General Terms and Conditions
1. General Terms and Conditions Agreement
1.1 These Terms and Conditions apply to business relationships with our Customers, in addition to any individual written agreements. Any deviations from these General Terms and Conditions shall require our express written authorization. Any general terms and conditions of our Customers shall not apply, even if expressly cited in the purchase order. To the extent that any such general terms and conditions conflict with the General Terms and Conditions of our company group, they shall not become part of the agreement, including due to our silence or due to unconditional execution of an order’s contract content.
1.2 These Terms and Conditions shall only apply to business owners in the sense of § 14 of the German Civil Code (the “BGB”).
1.3 The General Terms and Conditions shall apply to both current and future business relationships, even if they are not expressly concluded again in the future.
1.4 Employees of our company group, field staff and sales agents shall not be entitled to conclude any subsidiary agreements or other contractual provisions.
2. Offer and Contracting
2.1 Contractual offers shall always be non-binding and subject to change. All prices shall be net prices, exclusive of the statutory value added tax applicable at the time of invoicing. All prices shall be quoted in EURO.
2.2 The Contract shall be concluded by placing the order with m-p flash. In cases of written orders, m-p flash shall be entitled to claim the required costs and expenses even after cancellation, at its reasonable discretion. In accordance with these General Terms and Conditions, the Contract shall only take effect after submission of the documents required for the customs declaration. Deviations from our contractual provisions, especially in pricing, shall only be recognized with the express written consent of m-p flash. In the event of any deviations, the Customer shall report such immediately in a separate letter if the Customer does not agree with the aforementioned procedure.
3. Provision of Services / Obligations on Contractual Partners
3.1 The company m-p flash shall provide the agreed services, in particular customs screening and declarations on behalf and at the expense of the Customer. In this process, m-p flash shall exercise the due care and diligence of a prudent businessperson.
3.2 The Customer shall be responsible for the correctness and completeness of the documents and information. In particular, the Customer shall be liable for the correctness of the information required under customs law, such as the contact details of the sender and recipient. m-p flash shall not conduct any verification of the information required under tax or customs law. In particular, the Customer shall be responsible for: - proper declaration of the consignment, and disclosure of any specified risk materials or hazardous goods; - not offering any goods or services that are prohibited or restricted, or that must be classified by international transport organizations; - ensuring that the consignment will not be blocked by import or export regulations and that a mandatory customs declaration is not impossible; - expressly disclose the contents of the consignment, in particular for precious metals and stones, jewelry, cash, securities of any kind, arms, ammunition, live/dead animals and goods that may have an adverse impact on humans, animals or personal or third-party property; - separate disclosure of goods prone to rapid spoilage or rotting or that contain hazardous waste or problematic substances. The Customer shall strictly follow the procedures prescribed or requested by m-p flash and the instructions of m-p flash for completion of the orders, and shall also inform his employees and vicarious agents of the required procedures and ensure their application. The Customer shall cover any additional costs in the event of failure to follow the prescribed procedures and instructions from customs and clearing authorities. The Customer shall compensate m-p flash for any and all damages, costs and expenses resulting from failure on the part of the Customer to meet his declaration and cooperation obligations, provide correct information and meet his obligations under international treaties or customs law. In the event of suspicion of a breach of the above provisions, m-p flash shall be entitled to suspend its services and inform the authorities immediately. m-p flash shall be entitled but not obligated to gather further information and conduct further verifications in such cases.
3.3 The company m-p flash shall not be liable for delays arising, in particular, from the required collaboration with customs and clearing authorities. The Customer shall ensure that m-p flash has adequate time to perform the agreed services, in particular to meet the declaration obligations.
4.1 The company m-p flash charges based on hourly rates. The m-p flash Price List shall apply, which the Customer may request on conclusion of the Contract. Price offers shall be non-binding and subject to change. Orders for which fixed prices have not been expressly agreed shall be charged at the list prices applicable on the order date.
4.2 The company m-p flash shall be entitled to request partial payment at the time of the first delivery.
4.3 All price agreements and hourly rates of m-p flash shall be net amounts. In accordance with the provisions of sales tax law, m-p flash may opt for sales tax, in particular in conjunction with international transactions.
4.4 Payment shall be due within two weeks after the invoice date, without any deductions, unless agreed otherwise in writing. The company m-p flash shall be entitled to offset payments against any existing older debts first, regardless of any customer payment stipulations to the contrary. Thus, payment shall only be complete if the relevant amount is available to m-p flash, without any reservations or cancellation options, in particular in cases of cheques and direct debit authorization.
4.5 In cases of payment default, interest on arrears shall apply in the amount of 8 percentage points on top of the base rate as per § 247 BGB in conjunction with § 288 II BGB. The company m-p flash shall be entitled to claim a higher default interest rate upon demonstration of higher charges from its bank.
4.6 Should the Customer go into payment default and fail to provide security or if the financial situation of the Customer deteriorates significantly after conclusion of the Contract or if such deterioration only becomes known after conclusion of the Contract, then in addition to requiring a security, m-p flash may also refuse service performance.
5.1 The company m-p flash shall not be held liable for any documents that do not meet the applicable provisions of the law or administrative regulations, in particular in cases of rejections, impositions or refusals of conditions by customs authorities. The company m-p flash shall inform the Customer immediately of any requirements related to clearances and declarations, and shall provide advice where possible.
5.2 Where compulsory national or international law does not apply, these provisions shall govern the liability of m-p flash. The company m-p-flash shall be liable in the event of intentional misconduct or gross negligence on its own part or on the part of its vicarious agents. In such cases, the amount of the liability of m-p flash shall be limited to ten times the price agreed for completion of the order in question, to one monthly fee in the case of flat fee agreements, and to the damages that must typically be expected to arise in the performance of the service in question. This shall not apply to intentional misconduct or gross negligence on the part of the organs of m-p flash. For simple negligence, m-p flash shall only be liable for an obligation whose performance is significant to achievement of the purpose of the Contract. The amount of the liability shall be limited to ten times the price agreed for completion of the order in question, to one monthly fee in the case of flat fee agreements, and to the damages that must typically be expected to arise in performance of the service in question. These restrictions on liability shall not apply to claims for compensation for damages based on compulsory transport law, nor to damages due to loss of life, bodily injury or injury to health. Assertion of any further claims for compensation for damages against m-p flash is hereby excluded. In particular, m-p flash shall not be held liable for any inability, unwillingness or failure to perform on the part of third parties or their contractors, nor for the timeliness of the services provided by these parties or government agencies, or any other service disruptions incurred by such third parties in the context of the contractual relationship. The company m-p flash shall fulfil the orders in a lawful and professional manner, and with the due care and diligence of a prudent businessperson. The company m-p flash shall never be held liable for work ordered in spite of misgivings and indications brought to the attention of the Customer. In such cases, the Customer shall indemnify m-p flash against any and all third-party claims asserted against m-p flash.
5.3 Order fulfilment may require conclusion of agreements with third parties. In such cases, m-p flash shall act as the representative of the Customer, even if it does not disclose the contractual relationship to the Customer. In such cases, the liability of m-p flash shall be limited to the selection of the contractual partner in question and conclusion of the agreement within the limits set out in these General Terms and Conditions. The company m-p flash shall not monitor the performance of contracts by third parties itself. These third parties are not vicarious agents in the sense of § 278 BGB. Where necessary, m-p-flash shall transfer its claims against the third party to the Customer. The company m-p flash shall not provide any legal or tax-related advice. Liability for such is therefore excluded.
6. Cancellation and Reduction of Orders and Contracts
6.1 In the event of a cancellation or reduction by the Customer, the services already provided by m-p flash shall be remunerated. The company m-p flash shall receive full compensation for any and all costs arising from the commissioning of third parties. This shall include cancellation costs. The company m-p flash shall be entitled to claim compensation for damages in the amount of 20% of the customary contract price in lost profits, independently of any additional damages that can be demonstrated. The Customer shall have the opportunity to demonstrate that the damages are lower.
6.2 If m-p flash has reasonable grounds to assume that the work ordered by the client would jeopardize the business operations, security or reputation of m-p flash or conflict with the provisions of customs or other law, or with regulatory requirements or administrative guidelines, it shall be entitled to cancel the order without notice and without any liability or any entitlement to compensation for damages on the part of the Customer.
7. Confidentiality Obligation and Data Protection
7.1 The company m-p flash hereby declares that data required in the course of business shall be automatically processed and stored in accordance with the Federal Data Protection Act (the “BDSG”).
7.2 The contractual Parties hereby agree to confidentiality. Information shall not be disclosed to third parties, without prejudice to statutory disclosure obligations. The company m-p flash shall observe the secrecy of all matters related to order fulfilment, except where information must be disclosed in order to complete the order, in particular to the customs authorities.
7.3 The contractual partner shall provide any and all documents needed for processing and clearance, in a timely, complete and orderly manner. The Customer shall be liable for any failure to submit correct and complete information and the required documents in a timely manner. It shall cover any and all additional costs and any other losses, including those related to taxation, incurred by m-p flash due to failure to meet the information submission requirements properly. In the area of ‘customs declarations’, the Customer shall grant power of attorney with acknowledgement of the special terms and conditions for customs processing and any standard procedures for the customs inspection office or airport.
7.4 Data shall expressly be transferred with authentication. The company m-p flash shall not conduct any verification of the legal or tax aspects of the files.
Any and all disputes with our Customers shall be resolved by the courts of Wiesbaden, where the Customer is a salesperson, legal entity under public law or a special fund under public law. The sole governing law shall be that of Germany, even if the domicile of the Customer is abroad or if the services were provided abroad.
9. Severability Clause
If any provision of these General Terms and Conditions should be unenforceable, this shall not affect the enforceability of the Contract. In such cases, the contractual Parties shall replace the unenforceable provision with a legally enforceable provision that most closely approximates the intended purpose of the Contract.