General Terms and Conditions (hereinafter “GTC”) of the Bavarian State Mint (hereinafter the “Agent”) for the use in business dealings with companies (hereinafter the “Principal“) – as of May 2012
1. GENERAL REMARKS, AREA OF APPLICATION
1.1 These GTC of the Agent shall apply exclusively. The Agent will not accept terms and conditions of the Principal that differ from or are contradictory to these GTC, unless the Agent explicitly agreed to the validity of such other terms and conditions in writing.
1.2 The Principal accepts the exclusive validity of the GTC upon placing the order.
1.3 Oral side agreements have not been concluded. All agreements between the Agent and the Principal shall be made in writing. In respect of the contents and construction of contracts or of any changes or amendments to contracts or individual arrangements, a written agreement or a written confirmation of the Agent shall be prevailing.
1.4 These GTC shall only apply vis-à-vis companies as well as legal entities under public law and special funds under public law within the meaning of Sec. 310 para. 1 German Civil Code (Bürgerliches Gesetzbuch, BGB).
1.5 These GTC shall also apply for any future contracts with the Principal even if the Agent does not refer to them later on.
2. OFFER, PERFORMANCE OF THE AGENT, AMENDMENTS
2.1 Offers of the Agent shall be non-binding.
2.2 The Agent may accept offers within two weeks after receipt. Orders of the Principal shall be considered as binding offers. The order shall be accepted by means of a declaration, delivery of the products or rendering the service.
2.3 The execution of the order, in particular the nature of the objects (delivery objects) to be produced, delivered or assembled by the Agent, shall exclusively accrue from the contractually-agreed specifications. The Agent may at any time make changes as to how the order is executed or change the delivery objects, provided that they:
2.3.1 are necessary in order to comply with requirements imposed by law or public authorities, and
2.3.2 do not considerably affect the material properties and function and are reasonably acceptable to the Principal.
2.4 The Agent may deploy subcontractors.
3. PRICES, TERMS OF PAYMENT
3.1 Unless otherwise agreed, the prices of the Agent are quoted excluding the respective statutory turnover tax and any other indirect tax or customs duty.
3.2 Invoices shall be due for payment upon receipt. The Principal shall be obliged to pay the purchase price within 10 days.
3.3 Discounts and price deductions shall be separately agreed upon in writing.
4. PARTIAL DELIVERY, DELIVERY AND PERFORMANCE PERIOD AND DELAY
4.1 The Agent may effect partial deliveries provided that such delivery is reasonably acceptable to the Principal. In case of a partial delivery, the Agent may request payment of the partial delivery pro rata the order value. The Agent may request that the Principal accepts a partial delivery which is complete as such within the meaning of sentence 1 hereof.
4.2 Delivery deadlines shall only be binding if the Agent explicitly confirmed them as such in writing. However, the Agent will also make efforts to comply with non-binding delivery deadlines. The delivery deadline shall be effective only when the Principal and the Agent have specified all technical details regarding the execution of the order, in particular, when the Principal-as far as possible-provided the Agent with a sample.
4.3 The Agent may retain deliveries if the Principal fails to fulfill its contractual obligations in due time and form, in particular, if the Principal fails to effect the advance payments agreed upon with the Agent in due time or to take any measure of co-operation required by the Agent for the complete and timely performance of its services.
4.4 In the event of force majeure, the Agent may – also within the period of delay – extend the period of performance by the duration of the hindrance. Force majeure shall include any event for which the Agent cannot be held responsible and as a result of which the performance of the service becomes temporarily impossible or unreasonably difficult, in particular, lawful strike action or lockout, late delivery to the Agent for which the Agent cannot be held responsible, measures taken by the authorities, import and export prohibitions, shortages of energy and raw materials and war. The Agent shall immediately inform the Principal thereof.
4.5 If such hindrance persists for more than two months, the Principal shall be entitled to withdraw from the contract, after having set an appropriate grace period, if the Principal provides proof that the partially outstanding fulfilment of the contract is no longer of interest due to the delay. The Principal shall stipulate in writing a deadline for the subsequent performance of at least four weeks.
4.6 The volume of compensation to which the Principal is entitled to in case of delay is subject to the provisions set forth in item 8.
5.1 The Principal shall only be entitled to rights under a warranty upon proper fulfilment of its duties of inspection and notification of defects (Sec. 377 of the German Commercial Code (Handelsgesetzbuch, HGB)). The Principal shall immediately, however, within seven days after the receipt of the delivery object at the latest, notify the Agent in writing of any obvious defect. Hidden defects shall be notified in writing immediately after their discovery.
5.2 The Agent only ensures compliance with the specifications determined in item 2.3, which, however, shall not be considered as a warranty for specific properties, unless the parties agreed upon a warranty in writing. In particular, the Agent gives no warranty as to whether the delivery objects are fit or salable for a specific use or a specific purpose.
5.3 In case of defective deliveries, the Agent shall at its own option either remedy the defect or deliver an article free of defects if the Principal has properly paid an appropriate part of the price when due, taking the defect into account. The Principal shall provide assistance to the Agent when it comes to the identification of defects and the subsequent performance. Additionally, the Principal shall allow access to the records which show the particulars of the defect without undue delay. The Agent may refuse subsequent performance if such is only possible at disproportionate costs.
5.4 If the subsequent performance fails, the Principal shall be entitled to withdraw from the contract or to request a price reduction. An avoidance of contract shall be excluded if the actual nature of the object differs only insignificantly from the specifications agreed upon or the contractual or usual use is only insignificantly affected. The volume of compensation to which the Principal is entitled to is subject to the provisions set forth in item 8.
5.5 The Agent hereby makes clear that changes of the material due to age or environmental conditions shall not be considered as defect.
6. PASSING OF RISK, DELIVERY
6.1 The risk of accidental loss, destruction or deterioration of the purchased item shall pass to the Principal ex works Munich (EXW Munich, INCOTERMS 2010). The Principal shall bear the costs and risk of a dispatch.
6.2 In case the dispatch is delayed for reasons the Agent is not to be held responsible for, the risk shall pass to the Principal as of receipt of the notification stating that the goods are ready for dispatch.
6.3 Apart from that, the risk shall pass to the Principal upon delivery. Even if the Principal fails to accept the delivery, it shall nonetheless be considered as effected.
7. RETENTION OF TITLE
7.1 The Agent retains the title to the delivery objects until receipt of payment of all amounts due under the respective contract and all other claims vis-à-vis the Principal resulting from the business relationship.
7.2 The Principal shall be obliged to treat all delivery objects which are subject to retention of title with due care. Furthermore, the Principal shall be obliged to insure such delivery objects at its own cost against loss, fire and water damage, theft and natural hazards in the amount of their purchase price.
7.3 The Principal shall be entitled to resell delivery objects which are subject to retention of title in the ordinary course of business, unless being in arrears with payments. The Principal hereby assigns to the Agent all receivables in the overall amount of the respective invoice covering the Agent’s claim, which it acquires vis-à-vis its buyers or third parties from reselling the objects, and this shall apply regardless of whether the objects were sold without or after further processing and combination, respectively. The Agent shall accept this assignment. The Principal shall remain authorised to collect these receivables even after the assignment. The Agent’s authority to collect the receivables itself shall remain unaffected hereby. However, the Agent shall be obliged to waive collection of the receivables as long as the Principal meets its payment obligations arising from the received proceeds, is not in arrears with payments and, in particular, has not applied for the opening of insolvency proceedings regarding its assets or has ceased payment. In this case, the Agent may request that the Principal discloses the assigned claim and the respective debtors, provides all the information required for the collection as well as all the corresponding documents and notifies the debtors (third parties) of the assignment. The Agent shall be obliged to release all securities it is entitled to regarding delivery objects and claims upon request of the Principal, provided that the realisable value of the securities exceeds the claims to be secured by more than 10 %.
7.4 In the event a third party has delivery objects subject to retention of title pledged or otherwise impairs the title held by the Agent, the Principal shall immediately notify the Agent in order to enable the Agent to take legal remedies to protect its title, in particular, to take legal action pursuant to Sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO). In addition to that, the Principal shall be obliged to notify the third party as well as the bailiff that the respective product is the Agent’s property. If the third party is not able to refund the Agent the court and out-of- court fees related to those protective measures, the Principal shall be held liable vis-à-vis the Agent for any fees the third party fails to pay.
7.5 The Principal shall be obliged to immediately inform the Agent on possible defects of the products subject to retention of title as well as on any change of the Principal’s registered office.
7.6 In case of an avoidance of contract, the Agent shall be entitled to request surrender of the products subject to retention of title.
8. LIMITATION OF LIABILITY, EXEMPTION
8.1 The Agent shall be held liable without limitation for intent and gross negligence.
8.2 The Agent shall only be held liable for slight negligence in case of violation of a duty whose fulfilment is essential to the proper execution of the order or the contract (contract) and on the fulfilment of which the Principal may regularly rely. In such cases, the Agent’s liability shall be limited to the damage typical and predictable for that kind of contract.
8.3 Limitations and exclusions of liability pursuant to this item 8 shall not apply to claims arising from the German Product Liability Act (Produkthaftungsgesetz, ProdHaftG) and to damages arising from injury to life, body or health.
8.4 If the Agent’s liability is excluded or limited, such exclusion or limitation shall also apply to the personal liability of its bodies, employees, representatives and vicarious agents.
8.5 The limitation period for warranty claims (item 5) of the Principal shall be one year from the passing of risk (item 6). Other claims for compensation shall become time-barred one year after having become aware of the damaging event. This shall not apply to claims that are based on intent or gross negligence, to damages arising from injury to life, body or health or to claims accruing from the ProdHaftG.
8.6 The Principal shall exempt the Agent, its bodies, employees, representatives and vicarious agents upon first request from any claim of third parties that incurred to the disadvantage of the Agent and/or said persons as a result of a culpable breach of duty on the part of the Principal. The Principal shall refund the Agent as well as the persons indicated all expenses required and appropriate for the legal defence.
9. ASSIGNMENT, RIGHT OF RETENTION, OFFSETTING
9.1 The Principal shall not be entitled to assign its claims vis-à-vis the Agent under this contract. This shall not apply as far as Sec. 354 HGB is applicable.
9.2 The Principal shall only be entitled to offsetting if its counterclaims are undisputed or res judicata.
9.3 The same shall apply to any rights of retention and any rights to withhold performance pursuant to Secs. 320, 273 BGB. The Principal may only exercise such rights if they result from the same contractual relationship. Within the scope of an ongoing business relationship, each and every order shall constitute a separate contract.
10. USE OF TRADEMARKS OF THE AGENT
The Principal shall be entitled to use the name of the Agent as well as other trademarks, logos or signs of the Agent within the scope of commercial transactions, in particular, for promotional purposes only upon prior written consent of the Agent.
11. SEVERABILITY CLAUSE, LANGUAGE OF CORRESPONDENCE, PLACE OF JURISDICTION, APPLICABLE LAW
11.1 In case individual provisions or parts of these GTC are or become invalid, the validity of the remaining provisions shall remain unaffected thereby. The invalid provision shall be replaced by an agreement which comes closest to the purpose of the contract and the intent of the parties.
11.2 The contract language shall be German. Any correspondence shall be conducted in the German language.
11.3 Munich shall be the exclusive place of jurisdiction. However, the Agent shall also be entitled to sue the Principal at its general place of jurisdiction.
11.4 The laws of the Federal Republic of Germany shall apply exclusively. The provisions of German international private law and of the UN Convention on Contracts for the International Sale of Goods (UN-CISG) shall be excluded.