General Terms and Conditions of Sale, Delivery and Payment (GTC)
of miunske electronic GmbH (hereinafter referred to as „miunske“)
1. General
1.1
All offers, sales contracts, deliveries, and services of miunske based on the orders of customers (hereinafter referred to as “Buyer” or “Customers“) are subject to these GTC.
1.2
The products and services offered by miunske are exclusively directed to entrepreneurs in the sense of § 14 of the German Civil Code (“BGB“), legal entities under public law or special funds under public law, but not to consumers in the sense of § 13 BGB.
1.3
These GTC shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer or third parties shall not apply, even if miunske does not separately object to their validity in individual cases.
1.4
Individual agreements concluded with the Buyer in a particular case (including side agreements, supplements and amendments) and statements in the order confirmation of miunske have priority over these GTC.
1.5
Miunske’s Customers have to ensure on their own responsibility that they use and/or resell the delivered items only in compliance with the respective applicable legal regulations. Miunske assumes no liability for any deviating use.
2. Conclusion of contracts
2.1
Miunske’s offers are subject to change without notice and are non-binding, unless they are expressly marked as binding or contain a specific acceptance period. The sending of price lists, catalogues, brochures etc. does not oblige miunske to deliver. Miunske does not assume any liability for information given orally.
2.2
The order of the delivered items by the Buyer is considered as a binding contract offer. Unless otherwise stated in the order, miunske is entitled to accept this contract offer within fourteen (14) days after its receipt. Orders are only considered accepted if they have been confirmed in writing or executed. If there is no written confirmation, the delivery or the invoice is considered as order confirmation.
2.3
Solely authoritative for the legal relationship between miunske and the Customer is the written contract, including these GTC. This contract reflects all agreements between the contracting parties regarding the subject matter of the contract in its entirety. Verbal commitments of miunske before conclusion of the contract as well as verbal agreements of the contracting parties before conclusion of the contract are legally non-binding and are replaced by the written contract.
2.4
Illustrations, stated dimensions and weights or other performance data in the brochures and other documents of miunske are always only approximately authoritative, unless the usability for the contractually intended purpose requires an exact agreement. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components or materials by equivalent parts or materials, shall be permissible insofar as they do not impair the usability for the contractually intended purpose. In case of errors in brochures, price lists, offers, invoices and other declarations, miunske is entitled to correct and rectify under the legal conditions.
2.5
As far as special packaging units are provided for certain parts, these parts can only be delivered in the indicated delivery quantity or in integer multiples thereof.
2.6
Sampling of the items delivered by miunske is possible in the form of cover sheet sampling following the procedure according to VDA 2 without additional charge. Further requirements regarding the sampling require a separate agreement and are usually associated with the calculation of costs.
2a “No Russia-Clause” (Regulation (EU) No. 833/2014)
The customer has to ensure – unless exempted from the provisions of Regulation (EU) No. 833/2014 – that goods, falling within the scope of Article 12g of Regulation (EU) No. 833/2014, are not delivered directly neither indirectly to the Russian Federation or for use in the Russian Federation (“no-Russia clause”).
Upon the receipt of the customer’s order at miunske, the customer confirms the compliance and the monitoring of the provisions of Regulation (EU) No. 833/2014. If the customer breaches the assurance, the customer indemnifies miunske against any claims in connection with the breaches. Otherwise, miunske has the right to withdraw from the contract.
2b “No Belarus-Clause” (Regulation (EU) No. 765/2006)
The customer has to ensure – unless exempted from the provisions of Regulation (EU) No. 765/2006 – that goods, falling within the scope or Article 8g of Regulation (EU) Nr. 765/2006, are not delivered directly neither indirectly to Belarus or for use in Belarus („No-Belarus Clause“).
Upon the receipt of the customer’s order at miunske, the customer confirms the compliance and the monitoring of the provisions of Regulation (EU) No. 765/2006. If the customer breaches the assurance, the customer indemnifies miunske against any claims in connection with the breaches. Otherwise, miunske has the right to withdraw from the contract.
3. Documents
Miunske reserves the property rights and copyrights to all documents provided to the Buyer in connection with the placing of the order – also in electronic form – such as calculations, drawings, etc. These documents may not be made accessible to third parties, unless miunske gives its explicit written consent to the Buyer.
4. Delivery
4.1
Deadlines and dates for deliveries and services promised by miunske are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. All agreed delivery periods shall commence (a) if delivery against advance payment has been agreed, on the day of receipt of the full purchase price (including VAT and any shipping and packaging costs) or (b) if payment on account has been agreed, on the day of the conclusion of the purchase contract.
4.2
The expected delivery date shall be shown in the documents. If no expected delivery date can be determined for the delivery, this will be stated in the documents of miunske. Miunske will inform the Customer about changed delivery dates.
4.3
Miunske is entitled to partial deliveries, if the partial delivery is usable for the Customer in the context of the contractual purpose and the delivery of the remaining ordered items is ensured.
4.4
Miunske is not liable for impossibility of delivery or for delays in delivery, as far as they are caused by force majeure or other events, which were not foreseeable at the time of the conclusion of the contract (e.g. operational disturbances of any kind, difficulties in the procurement of material or energy, transport delays, strikes, epidemics or pandemics, lawful lockouts, lack of manpower, energy or raw materials, difficulties in the procurement of necessary official permissions, official measures or the missing, incorrect or untimely delivery by suppliers), for which miunske is not responsible. If such events make the delivery or service substantially more difficult or impossible and the hindrance is not only of temporary duration, miunske is entitled to withdraw from the contract. Miunske will immediately inform the Customer about the above-mentioned hindrances and in case of withdrawal will immediately reimburse the Customer for the services rendered. In case of hindrances of temporary duration, the delivery or service periods will be extended, or the delivery or service dates will be postponed by the period of the hindrance plus a reasonable start-up period. As far as the Customer cannot be expected to accept the delivery or service due to the delay, he can withdraw from the contract by immediate written declaration to miunske.
4.5
The rights of the Customer according to § 10 of these GTC and the legal rights of miunske, especially in case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.
5. Shipping and packaging
5.1
Delivery shall generally be ex works Oberlausitzer Strasse 41c, d in 02692 Grosspostwitz (EXW Incoterms 2020), which is also the place of performance for the delivery and any subsequent performance. At the Buyer’s request, the items will be shipped to a destination at the Buyer’s risk and expense (sale by shipment). This also applies if miunske pays the freight costs in an individual case.
5.2
The risk of accidental loss and accidental deterioration of the items to be delivered passes to the Buyer at the latest with the handover. In case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the items to be delivered as well as the risk of delay shall pass to the Buyer upon delivery of the items to the forwarding agent, the carrier or the service provider designated to carry out the shipment. If an explicit acceptance has been agreed, this shall be decisive for the transfer of risk. The handover shall be deemed to be the same if the Buyer is in default of acceptance.
5.3
In case of a sale by delivery to a place other than the place of performance, only the day of handing over of the delivered goods by miunske to the transport company is decisive for the observance of the date of dispatch, in case of a transport arranged by the Customer, the time of the notification of readiness for dispatch. Miunske is not responsible for delays caused by the transport company. Therefore, a shipping time stated by miunske is not binding. If the shipment is delayed at the request of the Buyer, the risk is transferred to the Buyer with the receipt of the notification of readiness for shipment.
5.4
The costs for the shipment of the items to be delivered (packaging, transport, transport insurance, if necessary customs declaration etc.) will be charged separately.
5.5
The transport will be carried out by a forwarding agent/carrier of miunske’s choice. If the items to be delivered are to be transported by a different forwarder/carrier than the one chosen by miunske, at the Customer’s explicit request, the resulting additional expenses (e.g. from the registration of the collection) are to be borne by the Customer. These additional expenses shall be invoiced separately to the Customer.
5.6
The export customs declaration is always carried out by miunske at the expense and risk of the Customer.
5.7
If necessary, miunske will take over the loading of the means of transport at the expense and risk of the Buyer.
5.8
If the Customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the Buyer is responsible, miunske is entitled to claim compensation for the resulting damage including possible additional expenses (e.g. storage costs). For this, miunske will charge a lump-sum compensation of EUR 8.50 per calendar day, starting with the delivery deadline or, in the absence of a delivery deadline, with the notification that the items to be delivered are ready for shipment. The proof of a higher damage and the legal claims of miunske remain unaffected. However, the lump sum is to be credited against further monetary claims.
6. Prices
6.1
The agreed prices are ex works Oberlausitzer Strasse 41 c, d in 02692 Grosspostwitz (EXW Incoterms 2020) and are quoted in miunske’s local currency (EUR/€), plus shipping costs according to points (5.4 to 5.7) and the statutory VAT, customs duties, fees and other public charges. All of these costs will be borne by the Customer, unless expressly agreed otherwise in writing.
6.2
In the case of orders or individual deliveries for which the Customer is responsible with a value of goods of less than EUR 50.00 net, a small quantity surcharge of EUR 25.00 net shall be charged.
6.3
We reserve the right to make price adjustments due to calculation errors on invoices and delivery bills which are obvious to the Customer. The statutory rights of rescission shall remain unaffected.
7. 7 Warranty and obligation to give notice of defects
7.1
The warranty period (period for asserting claims for defects) shall be one year from delivery or, if acceptance is required, from acceptance.
7.2
The delivered items shall be inspected carefully immediately after delivery to the Customer or to the third party designated by the Customer (§§ 377, 381 HGB). In the case of items intended for installation or other further processing, an inspection shall in any case be carried out immediately before processing. The delivered items are considered approved by the Customer with respect to obvious defects or other defects that would have been recognizable in an immediate, careful inspection, if miunske does not receive a written notice of defects within five (5) working days after delivery. This is also valid for the possible delivery of less or different items than those agreed upon in the contract. With regard to other defects, especially hidden defects, the delivered items are considered as approved by the Customer, if miunske does not receive the notice of defect within five (5) working days after the point in time when the defect became apparent; however, if the defect was already apparent to the Customer at an earlier point in time during normal use, this earlier point in time is decisive for the beginning of the period of notice. If the Customer misses the proper inspection and/or notice of defect, miunske is not liable for the undisclosed defect. In the case of items intended for assembly, mounting or installation, this also applies if the defect, as a result of the breach of one of these obligations, only became apparent after the corresponding processing. In this case, there are especially no claims of the Buyer for compensation of the additional costs caused by this, especially removal and installation costs. Upon miunske’s request, a rejected delivery item is to be returned freight prepaid. In case of a justified complaint, miunske will reimburse the costs of the most favourable shipping route. This does not apply if the costs increase because the delivery item is located at another place than the place of delivery by miunske. Return shipments which are not free or not approved by miunske will not be accepted. Included packing and control slips have to be enclosed to the return shipment.
7.3
In case of material defects of the delivered goods, miunske has to be granted a reasonable period of time to remedy the defect. The choice of the steps to be taken to remedy the defect (repair or replacement) is incumbent upon miunske. In case of failure, i.e. impossibility, unreasonableness, refusal or unreasonable delay of the rectification or replacement delivery, the Customer can withdraw from the contract or reduce the purchase price appropriately. A rectification shall be deemed to have failed after the second unsuccessful attempt, unless the nature of the item or the defect or other circumstances indicate otherwise.
7.4
If a defect is based on miunske’s fault, the Customer can claim damages under the conditions specified in point 10.
7.5
As far as the delivery item fails due to normal wear and tear or a defect of the delivery item is due to improper assembly, wrong handling, insufficient maintenance, or excessive use by the Customer or third parties commissioned by him, this does not constitute a defect of the delivery item.
7.6
- The warranty does not apply if the Customer modifies the delivery item or has it modified by a third party without the consent of miunske and if this makes it impossible or unreasonably difficult to remedy the defect. In any case, the Customer has to bear the additional costs for the removal of defects caused by the modification. The warranty is also void if the Customer does not follow legal or standardized, technical regulations, especially DIN standards, or installation and handling instructions issued by miunske or miunske’s suppliers, unless this did not become the cause for the failure of the delivery item.
8. 8 Retention of title and seizures
8.1
The items are delivered under retention of title. They remain the property of miunske until complete satisfaction of all present and future claims arising from the business relationship. This also applies if the purchase price for certain deliveries designated by the Buyer has been paid. Bills of exchange or checks only lead to the satisfaction of miunske’s claims when they are cashed. The delivered items as well as the items taking their place according to the following provisions, which are covered by the retention of title, are hereinafter referred to as “Goods Subject to Retention of Title“.
8.2
The Buyer is entitled to process the Goods Subject to Retention of Title in the ordinary course of business until the case of realization (clause 8.6) occurs. If the Goods Subject to Retention of Title are processed by the Buyer, it is agreed that the processing is done in the name and for the account of miunske as manufacturer, but without any obligation for it, and that miunske immediately acquires the ownership or – if the processing is done from materials of several owners or if the value of the processed item is higher than the value of the Goods Subject to Retention of Title – the co-ownership (fractional ownership) of the newly created item in proportion of the value of the Goods Subject to Retention of Title to the value of the newly created item. In case that no such acquisition of ownership should occur at miunske, the Buyer already now transfers his future ownership or – in the above-mentioned proportion – co-ownership of the newly created item to miunske as security. If the Goods Subject to Retention of Title are combined or inseparably mixed with other items to form a uniform item and if one of the other items is to be regarded as the main item, then the Buyer, as far as the main item belongs to him, transfers to miunske the co-ownership of the uniform item proportionally in the ratio mentioned in sentence 2. The Buyer keeps the (co-)ownership of miunske free of charge for miunske.
8.3
The Buyer is allowed to resell the Goods Subject to Retention of Title in the ordinary course of business until the case of realization (clause 8.6). This permission is revocable. The resale may only be made against cash payment or subject to retention of title. The Buyer is not allowed to transfer ownership by way of security, to pledge the goods or any other dispositions that might affect the rights of miunske. By way of security, the Buyer herewith assigns to miunske the claim against the Acquirer resulting from the resale – in case of co-ownership of miunske in the reserved goods, proportionally according to the co-ownership share. The same applies to other claims, which take the place of the reserved goods or otherwise arise with respect to the reserved goods, such as insurance claims or claims in tort in case of loss or destruction. Upon request, he must send a list of the claims transferred to miunske at any time and to inform the debtor of the assignment. However, he is authorized to collect the claims assigned to miunske as long as he fulfills his payment obligations as agreed. The collected amounts must be paid to miunske immediately as long as miunske has due claims against the Buyer.
8.4
The granted securities will be released on demand of the Buyer at miunske’s option, as far as their realizable value sustainably exceeds the secured claims by more than 10 %.
8.5
In case of seizure or other interventions of third parties in relation to the reserved goods, the Buyer has to inform the third party immediately about the property of miunske and to inform miunske immediately in written form, so that miunske can file a suit according to § 771 German Code of Civil Procedure (“ZPO”). If the third party is not able to reimburse miunske the judicial and extrajudicial costs of a lawsuit according to § 771 ZPO, the Buyer is liable for this.
8.6
If miunske withdraws from the contract in case of breach of contract by the Buyer – especially delay of payment – after setting a deadline according to the legal regulations, miunske is entitled to demand the return of the reserved goods.
9. 9 Payments and terms of payment
9.1
9.2
9.3
9.4
9.5
9.6
9.7
9.8
If the Customer does not accept the delivered items or if the delivery cannot be carried out for other reasons for which he is responsible, miunske is entitled to demand a compensation of 10 % of the order value, but at least EUR 50.00. The Customer reserves the right to prove that a damage did not occur or did not occur in this amount.
9.9
In case of items, which are procured or manufactured exclusively for the Customer and which the Customer does not accept for reasons for which he is responsible, miunske is entitled to claim a compensation in the amount of the order value plus previously agreed special conditions (e.g. special procurement costs).
10. Liability
10.1
Claims for damages are excluded regardless of the type of breach of duty, including tort, unless there is intentional or grossly negligent action by the organs of miunske, its legal representatives, employees or other vicarious agents. In case of breach of essential contractual obligations miunske is liable for any negligence, but only up to the amount of the foreseeable damage. Essential contractual obligations are the obligation to deliver the delivery item in time, its freedom from defects that impair its functionality or usability more than insignificantly, as well as consulting, protection and custody obligations that are intended to enable the Customer to use the delivery item in accordance with the contract or to protect the life, limb or health of the Customer or his personnel or to protect the Customer’s property from significant damage. Claims for loss of profit, saved expenses, from claims for damages by third parties as well as for other indirect or consequential damages can only be demanded insofar as such damages are typically to be expected when using the delivery item as intended. The above exclusions and limitations of liability do not apply to claims due to fraudulent conduct, as well as in case of liability for guaranteed characteristics, for claims according to the German product liability law (“ProdHaftG”) as well as damages resulting from injury to life, body or health. As far as miunske’s liability is excluded or limited, this also applies to miunske’s employees, representatives and vicarious agents.
10.2
The Buyer is only entitled to set-off or retention, if the counterclaims have been legally established or are undisputed. However, the Buyer is also entitled to retention because of counterclaims from the same contractual relationship. The Buyer may not assign claims against miunske to third parties without miunske’s consent.
11. Place of jurisdiction and applicable law
11.1
If the Customer is a merchant in the sense of § 14 BGB, a legal entity under public law or a special fund under public law or if he has no general place of jurisdiction in the Federal Republic of Germany, the courts in Bautzen shall have exclusive jurisdiction for all disputes arising from or in connection with the contractual relationship in question. In all other cases, miunske or the Customer may file a suit before any court having jurisdiction based on statutory provisions. Mandatory legal provisions regarding exclusive places of jurisdiction remain unaffected by this regulation.
11.2
The law of the Federal Republic of Germany applies exclusively, also in case of business with foreign companies or delivery to foreign countries. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
12. Final provisions
12.1
Should one or more provisions of these GTC be or become invalid or void or regulatory gaps, the legally valid provisions shall be deemed agreed which the contracting parties would have agreed in accordance with the economic objectives of the contract and the purpose of these GTC if they had known about the invalidity or gap. The ineffectiveness or invalidity of one of the aforementioned provisions shall not affect the validity of the remaining provisions.
12.2
Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTC. For the content of such agreements, a written contract or a written confirmation by miunske is decisive. Legally relevant declarations and notifications, which have to be made by the Buyer to miunske after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction), have to be made in writing or text form to be effective.
miunske electronic GmbH
Oberlausitzer Straße 28
02692 Großpostwitz
GERMANY
Version: January 2025
General Terms and Conditions of Purchase
General Terms and Conditions of Purchase
of miunske electronic GmbH (hereinafter referred to as „miunske“)
1. General – scope of application
1.1
1.2
All agreements concluded between miunske and the Supplier for the purpose of performance
of a contract shall be recorded in writing in the contract.
1.3
These GTCP of miunske apply only to Business Customers as defined
in § 14 (1) of the German Civil Code (BGB), legal entities under public law or
to special funds under public law.
2. Further applicable provisions
2.1
2.2
The Code of Behaviour of miunske GmbH is part of
these GTCP.
2.3
2.4
Supplier shall further ensure, that all items delivered comply with the regulations of the ‘Directive 2011/65/EU … on the restriction of the use of certain hazardous substances in electrical and electronic equipment’ (RoHS) in the latest version.
2.5
Supplier undertakes to inform miunske prior to any delivery in accordance with its best knowledge and belief,
Supplier undertakes to inform miunske prior to any delivery in accordance with its best knowledge and belief, if, on the basis of a review
of his supply chain and by means of comprehensible evidence, Supplier has grounds to believe
that items or materials delivered to miunske contain ‘conflict minerals’ according to the definition contained in
“Dodd-Frank Wall Street Reform and Consumer Protection Act” (raw materials
uswed for the production of tantalum, tin, gold and tungsten from crisis regions in Africa).
Supplier shall inform miunske in this case which specific conflict minerals are involved and which products are affected. If conflict minerals are used,
measures shall be initiated immediately and completed in due time to replace the conflict minerals by unobjectionable raw materials,
provided this is possible and reasonable for the Supplier.
3. Inquiries and orders
3.1
3.2
4. Prices – terms of payment
4.1
The price stated in the order is binding. Where no written agreement to the contrary exists, the price shall include the cost of delivery and transport to the delivery address specified in the order, as well as the packaging costs. The return of packaging material needs to be agreed separately.
4.2
4.3
4.4
5. Delivery time
5.1
The delivery time contained in the order shall be binding.
5.2
5.3
6. Transfer of risk – documents
6.1
6.2
7. Inspections for defects – liability for defects
7.1
7.2
Miunske is entitled to the statutory defect claims without restriction. In any case miunske is entitled at its sole discretion either to demand elimination of the defect or replacement supply of a new item. The right to claim for damages, particularly for damages instead of performance of the service is expressly reserved.
7.3
7.4
8. Product liability – indemnification – liability insurance
8.1
8.2
8.3
9. Industrial property rights
9.1
9.2
9.3
9.4
10. Retention of title – provision of materials – tools – obligation to maintain secrecy
10.1
10.2
10.3
10.4
10.5
11. Place of jurisdiction – place of performance
11.1
11.2
11.3
12. Final provisions
miunske electronic GmbH
Oberlausitzer Straße 28
02692 Großpostwitz
GERMANY
Version: January 2025