MK Mentor GmbH

Vorm Würzburger Tor 9
91541 Rothenburg ob der Tauber
T +49 9861 9767920
F +49 9861 9767921
E-Mail: info@mk-mentor.de 

§ 1 SCOPE OF APPLICATION

(1) The following General Terms and Conditions (hereinafter referred to as GTC) apply to all contracts for cooperation, the transfer of know-how, the provision of services and the delivery and purchase of goods between MK Mentor GmbH, Vorm Würzburger Tor 9, 91541 Rothenburg ob der Tauber (hereinafter referred to as MK), and contractual partners within the meaning of § 310 paragraph 1 of the German Civil Code (BGB).

(2) Conflicting or deviating terms and conditions of business of the contracting party shall only be deemed to be included if MK agrees to them in writing or at least in text form.

(3) These GTC shall also apply to all future contractual relationships with the contracting party as far as legal transactions of a related kind are concerned.

(4) Insofar as MK and the contracting party make individual agreements in individual cases, these take precedence over the provisions of these GTC. For reasons of proof, the agreements – subject to proof to the contrary – must at least be confirmed in text form.

 

§ 2 OFFER AND CONCLUSION
OF CONTRACT

(1) An order which is to be regarded as an offer within the meaning of § 145 BGB (German Civil Code) can be accepted by MK within two weeks from receipt by MK by sending an order confirmation or by rendering the ordered service within the same period of time.

(2) Offers from MK are subject to confirmation and non-binding, unless they have been expressly designated as binding.

 

§ 3 CONFIDENTIALITY AND SECRECY 

(1) MK reserves ownership rights and copyrights to all (electronic) documents, e.g. illustrations, calculations, recipes, processing methods, drawings, etc., directly or indirectly handed over to the contracting party by MK in connection with the initiation or execution of the contract.

(2) These documents may only be used by the contractual partner in connection with the fulfilment of the contractual obligations or rights assigned to him. The contracting party is prohibited from making the documents accessible to third parties, irrespective of whether they are marked as confidential or not, unless MK expressly gives its consent to this at least in text form. Excluded from sentence 1 are employees and representatives of the contracting party, whose services he uses to fulfil his obligations.

(3) If MK does not accept an offer within the meaning of § 2 paragraph 1 of these General Terms and Conditions within the period specified therein, the sent documents of the contracting party will be returned immediately. If the transmission by the contracting party takes place in electronic form, the documents of MK – subject to legal retention periods – will be deleted immediately.

(4) Furthermore, the contracting party undertakes to maintain secrecy with regard to all information and knowledge gained by him or his vicarious agents in connection with the subject matter of the contract, in particular with respect to

1. (a) results obtained or used in the performance of the contract,
2. (b) the description of the implementation,
3. (c) the timetables, objectives and ideas envisaged for the execution of the subject matter of the contract,
4. (d) other non-publicly available information obtained by the contractor in the course of the performance of the contract.

(5) The confidentiality obligation also extends to all employees and agents of the contractual partner, regardless of the type and legal structure of the cooperation. The contractual partner is obliged to impose appropriate confidentiality obligations on this group of persons. The confidentiality obligations of the contractual partner shall remain in force beyond the period of performance of the contract.

(6) The contractual partner’s duties of confidentiality shall cease to apply in exceptional cases if he can prove that and to what extent the information in question

1. a) are or have become generally known, or
2. b) become generally known through no fault of the contractual partner or
3. c) lawfully obtained or to be obtained by a third party; or
4. d) are already present at the contractual partner.

 

§ 4 TERMS OF PAYMENT

(1) All purchase prices and remunerations are net prices and in Euro, if applicable including the customary product packaging. Additional costs arising from services not included in the contract will be charged additionally by MK.

(2) If no fixed price agreement has been made between MK and the contracting party, MK reserves the right to make reasonable price changes due to changed wage, material and distribution costs for deliveries made 3 months or later after conclusion of the contract. A deduction of cash discount is only permissible in case of a separate agreement between MK and the contracting party.

(3) All purchase prices and remunerations are due for payment immediately after receipt of the respective invoice by the contracting party, insofar as no other term of payment results from the other agreements between MK and the contracting party.

(4) A payment is deemed to have been made when MK can dispose of the respective amount; in the case of cheque payments, the payment is only deemed to have been made when the cheque has been cashed.

(5) If the contracting party is in default with a payment, MK will charge default interest in the amount of 9 percent above the respective base interest rate. The obligation of the contracting party to pay default interest does not exclude the assertion of further default damages by MK. 

 

§ 5 DELIVERY AND PERFORMANCE TIME

(1) Delivery and/or service times that have not been expressly agreed as binding are exclusively non-binding.

(2) The commencement of the respective delivery and/or service time presupposes the timely and proper fulfilment of the contractual partner’s obligations.

(3) MK is entitled to partial deliveries and services at any time, as far as this is reasonable for the contracting party.

(4) If it is a transaction for delivery by a fixed date in terms of § 286 paragraph 2 no. 4 BGB or § 376 HGB, MK is liable according to the legal regulations. The same shall apply if the contracting party is entitled, as a result of a delay for which MK is responsible, to assert the discontinuance of its interest in the further fulfilment of the contract. In this case the liability of MK is limited to the foreseeable, typically occurring damage, if the delay is not due to an intentional violation of the contract for which MK is responsible. A fault of its representatives or vicarious agents is to be attributed to MK.

(5) In the event that a delay for which MK is responsible is based on the culpable violation of a contractual obligation, the fulfillment of which enables the proper execution of the contract in the first place and the observance of which the contracting party regularly trusts and may trust, MK is liable according to the legal provisions with the proviso that in this case the liability for damages is limited to the foreseeable, typically occurring damage. A fault of representatives and/or vicarious agents is also to be attributed to MK here.

(6) In case of a delay in delivery not caused intentionally or grossly negligently by MK, MK shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay amounting to 3% of the delivery value, however not more than 15% of the delivery value. Any further liability for a delay for which MK is responsible is excluded. Further legal claims and rights of the contracting party due to a delay in delivery remain unaffected.

(7) If MK is temporarily or permanently prevented from rendering the agreed service properly and in particular in due time due to circumstances for which MK is not responsible and MK incurs expenses as a result thereof, the contracting party is obliged to compensate MK for these expenses irrespective of any possible own fault. If a third party is responsible for these circumstances, MK shall assign its claims against the third party to the contracting party step by step against reimbursement of its expenses by the contracting party.

(8) If the contracting party is in default of acceptance or culpably violates other duties to cooperate, MK is entitled to demand compensation for the resulting damage including any additional expenses. Insofar as the above prerequisites exist, the risk of accidental loss or accidental deterioration of the object of purchase shall pass to the contracting party at the point in time at which the contracting party is in default of acceptance or debtor’s delay.

 

§ 6 TRANSFER OF RISK – SHIPPING/PACKAGING

(1) Insofar as the delivery of goods is the subject of the contract, the risk of accidental loss or accidental deterioration of the goods shall pass to the contractual partner upon loading and dispatch to the contractual partner, at the latest upon leaving the factory/warehouse. This shall apply irrespective of whether the goods are dispatched from the place of performance or who bears the freight costs.

(2) MK shall endeavour to take into account the wishes and interests of the contracting party with regard to type and route of dispatch; additional costs caused thereby – even in the case of agreed freight delivery – shall be borne by the contracting party. At the request of the contractual partner, a delivery can be covered by transport insurance; the contractual partner shall bear the costs of the insurance.

(3) If at the request or due to a fault of the contracting party a delay of the shipment occurs, the goods will be stored by MK at the expense and risk of the contracting party. In this case the notification of readiness for dispatch is equivalent to dispatch.

(4) MK does not take back transport and all other packaging in accordance with the Packaging Ordinance – with the exception of pallets -; the contracting party takes care of the disposal of the packaging at its own expense.

  

§ 7 RETENTION OF TITLE

(1) Until the fulfilment of all claims, including all balance claims from current account, to which MK is entitled against the contracting party, the delivered object (reserved goods) remains the property of MK. This also applies to all future deliveries, even if MK does not always expressly refer to this. MK is entitled to take back the reserved goods after prior setting of a reasonable period if the contracting party behaves contrary to the contract (e.g. default of payment). In this case MK is entitled to utilize the reserved goods after their return. After deduction of a reasonable amount for the exploitation costs, the proceeds of the exploitation shall be set off against the amounts owed to MK by the contracting party.

(2) The contractual partner is obliged to treat the reserved goods with care as long as the ownership has not yet been transferred to him. In particular, in the case of high-quality goods, he shall be obliged to insure these at his own expense against theft, fire and water damage at replacement value. If maintenance and inspection work has to be carried out, the contractual partner must carry this out in good time at his own expense.

(3) As long as the ownership has not yet been transferred, the contracting party has to point out the ownership of MK in case of access of third parties to the reserved goods, in particular seizures, and has to inform MK immediately that the reserved goods have been seized or are exposed to other interventions of third parties. Insofar as the third party is not in a position to reimburse MK for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the contracting party shall be liable for the loss incurred by MK.

(4) The contracting party is entitled to properly sell and/or use the reserved goods in business transactions as long as he is not in default of payment. Pledging or transfer by way of security is not permitted. The contractual partner already now assigns to MK in full the claims arising from the resale or any other legal ground (insurance, tortious act) regarding the reserved goods (including all balance claims from current account) by way of security; MK hereby accepts the assignment. The contractual partner remains authorised to collect the claim even after the assignment. MK’s authority to collect the claim itself remains unaffected. The contracting party is also not authorized to assign this claim for the purpose of collecting the claim by way of factoring, unless at the same time the obligation of the factor is established to effect the consideration in the amount of the claims directly to MK as long as there are still claims of MK against the contracting party.

(5) Any processing or transformation of the reserved goods by the contracting party shall in any case be undertaken for MK. If the reserved goods are processed with other items not belonging to MK, MK acquires co-ownership of the new item in the ratio of the value of the reserved goods (invoice amount including value added tax) to the other processed items at the time of processing. The same shall apply to the new item resulting from the processing as to the reserved goods. In the event of inseparable mixing of the reserved goods with other objects not belonging to MK, MK acquires co-ownership of the new object in the ratio of the value of the reserved goods (final invoice amount including value added tax) to the other mixed objects at the time of mixing. If the object of the contracting party is to be regarded as the main object as a result of the mixing, MK and the contracting party agree that the contracting party transfers pro rata co-ownership of this object to MK; MK hereby accepts the transfer. The contracting party shall keep the sole or co-ownership in this item created by MK in custody for MK.

(6) MK is obliged to release the securities to which MK is entitled insofar as the realisable value of the securities exceeds the claims to be secured by more than 20%, whereby MK is responsible for the selection of the securities to be released.

 

§ 8 WARRANTY/LIABILITY

(1) Warranty rights of the contractual partner presuppose that the contractual partner has duly fulfilled its obligations to inspect the goods and to give notice of defects in accordance with § 377 HGB (German Commercial Code).

(2) Warranty claims expire 12 months after delivery of the item delivered by MK, unless the defect was fraudulently concealed; in this case the legal regulations apply. The statutory period of limitation shall apply to claims for damages in the case of intent and gross negligence as well as in the case of injury to life, body and health, which are based on an intentional or negligent breach of duty by MK. The obligations from paragraphs 4 and 5 remain unaffected by this.

(3) If, despite all due care taken, the item shows a defect which already existed at the time of transfer of risk, MK is obliged to subsequent performance to the exclusion of the contracting party’s rights to withdraw from the contract or to reduce the price (reduction), unless MK is entitled to refuse subsequent performance on the basis of the statutory provisions. The contracting party must grant MK a reasonable period of time for subsequent performance. The non-fulfilment can, at MK’s option, take place either by elimination of the defect or by new delivery. In the event of remedying the defect, MK shall bear the necessary expenses insofar as these are not increased because the subject matter of the contract is located at a place other than the place of performance. If the subsequent performance has failed, the contractual partner may, at its discretion, demand a reduction in the purchase price or declare its withdrawal from the contract. The rectification shall be deemed to have failed with the second unsuccessful attempt, unless further attempts at rectification are reasonable and reasonable for the contractual partner due to the subject matter of the contract. The contractual partner may only assert claims for damages due to the defect under the following conditions if the subsequent performance has failed. The contractual partner’s right to assert further claims for damages under the following conditions shall remain unaffected.

(4) MK is obliged to take back or reduce the price in accordance with the statutory provisions even without setting the otherwise necessary deadline if the buyer of the contracting party as consumer of the new movable object sold (purchase of consumer goods) could demand the return of the goods or the reduction of the price due to the defect of these goods from the contracting party or if the contracting party is confronted with the same resulting right of recourse. In addition, MK are obliged to reimburse expenses of the contracting party, in particular transport, travel, labour and material costs, which the contracting party had to bear in relation to the end consumer within the scope of subsequent performance due to a transfer of risk from MK to the contracting party due to a defect of the goods. The claim shall be excluded if the contracting party has not properly fulfilled its obligations to inspect and give notice of defects according to § 377 HGB (German Commercial Code).

(5) The obligation according to paragraph 4 of this provision is excluded if it concerns a defect due to advertising statements or other contractual agreements which do not originate from MK, or if the contracting party has assumed a special guarantee towards the end consumer. The obligation is also excluded if the contracting party itself was not obligated to exercise the warranty rights vis-à-vis the end consumer due to the statutory regulations or did not make this complaint vis-à-vis a claim made to it. This shall also apply if the contractual partner has assumed warranties vis-à-vis the end consumer which go beyond the statutory provisions.

(6) MK’s liability is unlimited

• in case of intent or gross negligence,
• for injury to life, limb or health,
• in accordance with the provisions of the Product Liability Act and
• to the extent of a guarantee assumed by MK.

(7) In case of slightly negligent violation of an obligation which is essential for the achievement of the purpose of the contract (cardinal obligation), the liability of MK is limited in amount to the damage which is foreseeable and typical according to the type of the present business transaction.

(8) Further liability of MK does not exist. In particular, MK shall not be liable for initial defects unless the prerequisites of paragraphs 6 and 7 of this provision are fulfilled. The liability according to § 5 paragraphs 4 to 6 of these GTC remains unaffected by this. Insofar as liability is excluded or limited, this also applies to the personal liability of employees, workers, staff, representatives and vicarious agents of MK.

(9) The above limitation of liability also applies to the personal liability of the employees, representatives and organs of MK.

(10) Insofar as the contract between MK and the contracting party contains work or services, in particular the provision of know-how, in addition to or instead of a purchase, the above provisions shall apply mutatis mutandis. This applies in particular if MK “passes on” things and/or services to the contractual partner only as an intermediary from another partner. In such a case, the commercial obligation to examine and give notice of defects is waived.

(11) The same applies analogously – as far as transferable – if the object of the contract with the contracting party includes the loan or rental of equipment or other items to MK or through MK’s mediation to third parties. Manki and/or damages typical for business and use do not entitle the contracting party to assert claims against MK. If the law provides for a more limited liability in the case of transfer than regulated above, the statutory provisions shall apply for the liability.

 

§ 9 REFERENCES

The contracting party expressly permits MK to use the joint contractual relationship(s) for advertising purposes (reference). In particular, MK may reproduce the brands, logos, names and other protected marks of the contracting party.

§ 10 APPLICABLE LAW, PLACE OF JURISDICTION, PLACE OF PERFORMANCE

(1) The relations between MK and the contracting party are regulated exclusively according to the law valid in the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

(2) Place of performance and place of jurisdiction for services and payments (including actions on cheques and bills) as well as all disputes arising between MK and the contracting party is the place of business of MK. However, MK is also entitled to sue the contractual partner at his place of business.

 

§ 11 Sonstiges

(1) Verbal ancillary agreements do not exist.

(2) The contracting party may only transfer rights and obligations from or in connection with contracts with MK to third parties with the consent of MK; this can be done in text form.

(3) A set-off by the contracting party, even if notices of defects or counterclaims are asserted, is only admissible against claims undisputed by MK or legally established.

(4) Changes and additions require text form. This also applies to the amendment or cancellation of this clause.

(5) Should individual provisions be invalid, this shall not affect the validity of the remaining provisions. The contracting parties shall endeavour to find a provision to replace the invalid provision which best meets the legal and economic purpose of the contract.

 

Status 10/2019