Conditions of Sale - Mack & Schühle AG

Conditions of Sale

A. General

1. We deliver only on the terms of our conditions of sale, delivery, and payment shown below, even where they are not expressly referred to later in permanent business relations. Opposing terms and conditions of the customer shall not apply, unless we have expressly accepted them in writing.

2. Our offers are subject to confirmation. We reserve the right to modify information on products, services, or prices us at any time, unless the information is expressly designated as binding. Our confirmation of the order is binding with regard to the content of the contract. 

B. Delivery and Dispatch

1. If a variety or vintage is not available, we reserve the right to deliver an equivalent replacement unless the customer has excluded this. We shall be entitled to make partial deliveries and render partial services at any time. Our obligation to deliver shall no longer apply in the event of force majeure.

2. An agreed delivery period shall be deemed met if, at its expiry, the goods have left our premises or have been declared ready for dispatch.

3. If the customer incurs damages as a result of a delay for which we are responsible, the customer shall be entitled to claim compensation. The amount of the compensation for damages shall be limited to 0.5% for each full week of delay up to a maximum of 5% of the value of the (partial) delivery. Our liability pursuant to Section F of our conditions of sale shall remain unaffected.

4. Shipping costs shall be borne by the customer, unless otherwise agreed in writing.

C. Prices, Terms of Payment

1. Prices are free place of receipt, including packaging, for deliveries within Germany. Value added tax at the respective rate shall be added to the agreed prices for deliveries within Germany. The prices agreed or according to the order confirmation shall apply for deliveries outside Germany.

2. Unless otherwise agreed, invoices must be paid in full within 30 days of the invoice date at the latest. After this, the customer shall be deemed in default without reminder and shall be obliged to pay interest at the rate of 9% above the base interest rate. Furthermore, in the event of a default on payment, we shall be entitled to waive or suspend further services or make them dependent on pre-payment by the customer.

3. In the case of payments made through third parties, in particular within the scope of del credere agreements, the goods shall only be considered to have been paid for upon receipt of payment by us.

4. The customer shall not be entitled to assert a right of retention against our claims or to offset with counterclaims unless they have been expressly acknowledged by us or are legally established. 

D. Reservation of Title 

1. Delivered goods shall remain our property (reserved goods) until all our claims under the entire business relationship with the customer have been satisfied in full. In the case of an outstanding invoice, the reserved property shall be regarded as security for our balance claim.

2. The customer shall be entitled to resell the goods that are still our property in the ordinary course of business under its normal conditions, as long as the customer is not in default of payment. In the event of resale, the receivables from the corresponding legal transaction shall already be transferred to the amount of our invoice value. We shall accept the assignment.

3. Notwithstanding our authority to collect, the customer shall be entitled to collect our claims in its own name in the ordinary course of business, as long as none of our claims are overdue, especially as a result of a delay in payment, suspension of payment, application for or initiation of insolvency proceedings, or financial collapse of the customer.

4. The assertion of the reservation of title or the seizure of the delivery items by us shall not be construed as withdrawal from the contract.

5. We undertake to release the securities to which we are entitled insofar as their value exceeds the secured claims by more than 20%. 

E. Warranty and Notice of Defects 

1. The customer must inspect the delivery carefully immediately after receipt, but within no more than eight days, and report any identifiable defects, in terms of both the quantity and the condition of the goods delivered, in writing and without undue delay.

2. The delivery of insignificantly different articles and insignificant deviations in quantity shall be permitted. 

F. Liability 

1. Claims for damages of the customer arising from the contract, from positive breach of obligations, culpa in contrahendo, and from tortious act shall be excluded, in particular for consequential damages.

2. This shall not affect our liability under German product liability law, for guaranteed quality, and in all cases in which we are liable for gross negligence or intent. In the event of negligence on our part, our liability shall be limited to foreseeable typical damages.

G. Applicable Law, Place of Performance, and Place of Jurisdiction

1. The place of performance and place of jurisdiction shall be the court responsible for our registered office. However, we reserve to right to take legal action against the customer in the court responsible for the customer’s registered office. German law shall apply (also in international transport), with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and German international private law.

2. If individual provisions of the contract with our customer or these general terms and conditions of business are wholly or partially ineffective, the remaining provisions shall not be affected.

3. The customer is advised in accordance with the German Federal Data Protection Act (BDSG)/General Data Protection Regulation (GDPR) that certain data is stored by us. For more information, see: Privacy Policy

Last modified: January 1, 2019