General Terms and Conditions of Sale
General Terms and Conditions of Purchase

General Terms and Conditions of Sale of moklansa GmbH

§ 1 Scope of Application

1. the following terms and conditions are an integral part of all offers and contract acceptance declarations of moklansa and form the basis of all sales, deliveries and the provision of services and work performances, including consulting and information. These Terms and Conditions of Sale shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). Any terms and conditions of the Customer that conflict with or deviate from our Terms and Conditions of Sale shall only be recognized by moklansa if moklansa expressly agrees to their validity in writing. These Terms and Conditions of Sale shall also apply if moklansa carries out the delivery to the Customer without reservation in the knowledge of conflicting or deviating terms and conditions of the Customer.
2. These Terms and Conditions of Sale shall also apply to all future transactions with the Customer, insofar as these are legal transactions of a related nature.
3. Individual agreements made with the Customer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these Terms and Conditions of Sale. The content of such agreements shall, subject to proof to the contrary, be governed by a written contract or written confirmation from moklansa.
4. as far as declarations according to these terms and conditions have to be made in writing, the text form according to § 126 b BGB (German Civil Code) shall also comply with this requirement.
5. acceptance of the delivered goods shall take the place of acceptance of the goods in the case of work performance and acceptance of the service in the case of services.

§ 2 Offer and conclusion of contract

If an order is to be qualified as an offer in accordance with § 145 BGB, moklansa may accept it within two weeks.

§ 3 Documents provided

moklansa reserves the property rights and copyrights to all documents provided to the Customer in connection with the placement of the order – including in electronic form – such as illustrations, calculations, drawings, etc.. This shall also apply to documents designated as “confidential”. Documents provided may not be made accessible to third parties, unless moklansa has given the Client express written consent to do so. Insofar as moklansa does not accept the offer of the Customer within the period specified in § 2, these documents shall be returned to moklansa without delay.

§ 4 Prices and terms of payment

1. unless otherwise agreed in writing, moklansa’s prices shall apply “ex works” and plus applicable value added tax at the current rate. Costs of packaging and transport shall be invoiced separately.
2. payment of the purchase price shall be made exclusively to one of the business accounts listed on the business paper. The deduction of a cash discount is only permissible with a special written agreement.
3. unless otherwise agreed, the price shall be paid within 30 days of the invoice date interest on arrears shall be charged at a rate of 9% above the respective prime rate p.a.. The right to assert a higher damage caused by default shall be reserved. However, the Customer shall be entitled to prove to moklansa that moklansa has incurred no or less damage as a result of the delay in payment.
4. unless a fixed price agreement has been made, moklansa reserves the right to make reasonable price changes due to changes in wage, material, raw material, energy and distribution costs for deliveries which take place 3 months or more after conclusion of the contract.
The Customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or acknowledged by moklansa, or if they are in a reciprocal relationship (synallagma) to the main claim. The Customer shall only be entitled to a right of retention due to counterclaims that have been legally established, are undisputed, recognized by moklansa or are in a reciprocal relationship (synallagma) to the main claim. Furthermore, the customer is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship. 6.
Credit notes shall be issued expressly for the purpose of offsetting. There shall be no right to payment.
7. in case of doubt regarding the solvency of the client, moklansa reserves the right to demand advance payments or securities. If moklansa becomes aware that the Customer has been seized without success, or if moklansa receives indications of the Customer’s financial collapse, moklansa shall be entitled to withdraw from the contract, offsetting the expenses incurred.

§ 5 Delivery time

1. the commencement of the delivery period stated by moklansa or agreed with moklansa shall be subject to the timely and proper fulfillment of the Customer’s obligations as well as the proper supply of moklansa with the raw materials required for the manufacture of the delivery product. The right to plead non-performance of the contract is reserved. 2.
If non-compliance with delivery deadlines is due to force majeure, e.g. strike, lockout, etc., the deadlines shall be extended accordingly. Such a reasonable extension of the delivery periods shall also occur if moklansa is not supplied correctly or on time.
If the Customer is in default of acceptance or culpably violates other obligations to cooperate, moklansa shall be entitled to demand compensation for any damages incurred by moklansa in this respect, including any additional expenses. Further claims or rights remain reserved. If the delivery, dispatch or delivery is postponed at the request of the Customer, moklansa shall be entitled to charge the Customer a storage fee of 0.5% of the invoice amount for each month or part thereof, up to a maximum of 5% of the invoice amount, 10 days after notification by moklansa that the goods are ready for dispatch. The contracting parties reserve the right to provide evidence of higher or lower expenses.
If the above conditions are met, the risk of accidental loss or accidental deterioration of the item shall pass to the Customer at the point in time at which the Customer is in default of acceptance or debtor’s delay.
4. further legal claims and rights of the Customer due to a delay in delivery shall remain unaffected.
5. moklansa shall be entitled to make partial deliveries to a reasonable extent. Deviations with regard to the dimensions, weight, technical design, manufacture and scope of the goods to be delivered are permissible within the customary product-specific tolerances.

§ 6 Transfer of risk in case of shipment

1. If the goods are shipped to the Customer at the Customer’s request, the risk of accidental loss or accidental deterioration of the goods shall pass to the Customer upon dispatch to the Customer at the latest when the goods leave the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs. In the event of collection by the Customer, the risk shall pass to the Customer upon notification of readiness for collection, at the latest upon collection. Sentence 1 and sentence 2 shall also apply if the delivery is made in parts or if moklansa has undertaken the assembly of the goods at the Customer’s premises. The latter shall also apply if there is an (un)foreseen period of time between delivery to the Customer and installation/processing.
In the case of a contract for work and services, the risk shall pass to the Customer upon commissioning of the work by moklansa, but no later than upon acceptance of the work. This shall also apply to partial acceptance, insofar as this can be brought about according to the nature and condition of the work. If the Customer does not request acceptance, the service shall be deemed to have been accepted after twelve working days following written notification of completion. The aforementioned provisions shall also apply to partial acceptance. Acceptance may not be refused or delayed due to minor defects. 3.
If the Customer so wishes, moklansa shall take out transport insurance for the delivery; the Customer shall bear the costs incurred in this respect.
4. the Customer may not refuse acceptance of deliveries due to minor defects.

§ 7 Retention of title

1. moklansa retains ownership of the delivered item until full payment of all claims arising from the delivery contract. This shall also apply to all future deliveries, even if moklansa does not always expressly refer to this. moklansa shall be entitled to take back the purchased item if the Customer acts in breach of contract. moklansa may also declare withdrawal by taking back the item. After taking back the goods, moklansa is entitled to utilize the goods. The proceeds of the sale shall be credited against the liabilities of the Customer – less reasonable costs of sale.
The Customer shall be obliged to treat the item with care as long as ownership has not yet passed to him. In particular, he shall be obliged to insure it adequately at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the customer shall carry this out in good time at his own expense. As long as ownership has not yet been transferred, the Customer shall notify moklansa immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse moklansa for the court and out-of-court costs of an action in accordance with Section 771 of the German Code of Civil Procedure (ZPO), the Customer shall be liable for the loss incurred by moklansa.
The Customer shall be entitled to resell the reserved goods in the normal course of business. The Customer hereby assigns to moklansa the claims against the purchaser arising from the resale of the reserved goods in the amount of the final invoice amount agreed with moklansa (including VAT). This assignment shall apply regardless of whether the purchased item has been resold without or after processing. The Customer shall remain authorized to collect the claim even after the assignment. The authority of moklansa to collect the claim itself shall remain unaffected. In this case, moklansa may demand that the client informs moklansa of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. The claim assigned by moklansa in advance shall also relate to the acknowledged balance, as well as, in the event of the Customer’s insolvency, to the then existing causal balance. However, moklansa shall not collect the claim as long as the Customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or there is no cessation of payments. This shall only not apply if no extended retention of title is intended. 4.
The processing or transformation of the purchased item by the Customer shall always be carried out in the name of and on behalf of moklansa. In this case, the Customer’s expectant right to the object of sale shall continue to apply to the transformed object. If the purchased item is processed with other items not belonging to moklansa, moklansa shall acquire co-ownership of the new item in the ratio of the objective value of the purchased item of moklansa to the other processed items at the time of processing. The same shall apply in the event of mixing. If the mixing takes place in such a way that the Customer’s item is to be regarded as the main item, it shall be deemed to have been agreed that the Customer shall transfer proportional co-ownership to moklansa and shall hold the sole ownership or co-ownership thus created in safe custody for moklansa. In order to secure the claims of moklansa against the Customer, the latter shall also assign to moklansa such claims as accrue to him against a third party as a result of the connection of the reserved goods with a piece of real estate; moklansa hereby accepts this assignment.
5. moklansa undertakes to release the securities to which moklansa is entitled at the request of the Customer, insofar as their value exceeds the claims to be secured by more than 20%; the selection of the securities to be released shall be incumbent upon moklansa.
6. in the case of deliveries to countries of destination with other legal systems, in which this retention of title regulation does not have the same security effect as in the Federal Republic of Germany, the Customer hereby grants moklansa a corresponding security right. If further measures are required for this, the Customer shall do everything in its power to grant moklansa such a security interest without delay. The Customer shall cooperate in all measures that are necessary and conducive to the effectiveness and enforceability of such security rights.

§ 8 Warranty and notice of defects as well as recourse/manufacturer recourse

1. The Customer’s warranty rights shall require that the Customer has duly complied with its obligations to inspect the goods and to give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
2. a) If the contract is a purchase contract, the limitation period for subsequent performance, rescission or reduction shall be two years for new items and one year for used items. The period begins with the delivery of the purchased item. If the Customer is an entrepreneur, the limitation period for new purchased goods shall be one year, for used goods subsequent performance, withdrawal and reduction shall be excluded.
b) If the contract is a contract for work and services, the limitation period for subsequent performance, rescission and reduction shall be two years for consumers and one year for entrepreneurs. The period shall commence upon acceptance of the work or, in the absence of acceptance, upon commissioning of the work.
The statutory limitation period shall apply to claims for damages in the event of intent and gross negligence as well as in the event of injury to life, limb and health which are based on an intentional or negligent breach of duty by the user. In the case of the sale of used goods, the warranty period shall be excluded with the exception of the claims for damages specified in sentence 2.Insofar as the law mandatorily prescribes longer periods in accordance with Section 438 (1) No. 2 of the German Civil Code (buildings and items for buildings), Section 445 b of the German Civil Code (right of recourse) and Section 634a (1) of the German Civil Code (construction defects), these periods shall apply. Prior to any return of the goods, the consent of moklansa shall be obtained. 3.
If, despite all due care, the delivered goods show a defect which was already present at the time of the transfer of risk, moklansa shall, subject to timely notification of defects, either repair the goods or supply replacement goods at the discretion of moklansa. moklansa shall always be given the opportunity to remedy the defect within a reasonable period of time. Claims under a right of recourse shall remain unaffected by the above provision without restriction. 4.
If the subsequent performance fails, the Customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration. moklansa may refuse subsequent performance if the expenses for rectifying the defect are likely to exceed the purchase price.
5. claims for defects shall not exist in the case of insignificant deviation from the agreed quality, insignificant impairment of usability, natural wear and tear, or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground, or due to special external influences which are not assumed under the contract. If the Customer or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these and the resulting consequences. 6.
6. claims by the Customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded, insofar as the expenses are increased because the goods delivered by moklansa were subsequently transported to a location other than the Customer’s branch office, unless the transport is in accordance with their intended use.
7. installation and removal costs shall only be borne by moklansa if the item has been installed in another item or attached to another item in accordance with its type and intended use and moklansa is responsible for the defect which is the cause for the assertion of the claims for subsequent performance.
8. the Customer shall only have recourse claims against moklansa insofar as the Customer has not entered into any agreements with its customer that go beyond the statutory mandatory defect claims. Furthermore, paragraph 6 shall apply mutatis mutandis to the scope of the Contractor’s right of recourse against the Supplier.
(9) Mandatory liability under the Product Liability Act shall remain unaffected.

§ 9 Joint and several liability

1. Any further liability for damages than provided for in § 8 number 6 and number 4 shall be excluded – regardless of the legal nature of the asserted claim. This shall apply in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for material damage pursuant to § 823 BGB.
2. 18 months shall apply to the limitation period for all claims that are not subject to the limitation period due to a defect in the item. It begins from knowledge of the damage and the person of the damaging party. 3.
3. the limitation according to number 1 is also valid, as far as the client demands instead of a claim for compensation of the damage instead of the achievement, compensation of useless expenditures, which he made in the confidence on the receipt of the achievement.
4. insofar as the liability for damages towards moklansa is excluded or limited, this shall also apply with regard to the personal liability for damages of moklansa’s employees, representatives and vicarious agents.

§ 10 Erection and maintenance of systems

Unless otherwise agreed in writing, the following provisions shall apply to all types of construction and maintenance, both on private and public premises:
The Client shall assume and provide in a timely manner, at its own expense:
1. auxiliary crew, other skilled workers with the tools required by them in the required number, all earthwork, bedding, caulking and other ancillary work outside the trade, including the building materials required for this purpose, operating power and water, including the necessary connections, general lighting, at the installation site for the storage of machine parts, apparatus, materials, tools, etc., sufficiently large, suitable dry and lockable rooms and, for the assembly personnel, appropriate working and recreation rooms, including appropriate sanitary facilities, protective clothing and protective devices, which are necessary due to the special circumstances of the assembly site and which are not customary in the industry for moklansa. In all other respects, the Customer shall take the same measures/security precautions to protect moklansa and the property of moklansa’s assembly personnel on the construction site as it would take to protect its own property.
2. five working days prior to the commencement of work, the client shall provide the necessary information on the location of concealed electricity, gas, water lines or similar installations, as well as the required structural data, without being requested to do so.
The Customer undertakes to certify the work performed to the installer and his installation personnel on a daily or weekly basis, at the discretion of moklansa. He shall also confirm the completion of the erection or assembly on forms provided by moklansa.
4. the costs of the proper environmental disposal of installed parts and components that have to be removed or replaced shall be borne by the client.

§ 11 Miscellaneous

1. This contract and the entire legal relationship between the parties shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. place of performance and exclusive place of jurisdiction and for all disputes arising from this contract shall be our place of business in Holzwickede, unless otherwise stated in the order confirmation. This shall not apply if at least one of the parties is a company not entered in the commercial register.
All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.
(4) These General Terms and Conditions of Sale shall remain valid even if individual clauses should prove to be invalid. The invalid clause shall be supplemented or reinterpreted by the parties in such a way that the economic purpose intended by the invalid provision is achieved as far as possible. The same procedure shall be followed if a gap requiring supplementation arises during the performance of the contractual relationship. If the invalidity is based on a performance or time provision, it shall be replaced by the legally permissible provision. Should any provision of these General Terms and Conditions of Sale be invalid with regard to mandatory foreign law, the Purchaser shall, upon request, agree with us such contractual supplements and make such declarations to third parties or authorities as will ensure the validity of the provision concerned and, if this is not possible, its economic content also under the foreign law. 5.
(5) The German version of the General Terms and Conditions of Sale shall be the authoritative version. It shall take precedence over the English translation in the case of translations and shall be structured in accordance with German law.

Status: January 2021

General Terms and Conditions of Purchase of moklansa GmbH

§ 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