General Terms and Conditions for the NEXTEL® Online Shop

1. Scope

(1) These terms and conditions of Mankiewicz Gebr. & Co. (GmbH & Co. KG) (hereinafter referred to as „Seller“) shall apply to all orders placed by the customer with the Seller with regard to the products displayed in the Seller’s NEXTEL® online shop. The inclusion of the customer’s own terms and conditions is hereby rejected, unless otherwise agreed.

(2) These terms and conditions shall only apply to companies within the meaning of Section 14 German Civil Code, Section 2 para.1 p.1 and 3 German VAT Act, legal entities under public law or special funds under public law.

2. Conclusion of contract

(1) The product representations contained in the online shop of the seller serve for the submission of a legally binding offer by the customer.

(2) An order in the online shop requires that the customer has previously created a password-protected customer account via the seller’s website www.nextel-coating.com.

(3) When placing an order via the online order form, the Customer submits a legally binding contractual offer with regard to the goods contained in the shopping cart after logging into his customer account and clicking the „Send Order“ button in the final step of the ordering process. Before the binding submission of the order, all entries can be continuously corrected using the usual keyboard and mouse functions. In addition, all entries are displayed again in a confirmation window before the binding submission of the order and can also be corrected there using the usual keyboard and mouse functions.

(4) The seller will immediately confirm receipt of the customer’s offer by e-mail. The Seller may accept the Customer’s offer by means of a written (letter) or electronically transmitted (e-mail or fax) order confirmation or by delivering the goods within three working days. The seller is entitled to refuse to accept the order.

(5) The order data is stored by the seller and can be retrieved by the customer via the customer account after sending his order.

(6) The order processing and contact are carried out by e-mail and automated order processing. The customer must ensure that the e-mail address provided by him for order processing is correct so that e-mails sent by the seller can be received at this address. In particular, when using spam filters, the customer must ensure that all e-mails sent by the seller or by third parties commissioned by the seller to process the order can be delivered.

3. Properties of the Goods

(1) Unless otherwise agreed, the quality of the goods is specified in the data sheets. Descriptions of quality and durability as well as other information are only guarantees if they are agreed and designated as such.

(2) The information in the descriptions and additional information shall only be regarded as approximate, unless otherwise stated in the order confirmation.

4. Examination of the Fitness of the goods, Technical Application Recommendations

(1) It is the customer’s responsibility to check whether the goods are suitable for the purpose intended by the customer.

(2) The Seller makes technical application recommendations in connection with the product presentations to the best of his knowledge. Information on the suitability, application and use of the goods is non-binding and does not release the customer from the obligation to check and test whether the goods are suitable for the intended processes and to determine a layer structure on his own responsibility.

5. Prices

All prices are net plus the statutory domestic value added tax or comparable foreign tax and additional shipping costs.

6. Payment

(1) The customer receives an invoice from the seller after the goods issue. The invoice is due 30 days after the invoice date.

(2) Only undisputed or legally established claims entitle the customer to offset or retention. This restriction does not apply to claims of the customer due to defects or due to partial non-fulfilment, which result from the same contractual relationship as the claims of the seller.

(3) The customer is in default of payment if he does not settle the claim on the agreed due date. In the event of default in payment, the Seller is entitled to charge interest on the amount owed at a rate of 9 percentage points above the respective base interest rate. Further legal claims remain unaffected.

7. Delivery Period

(1) Subject to availability or other delays in delivery, the ordered goods will be dispatched within 5 working days of the order confirmation. The expected delivery time is indicated in the order confirmation.

(2) The delivery time stated in the order confirmation only represents the approximate delivery period. Should the delivery be unreasonably delayed, the customer will be informed accordingly.

(3) The seller is entitled to make partial deliveries, as far as this is reasonable for the customer.

8. Terms of Delivery

(1) The Seller delivers exclusively to customers within Germany and other EU member states with the exception of Sweden and Italy as well as within Switzerland.

(2) The goods are delivered to the delivery address stated in the customer account or, if applicable, to the delivery address specified by the customer which differs from the one stated in the order. The risk is transferred to the customer when the consignment is handed over to the person carrying out the transport.

(3) Shipping is at the expense of the customer. The shipping costs incurred vary depending on the weight of the goods ordered and the type and duration of transport.

(4) If shipment becomes impossible through no fault of the customer, the risk shall pass to the customer upon notification of readiness for shipment. Goods not accepted are stored at the customer’s expense and risk.

9. Customer’s Rights in the Event of Defects

(1) The assertion of warranty claims presupposes that the customer has complied with his statutory obligations to inspect and give notice of defects. Complaints of defects which are recognisable within the framework of a proper inspection shall only be considered if they are raised in writing immediately before use or mixing of the goods and at the latest within 14 days after receipt of the goods. Hidden defects which only become apparent at a later date must be notified immediately after discovery, but at the latest within one year after delivery of the goods. The notification of defects must always be made in writing, enclosing receipts, the packing slip and stating the invoice number, the invoice date and the signature on the packages. If the customer does not comply with his obligations to give notice of defects, warranty claims are excluded, unless the Seller has maliciously concealed the defect.

(2) Short or excess deliveries of up to 10 % of the agreed quantity shall be deemed to be in accordance with the contract.

(3) If there is a defect, the Seller is entitled to choose between subsequent delivery and rectification of the defect within the scope of subsequent performance. The Seller reserves the right to make two attempts at subsequent performance. If subsequent performance fails, is impossible or unreasonable for the customer taking into account the mutual interests, the customer is entitled to reduce the purchase price or to withdraw from the purchase contract. Claims for damages shall only exist in accordance with the provisions of Clause 10.

(4) Claims for defects resulting from the use of thinners, hardeners, additional paints or other components contrary to the data sheet specifications are excluded. The Seller is not liable for the improper processing of the delivered goods.

(5) The Seller shall only be liable for transport damages to the extent that he has expressly assumed the corresponding risk and is put in a position to take recourse against the carrier. The liability of the Seller presupposes in any case that the customer has done everything possible to safeguard the claims for recourse against the carrier (e.g. railway official statement of facts, certificate of shortfall).

(6) Measures taken by the Seller to mitigate damages shall not be deemed an acknowledgement of defects.

(7) The warranty period shall be twelve (12) months, calculated from delivery of the goods. In the case of claims for damages due to intentional or grossly negligent breaches of duty or due to culpable injury to body, health and life, the statutory limitation period of two years from delivery shall apply instead of the aforementioned period.

(8) In the event of a company recourse (Section 445a German Civil Code) it is assumed that there were no defects at the time of the transfer of risk to the customer, if the customer has duly examined the goods in accordance with clause 12 (1), but has not reported any defects, unless this assumption is incompatible with the nature of the goods or the defect.

(9) If the customer asserts claims for recourse, he must be treated as if he had implemented all legally permissible contractual possibilities vis-à-vis his contractual partner (e.g. refusal of subsequent performance due to disproportion or limitation of reimbursement of expenses to an appropriate amount).

(10) The Seller is entitled to reject claims for recourse with the exception of claims for new delivery of the goods, provided that the Seller grants the customer equivalent compensation for the exclusion of his rights. The Seller shall only be liable for compensation for consequential damage caused by a defect if he is (co-)responsible for the occurrence of the defect due to intentional or grossly negligent conduct.

10. Liability

(1) Subject to the following provisions, the Seller shall be liable in the event of intent or gross negligence on the part of the Seller, his legal representatives or persons whom he uses to perform his obligation and in the event of culpable breach of material contractual obligations in accordance with the statutory provisions. Essential contractual obligations are those whose fulfilment is necessary for achieving the purpose of the contract and on whose compliance the contractual partner regularly relies and may rely.

(2) Insofar as the Seller has not acted intentionally or grossly negligent, his liability in the aforementioned cases is limited to four times the order value per case of damage. This does not apply if the foreseeable damage typical for the contract is exceptionally higher. In this case the liability is limited to this higher contract-typical foreseeable damage. A change in the burden of proof to the detriment of the buyer is not associated with the above provisions.

(3) Liability for lost profit or downtime costs is excluded with the exception of intentional or grossly negligent breaches of duty.

(4) Claims for damages in the event of culpable injury to life, body or health, acceptance of a guarantee or fraudulent concealment of a defect as well as mandatory statutory liability under the Product Liability Act remain unaffected.

(5) Further claims for damages – on whatever legal grounds – are excluded, in particular compensation for damage which has not occurred to the delivered goods themselves.

(6) The above provisions apply accordingly if the customer asserts a claim for reimbursement of futile expenses instead of a claim for damages instead of performance.

11. Know-how Protection

The customer undertakes not to analyse the chemical composition of the goods, samples and specimens received from the Seller, in whole or in part, or to have them analysed by third parties, without the Seller’s prior written consent, for the purpose of developing a product of the same or similar composition.

12. Place of Performance, Jurisdiction, Applicable Law

(1) The laws of the Federal Republic of Germany shall apply exclusively to the terms and conditions and all legal relationships between the parties. The UN Sales Convention (CISG) shall not apply.

(2) Place of performance for all deliveries as well as place of jurisdiction is Hamburg, Germany, provided that the customer is a merchant, a legal entity under public law or a special asset fund under public law. This place of jurisdiction applies exclusively to the customer. Alternatively, the Seller is entitled to assert his own claims at the place of jurisdiction of the customer.

13. Final Provision

Should any provision of these GSDC be or become invalid, this shall not affect the validity of all other provisions.

Last update: 06/2020