General Terms and Conditions of Business

MEGA Clean Professional GmbH, Nordhorn


as of 13 April 2018


Paragraph 1 - Area of Validity, Form 

(1)  These  General  Terms  and  Conditions  apply  to  all  our  business  relationships  with  our customers  ("Buyers").  The  terms  and  conditions  apply  only  if  the  buyer  is  an entrepreneur (Paragraph 14 Civil Code), a legal entity or special assets under public law.

(2)  The terms and conditions particularly apply to contracts for the sale and/or delivery of movable objects ("goods"), regardless of whether we manufacture the goods ourselves or purchase  them  from  suppliers  (Paragraphs  433,  651  Civil  Code).  Unless  otherwise agreed, the terms and conditions in the version valid at the time of the order placed by the buyer applies, or at least in the version conveyed to him in writing as a general agreement for similar future contracts without us having to refer to them again in each individual case.

(3)  Our terms and conditions apply exclusively. Deviant, conflicting or additional terms and conditions of the buyer shall only become part of the contract if, and in this respect, we have expressly consented to their validity. With the knowledge of the buyer’s terms and conditions,  this  approval  requirement  applies  in  any  case,  for  example,  also  when  we make deliveries to him without reservation.

(4)  Agreements  made  with  the  buyer  in  individual  cases  (including  collateral  agreements, additions and changes) have priority over these terms and conditions. For the content of such  agreements,  subject  to  the  evidence  in  rebuttal,  a  written  contract  or  our  written confirmation is authorative.

(5)  Legally relevant statements and complaints of the buyer regarding the contract (eg setting of a deadline, notice of defect, rescission or reduction) are to be submitted in writing or in text form (e.g. letter, e-mail, fax). Statutory formal requirements and further verifications, particularly in case of doubt about the legitimation of the affirmant remain unaffected.

(6)  Indications of the validity of statutory provisions are only of clarifying significance. Even without  such  clarification,  the  statutory  provisions  are  valid,  unless  they  are  directly amended or expressly excluded in these terms and conditions. 

Paragraph 2 - Conclusion of a Contract and Minimum Order Value

(1)  Our offers are non-binding. This shall also apply if we have provided the purchaser with catalogues, technical documentation, other product descriptions or  documents  -  also  in electronic  form  -  as  well  as  samples  in  which  we  reserve  the  rights  of  ownership  and copyrights.

(2)  The placement of order for the goods by the buyer is regarded as a binding tentative offer. Unless  otherwise  stated  in  the  order,  we  are  authorised  to  accept  this  tentative  offer within 3 working days after receipt.

(3)  The receipt of delivery may be declared either in writing (for example: by confirmation of order or by invoice) or by delivering the goods to the buyer. 

Paragraph 3 - Period of Delivery and Delay in Delivery

(1) The delivery period is individually agreed or specified by us on receipt of order. Should this not be the case, the delivery period is approx. 3 working days from the conclusion of the contract.

(2) Should  we  be  unable  to  comply  with  binding  delivery  times  for  reasons  beyond  our control (unavailability of the service), we will inform the buyer immediately and notify him  about  the  estimated  new  due  date  at  the  same  time.  Should  the  service  not  be available  within  the  new  delivery  period  either,  we  are  entitled  to  a  complete  or  part withdrawal from the contract. Any consideration already provided by the buyer will be reimbursed  immediately.  In  the  case  of  unavailability  of  the  service  to  this  effect, particularly  the  untimely  self-supply  by  our  provider  comes  into  effect  if  we  have  a matching cover transaction or if neither we or our suppliers are to blame, or we are not committed to procure in individual cases.

(3) An  occurrence  of  our  delay  in  delivery  is  determined  by  the  statutory  provisions.  A demand notice from the buyer is required in any case. However, the claim of the purchaser for compensation does not exceed 5% of the net price of the delayed goods.

(4) The rights of the buyer, according to paragraph 8 of these terms and conditions, and our statutory rights remain unaffected, in particular in the case of an exclusion of the duty to perform  (for  example:  due  to  impossibility  or  unacceptability  of  the  service  and/or subsequent performance). 

Paragraph 4- Delivery, Transfer of Risk, Receipt of Delivery, Delay in Acceptance

(1) Delivery is made ex warehouse, which is also the place of performance for the delivery and any possible subsequent performance. At the request and expense of the buyer, the goods  will  be  shipped  to  another  destination  (destination  purchase).  Unless  otherwise agreed,  we  are  entitled  to  determine  the  mode  of transportation  (particularly  transport company, shipping route, packaging).

(2) The risk of accidental loss and accidental deterioration of the goods passes over to the buyer upon handover at the latest. However, in the case of destination purchase, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, shall pass  over  on  delivery  to  the  forwarding  agent,  the  carrier  or  the  person  or  institution otherwise  responsible  for  carrying  out  the  shipment.  Insofar  as  an  acceptance  has  been agreed, this is decisive for the transfer of risk. Incidentally, the statutory provisions, as described in the contract for work and services law, apply for an agreed acceptance. The transfer or acceptance is equal if the buyer is in default of acceptance.

(3) Should the buyer be in delay of acceptance, fail to cooperate or our delivery is delayed for other reasons which the buyer is responsible for, we are entitled to claim compensation for the resulting damage, including additional expenses (for example storage costs).

(4) The minimum order value is EUR 100,00 net. 

Paragraph 5 - Prices and Terms of Payment

(1) Unless  otherwise  agreed  in  individual  cases,  our  current  prices  at  the  time  of  the conclusion of the contract shall apply, ex warehouse, plus the statutory value added tax.

(2) In  the  case  of  a  destination  purchase  (Paragraph  4  clause  1),  the  buyer  shall  bear  the transport costs ex warehouse, and also the costs of any transport insurance desired by the purchaser.  The  buyer  bears  any  arising  customs  duties,  fees,  taxes  and  other  public charges.

(3) The purchase price is to be paid within 30 days of invoicing and delivery or acceptance of the goods. However, we are also entitled to request payment in advance for complete or part  deliveries  at  any  time,  even  in  an  ongoing  business  relationship.  A  relevant reservation will be declared with the confirmation of order at the latest.

(4) Upon expiry of the above-mentioned payment period, the buyer is in arrears. The purchase price is subject to interest at the valid statutory default interest rate during the delay. We reserve  the  right  to  enforcement  for  continuing  damages  caused  by  delay.  Regarding traders, our claim of the commercial maturity interest (Paragraph 353 Commercial Code) remains unaffected.

(5) We grant a 2% discount on payments made within 10 days after invoice date.

(6) The  Buyer  is  only  entitled  to  set-off  or  retention  rights  insofar  as  his  claim  has  been legally  established  or  is  undisputed.  In  accordance  with  paragraph  7  clause  6  of  these terms  and  conditions,  the  counterclaims  of  the  buyer  remain  unaffected  in  the  case  of deficiencies in delivery.

(7) Should  it  become  evident  after  conclusion  of  the  contract  (for  example  through  an application for opening insolvency proceedings) that our claim on the purchase price is jeopardized  by  lack  of  efficiency  on  the  buyer’s  behalf,  we  have  the  right  to  refuse performance in accordance with the statutory provisions and if necessary, after setting a deadline, to withdraw from the contract (Paragraph 321 Civil Code). Regarding contracts about the production of non-fungible items (custom-made), we can declare the withdrawal immediately.  The  statutory  provisions  on  the  dispensability  of  the  deadline  remain unaffected. 

Paragraph 6 - Retention of Property 

(1) We reserve the right to retain ownership of the goods sold until full payment has been made  for  all  our  present  and  future  claims  from  the  purchase  contract  and  continuous business relationship (secured claims).

(2) The goods subject to retention of title may not be pledged to third parties or transferred precautionary  before  full  payment  of  the  secured  demand  has  been  made.  Should  an application for the opening of insolvency proceedings be made or if access to our goods by third parties (for example distraint) is occurring, the buyer must notify us immediately in writing.

(3) In the event of breach of contract by the buyer, particularly in the case of non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to reclaim the goods based on the retention of title. The demand  for  restitution  does  not  include  the  explanation  for  the  resignation  at  the  same time.  In  fact,  we  are  entitled  to  reclaim  the  goods  only,  and  to  reserve  the  right  of withdrawal. Should the buyer not pay the due purchase price, we may only assert these rights if we have unsuccessfully set the buyer an adequate deadline for payment or if such a deadline is dispensable in accordance with the statutory provisions.

(4) In accordance with point (c) below, the buyer is entitled to re-sell the goods subject to retention of title until revocation, or to process them in the regular course of business. In this case, the following additional provisions apply.

(a)  The retention of title extends to the full value of our products resulting from processing, mixing or combining of our goods, whereas we are considered to be the manufacturer. If the  property  rights  remain  when  processing,  mixing  or  combining  goods  belonging  to third  parties,  we  acquire  co-ownership  in  proportion  of  the  invoice  values  of  the processed,  mixed  or  combined  goods.  In  addition,  the  same  applies  for  the  resulting product and the goods delivered under the reservation of title.

(b)  In  accordance  with  the  preceding  paragraph,  claims  resulting  from  the  re-sale  of  the goods or product against third parties will be assigned to us by the buyer in total at this stage, or the amount of our estimated share of joint title for the purpose of security. We accept  the  assignment.  Regarding  the  assigned  claims,  the  obligations  of  the  buyer mentioned in clause 2 also apply.

(c)  Beside us, the buyer also remains authorised for the forfeiture of the claim. We commit ourselves  not  to  collect  the  claim  as  long  as  the  buyer  complies  with  his  payment obligations  and  as  long  as  he  is  not  lacking  efficiency,  and  we  do  not  violate  the reservation of title by exercising a right stated in clause 3. Should this, however, be the case,  we  can  demand  that  the  buyer  notifies  us  about  the  assigned  claims  and  their debtors,  provides  all  information  required  for  collection,  hands  over  the  related documents and notifies the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the buyer's authority to resell and process the goods subject to retention of title.

(d)  Should the realisable value of the securities exceed our claims by more than 10%, we will, at the request of the buyer, release securities of our choice. 

Paragraph 7 - The Buyer’s Right under Warranty

(1) For the rights of the buyer in case of material defects and legal deficiencies (including incorrect and incomplete delivery, as well as improper installation or incorrect assembly instructions), the statutory provisions apply, unless stated otherwise below. In all cases, the statutory special provisions remain unaffected regarding the final delivery of goods to a consumer (supplier recourse in accordance with paragraphs 478, 479 Civil Code).

(2) The  basis  of  our  liability  for  defects  is  above  all  the  agreement  made  regarding  the condition of the goods. The condition of the goods and all product descriptions which are the  subject  of  the  individual  contract  or  have  been  made  public  by  us  (in  particular  in catalogues or on our Internet homepage) prevail as an agreement. Measurements stated (weight and size) are  approximate  indications. Colour variations may occur and do not justify a deficiency.

(3) Insofar  as  the  condition  has  not  been  agreed  upon,  an  assessment  is  to  be  made  to determine  whether  or  not  a  deficiency  is  evident,  according  to  the  legal  regulation (paragraph 434 (1) Sections 2 and 3 Civil Code). However, we do not accept any liability for  public  statements  made  by  the  manufacturer  or  other  third  parties  (for  example, advertising messages).

(4) The warranty claims of the buyer presuppose that he has complied with his obligation to inspect and duty to object (paragraphs 377, 381 Commercial Code). Should a defect at the time of delivery, inspection or at any time later become evident, written notification must be  issued  to  us  immediately.  In  any  case,  obvious  defects  must  be  reported  in  writing within  5  working  days  from  the  date  of  delivery.  The  same  applies,  from  the  date  of discovery, for any defects that can not be identified during the investigation. Should the buyer fail to carry out proper examination and/or report a defect, our liability for either the unreported  defect  or  a  late  or  improper  notification  is  excluded  in  accordance  with  the statutory provisions.

(5) Should  the  delivered  goods  be  faulty,  we  can  choose  first  of  all  whether  we  provide subsequent performance by remedy of the defect (rectification) or by delivering a faultless product  (replacement).  Our  right  to  refuse  subsequent  performance  under  statutory conditions remains unaffected.

(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the  due  purchase  price.  However,  the  buyer  is  entitled  to  retain  a  proportion  of  the purchase price which is adequate in relation to the defect. The buyer must give us the time and opportunity required for the owed subsequent performance, in particular to hand over the  rejected  goods  for  examination  purposes.  In  case  of  replacement,  the  buyer  has  to return the defective item according to the legal regulations.

(7) Should a defect actually be evident, we bear the expenses arising for the purpose of testing and  subsequent  performance,  particularly  transport,  travel,  labour  and  material  costs. Otherwise, we may demand compensation from the purchaser for costs incurred due to the unjustified rectification of the defect (in particular inspection and transport costs), unless the defectiveness was not identifiable to the purchaser.

(8) In  urgent  cases,  e.g.  in  case  of  endangerment  of  operational  safety  or  to  avoid disproportionate damage, the buyer has the right to remediate the defect himself and to demand  compensation  from  us  for  the  objectively  necessary  expenditure.  We  are  to  be informed about such actions on one’s own initiative immediately, if possible beforehand. The right to take action on one’s own initiative does not exist if we were entitled to refuse a corresponding subsequent performance according to the statutory provisions.

(9) If the supplementary performance has failed or a suitable time period which is to be set by the  buyer  for  the  subsequent  performance  has  expired  without  success,  or  if  it  is dispensable in accordance with the statutory provisions, the buyer may withdraw from the sales contract or reduce the purchase price. In case of a minor defect, however, there is no right of termination.

(10)  Claims for damages or compensation for futile expenses by the buyer also exist in case of defects, only in accordance with paragraph 8, and are otherwise excluded. 

Paragraph 8 - Miscellaneous Liability

(1) Unless otherwise stated in these terms and conditions, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

(2) Irrespective of the legal reason and in cases of intent and gross negligence, we shall be liable for damages within the scope of fault liability. In the case of ordinary negligence, we are, according to legal regulations, liable subject to a more lenient liability standard (for example: for the care in your own affairs) only

a)  for damage resulting from injury to life, body or health, 
b)  for  damages  resulting  from  serious  breach  of  a  contractual  duty  (the  fulfilment  of  an obligation  which  makes  the  proper  execution  of  the  contract  possible  at  all,  and  the compliance which the contractual partner regularly trusts and can rely on); however, in this  case,  our  liability  is  limited  to  compensation  for foreseeable,  typically  occurring damage.

(3) The limitation of liability resulting from clause 2 also applies to breach of duty by persons or  for  their  benefit,  whose  negligence  we  act  on  behalf  of  according  to  statutory provisions. They do not apply if we fraudulently concealed a defect or assumed guarantee for the quality of the goods and for claims of the buyer under the Product Liability Act.

(4) Due to a breach of duty that does not exist in a defect, the buyer can only withdraw or terminate if we are responsible for the breach of duty. A free right of termination for the buyer  (particularly  in  accordance  with  paragraphs  651,  649  Civil  Code)  is  excluded. Incidentally, the statutory conditions and legal consequences apply. 

Paragraph 9 - Statute of Limitation

(1) Diverging from paragraph 438 clause 1 no. 3 Civil Code, the general statute of limitation for claims arising from material and legal deficiency is one year from delivery. Insofar as an  acceptance  has  been  agreed,  the  statute  of  limitations  begins  with  the  acceptance. Statutory  special  regulations  on  the  statute  of  limitations  remain  unaffected  (notably paragraph 438 clause 1 no. 1, clause 3, paragraphs 444, 479 Civil Code).

(2) The above-mentioned limitation periods of the Sales Act also apply for contractual and non-contractual claims for damages of the buyer, based on a defect of the goods, unless the application of the regular statutory limitation (paragraphs 195, 199 Civil Code) would lead to a shorter statute of limitations in individual cases. However, claims for damages of the  buyer  according  to  paragraph  8  clause  2  sentence  1  and  sentence  2  (a)  and  to  the product liability law expire exclusively in accordance with the statutory limitation periods. 

Paragraph 10 - Commercial Proprietary Rights and Copyright

(1)  We reserve our rights of ownership, copyright and other proprietary rights on all brands, signs, illustrations, calculations, drawings, photographs and other documents. The buyer may only pass these on to third parties with our written consent, irrespective of whether we have marked these as confidential. We are entitled to revoke any right of use granted by the purchaser (particularly for brands, signs, illustrations and photographs) at any time without the purchaser being able to derive any rights from us.

(2)  If  we  have  to  deliver  according  to  drawings,  models,  or  samples  of  the  buyer,  the purchaser shall ensure that this does not violate the proprietary rights of third parties. The buyer  exempts  us  from  claims  of  third  parties  and  has  to  reimburse  us  with  a compensation for the damage incurred. Should one of the contractual parties be prohibited production or delivery by a third party on the basis of a proprietary right belonging to them, we are entitled to stop the work until the legal situation has been clarified by the buyer and the third party, without checking the legal situation. Should the continuation of the  order  no  longer  be  reasonable  for  us due  to  the  delay,  we  are  entitled  to  declare withdrawal from the contract.

(3)  All rights of ownership, copyright and other proprietary rights on models, forms, tools, devices, designs and drawings configured by us or by third parties remain with us, unless otherwise agreed in writing. This also applies if the buyer reimburses shares of expenses accordingly.  

Paragraph 11 - Choice of Law and Jurisdiction

(1) For these terms and conditions and the contractual relationship between us and the buyer, the  law  of  the  Federal  Republic  of  Germany  applies  to  the  exclusion of  International uniform law, particularly the UN Sales Act.

(2) If the buyer is a merchant in terms of the German Commercial Code, legal entity under public law or a special asset of public law, our headquarters in Nordhorn are the exclusive – and also International jurisdiction - for all disputes arising directly or indirectly from the contractual  relationship.  The  same  applies  if  the  buyer  is  an entrepreneur  in  terms  of paragraph 14 Civil Code. However, we are also entitled to either issue proceedings at the place  of  performance  of  the  delivery  commitment in  accordance  with  these  terms  and conditions, a paramount individual agreement or at the general jurisdiction of the buyer in all cases. Priority statutory provisions, especially to sole jurisdictions, remain unaffected.

Nordhorn April 13th 2018