§ 1 General, Scope of Application
1. these terms and conditions of moklansa GmbH (moklansa) shall apply exclusively; moklansa does not recognize any conflicting or deviating terms and conditions of sale or general terms and conditions of the supplier, they are hereby rejected. The terms and conditions of moklansa shall also apply to all future transactions between the parties, even if they are not expressly agreed again in individual cases. These terms and conditions shall also apply if moklansa accepts or pays for the Supplier’s delivery without reservation in the knowledge that the Supplier’s terms and conditions conflict with or deviate from moklansa’s terms and conditions.
2. all agreements made between moklansa and the supplier for the execution of contracts shall be set down in writing in this contract.
3. these terms and conditions shall apply exclusively to entrepreneurs (§ 14 BGB), legal entities under public law or special funds under public law.
§ 2 Conclusion of contract and contract amendments
1. moklansa’s orders and their content and scope shall be binding and solely authoritative for the Supplier. If the Supplier does not confirm receipt and content of the order to moklansa in writing and unchanged within 14 days, moklansa shall be entitled to withdraw from the order. Order confirmations which deviate from orders placed by moklansa shall be rejected as a matter of principle. 2.
2. orders, supplements, amendments or ancillary agreements deviating from the aforementioned shall be invalid. The same shall apply to all such declarations made by moklansa employees outside the purchasing department. The lack of form shall not be cured by moklansa’s acceptance of the Supplier’s delivery. 3.
If the supplier delivers products which deviate from the order, this deviation shall not be accepted by moklansa’s acceptance of the delivery. 4.
4. all deviations from specifications in inquiries from moklansa with regard to quantities and quality shall be clearly marked in offers.
5. contracts shall be concluded exclusively on the basis of moklansa’s orders in conjunction with these terms and conditions, notwithstanding any deviating offers.
6. offers and cost estimates are binding for at least 5 weeks from receipt by moklansa. These are free of charge for moklansa, as are any test certificates.
7. any technical order and/or other delivery specifications of moklansa shall form part of the contract between the parties.
8. moklansa may withdraw from the order in whole or in part even after it has been placed. In this case, moklansa shall compensate the Supplier for any expenses incurred up to that point as a result of the order, whereby moklansa shall have the right to take delivery of any goods or production results resulting from this expense.
§ 3 Prices, terms of payment, rights of set-off and retention, payment before expiry of the complaint period
1. the price stated in moklansa’s order is the maximum price. In the absence of any written agreement to the contrary, the price stated in the order shall include delivery “free domicile” (DDP in accordance with Incoterms 2010) to moklansa or to the place designated by moklansa, the required packaging units, for example pallets or skeleton containers. Price reductions in the period between the order and payment of the invoice shall benefit moklansa.
Payment by moklansa within 14 days shall be made with a 3% discount or within 30 days net, unless expressly agreed otherwise.
2. the partner’s invoices shall be submitted to moklansa in verifiable form, stating the order number, order date, article number, 8-digit customs tariff number, and supplier’s declaration in accordance with the relevant regulations on the date of issue. In the absence of any component, moklansa shall be entitled to reject the invoice. The sales tax shall be shown separately on the invoice in accordance with the tax regulations. The Supplier shall be responsible for all consequences arising from non-compliance with this obligation, unless he can prove that he is not responsible for them. Payments shall be withheld by moklansa until an invoice corresponding to moklansa’s requirements and the associated delivery documents have been sent, whereby moklansa shall not be in default until both have been received as agreed. Delivery papers shall also include all specifications from the technical order and/or other delivery specifications of moklansa, such as factory test certificates. The delivery of the complete documentation, including spare parts documentation, is an integral part of the order. Payment periods shall commence at the earliest after receipt of the associated delivery including all required documents (including freight documents, delivery bills, certificates of origin, supplier declarations, etc.) or receipt of an invoice corresponding to moklansa’s requirements.
3. moklansa shall be entitled to rights of set-off and retention to the extent permitted by law. The Contractor shall only be entitled to offset against undisputed or legally established claims.
4. payments shall be made subject to the result of the inspection of goods and quantities at moklansa. Payment before the expiry of the inspection and complaint periods specified in § 6 shall not mean that moklansa has inspected goods or quantities delivered by the Supplier, waived the complaint of quality or quantity deviations or approved the delivery. Any amounts overpaid due to detected quality or quantity deviations shall be refunded by the Supplier.
§ 4 Delivery, delivery time, partial call-off, adjustment of delivery quantities
1. The delivery dates specified in the order or in a call-off order in the form of fixed dates shall be binding. The receipt of the goods by moklansa or the receiving point specified by moklansa shall be decisive for compliance with the delivery dates.
The Supplier shall inform moklansa immediately, stating the reasons and expected duration, if circumstances occur or become apparent which indicate that the agreed delivery time cannot be met. The unconditional acceptance of the delayed delivery by moklansa shall not release the Supplier from the rights of moklansa due to the delayed delivery.
In the event of a delay in delivery, moklansa shall be entitled to the statutory claims. In particular, moklansa shall be entitled to demand damages in lieu of performance and withdrawal from the contract immediately in the case of an agreed delivery date or otherwise after the fruitless expiry of a reasonable period. If moklansa demands compensation for damages, the Supplier shall be entitled to prove that it is not responsible for the breach of duty. In addition, the Supplier shall – in addition to further statutory claims – be obliged to compensate for the following lump-sum damages caused by the delay: For each working day of delay, a contractual penalty of 0.1% of the delivery value of the goods in delay, but not more than 5% of the total delivery value of this delivery. The amount of damages shall be set lower or higher if moklansa proves higher damages or the Supplier proves lower damages. This shall apply accordingly to the provision of services.
moklansa shall also be entitled to store goods, which are not delivered on the delivery date specified in the order, with third parties at the expense of the Supplier.
4. moklansa shall be entitled to call off quantities ordered for this delivery date in partial quantities up to 4 weeks before the delivery date. moklansa may specify a later delivery date for the delivery of the remaining delivery quantity not accepted on the original delivery date in the event of a partial call-off. In the case of partial call-offs, the Supplier’s interests shall be taken into account appropriately.
In the event of a decline in business development due to unforeseeable events, so-called force majeure, moklansa shall be entitled to adjust ordered delivery quantities to moklansa’s actual requirements up to 4 weeks before the delivery date. In doing so, the concerns of the supplier shall be taken into account appropriately. If moklansa makes use of this right, the Supplier shall not be entitled to any further rights on the basis of this quantity adjustment. 6.
In the event of over-delivery or early delivery, moklansa reserves the right to refuse acceptance of the delivery at the expense of the Supplier, or to value the associated invoice on the basis of the quantities required by moklansa.
7. the weights, numbers of items and dimensions determined in the incoming goods inspection at moklansa shall be authoritative for moklansa when settling invoices.
8. if moklansa places call-off orders with planned figures, the quantities stated shall not be binding for moklansa and moklansa shall not be obliged to accept them. The quantities actually called off and confirmed by moklansa may deviate from the planned quantities.
9. moklansa shall be entitled to reject deliveries in defective packaging, damaged containers, containers with ambiguous marking and to charge the supplier for the additional costs incurred due to these defects.
(10) In the event of deviations from delivery dates or quantities for which the Supplier is responsible, any increased expenses incurred as a result (e.g. increased freight costs) shall be borne by the Supplier. The supplier shall immediately take all reasonable corrective measures. The Supplier shall be entitled to prove to moklansa that it is not responsible.
§ 5 Transfer of risk
The transfer of risk shall take place upon delivery to the place of delivery specified in moklansa’s order.
§ 6 Inspection of defects, warranty, limitation period, guarantee
1. moklansa shall inspect the goods delivered by the Supplier exclusively with regard to transport damage to the outermost packaging, as well as numerical conformity with the details of the delivery documentation on receipt of the goods. If moklansa detects such obvious defects, moklansa shall give notice of such defects within 14 working days, calculated from receipt of the goods, or, in the case of all other hidden defects, within 14 working days of discovery. In this respect, the Supplier waives the objection of delayed notification of defects. Any further obligation to receive goods and to give notice of defects shall be excluded in all other respects.
2. moklansa shall be entitled to the statutory claims for defects in full. In any case, moklansa shall be entitled to demand that the Supplier, at the discretion of moklansa, either rectifies the defect or delivers a new, defect-free item. After the expiry of a grace period set once, in which the subsequent performance fails, moklansa shall be entitled to further rights, in particular to a reduction in price or withdrawal, as well as to damages. The right to claim damages, in particular damages in lieu of performance, is expressly reserved.
The period of limitation shall be 36 months, except in cases of fraudulent intent. It shall commence from the delivery of the finished product, in which the component delivered by the Supplier is installed, to the customer of moklansa, unless a longer statutory or contractual period applies. The limitation period shall be suspended for the period during which the Supplier is obliged to provide subsequent performance in accordance with § 6.2. The limitation period shall begin anew for replacement parts which the Supplier provides as part of the subsequent delivery and for spare parts which the Supplier provides to moklansa as part of the rectification of defects, calculated from the time of provision. 4.
4. if the supplier does not begin to rectify the defect immediately after being requested to do so by moklansa, or if the first rectification by the supplier fails, moklansa shall be entitled in urgent cases to rectify the defect itself at the expense of the supplier or to have it rectified by third parties at the expense of the supplier.
5. the agreed periods shall be decisive for contractual warranty agreements. During the warranty period, the contractor waives the objections of delayed defects with regard to hidden defects.
6. if moklansa incurs consequential costs due to defective delivery, such as labor, travel, installation and removal costs, handling costs, general administrative costs, moklansa shall have the right to charge these costs to the supplier.
7. the supplier shall maintain and comply with a certified quality system as defined by the ISO 9001 series of standards or a system of an equivalent standard approved in advance by moklansa, which is suitable for the orders or deliveries to be executed.
8. the Supplier shall ensure that the Supplies and Services are performed in accordance with the Purchase Order and without limitation in accordance with the highest and latest standards of the rules of safety, technology and workmanship. Supplier shall further ensure that the goods, documents and other deliverables are of satisfactory quality and suitable for their specific purpose and can be used without risk and comply with the latest versions of the standards and codes of practice of the relevant industry. Materials and equipment to be included in the goods supplied by the Supplier shall be new. In particular, the Supplier warrants to moklansa with respect to each delivery and service that they comply with all specified or applicable data and requirements applicable or agreed upon with respect thereto. Furthermore, the Supplier warrants that all deliveries and services are in perfect working order and that the documentation or description is complete and free of defects. Furthermore, the Supplier assures that it transfers to moklansa the complete unimpaired ownership of the delivered goods and that other services are also free of legal defects.
§ 7 Product liability, indemnification, insurance
Insofar as the Supplier is responsible for a defect or product damage, it shall be obliged to indemnify moklansa against claims for damages by third parties upon first request, insofar as the cause lies within its sphere of control and organization, the defect can be attributed to the Supplier or it is itself liable without limitation in the external relationship.
2. within the scope of the Supplier’s liability for cases of damage within the meaning of Paragraph (1), the Supplier shall also be obliged to reimburse all expenses, e.g. in accordance with Sections 693, 670 of the German Civil Code (BGB), as well as in accordance with Sections 930, 940, 426 of the German Civil Code (BGB), which arise from or in connection with a recall action carried out by moklansa. As far as possible and reasonable, moklansa shall inform the Supplier of the content and scope of the recall measures to be carried out and shall give the Supplier the opportunity to comment. Other legal claims to which moklansa is entitled shall remain unaffected. 3.
The Supplier undertakes to maintain product liability insurance with a lump sum cover of EUR 10 million per personal injury/property damage; if moklansa is entitled to further claims for damages, these shall remain unaffected.
§ 8 Provision
Materials, parts, containers and special packaging provided by moklansa shall remain the property of moklansa. These components may only be used for parts and orders from moklansa. The processing of materials or the assembly of parts shall be carried out expressly for moklansa. moklansa shall be proportionate co-owner of the components stored at the supplier’s premises and manufactured from the materials and parts provided by moklansa, to the value of the materials and parts provided by moklansa.
§ 9 Tools
1. tools paid for by moklansa are the sole property of moklansa and may only be used by the supplier for moklansa’s orders and parts. Tools paid for by moklansa shall be available to moklansa at all times in perfect condition and shall be clearly marked by the supplier as the property of moklansa and stored separately. Tools may only be disposed of after consultation with moklansa.
The Supplier shall be obliged to insure tools stored by moklansa at the Supplier’s premises against material damage at its own expense. The Supplier hereby assigns all claims for compensation arising from this insurance to moklansa.
3. parts manufactured with tools owned by moklansa may not be offered or supplied to third parties, nor may the know-how be passed on to third parties.
4. the maintenance and servicing of these tools is to be carried out exclusively by the supplier and at his own expense. Costs for follow-up tools shall be borne exclusively by the supplier. The output quantity is therefore unlimited. If tools of moklansa are damaged by the supplier, they have to be repaired according to the drawing at the supplier’s expense.
§ 10 Dangerous goods
The Supplier shall be solely responsible for compliance with and application of any applicable regulations on hazardous goods, in particular, but not exclusively, the German Dangerous Goods Act (GGBefG), the Dangerous Goods Ordinance for Road, Rail and Inland Navigation (GGVSEB) and the European Agreement concerning the International Carriage of Dangerous Goods by Road (ADR). The Supplier shall inform moklansa of any dangers in writing in good time.
§ 11 Process change of the supplier
1. the supplier must inform moklansa in writing of any planned change to products and manufacturing processes, as well as any change to the materials used, as well as tools and devices, in writing and at least one month before the planned change.
2. the duty of notification shall also apply to a change in the manufacturing location. Upon request by moklansa, samples shall be provided by the supplier. 3.
3. the change may only be introduced with the prior written consent of moklansa. Together with this permission, moklansa shall inform the supplier of any special requirements to be observed in the course of the implementation of the change.
The supplier must document the time of the change (from batch number, delivery note number etc.) and inform moklansa. Traceability of the change must be ensured. 5.
5. changes made without the written consent of moklansa constitute a breach of the terms of the order. In the event of failure to comply with this requirement, the supplier shall be liable for all damages, losses and liabilities resulting from any unauthorized modification made by the supplier.
§ 12 Force majeure
Force majeure, disruptions through no fault of the Supplier, strike, official measures or other unavoidable events shall release moklansa from the performance of contractual obligations for the duration of their existence and for the duration of their effect.
§ 13 Industrial property rights
1. the Supplier shall be responsible for ensuring that no third-party rights are infringed in connection with its delivery or service by moklansa.
2. if claims are made against moklansa by a third party in this respect, the Supplier shall be obliged to indemnify moklansa in full against these claims upon first written request.
The Supplier’s obligation to indemnify shall apply to all expenses necessarily incurred by moklansa as a result of or in connection with the claim by a third party. 4.
The limitation period for this is ten years, calculated from the conclusion of the contract. 5.
5. know-how made known to the Supplier as a result of the cooperation may not be made accessible to third parties without the express written consent of moklansa and may not be used by the Supplier or a third party without the consent of moklansa. The know-how of moklansa is to be used exclusively for production on the basis of the order and is to be kept secret; § 14 shall apply in addition.
§ 14 Secrecy
1. the supplier is obliged, without exception, to keep all received business and technical data, documents, samples, models as well as other documents and all information (“confidential information”) strictly secret and to only make them accessible in his own company to those persons who must be consulted for the purpose of the delivery to moklansa and who are also obliged to maintain confidentiality. They may only be disclosed to third parties with the express written consent of moklansa. Upon simple request by moklansa, all information and documents (including copies) and samples provided by moklansa shall be returned in full to moklansa.
The obligation to maintain secrecy shall also apply after this contract has been completed; it shall only expire if and insofar as the production, product, system or manufacturing knowledge contained in the confidential information provided has become generally known without a breach of this obligation to maintain secrecy. 3.
(3) The disclosure of confidential information and the possible transfer of documents, samples or models shall not constitute any rights to industrial property rights, know-how or copyrights for the supplier and shall not constitute any prior publication or right of prior use within the meaning of the Patent and Utility Model Act. Confidential information may only be used by the Supplier for the purpose approved by moklansa and only within the framework of the agreed cooperation. The Supplier shall never be entitled to its own rights to such information. Insofar as third parties come into contact with moklansa’s confidential information through the Supplier, the Supplier must conclude a comparable written non-disclosure agreement with them in advance and prove this to moklansa on request.
§ 15 Data protection, security
1. moklansa shall collect personal data of the Supplier exclusively for the contractual or business purpose for which the Supplier provides its data. The personal data will only be used within the moklansa group.
2. the supplier agrees and authorizes moklansa to process, store and evaluate the data received in connection with the business relationship in compliance with the applicable data protection regulations.
§ 16 Place of performance
Unless otherwise stated in the order, the place of performance shall be the registered office of moklansa in Holzwickede.
§ 17 Advertising
The use of inquiries, orders or correspondence of any kind from moklansa by the Supplier for your advertising purposes is prohibited. Advertising with the business relationship existing with moklansa is only permitted with the express prior consent of moklansa.
§ 18 Final provisions
1. the exclusive place of jurisdiction, including in proceedings relating to bills of exchange, cheques and documents, irrespective of the amount in dispute, in the event that the parties are registered traders, legal entities under public law or special funds under public law, shall be the Regional Court of Dortmund, which is the competent court of first instance for the registered office of moklansa; however, moklansa shall also be entitled to sue the Supplier at the court of the Supplier’s place of residence or registered office. The same shall apply if the Supplier does not have a general place of jurisdiction in Germany or if it has relocated its place of residence or business or usual place of abode from Germany after conclusion of the contract or if its place of residence or business or usual place of abode is unknown at the time the action is brought.
(2) The contractual relationship and these terms and conditions shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
Should individual provisions of this contract be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects most closely approximate the economic objective pursued by the contracting parties with the invalid or unenforceable provision. The above provisions shall apply mutatis mutandis in the event that the contract proves to be incomplete.
Status: January 2020