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. Scope of application
1.1 The present Terms and Conditions (hereinafter referred to as the “Conditions”) shall apply to all contracts between Manolya Electronics GmbH & Co. KG (hereinafter referred to as “we”) and the customer in connection with the purchase of our goods by the customer.
1.2 The present Conditions shall apply only if the customer is an entrepreneur, a legal entity under public law or a public-sector trust asset.
1.3 Differing, conflicting or additional terms and conditions of the customer are not part of the agreement unless we have expressly agreed to their inclusion in writing.
1.4 Unless otherwise agreed, the present Conditions in the version valid at the time of conclusion of each contract, in any case in the last version notified in writing, shall also apply as a framework agreement for similar future contracts without separate notification to this effect being required in each case.
2. Conclusion of contract
2.1 Our offers in catalogues, technical specifications, product descriptions or other documents as well as on our website operated under the domain www.manolya.de remain non-binding at all times.
2.2 By placing an order, the customer makes a binding contract offer. We are entitled to accept the customer’s offer within a period of ten working days starting from receipt of order. After this period, the customer is no longer bound by his contract offer.
2.3 We accept the customer’s offer by sending a written confirmation of order or shipment or by delivering the ordered goods to the customer. With our acceptance, a binding contract is concluded.
3.1 Unless otherwise specified in individual cases, all prices are in euros and “ex works” (EXW, Incoterms 2010) plus VAT. 3.2 If the customer requests that the goods be shipped, the customer shall bear transport costs ex works, including any packaging costs, duties, taxes and other public charges as well as the cost of transport insurance to the extent that such insurance is taken out at the customer’s request.
3.3 In addition, the customer confirms that he will act as buyer of any goods to be collected and that he will transport the supplied goods himself on behalf of his company or ask in the name of his company to have transport or shipment effected by freight or parcel service. The customer further assures that he will refrain from transferring power of disposal of the goods to be collected to third parties until after delivery. Any subsequent deliveries by transfer of the power of disposal to third parties, without exception, shall follow these collections.
4. Reservation of self-supply
4.1 If as a result of late delivery by our own suppliers we are unable to deliver within a contractually promised deadline, we will immediately inform the customer of our inability to meet the delivery deadline and notify him of the expected new delivery time.
4.2 If we are again unable to comply with the delivery period due to non-delivery by our own suppliers, we shall be entitled to withdraw from the contract in full or in part. The customer will be refunded immediately for any payments already made. 4.3 The above Clause 4.2 of the present Conditions shall apply only if we have concluded a congruent hedge transaction and neither we nor our suppliers are at fault for the non-delivery or if for any other reasons in individual cases there was no procurement obligation on our part.
5. Delivery terms
5.1 Delivery deadlines shall apply as agreed upon conclusion of contract. If no delivery deadline has been agreed, the delivery period shall be 30 days starting from conclusion of contract; in the case of advance payment, 30 days starting from the date we receive the advance payment.
5.2 To be valid, default in delivery on our part shall always require prior reminder by the customer.
6. Transfer of risk
6.1 Delivery is “ex works” (EXW). The transfer of risk takes place upon delivery of the goods at the place of performance.
6.2 Unless otherwise agreed with the customer, we are entitled in the event of a shipped purchase to determine the type of shipment, i.e. the transport company, the dispatch route and the packaging, taking into account the legitimate interests of the customer.
7. Customer’s delay of acceptance
7.1 If delivery is delayed for reasons for which the customer bears responsibility, in particular because of default of acceptance by the customer or failure to cooperate on his part, the customer shall pay us a lump-sum compensation of 20% of the agreed purchase price for the damage caused by the delay as well as for any necessary additional expenses. This shall not apply if the customer can prove to us that less or no damage has been caused.
7.2 Further claims remain unaffected, in particular if we provide evidence of higher damage. Any lump-sum compensation paid by the customer will be credited against the assertion of further damages.
8.1 The following provisions shall apply to the inspection and complaint obligations of the customer:
8.1.1 A defect shall be deemed notified without delay if notification occurs within a period of seven working days after discovery of the defect in compliance with the inspection obligation, and in the case of hidden defects within seven days of discovery of the defect. The timeliness of the notification shall be judged on the basis of the date of its dispatch.
8.1.2 All complaints must be made in writing.
8.1.3 Our liability for unreported defects shall be excluded if the customer fails to meet his obligations in respect of inspection of the goods and complaints.
8.2 If defects are found, we are entitled to choose between subsequent performance by way of improvement (removal of the defect) or replacement (delivery of defect-free goods). 8.3 Subsequent performance entails neither the removal nor the reinstallation of the object of purchase unless we had committed ourselves in the purchase agreement to install the purchased goods.
8.4 Costs resulting from an unjustified request for removal of a defect must be reimbursed by the customer, unless he could not have been expected to see that there was no defect.
9. Written form requirement
Any legally relevant declarations of the customer to us must be made in writing in order to be valid. This applies particularly to deadlines, reminders and notices of cancellation.
10.1 Customer claims for damages are excluded.
10.2 Excepted from Clause 10.1 of the present Conditions are claims for damages of the customer resulting from injury to life, limb, health or from the violation of material contractual obligations (cardinal obligations) as well as liability for other damages resulting from intentional or grossly negligent breach of duty by ourselves, our legal representatives or our agents. Material contractual obligations are obligations which must be performed for the objective of the contract to be achieved. 10.3 Unless the customer’s claims for damages result from injury to life, limb or health, our liability in the event of violation of a material contractual obligation shall apply only to typical, foreseeable damage that has been caused through simple negligence.
10.4 The provisions of the Product Liability Act remain unaffected.
10.5 The above provisions of Clauses 10.1 to 10.4 of the present Conditions also apply to our legal representatives and agents if claims are asserted directly against them.
11. Extended reservation of title
11.1 The delivered goods (goods held under reservation) remain our property until all claims that we may have vis-à-vis the buyer, now or in the future, specifically including all current accounts receivables, have been met. Insofar as the buyer acts in breach of contract – especially by being in default in respect of payment of a claim – we shall be entitled to take back the reserved goods after we have stipulated a reasonable period for performance. Return transport costs shall be borne by the buyer. If we take back the reserved goods, this shall constitute a withdrawal from the contract. Impounding the goods shall also constitute withdrawal from contract. We may dispose of any reserved goods taken back by us. The proceeds of such sale will be credited against amounts due by the buyer after we have deducted a reasonable amount for the cost of the realization.
11.2 The buyer must treat goods held under reservation with care. He must, at his own expense, insure them at replacement value against theft or damage by fire or water. If maintenance or inspection work is required, the buyer must have such work carried out at his own expense.
11.3 Provided he is not in default of payment, the buyer may use the goods held under reservation and sell them in the ordinary course of his business. However, he may not pledge or assign reserved goods as a security. By way of security, the buyer hereby and now assigns to us the totality of his payment claims vis-à-vis his customers arising from the resale of the reserved goods as well as his claims vis-à-vis his customers or third parties with regard to the reserved goods arising from any other legal ground (in particular claims in tort or claims for insurance benefits), including all current accounts receivables. We accept this assignment.
11.4 The buyer is entitled, on our behalf, to collect the claims assigned to us on his own account and in his own name as long as we do not revoke this authorization. Our right to collect such claims ourselves shall not be affected by the present clause; however, we shall refrain from asserting the claims or revoking the authorization to collect as long as the buyer meets his payment obligations.
11.5 If, however, the buyer acts in breach of contract – especially if he defaults on the payment of a claim – we shall be entitled to demand from the buyer that he informs us of the assigned claims and the respective debtors, that he informs the debtors of the assignment and that he hands over all necessary documents to us and provides us with all the information we may need to assert the claims.
11.6 Any processing or transformation by the buyer of the goods held under reservation is always carried out on our behalf. If the reserved goods are processed with other items that do not belong to us, we shall thus acquire joint ownership of the new product in proportion of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing. In other respects, the same shall apply to the new product created by the processing as for the goods held under reservation.
11.7 If the reserved goods are inseparably combined or mixed with other items that do not belong to us, we shall acquire ownership of the new product in proportion of the value of the goods (final invoice amount including VAT) to the other combined or mixed items at the time of combination or mixing. If the reserved goods are combined or mixed in such a manner that the buyer’s item is to be regarded as the main item, the buyer and we are already in agreement that the buyer shall transfer proportional joint ownership of this product to us. We accept this transfer. The buyer shall safeguard for us the resulting sole ownership or co-ownership of the item.
11.8 If the goods are impounded by a third party or in the event of any other interventions of third parties, the buyer must point out our ownership and notify us immediately in writing so that we can enforce our ownership rights. If the third party is unable to reimburse the judicial or extrajudicial costs incurred by us in this context, the buyer shall be liable for such costs.
11.9 Upon buyer’s request, we are obliged to release the securities due to us insofar as their realizable value exceeds the value of our outstanding claims vis-à vis the purchaser by more than 10%. We may thereby select the securities to be released.
12. Statute of limitations
12.1 The warranty period is 12 months beginning with the transfer of risk.
12.2 The limitation period pursuant to Clause 12.1 of the present Conditions shall also apply to contractual and non-contractual claims of the customer for damages based on a defect. This shall not apply if the statute of limitations in individual cases prescribes a shorter period of limitation.
12.3 Clause 12.2 shall not apply to damage claims by the customer within the meaning of Clauses 10.2 and 10.4 of the present Conditions.
13. Set-off, right of retention
13.1 The customer may set off only if his counterclaim has been legally established or is undisputed.
13.2 The customer may exercise a right of retention only if his claim has been legally established or is undisputed and is based on the same contract.
13.3 The above Clauses 13.1 and 13.2 of the present Conditions shall not apply to warranty claims of the customer.
14. Applicable law and jurisdiction
14.1 Place of performance is the place of transfer of risk.
14.2 The law of the Federal Republic of Germany shall apply under exclusion of the UN Convention on Contracts for the International Sale of Goods and of German international private law.
14.3 Exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Berlin. We are however entitled to bring an action at the place of the delivery obligation or at the customer’s general place of jurisdiction. 14.4 Any statutory provisions having precedence, especially regarding exclusive jurisdiction, remain unaffected.