General sales, delivery and payment conditions of Munters Reventa GmbH, Horstmar
1. By placing an order, independently of its form, the Buyer acknowledges our general sales, delivery and payment conditions for the duration of the business relationship. These conditions continue to apply for future business even if in, individual cases, they are not specifically appended again.
2. We shall not be bound by any conflicting general terms and conditions of the Buyer. General terms and conditions of the contractual partner only apply to us if we have specifically confirmed them in writing. The unconditional delivery of goods, performance or services or the acceptance of payments does not represent an acknowledgement of conditions on our part that deviate from our sales, delivery and payment conditions. Our employees are not authorised to dispense with the agreement of our General Terms and Conditions or to make promises that differ in content.
3. These sales, delivery and payment conditions apply not only to the settlement of sales contracts, but also to all other types of contractual relationship. The purchaser may only transfer rights from the contractual relationship to a third party with our written authorisation.
II. Offer and conclusion of contract
1. Offers from us in brochures, catalogues etc. are always non-obligatory and non-binding. An order must basically be issued in writing, including by fax.
2. A contract is concluded with us if we accept the Buyer‘s order within four weeks by means of an order confirmation in writing or in text form by e-mail (conclusion of contract). Any other conduct or silence shall not constitute any obligation on our part.
3. Supplements, amendments or ancillary agreements must also be made in writing or in text form by e-mail in order to be effective. In case of a verbal issue of order, transmission errors and/or possible misunderstandings are for the risk of the orderer. If there is a written order confirmation from us, the scope of the order and its contents derive solely from that order confirmation.
4. A cancellation of the contract requested by the Buyer after conclusion of the contract and accepted by us entitles us to charge a cancellation fee of € 250.
1. Unless agreed otherwise, the prices in offers, orders, order confirmations, brochures, catalogues, delivery slips and invoices apply ex Horstmar. They do not include packaging, freight, postage, insurance and statutory VAT. All prices remain non-obligatory until the final conclusion of the contract.
2. The prices quoted by us refer only to the individual order; repeat orders are considered to be new orders.
3. We guarantee the agreed price to the Buyer until three months after receipt of the order confirmation. If, during this period or until the final delivery date, wage costs or material costs or, in the case of goods which we do not manufacture ourselves, purchase prices, increase extraordinarily, we reserve the right to adjust the prices accordingly for an order/ project value of more than € 10,000.
1. The risk transfers to the Buyer at the time at which the goods are placed ready at the agreed delivery location by us. En route to the Buyer - including in case of possible returns that are not due to a justified complaint - the goods travel at the cost and risk of the Buyer; in case goods are returned he must choose the same manner of shipment as had been chosen at the initial shipment and must see to sufficient insurance coverage. The same also applies to the shipment of goods to a recipient specified by the Buyer as well as to post-paid deliveries. The Buyer also bears the risk when the goods are sent to the same location and during transport with the Seller’s own vehicles.
2. If the Buyer is an entrepreneur, the risk of accidental loss or accidental deterioration of the goods transfers with the handover, in case of sale by dispatch with the delivery of the goods to the forwarder, carrier or other person/institution charged with the shipment, to the Buyer.
3. If the Buyer is a consumer, the risk of accidental loss and accidental deterioration of the goods, including in case of sale by dispatch, only transfers to the Buyer with the handover of the goods. The handover is the same if the Buyer defaults with regard to acceptance.
4. Unpredictable, inevitable, extraordinary events such as state sanctions, non-imputable operating disturbances, strike, lock-out and delays of delivery of materials and the like free us from the obligation to deliver for the duration of their effects or give us a proportionate increase in delivery time, or if this is impossible, free us entirely from our obligation to deliver.
5. Cost estimates, drawings and other documents remain our property, even if they are sent. We reserve all copyrights to them. The documents may neither be duplicated nor made accessible to third parties without our written consent.
6. The delivery period begins with the sending of our order confirmation, but not before all authorisations and documents necessary for the execution of the order are present and all significant questions relevant thereto, in particular technical ones, have been answered.
7. The Buyer may withdraw from the contract if we are in default and allow a secondary deadline of six weeks to pass unused. Such withdrawal must be declared in writing, immediately after commencement of the grounds for withdrawal.
8. Claims for damages due to delayed delivery or non-fulfilment are ruled out unless we are imputable for intent or gross negligence. The extent of claims for damages is limited to such losses as are foreseeable at the time of the conclusion of the contract. Remote loss will not be compensated. We always reserve the right not to deliver for ethical reasons in accordance with the Munters Code of Conduct.
9. We are entitled to make partial deliveries and to provide partial services at any time. This does not prejudice the right of the Buyer, in the presence of the statutory conditions, to withdraw from the entire contract if the partial fulfilment of the contract is without interest to him. Should the Buyer express the wish to return the goods for reasons not imputable to us, return fees of 12% shall be payable.
10. Special orders and products produced in relation to an order are generally excluded from return.
11. If without justification the Buyer does not partially or entirely take acceptance of delivery, he must bear any additional resultant costs. Without prejudice to further legal possibilities, we are authorised to demand immediate payment and, in addition, to dispose in some other way over the object of delivery, and to effect delivery to the Buyer at the earliest possible time. We reserve the right to effect excess or short delivery up to 10%.
12. We will not take back transport packaging and all other packaging according to the packaging regulations; this excludes Euro pallets or in-house reusable elements. The Buyer undertakes to assume responsibility for the disposal of packaging at his own expense.
V. Notice of defects
1. Notices of defects can only be examined and processed by us if the information required to examine the defect is made available to us by the Buyer within a reasonable period of time. If the Buyer does not provide us with the information required to examine the defect and process the notice of defect despite being requested to do so, we are entitled to reject the notice of defect.
2. If the Buyer is an entrepreneur, we provide a warranty for defects in goods according to our own choice through repair or delivery of replacement goods.
4. If secondary fulfilment fails, the Buyer may basically demand, according to his choice, a decrease in payment (reduction) or a cancellation of the contract (withdrawal). In case of only a minor conflict with contract, particularly with regard to minor defects, the Buyer, however, has no right to withdraw from the contract. Entrepreneurs must report obvious defects immediately upon receipt of goods in writing; otherwise the assertion of warranty claims is ruled out.
5. Timely sending suffices to comply with said adherence to a deadline. The entrepreneur bears the full burden of proof for all claim conditions, particularly for a defect itself, for the time at which the defect is established and the timeliness of the notice of defects.
6. Consumers must notify us of visible defects in writing or in text form within a period of two months from the date on which the condition of the goods in conflict with the contract was observed. Decisive for meeting the deadline is our receipt of said notification. If the consumer does not effect this notification, the warranty rights expire two months after the consumer’s observation of the defect. The burden of proof for the time of discovery of the defect lies with the consumer. If the consumer was moved to effect purchase on the grounds of inaccurate statements by the manufacturer, he bears the burden of proof for this decision to purchase. With regard to used goods, the consumer bears the burden of proof for the defectiveness of the goods.
7. If, after failed secondary fulfilment, the Buyer opts for payment of damages, the goods remain with the Buyer if this may be expected of him. The amount of damages is limited to the difference between the purchase price and the value of the defective goods.
8. For entrepreneurs, the warranty period amounts to one year from the date of delivery of the goods. For consumers, the period is two years from the date of delivery of the goods. If the Buyer is an entrepreneur, the properties of the goods are in principle agreed to be as specified in our product description and operating instructions or those of the manufacturer.
9. Public statements, claims or advertising by us or erroneous descriptions that are not technically feasible do not represent a contractual specification of the goods. Should the Buyer receive incorrect assembly instructions, the manufacturer is only obliged to provide correct assembly instructions, and this only if the errors in the assembly instructions would prevent correct assembly. The Buyer receives guarantees in a legal sense through us.
Other manufacturer guarantees are not affected by these.
1. The agreed conditions are specified on the invoice. A cash discount is only possible based on a separate written agreement and on payment within eight days after date of invoice. Otherwise, our invoices are payable within 20 days without discount.
2. In the event of default in payment, the Buyer shall be obliged to pay interest on the purchase price at 9% p.a. If we are able to prove a higher damage caused by delay, we are entitled to claim it. All costs arising from late payment such as reminder fees, collection fees and the like shall be borne by the Buyer. For every reminder after commencement of default the sum of € 10 will be charged.
3. In case of partial payments, first the payable debt, and in case of several debts the one that offers the Seller less security, for the rest the older debt and in case of debts of the same age each debt proportionately, shall be paid.
4. The Buyer has no retention rights or right to refuse performance. If justified notices of defects exist, the part of the purchase price may be retained which corresponds to the value of the defective performance. Offsetting against purchase price claims is only possible with an undisputed or legally established counterclaim.
VII. Credit assessment and damages due to non-fulfilment
1. Should we learn after conclusion of the contract or after delivery of the goods that the Buyer is not creditworthy (such as in case of an application for bankruptcy, protests of bills of exchange or cheques etc.), we are authorised to withdraw from the contract or to demand immediate payment of all delivered goods and, in case of prepayment, goods still to be delivered, including cash coverage of possible bills of exchange, effective immediately.
2. If we are authorised to demand damages due to non-fulfilment of the contract, 30% of the order amount shall be agreed upon as lump sum damages. The same applies if we and the Buyer agree that, due to the Buyer’s inability to pay at the due date of payment or later, we will take back already delivered goods from the Buyer. We remain authorised to assert a claim for damages that exceeds this. The Buyer retains the option to present proof that a loss has not occurred or is significantly lower than said lump sum.
1. We shall be liable without limitation for damages arising from the breach of a guarantee or from injury to life, limb or health. The same shall also apply to intent and gross negligence and insofar as we have assumed a quality risk. In case of mild negligence, our liability is limited to the average direct, foreseeable loss according to the type of goods that is typical in the context of the contract. This also applies to mildly negligent breaches of duty by our legal representatives or agents. We are not liable vis-a-vis companies in case of mildly negligent breach of insignificant contractual obligations. Claims for damages on the part of the Buyer due to a defect become statute-barred one year after delivery of the goods.
2. Mandatory statutory liability for product defects remains unaffected. The Buyer is obliged to inform us in writing of any special risks of damage before conclusion of the contract.
1. Our designs, illustrations, drawings, calculations, samples and the like are considered our intellectual property and must be kept secret from third parties and may only be used as intended.
2. They may not be imitated or used in any other way for the purpose of reproduction, even if no special property rights exist. This shall also apply if drafts, samples, models etc. have only been made available within the framework of contractual negotiations and a final conclusion of contract has not taken place.
3. Any infringement shall render the Buyer or interested party liable to us for damages at least in the amount of customary licence fees; any further claims shall remain unaffected.
X. Retention of title
1. The delivered goods shall remain our property until full payment of all claims arising from our business relationship, including all ancillary claims, and until cheques have been cashed. The retention of title also extends to future claims unless the account has been settled in full in the meantime. At balancing, our reservation of title stipulated according to the above provision is considered to represent security for our claims from the balance.
2. At financing, irrespectively of how this is undertaken, the reservation of title continues to exist without consideration of a possible accounting settlement until settlement in full. The Buyer is only authorised to sell the goods under reservation of title in the ordinary course of business affairs as long as he is not in default. Pledging or transfer of ownership by way of security of the reserved goods is not permitted. If the goods under reservation of title at the Buyer are seized or confiscated, we must be so informed immediately, with provision of the documents necessary for an intervention (original of the seizure protocol etc.). In addition, the Buyer is obliged in any case to refute the seizure or confiscation with reference to our rights as supplier. Should he fail to do this, the Buyer shall owe us damages. The Buyer is obliged to insure the goods under reservation of title at his expense in our favour against loss or damage.
3. The Buyer cedes all insurance claims arising therefrom with respect to the goods under reservation of title nunc pro tunc; we herewith accept this cession.
4. Our reservation of title also extends to new goods manufactured by processing or working or combination that are considered to have been manufactured for us and to which we acquire ownership or co-ownership according to the value ratio, or goods under reservation of title at the time of processing, without this requiring another legal transaction or our assuming obligations with regard thereto. The Buyer transfers to us nunc pro tunc his ownership or co-ownership rights to the newly manufactured goods as well as the rights to payment vis-a-vis his client arising from the processing of the delivered goods, in proportion to the value ratio of the manufactured goods. We herewith accept this transfer. The Buyer holds in trust our (co-)ownership free of charge. The Buyer is authorised to collect the claims accruing to us according to these provisions, or arising for us, in trust for us as long as he properly fulfils his payment obligations toward us.
5. Claims of the Buyer from the resale of the goods under reservation of title are ceded to us, we herewith accepts said cession. If co-ownership exists, the cession takes place in proportion to the share in ownership. We undertake to release the guarantees accruing to us according to the aforementioned provisions to the extent, according to our choice, that their value exceeds the claims to be secured by 25%. This applies with the proviso that - with the exception of deliveries in true current account traffic - in individual cases a release need only be effected for such deliveries as have been paid in full. We are authorised to obtain information from the Buyer at any time concerning the stock of our goods under reservation of title and the ceded claims. The papers and documents for this are to be provided to us at the premises of the Buyer at our request. The Buyer undertakes to inform us immediately of the access of third parties to the goods under reservation of title or the ceded claim, providing the documents necessary for refuting the compulsory enforcement measures.
6. If the Buyer defaults in payment, fails to fulfil other obligations in the context of the reservation of title despite reminders, or if he experiences liquidity difficulties, we may demand the object of purchase and pick it up. In this case the Buyer authorises nunc pro tunc access to his business premises. All costs resulting from this shall be borne by the Buyer. Demanding a handover shall not be considered a withdrawal from the contract. The regulation of the Acquittance Act shall remain unaffected. The aforementioned provisions shall apply mutatis mutandis if we ourselves undertake processing or working.
XI. Application of the General Data Protection Regulations, GDPR
1. The Buyer is hereby informed that personal data, i.e. all data that can be personally related to the Buyer, e.g. name, address, e-mail addresses, invoice data, person responsible pursuant to Art. 4 (7) GDPR, will be processed by us in accordance with the statutory provisions and, if necessary, passed on, insofar as this is necessary to provide the contractual services.
2. The collection, storage and forwarding is therefore carried out for the purpose of fulfilling the contract on the legal basis of Art. 6 (1) clause 1 lit. b GDPR. The collection, storage and forwarding of all personal data is also carried out for the purpose of credit assessment on the legal basis of Art. 6 (1) clause 1 lit. f GDPR vis-à-vis credit agencies. In this context, we will also report to the credit agencies, if necessary, data on the contractual or non-contractual processing of the contractual relationship entered into with the Buyer. Failure to provide this data may result in the contract not being concluded.
3. The Buyer has the right to request information from us at any time about the personal data processed about him/her by us (Art. 15 GDPR). This also concerns the recipients or categories of recipients to whom this data is passed on and the purpose of the storage. In addition, the Buyer may, under the conditions of Art 16. GDPR the correction and/or under the conditions of Art. 17 GDPR the deletion and/or under the conditions of Art. 18 GDPR the restriction of the processing. Furthermore, the Buyer can demand data transfer at any time under the conditions of Art. 20 GDPR. Personal data will only be stored for as long as is necessary to achieve the respective purpose, which usually corresponds to the duration of the contract, unless laws require a different storage period.
4. We are authorised to utilise and store all relevant data in the sense of the Federal Data Protection Act [BDSG]..
XII. Place of fulfilment and jurisdiction
1. Place of fulfilment for delivery and payment and all other obligations on the basis of the contract for both parties is solely our place of business. Place of jurisdiction for all legal disputes arising from the contractual relationship as well as its creation and effectiveness, including for exchange and cheque matters, for Buyers that are merchants entered as such in the commercial register, for both parties, is Steinfurt/Westfalen or, at our choice, also the registered office of the Buyer.
2. The contractual relationship is subject, with the exclusion of the CISG (Convention on Contracts for the International Sale of Goods) for both parties solely to German law.
XIII. Compliance with Trade Sanctions Laws
The Buyer shall at all times act in a manner that complies with any trade sanctions laws and regulations, export restrictions, embargoes or prohibitions that may be imposed, including in the future, by any competent governmental authority under the laws and regulations of the EU and/or the USA. No products, software, data or technical information will be transferred or made available to the Buyer, directly or indirectly, in violation of such laws and regulations. The Buyer warrants to us that
a. None of the Buyer, its affiliates, officers or directors is owned or controlled by a person specifically cited, blocked or otherwise individually affected by trade and economic sanctions in force under the laws and/or regulations of the United Nations, the United States, the United Kingdom, the EU, any EU Member State or any other relevant local jurisdiction (for the purposes of this section,a „Listed Person“),
b. The Buyer will not enter into any transaction involving any Listed Person; and
c. The Buyer will notify us immediately of any suspected or alleged breach of the process. We may, without commercial liability to the Buyer, refuse further performance or cancel an order if such delivery may directly or indirectly constitute a breach of trade sanction laws or regulations.
XIV. Inclusion of the Supplier‘s Code of Conduct and Anti-Corruption Policy
The contractual parties undertake to comply with the regulations of the Munters Group Code of Conduct and Anti-Corruption Policy as amended from time to time and available on the Munters Group website (www.munters.com).
1. Should any of the aforementioned sales, delivery and payment provisions be ineffective, this shall not affect the effectiveness of the other provisions. The ineffective provision shall be replaced in good faith by a provision that is permitted and reflects the same regulatory interests.
2. Upon the commencement in effect of our sales, delivery and payment conditions, all earlier agreed sales, delivery and payment conditions cease to be valid. Already existing contracts will be handled in accordance with the new sales, delivery and payment conditions.
Status: September 2023