General Terms and Conditions of Delivery of Matthews Systems Germany GmbH
§1 Scope
(1) All deliveries, services, and offers of Matthews Kodiersysteme GmbH (hereinafter “MATTHEWS”) are subject exclusively to these General Terms and Conditions of Delivery (hereinafter “GTC”). These GTC form an integral part of all contracts that MATTHEWS concludes with its contractual partners (hereinafter also “Client”; collectively “Contracting Parties”) regarding the deliveries or services it offers – provided that these contractual partners are entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law, or special funds under public law. They also apply to all future deliveries, services, or offers to the Client, even if they are not separately agreed upon again.
(2) These General Terms and Conditions apply exclusively. Any differing, conflicting, or supplementary terms and conditions of the client shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing. Even if MATTHEWS refers to a letter containing or referring to the client’s or a third party’s terms and conditions, this shall not constitute acceptance of those terms and conditions.
(3) Individual agreements made with the seller in specific cases (including side agreements, amendments and modifications) shall in any case take precedence over these General Terms and Conditions.
§2 Offer and Conclusion of Contract
(1) All offers from MATTHEWS are subject to change and non-binding unless they are expressly designated as binding or include a specific acceptance period. MATTHEWS may accept orders or commissions within 14 days of receipt.
(2) The written contract, including these General Terms and Conditions, is the sole basis for the legal relationship between MATTHEWS and the contractual partner. It fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Oral promises made by MATTHEWS prior to the conclusion of the contract are legally non-binding and are superseded by the written contract, unless it is expressly stated that they shall remain binding. Section 127 Paragraph 2 Sentence 1 of the German Civil Code (BGB) applies.
(3) Amendments and modifications to the agreements made, including these General Terms and Conditions, require written form to be effective. Electronic transmission, in particular by fax or email, is sufficient to satisfy the written form requirement. With the exception of managing directors or authorized signatories, employees of MATTHEWS are not authorized to make oral agreements that deviate from the written agreement.
(4) Information provided by MATTHEWS regarding the subject matter of the delivery and service (e.g., weights, dimensions, performance and consumption values, load-bearing capacity, tolerances, and technical data) as well as their representations (e.g., drawings and illustrations) are only approximate unless exact conformity is required for the intended contractual purpose. They are not guaranteed characteristics but rather descriptions or designations of the delivery and service. Commercially customary deviations and deviations resulting from legal regulations or representing technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair the suitability for the intended contractual purpose.
(5) MATTHEWS retains ownership and copyright to all offers and cost estimates issued by it, as well as to all drawings, calculations, brochures, catalogs, models, tools, and other documents and aids provided to the contractual partner. The contractual partner may not, without the express consent of MATTHEWS, make these items or their content accessible to third parties, disclose them, use them, or reproduce them, either directly or indirectly. Upon request from MATTHEWS, the contractual partner must return these items in full and destroy any copies made if they are no longer needed in the ordinary course of business or if negotiations do not result in a contract. This excludes the storage of electronically provided data for the purpose of standard data backup.
§3 Prices and Payment
(1) The prices apply to the scope of services and delivery specified in the order confirmations. Additional or special services will be invoiced separately. Additional or special services exist in particular if adjustments to the delivery become necessary to meet the production requirements of the contractual partner, which only become apparent upon commissioning of the delivered goods. Prices are quoted in EUR ex works, excluding packaging, statutory VAT, and, for export deliveries, customs duties, fees, and other public charges.
(2) For the avoidance of doubt, it should be noted that the contracting party shall obtain all official permits in the exporting country (e.g. import permits) at its own expense.
(3) Invoices are payable within 30 days without any deductions, unless otherwise agreed in writing. The date of payment is determined by the date of receipt by MATTHEWS. Payment by check is excluded unless specifically agreed upon in individual cases. If the client fails to pay on the due date, the outstanding amounts will accrue interest at 5% per annum from the due date; the right to claim higher interest and further damages in the event of default remains unaffected.
(4) Offsetting against counterclaims of the customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or have been legally established or arise from the same order under which the delivery in question was made.
(5) MATTHEWS is entitled to execute or provide outstanding deliveries or services only against prepayment or provision of security if, after conclusion of the contract, MATTHEWS becomes aware of circumstances which are likely to significantly impair the creditworthiness of the customer and which jeopardize the payment of MATTHEWS’s outstanding claims by the customer arising from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).
§4 Delivery and delivery time
(1) Deliveries are made ex works.
(2) Delivery and performance deadlines and dates indicated by MATTHEWS are always approximate unless a fixed deadline or date has been expressly promised or agreed upon. If shipment has been agreed upon, delivery deadlines and dates refer to the time of handover to the freight forwarder, carrier, or other third party commissioned with the transport.
(3) MATTHEWS may – without prejudice to its rights in the event of default by the contractual partner – demand from the latter an extension of the delivery and performance deadlines or a postponement of the delivery and performance dates by the period during which the contractual partner fails to comply with its contractual obligations to MATTHEWS.
(4) MATTHEWS shall not be liable for impossibility of delivery or for delivery delays insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g., operational disruptions of any kind, transport delays, strikes, lawful lockouts, shortages of labor, energy or raw materials, difficulties in obtaining the necessary official permits, official actions, or failure, incorrectness, or lateness of deliveries by suppliers) for which MATTHEWS is not responsible. If such events significantly impede or render impossible MATTHEWS’ delivery or performance, and the impediment is not merely temporary, MATTHEWS shall be entitled to withdraw from the contract. In the case of temporary impediments, the delivery or performance deadlines shall be extended or the delivery or performance dates postponed by the duration of the impediment plus a reasonable start-up period. If, as a result of the delay, acceptance of the delivery or performance is unreasonable for the contractual partner, the contractual partner may withdraw from the contract by giving immediate written notice to MATTHEWS.
(5) MATTHEWS is entitled to make partial deliveries if the partial delivery is usable for the contractual partner within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the contractual partner does not incur any significant additional effort or costs as a result (unless MATTHEWS agrees to bear these costs).
(6) If MATTHEWS defaults on a delivery or service, or if a delivery or service becomes impossible for MATTHEWS for any reason whatsoever, its liability for damages is limited in accordance with Section 8 of these General Terms and Conditions.
§5 Place of performance, shipping, packaging, transfer of risk, acceptance
(1) The place of performance for all obligations arising from the contractual relationship is Aschau im Chiemgau, unless otherwise agreed. If MATTHEWS is also responsible for installation, the place of performance is the location where the installation is to take place.
(2) The method of shipment and the packaging are at the discretion of MATTHEWS.
(3) The risk passes to the contractual partner no later than upon handover of the delivery item (whereby the commencement of the loading process is decisive) to the freight forwarder, carrier, or other third party designated to carry out the shipment. This also applies if partial deliveries are made or if MATTHEWS has assumed other obligations (e.g., installation). If shipment or handover is delayed due to a circumstance attributable to the contractual partner, the risk passes to the contractual partner from the day on which the delivery item is ready for shipment and MATTHEWS has notified the contractual partner accordingly.
(4) Storage costs after the transfer of risk shall be borne by the contractual partner. If storage is provided by MATTHEWS, the storage costs shall amount to 0.25% of the invoice amount of the goods to be stored per week commenced. The parties reserve the right to claim and prove higher or lower storage costs.
(5) MATTHEWS will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the express request and expense of the contracting party.
(6) Where acceptance is required, the goods shall be deemed accepted if delivery and, where MATTHEWS is also responsible for installation, the installation is completed, MATTHEWS has notified the contractual partner of this with reference to the deemed acceptance pursuant to this Section 5 (6) and has requested acceptance, 21 days have passed since delivery or installation, or the contractual partner has begun using the goods and, in this case, 14 days have passed since delivery or installation, and the contractual partner has failed to accept the goods within this period for any reason other than a defect reported to MATTHEWS that renders the use of the goods or the work impossible or substantially impairs it.
§6 Warranty, Material Defects
(1) The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by MATTHEWS or its agents, which are subject to the statutory limitation periods.
(2) The delivered goods must be carefully inspected immediately upon delivery to the contractual partner or to a third party designated by the contractual partner. With regard to obvious defects or other defects that would have been apparent upon immediate, careful inspection, the goods are deemed accepted by the contractual partner unless MATTHEWS receives a written notice of defects within one week of delivery. With regard to other defects, the delivered goods are deemed accepted by the contractual partner unless the notice of defects is received by MATTHEWS within one week of the date on which the defect became apparent; however, if the defect was already apparent at an earlier date during normal use, this earlier date is decisive for the commencement of the notification period. At MATTHEWS’ request, a rejected delivery item must be returned to MATTHEWS freight prepaid. In the case of a justified notice of defects, MATTHEWS will reimburse the costs of the most economical shipping method; this does not apply if the costs increase because the delivery item is located at a place other than the place of its intended use.
(3) In the event of defects in the delivered goods, MATTHEWS shall, at its discretion, initially be obligated and entitled to either repair or replace the goods within a reasonable period. If this fails, i.e., if repair or replacement is impossible, unreasonable, refused, or unreasonably delayed, the contractual partner may withdraw from the contract or reduce the purchase price appropriately.
(4) If the defect is due to the fault of MATTHEWS, the contractual partner may claim damages under the conditions specified in Section 8.
(5) In the event of defects in components from other manufacturers that MATTHEWS cannot remedy for licensing or practical reasons, MATTHEWS will, at its discretion, either assert its warranty claims against the manufacturers and suppliers on behalf of the contractual partner or assign these claims to the contractual partner. Warranty claims against MATTHEWS for such defects exist, subject to the other conditions and provisions of these General Terms and Conditions of Delivery, only if the legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example, due to insolvency. The statute of limitations for the contractual partner’s relevant warranty claims against MATTHEWS is suspended for the duration of the legal proceedings.
(6) The warranty is void if the contractual partner modifies the delivered item or has it modified by a third party without the consent of MATTHEWS, and this renders the rectification of defects impossible or unreasonably difficult. In any case, the contractual partner shall bear any additional costs incurred in rectifying defects as a result of the modification.
(7) Any delivery of used goods agreed upon with the contractual partner in a specific case shall be made excluding all warranties for defects.
§7 Protective Rights
(1) MATTHEWS warrants, in accordance with this Section 7, that the delivered goods are free from third-party industrial property rights or copyrights. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against it for infringement of such rights.
(2) In the event that the delivered item infringes a third party’s industrial property right or copyright, MATTHEWS shall, at its own discretion and expense, either modify or replace the delivered item in such a way that no third-party rights are infringed, while the delivered item continues to fulfill the contractually agreed functions, or procure the right of use for the contractual partner by concluding a license agreement with the third party. If MATTHEWS fails to do so within a reasonable period, the contractual partner shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the contractual partner shall be subject to the limitations of Section 8 of these General Terms and Conditions of Sale.
(3) In the event of infringements of rights by products of other manufacturers supplied by MATTHEWS, MATTHEWS shall, at its discretion, either assert its claims against the manufacturers and upstream suppliers on behalf of the contractual partner or assign them to the contractual partner. Claims against MATTHEWS in these cases exist in accordance with this Section 7 only if the legal enforcement of the aforementioned claims against the manufacturers and upstream suppliers has been unsuccessful or is futile, for example, due to insolvency.
§8 Liability for damages due to negligence
(1) MATTHEWS’ liability for damages, regardless of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations and tort, is limited in accordance with this Section 8, insofar as fault is a prerequisite in each case.
(2) MATTHEWS shall not be liable in cases of simple negligence on the part of its officers, legal representatives, employees, or other agents, unless such negligence constitutes a breach of essential contractual obligations. Essential contractual obligations include the obligation to deliver and install the goods on time, to ensure that the goods are free from defects of title and from defects that more than insignificantly impair their functionality or usability, and to provide advisory, protective, and custodial services intended to enable the customer to use the goods in accordance with the contract or to protect the life or health of the customer’s personnel or the customer’s property from significant damage.
(3) To the extent that MATTHEWS is liable for damages pursuant to Section 8 (2) of the General Terms and Conditions of Sale, such liability is limited to damages that MATTHEWS foresaw at the time of conclusion of the contract as a possible consequence of a breach of contract or that it should have foreseen by exercising due diligence. Indirect and consequential damages resulting from defects in the delivered goods are only recoverable to the extent that such damages are typically to be expected when the delivered goods are used as intended.
(4) The foregoing exclusions and limitations of liability shall apply to the same extent in favor of the officers, legal representatives, employees and other agents of MATTHEWS.
(5) Insofar as MATTHEWS provides technical information or advice and such information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and without any liability.
(6) The limitations of this Section 8 shall not apply to the liability of MATTHEWS for intentional or grossly negligent conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.
§9 Retention of Title
(1) The retention of title agreed below serves to secure all current and future claims of MATTHEWS against the contractual partner arising from the supply relationship between the parties concerning the subject matter of the contract (including balance claims from a current account relationship limited to this supply relationship).
(2) The goods delivered by MATTHEWS to the contractual partner remain the property of MATTHEWS until full payment of all secured claims. The goods, as well as any goods that replace them under the following provisions and are subject to the retention of title, are hereinafter referred to as “reserved goods”.
(3) The contractual partner shall hold the goods subject to retention of title free of charge for MATTHEWS.
(4) The contractual partner is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the occurrence of an event of default (paragraph 9). Pledging and assignment by way of security are not permitted.
(5) If the goods subject to retention of title are processed by the contractual partner, it is agreed that the processing is carried out in the name and for the account of MATTHEWS as manufacturer, and that MATTHEWS directly acquires ownership or – if the processing involves materials belonging to several owners or the value of the processed item is higher than the value of the goods subject to retention of title – co-ownership (fractional ownership) of the newly created item in proportion to the value of the goods subject to retention of title relative to the value of the newly created item. In the event that such acquisition of ownership by MATTHEWS should not occur, the contractual partner hereby assigns its future ownership or – in the aforementioned proportion – co-ownership of the newly created item to MATTHEWS as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a single item, and one of the other items is to be regarded as the principal item, the contractual partner, to the extent that the principal item belongs to it, assigns to MATTHEWS proportionate co-ownership of the single item in the ratio specified in sentence 1.
(6) In the event of resale of the goods subject to retention of title, the contractual partner hereby assigns to MATTHEWS, as security, the resulting claim against the purchaser – in the case of co-ownership by MATTHEWS of the goods subject to retention of title, proportionally according to the share of co-ownership. The same applies to other claims that replace the goods subject to retention of title or otherwise arise with respect to the goods subject to retention of title, such as insurance claims or claims arising from tort in the event of loss or destruction. MATTHEWS revocably authorizes the contractual partner to collect the claims assigned to MATTHEWS in its own name. MATTHEWS may revoke this authorization to collect only in the event of enforcement proceedings.
(7) If third parties seize the goods subject to retention of title, in particular by way of attachment, the contractual partner shall immediately inform them of MATTHEWS’ ownership and notify MATTHEWS accordingly to enable it to enforce its ownership rights. If the third party is unable to reimburse MATTHEWS for the resulting legal or extrajudicial costs, the contractual partner shall be liable to MATTHEWS for these costs.
(8) MATTHEWS will release the goods subject to retention of title, as well as any items or claims that replace them, to the extent that their value exceeds the amount of the secured claims by more than 50%. MATTHEWS shall have the right to select the items to be released.
(9) If MATTHEWS withdraws from the contract due to the contractual partner’s breach of contract – in particular default of payment – (case of realization), it is entitled to demand the return of the goods subject to retention of title.
§10 No-Russia Clause
(1) The Buyer shall not sell, export or re-export directly or indirectly to the Russian Federation or for use in the Russian Federation any goods supplied under or in connection with this Contract which fall within the scope of Article 12g of Council Regulation (EU) No 833/2014.
(2) The Buyer shall use its best efforts to ensure that the purpose of paragraph (1) is not thwarted by any third party further down the supply chain, including any resellers.
(3) The buyer shall establish and maintain an appropriate monitoring mechanism to detect the conduct of third parties further down the supply chain, including potential resellers, which would thwart the purpose of paragraph (1).
(4) Any breach of paragraphs (1), (2) or (3) shall constitute a material breach of a material element of this Agreement and the Seller shall be entitled to demand appropriate remedies, including but not limited to:
(i) Termination of this agreement; and
(ii) a penalty equal to 25% of the total value of this agreement or the price of the goods delivered, whichever is higher.
(5) The Buyer is obliged to inform the Seller immediately of any problems in the application of paragraphs (1), (2) or (3), including any relevant activities of third parties that could frustrate the purpose of paragraph (1). The Buyer shall provide the Seller with information on compliance with the obligations under paragraphs (1), (2) and (3) within two weeks of a simple request for such information.
§11 Prohibition of Assignment
The contractual partner may only transfer rights and obligations arising from a contract concluded with MATTHEWS to third parties with MATTHEWS’ consent. This does not apply to monetary claims against MATTHEWS.
§12 Final Provisions
(1) If the contractual partner is a merchant, a legal entity under public law or a special fund under public law, or if it has no general place of jurisdiction in the Federal Republic of Germany, the courts responsible for Aschau im Chiemgau, Germany, shall have exclusive jurisdiction for all disputes arising from the business relationship between MATTHEWS and the contractual partner.
(2) The relationship between MATTHEWS and the contracting party shall be governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the contract or these General Terms and Conditions of Delivery contain gaps, those legally effective provisions shall be deemed agreed to fill these gaps which the contracting parties would have agreed upon in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had been aware of the gap.