agreements only become valid if confirmed by us in writing.
- The order can be cancelled by us unilaterally up until handover of the object of purchase by the supplier to the shipping company, unless cancellation was excluded consensually ahead of time and in writing.
- Written form can be replaced with electronic form.
- We reserve all rights to ownership and/or copyrights of our documents, including illustrations, drawings, accounts, etc. Documents and the like are to be kept confidential from third parties. They are not to be made available to third parties without our prior written consent. They are to be used for processing of our orders only; once an order has been processed they shall be returned to us without the need for a request and technical data shall be deleted.
Section 3 Pricing, payment terms and inventory value adjustment
- The price listed in the order is binding, unless the supplier lowers his price by the delivery date; in this case, the lowest price from contract conclusion to delivery is binding. This price shall include free delivery to the buyer’s address, as well as packaging, transportation costs, toll charges, insurance and customs. Return of packaging is to be stipulated separately.
- Invoices are to be sent to our business address separately and via postal service.
- We are able to process invoices received only if, in accordance with the provisions of our order confirmation, they indicate the order number shown in our order confirmation. The supplier shall be responsible for all consequences of non-compliance with this obligation, unless he establishes that he does not have to bear this responsibility.
- If a delivery is not executed according to contract, or is unsatisfactory, we reserve the right to withhold payment until delivery is made to our satisfaction, and keep any sales rebates, discounts or similar payment benefits.
- If a payment date is not stipulated in writing, we shall pay the invoice amount within 14 days from date of delivery and receipt of the invoice, minus a 3% discount, or net cash within 45 days after receipt of the invoice. Payment was made on time if by the postmark date corresponds to the due date.
- If a supplier lowers the price of a delivered product or reduces the price on the product invoice for some other reason or lowers a tentative sales price recommended to him for a product, we shall receive the same price benefit on products not yet sold from our inventory and outlets, or on products remaining in the inventories of our business partners. We shall remit a debit note to the supplier as to the difference between the supplier’s quoted price and the price benefit.
- We shall be entitled to the full range of set-off and retention rights stipulated by law. If insolvency proceedings are legally initiated against a supplier’s assets or if an application to initiate bankruptcy proceedings on a supplier’s assets (for lack of availability of cost-covering assets, due to imminent illiquidity or due to excessive debts), we reserve the right to delay payment, in order to off-set existing or future claims, such as liabilities for defects.
Section 4: Delivery date and quantity
- The delivery date specified in the supplier’s confirmation is binding. If a delivery date is not specified, it shall generally be within three business days of the acceptance of our order. Compliance with the delivery date is determined by the date of receipt of the goods at our business address or at the stipulated delivery address.
- The supplier must inform us without delay and in writing when circumstances occur, or become apparent to him, that prevent him from meeting the stipulated delivery date.
- If delivery is delayed, we reserve the right to statutory entitlements. In particular, we shall be entitled to demand damages due to non-fulfilment, after an appropriate grace period.
- Partial delivery is to be noted as such on the delivery note and in the invoice. We reserve the right to refuse partial delivery at the supplier’s expense and risk. This also applies to exceedance of the delivery quantity in terms of goods.
- An assessment of the correctness of the delivery is conducted by us in the form of a receiving inspection as soon as goods arrive, and must include a satisfactory number of units, satisfactory dimensions, weight and quality features.
Section 5: Delivery conditions
- We only accept exchangeable euro-pallets. We reserve the right to charge a fee of up to 5 Euros per pallet for unpacking, disposing of and administrating any one-way pallets, industry pallets, or any other transportation devices deviating from our standards. We reserve the right to claim higher costs.
- The dimensions of the euro-pallet and a packing height of 1.80m must not be exceeded.
- The supplier shall be obligated to use appropriate packaging materials, in terms of both quantity and quality. This especially applies to goods delivered in large unit numbers, and without their original packaging.
- Furthermore, the supplier is obligated to deliver goods to us within our goods receiving hours. Our goods receiving hours are Monday through Friday, from 7:00 to 12:00. We reserve the right to refuse goods delivered outside of our goods receiving hours.
Section 6: Condition of goods and labelling
- The supplier shall guarantee that the delivered goods comply with the statutory provisions applicable to their use (in particular with product safety laws/ CE labels), with the most current state of the art, and with EU regulations. Should the goods deviate fro these provisions, the supplier is obligated to inform us of these deviations and the reasons thereof, in each individual case and before the delivery process has begun. In such a case, we reserve the right, even after receipt, to reject the goods within a period of 10 business days from notification by the Supplier, and to assert the legal warranty claims.
- The mandatory legal labelling and labelling stipulated in the order must be affixed to each sales unit.
- The supplier guarantees that all goods that fall under the Electrical and Electronic Equipment Act comply with the legal requirements; in particular, such devices must be produced, registered and labelled in compliance with the legal requirements, and must be disposed of in a manner that complies with said legal requirements. If certain devices are improperly labelled, we reserve the right be demand compensation for costs incurred in a post-labelling process, from the supplier.
- The supplier guarantees that the delivered goods and packaging are in compliance with regulations pertaining to packaging, batteries, etc.; the supplier shall immediately provide appropriate evidence of compliance upon request.
Section 7: Contractual penalty
If the ordered quantity of goods is not delivered by the stipulated delivery date or if the stipulated delivery conditions are not met, we reserve the right to demand reimbursement of the supplier in accordance with section 8, without prejudice to any other statutory claims to which we are entitled, and without the need for proof. Any and all further rights and claims are hereby reserved. The supplier reserves the right to provide evidence that no damages or significantly lower damages were incurred as a result of the contractual infringement. We reserve the right to enforce such a contractual penalty within two weeks of receiving the goods or after permanently refusing an order, and to withdraw from the delivery contract.
Section 8: Extent of contractual penalties
- Quantity deviation:
- Return due to partial delivery and quantity overrun: flat rate 70 Euros.
- Lower quantity: a flat rate of 4% of the price on the invoice of the insufficiently supplied quantity.
- Delivery date variation (limited to 4% of the contract value):
- Per commenced business day of the delay: flat rate 0.1% of the price on the invoice.
- Per commenced business day of the early delivery from the fourth business day on: flat rate of 20 Euros.
- Deviations from the delivery conditions: flat rate 50 Euros
Section 9: Transfer of risk and documentation
- Unless otherwise agreed upon in writing, the delivery shall include free delivery to the buyer’s address.
- The supplier is obligated to provide shipment documentation and delivery notes containing our exact order number; should these be omitted, we cannot be held responsible for processing delays.
Section 10: Inspection of defects and guarantee
- We shall be obligated to examine the goods for any deviations in quality and quantity within reasonable time limits; a reasonable period of time is 5 business days from the date of delivery or, in the case of hidden defects, 5 days from the date of discovery. To meet the deadline it suffices to send a notification to the supplier.
- We are entitled to all legal claims under warranty in full; notwithstanding this entitlement, we are also entitled to request elimination of defects or replacement deliveries from the supplier at our discretion. In this event the supplier is required to bear all expenses required in order to eliminate the defects or provide a replacement delivery. The right to claim damages, particularly for damages instead of performance of the service is expressly reserved.
- All return shipments must be accompanied by our internal process number.
- If, after being requested by us to do so, the supplier fails to immediately fulfil his obligations for subsequent performance, we shall be entitled in cases of emergency, and in particular to prevent severe hazards or to avoid greater damage to itself undertake or employ a third party to carry out the remedial works at the supplier’s expense and at the usual compensation rates as determined by us.
- The supplier’s liability for defect claims covers at least 24 months from when the goods were first delivered to the end client, but can last for a period of up to 5 years after delivery to us; Article 479 (2) 3 BGB (of the German Civil Code) shall be applied.
Section 11: Product liability, indemnity and liability insurance
- To such extent as the supplier is responsible for product damage, he is obliged to release us from third-party damage compensation claims at our initial request as if the cause were under his control and organisation and as if he were personally liable to third parties.
- Under his liability for damages under (1) the supplier is also obligated to reimburse any expenses according to sections 683 and 670 of the Civil Code (BGB) and also according to sections 830, 840 and 426 of the Civil Code (BGB), which result from, or in connection with, any product recall action carried out by us. Insofar as possible and reasonable, we shall inform the supplier about the content and scope of the recall measures to be undertaken, and shall give him the opportunity to comment. Other contractual and/or legal claims shall hereby remain unaffected.
- The supplier obligates himself to maintain product liability insurance with a flat rate sum insured of at least 10 million Euros per personal injury claim / property claim.
Section 12: Property rights
- The supplier warrants that neither the goods delivered by him nor their onward supply, in any way infringe any utility models, patents, licenses or other protective rights of third parties by us. The supplier guarantees that all fees for devices/ data carriers delivered by him have been paid, to which a copyright fee applies in accordance with German law.
- If claims are asserted against us by a third party due to an infringement, the supplier shall be obliged to indemnify us from these claims upon first written request; we are not entitled to conclude any agreements with the third party, in particular to make a compromise, without the consent of the supplier.
- The indemnification obligation of the supplier, which shall exist in the case of fault on the part of the supplier, refers to all expenses we necessarily incur from or in connection with the recourse by a third party.
- The limitation period is ten years, calculated as of the conclusion of the contract.
Section 13: Cessation of ownership
- We recognize no rights to reservation of title or other security rights, regardless of their form, content, effect and scope, and hereby expressly contradicts any such rights, as long as nothing else has been stipulated.
- The assignment of claims against us is only effective with our written consent.
Section 14: Confidentiality and data protection
- The supplier is obligated to keep strictly confidential all knowledge, information and business documents, unless such information is already in the public domain, has been lawfully obtained from a third party or has been independently developed by a third party; all Information shall, in addition, be exclusively used for the purposes of the business relationship. The confidentiality agreement also applies after termination of this contract; it does, however, expire once the knowledge, information and business documents have become public domain. Confidential information shall include, in particular, technical data, purchased quantities, prices and any corporate data.
- The supplier is required due use-personalised data acquired via or due to our business relationship in accordance with the German Federal Data Protection Act. Furthermore, the supplier understands that we process and use-personalised data acquired via or due to our business relationship in accordance with the German Federal Data Protection Act.
Section 15: Contact person and availability
- The supplier is obligated to relay the following information to us immediately after the conclusion of a contract; the supplier is liable for any consequences to or cost incurred due to neglect of this duty, unless he is able to prove that he is not responsible for these consequences.
- The contact person has decision-making power and phone and fax numbers for the following departments:
– Placing of orders and process status
– Returns and claims with regard to defects
- A detailed breakdown of how such as defect claims are to be validated (for example, obtaining a RMA number, etc.).
- The contact person has decision-making power and phone and fax numbers for the following departments:
We emphasize to our suppliers that reserve the right to assert claims for defects. We expressly reject any relegation to claims as to our rights against the manufacturer or a third party.
Section 16: Final provisions
- Solely the laws of Germany shall apply, without regard for the conflicts of law or the United Nations Convention on Contracts for the International Sale of Goods (CISG, UN agreement on purchasing rights).
- If the supplier is a general merchant, our place of business shall be the place of jurisdiction; however, we reserve the right to file claims against the supplier at his place of business as well.
- Unless otherwise stated in the order, the place of performance is our principal place of business.
- The invalidity or unenforceability of any of the above provisions, whether in whole or in part, shall not affect the validity of the remaining provision(s) or contracts hereof.
Manolya sales terms
1.1 These General Terms and Conditions (hereinafter referred to as «Terms and Conditions») apply to all contracts between Manolya Electronics GmbH & Co. KG (hereinafter referred to as «we») and the Customer regarding the purchase of our goods by the Customer.
1.2 These Terms and Conditions only apply when the Customer is a merchant, a corporate body governed by public law or a separate fund governed by public law.
1.3 General terms and conditions of the Customer that differ, conflict or supplement, do not form part of this Contract, unless we have expressly agreed to their inclusion in text form.
1.4 Unless otherwise agreed, these General Terms and Conditions in the version valid at the time the respective contract is concluded or, at the least, in the last version communicated in text form, also apply as a general agreement for similar future contracts, without the need for any further separate reference.
1.5. Provisions in these Terms and Conditions that correspond or refer to the legal situation are only meant for clarification purposes. The statutory provisions apply even without a corresponding provision being provided in these Terms and Conditions, unless excluded, amended or supplemented as a part of these Terms and Conditions.
2. Conclusion of contract
2.1 Offering in our catalogues, technical documentation, product descriptions and other documents or on our website at www.manolya.de are always non-binding.
2.2 On placing their order, the Customer submits a binding contractual offer. We are entitled to accept the Customer’s offer within a period of ten working days, starting from the day on which we receive the order. The Customer is no longer bound by their contractual offer after this period has expired.
2.3 We accept the Customer’s offer by sending an order or shipping confirmation in text form or by delivering the ordered goods to the Customer. A binding contract is concluded on our acceptance of the Customer’s offer.
3.1 Unless otherwise stated in individual cases, all prices apply in Euros and «ex works» (EXW, incoterms 2010) plus VAT.
3.2 If the Customer requests the dispatch of the goods, they bears the cost of the transport ex works, including any packaging costs, customs duties, taxes and other public dues, as well as transport insurance, provided that they are taken out at the request of the Customer.
3.3 The Customer also confirms that they will act as the purchaser of the object to be collected and transport the object of the delivery on behalf of their company or commission a forwarding agent/parcel service to transport/ship the object of the delivery on behalf of their company. The Customer further assures that they will only transfer the power to dispose of the goods to be collected to third parties following the aforementioned delivery. Subsequent deliveries by procuring the power to dispose of the goods to third parties will follow these collections without exception.
3.4 Manolya is entitled to change terms of payment granted unilaterally under consideration of the principles of Sec. 315 German Civil Code (BGB), if the customer’s creditworthiness deteriorates or they are in payment default, especially if the credit insurer that insures Manolya’s claims against the Customer detects such a deterioration, changes their insurance terms for this reason or refuses further insurance
of the claims against this Customer.
4. Disclaimer concerning the availability of supplies and raw materials
4.1 If, due to untimely delivery by our suppliers, we are unable to comply with a bindingly agreed delivery deadline, we shall inform the Customer immediately of our failure to comply with this and notify them of the expected new delivery deadline.
4.2 In the event of our repeated failure to meet the delivery deadline owing to non-delivery by our own suppliers, we are entitled to withdraw from the contract either in whole or in part. Any consideration already paid will be refunded to the Customer immediately.
4.3 Section 4.2 above of these Terms and Conditions only applies if we have concluded a congruent hedging transaction and neither we nor our suppliers are at fault for the lack of availability of supplies and raw materials, or if no procurement obligation exists on our part for other reasons in individual cases.
5. Delivery Terms
5.1 The delivery deadlines agreed upon when the contract is concluded apply. If a delivery deadline has not been agreed, the delivery period equates to 30 days starting from conclusion of the contract, or if prepayment has been agreed, 30 days from our receipt of the prepayment.
5.2 The occurrence of a delay in delivery by ourselves always requires a prior reminder from the customer.
6. Risk Transfer
6.1 Delivery takes place «ex works» (EXW; incoterms 2010). The transfer of risk takes place when the goods are handed over at the place of performance.
6.2 Unless otherwise agreed with the Customer, a sale by delivery to a place other than the place of performance entitles us to determine the type of shipment, i.e. the transport company, shipping route and packaging, taking the legitimate interests of the Customer into account.
7. Delay in acceptance by the customer
7.1 If the delivery is delayed for reasons for which the Customer is responsible, and, in particular, owing to the Customer’s delay in accepting the delivery or a breach of a duty by the Customer, the Customer shall pay us 20% of the agreed purchase price as lump-sum compensation for the damage caused by the delay as well as the additional expenses incurred. This does not apply if the Customer can prove that little or no damage occurred.
7.2 Further claims remain unaffected by this, especially if we prove greater damage. Lump-sum compensation paid by the Customer will to be taken into account when asserting any claims for further damage.
8.1 The following provisions apply to the Customer’s obligations to inspect and provide notice of defects:
8.1.1 The Customer is to inspect the goods for completeness and intactness on delivery in the presence of the carrier making the delivery. In particular, the goods are to be weighed hereby and the serial numbers compared. The latter is only to take place, however, if delivery of goods with specific serial numbers has be made an integral part of the contract. The Customer is to note damage and shortages on the freight documents and have them acknowledged by the carrier making the delivery. At the request of the Customer, we shall coordinate the delivery times in advance as far as possible to ensure the timely delivery, acceptance and inspection of the goods by the Customer. Subsequent complaints concerning damage or shortages without the acknowledgement of the carrier will not be accepted, unless the Customer can provide evidence that it was impossible or unreasonable to ascertain the shortages or damage addressed on delivery in the presence of the carrier. 8.1.2 The obligation of the Customer to inspect and notify us of defects
in accordance with Sec. 377 GCC (HGB) remains unaffected if we take over delivery of the goods to the Customer’s contract partner on behalf of the Customer (drop shipping).
8.1.3 In all other cases, hidden defects that were not already notified in accordance with Sec. 8.1.1 shall be deemed to have been notified immediately if notification is given no later than seven days after the defect is discovered. In the case of drop shipping, within the scope of the obligation to inspect and notify in accordance with Sec. 377 GCC (HGB), notifications of defects are to be considered timely if notification is made within seven days of the goods being delivered to the end consumer. Timely dispatch of the notification of defects suffices to meet the deadline.
8.1.4 Notification of defects must always be provided in text form.
8.1.5 Our liability for the undisclosed defect is excluded if the customer fails to meet their obligations to inspect and notify or does not meet them on time.
8.2 Warranty claims owing to material and legal defects in the goods delivered will first be asserted out of court by the Customer against the manufacturer and processed through the respective manufacturer’s service centres. The Customer shall only assert his claims against Manolya if the manufacturer demonstrably refuses regulation of the claim. The personal liability of Manolya remains unaffected by this.
8.3 The Customer is obliged to provide proof of the hidden defect. We can request proof of the hidden defect.
8.4 In the event of a defect, we are entitled to choose between subsequent performance by way of rectification (elimination of the defect) or replacement (delivery of a defect-free item).
8.5 Subsequent performance does not include removal or re-installation of the purchased object if we have not undertaken to install it in the sales contract.
8.6 The customer is obliged to reimburse the costs that arise from an unjustified claim to eliminate defects, unless they were unable not identify the lack of defects.
9. Text form requirement
Legally relevant declarations made to us by the customer require the text form to be effective. This applies to setting deadlines, reminders and cancellation notifications in particular.
10.1 Claims for damages by the Customer are excluded.
10.2 Excluded from Section 10.1 of these Terms and Conditions are claims for damages by the Customer arising from the loss of life, limb, health, or from the breach of essential contractual obligations (cardinal obligations), as well as liability for other damages based on an intentional or grossly negligent breach of duty by us or our representatives and vicarious agents. Essential contractual obligations are those whose fulfilment is necessary to achieve the objective of the contract.
10.3 In the event of a breach of essential contractual obligations, we shall only be liable for the foreseeable damages typical for the contract if the breach was caused by simple negligence, unless the customer’s claims for damages result from loss of life, limb or health.
10.4 The provisions of the German Product Liability Act remain unaffected by this.
10.5 The aforementioned provisions in Sections 10.1 to 10.4 of these Terms and Conditions also apply to our legal representatives and vicarious agents if claims are made directly against them.
11. Prolonged retention of title
11.1 The goods delivered (reserved goods) remain our property until all our claims against the purchaser to which we are entitled are met both now and in the future including all current account balance claims. If the Purchaser is in breach of contract – in particular if they are in arrears with payment of a payment claim – we are entitled to take back the reserved goods after we have set a reasonable deadline for making payment. The Purchaser is to bear the transport costs for the return of the reserved goods. Our taking back the reserved goods represents a withdraw from the contract on our part. If we seize the reserved goods, it also represents a withdrawal from the contract. We are entitled to sell on reserved goods which we have taken back. The proceeds of this will be offset against the amounts the Purchaser owes us after we have deducted a reasonable amount for the cost of the sale.
11.2 The Purchaser is obliged to handle the reserved goods with care. They are obliged to adequately insure them at replacement value against fire, water and theft at their own expense. If maintenance and inspection work is required, the Purchaser is obliged carry this out in good time at their own expense.
11.3 The Purchaser is permitted to use the reserved goods and resell them in the ordinary course of business as long as they are not in default of payment. However, they are not permitted not pledge the reserved goods or transfer them as security. As a precaution, the Purchaser assigns to us here and now in full their payment claims against their customers from a resale of the reserved goods, as well as those of their claims against their customers or third parties for the reserved goods that arise for another legal reason (in particular, claims from tort and for insurance coverage), including all current account balance claims. We accept this assignment.
11.4 The Purchaser is permitted to collect those claims assigned to us on their own account on our behalf as long as we do not revoke this authorisation. This does not affect our right to collect these claims ourselves; however, we will not assert the claims ourselves and will not revoke the direct debit authorisation as long as the Purchaser properly fulfils their payment obligations.
11.5 However, if the Purchaser is in breach of contract – especially if they are in arrears with the payment of a payment claim – we can request that the Purchaser notify us of the claims assigned and the respective debtors, notify the respective debtors of this assignment, transfer all the related documents to us and provide us with all the information we need to assert the claims.
11.6 Any processing or conversion of the reserved goods by the Purchaser is always performed on our behalf. If the reserved goods are processed with other objects that do not belong to us, we acquire co-ownership of the new object in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed objects at the time of processing. In all other respects, the same applies to the new object that results from processing as to the reserved goods.
11.7 If the reserved goods are inseparably combined or mixed with other objects that do not belong to us, we acquire co-ownership of the new object in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other combined or mixed objects at the time of combination or mixing. If the goods subject to retention of title are to be viewed as the main object, we and the Purchaser agree here and now that the Purchaser transfers co-ownership of this object to us on a pro-rata basis. We accept this transfer. The Purchaser shall safeguard the resulting sole or co-ownership of an object on our behalf. 11.8 In the event that third parties seize the reserved goods or intervene in any other way, the Purchaser shall notify them of our ownership and inform us immediately in writing so that we can assert our ownership rights. If the third party is not in a position to do so, the Purchaser shall be liable for reimbursing any judicial or extra-judicial costs that we incur in this connection.
11.9 If the Purchaser requests, we are obliged to release the sureties which we are entitled to insofar as their realisable value exceeds the value of our outstanding claims against the Purchaser by more than 10%. However, we may select the sureties to be released.
12.1 The warranty period amounts to 12 months starting with the transfer of risk.
12.2 The limitation period in accordance with Section 12.1 of these Terms and Conditions also applies to contractual and non-contractual claims for damages by the Customer based on a defect. This does not apply if the statutory limitation period results in an earlier limitation period in individual cases.
12.3 Sec 12.2 does not apply to claims for damages made by the Customer subject to Sec. 10.2 and 10.4 of these Terms and Conditions.
13. Offsetting, retention
13.1 The Customer is only entitled to offset if their counterclaim is legally established or undisputed.
13.2 The Customer can only exercise a right of retention if their claim has been legally established or is undisputed and is based on the same contractual relationship.
13.3 The foregoing Sec. 13.1 and 13.2 of these Terms and Conditions do not apply to warranty claims by the Customer.
14. Applicable law and jurisdiction
14.1 Place of performance is the place of risk transfer.
14.2 The law of the Federal Republic of Germany applies under exclusion of the UN Convention on Contracts for the International Sale of Goods and German international private law.
14.3 Exclusive place of jurisdiction for all legal disputes that arise directly or indirectly from the contractual relationship is Berlin, Germany. However, we are also entitled to bring legal action at the place of performance for the delivery obligation or in the customer’s general jurisdiction.
14.4 Priority statutory provisions, in particular, exclusive places of jurisdiction, remain unaffected by this.