MENZEL METALLCHEMIE
 

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General terms and conditions of
MENZEL METALLCHEMIE GmbH

As of 1st July 2002

These delivery and payment conditions are valid in their respective version for all of our current and future offers, transactions and deliveries. These conditions are agreed to with the confirmation of the order on our part, or, at the latest, on acceptance of the goods. Individual agreements always require our acknowledgement in writing, even with the execution of the contract. We hereby contradict any purchasing conditions and/or terms and conditions on the part of the customer. These conditions shall not obligate us if we fail to contradict them again following receipt. German law applies.

I. Offer and acceptance

1. Our offers are non-binding and subject to change without notice, unless otherwise agreed in writing.
The offers are subject to prior sale.

2. In the case of delivery not being possible, we shall inform our customer immediately and, if necessary, refund them for any consideration already paid to us, such as advance payments for example.

II. Prices, payment conditions, default and the consequences of default

1. Our prices are indicated in euros ex-stock/factory not including respective value-added tax, freight and packaging costs.

2. Our invoices are to be paid in euros within 14 days of the date of the invoice with a 2% discount or within 30 days of the date of the invoice at net price. The invoicing is carried out when the goods leave the factory or when it is indicated that they are ready to be delivered. Invoice amounts lower than €100.00 are considered as net prices without any discount and are due immediately. The entry of the payment into our account is decisive in terms of the punctuality of the payment.

3. In the case of the payment terms being breached, we may, without prejudice to any other rights, charge interest at the standard bank rate, however 5% above the respective base interest rate of the European Central Bank, and we are authorised to request appropriate securities. All claims on our part from the business relationship shall become due immediately if these payment conditions are not complied with or we receive information concerning circumstances which, in our opinion, give reason to doubt the creditworthiness of the customer. We will then only fulfil outstanding delivery obligations against prepayment. If we do not receive this prepayment upon request within an appropriate amount of time, we are authorised to withdraw from the contract, either in full or in part, and to request compensation for damages without proof due to non-fulfilment of the contract amounting to 5% of the value of the contract and a minimum of € 30.00. If we are able to provide proof of them, we reserve the right to claim further damages.

4. We are also authorised to prohibit the resale and further handling of the delivered goods (cf. "Retention of Title" IV.). The customer is then obliged to hand over actual possession of the goods to us at their own cost. The customer shall hereby allow us to enter their business premises in the case of the above for the purposes of removing the goods.

5. Compensation in the form of a counterclaim is only permitted if said counterclaim is undisputed or if there is a legally-enforceable judgement.

III. Delivery time

1. The delivery period is only an estimate and is non-binding. It begins with the day on which the order is confirmed on our part, however not prior to clarifying all individual details of the implementation of the contract.

2. In the case of early delivery, the actual date of delivery is applicable and not the agreed date of delivery.

3. Part deliveries are permitted, whereby each delivery is considered as a separate transaction.

4. Deliveries to customers are subject to correct and prompt deliveries to us.

5. The delivery period shall be extended accordingly, even in the case of delayed delivery, in the event of a force majeure such as fires, strikes, lock-outs or state import and export restrictions. In the event of this, we are then authorised to withdraw from a contract, either in full or in part, that has not been honoured.

IV. Retention of title

1. The delivered goods remain our property until the complete payment of the price as well as of all claims from the business relationship and all other current or future claims in conjunction with the business relationship, even if payments are made to settle certain claims. This also applies if the safekeeping of the goods by the customer without remuneration has been agreed.

2. The customer is not authorised to pledge the goods subject to retention of title, or rather the claims assigned to us as security (cf. no. 4), nor to assign them as security. The customer may handle and resell the goods, however only within the scope of orderly business operations.

3. Goods subject to retention of title are processed on our behalf, however without any obligation on our part. The customer does not acquire any ownership in accordance with § 950 BGB (Bürgerliches Gesetzbuch - German Civil Code).

a) If our goods subject to retention of title are processed with objects belonging to the customer or with objects delivered to them under simple retention of title in accordance with § 450 BGB, we shall acquire the sole ownership of the processing product.

b) If our goods are processed using other objects delivered to the customer under the exclusion of the legal consequences of § 950 BGB – extended retention of title –, we shall acquire co-ownership in accordance with the invoice value of our goods subject to retention of title in proportion to these other objects.

4. If the customer resells our goods, regardless of their condition, in due form whilst protecting our security interests to third parties, they shall hereby assign the claims, together with all subsidiary rights, to the extent detailed in no. 5. The customer is obliged to make this third party aware of our request of assignment and to provide us with the information which, in our opinion, is necessary for the assertion of our rights as well as to supply us with the associated documentation.

5. Should the processing product only contain objects belonging to the customer, together with our goods subject to retention of title, or goods supplied to them under simple retention of title in accordance with § 455 BGB, the entire claim is assigned to us. If claims are assigned in advance as a result of an otherwise requested retention of title, in other words with the exclusion of the legal consequences of § 950 BGB, we are entitled to a fraction of the claim in accordance with no. 3 b).

6. The customer also hereby assigns claims to us which they acquire from a third party due to the installation of the goods onto a site as security amounting to our claim.

7. Incoming amounts in relation to the assigned claims are to be kept separate until they are transferred to us.

8. Improper handling of our goods entitles us to proceed as if payment had been defaulted on (cf. II., no. 4).

9. We are to be notified immediately by the quickest possible method, e.g. by fax, of any third party access to our goods, such as the seizure of our goods and the transfer of all documentation, whilst stating the circumstances necessary for defence.

10. If securities arising from the existing retention of title permanently exceed our claims by more than 20%, we are prepared to approve deliveries which have been fully paid for at our discretion and upon request.

V. Packaging and shipping

a) Packaging can be provided by way of a loan or charged at our discretion. In the case of the latter, the packaging can only be taken back with prior arrangement with full or part credit which we deem appropriate.

b) Shipping is carried out with the transfer of the goods to the courier or the freighter, at the latest, once the goods leave our warehouse/factory, and at the cost and at the risk of the customer. This also applies if we perform the shipping with our own means or with external means.

c) If no freight instructions are provided in writing by the customer, the means of shipping and the means of transport shall be selected at our discretion and we shall not assume any liability, such as for selecting the cheapest shipping option.

d) Freight costs paid by us are only considered as an advancement for the customer. Additional costs for quicker shipping options, such as rail express or air freight, are paid for by the customer, even if we are obliged to cover freight costs as a result of a particular agreement.

VI. Deviations on quality and delivery amounts

1. Our goods are subject to general technical specifications, but we reserve the right for there to be conventional deviations in the masses and qualities of the products, as long as not otherwise expressly agreed. The samples provided by us only demonstrate the average quality of the goods on a non-binding basis.

2. If we manufacture custom items according to customer specifications, the customer alone is responsible for property rights of third parties not being breached. For the case of our liability, the customer shall absolve us from all claims with the transfer of all costs incurred and subject to the assertion of other rights, such as the payment of any damages due to non-fulfilment of the contract.

3. Excess or short deliveries up to 10% of the amount ordered are considered as in accordance with the contract.

VII. Notification of defects and guarantee, restriction of claims for compensation for damages

1. The customer, not ourselves, is obliged to check whether the delivered goods correspond with the prior art for their planned purpose.

2. Defects resulting from the quality of the goods or the delivery amount are to be notified of immediately in writing after receipt of the goods at the delivery location, or 10 days afterwards at the latest, and prior to the goods being used or delivered to third parties. The date of shipping or the date of the notification that the goods are ready for shipping is applicable in terms of the compliance of our delivery.

3. In the case of justified notification of defects within the given time frame, the goods shall, at our discretion, either be replaced or taken back in return for a refund or a credit note for agreed considerations or the reduced value shall be refunded. Otherwise, we are permitted to attempt to improve the goods. In the event of delivery amounts being short, we are permitted to supply these at a later date.

4. All claims for defects shall be forfeited if the customer refuses to give us the opportunity to check the defects, particularly if the customer do not immediately provide or send back all of the goods or parts of the goods. Rejected goods may only be returned with our agreement.

5. Together with our legal representatives, we shall be exempt from any claims for damages, for example due to breaching our obligation to deliver replacement goods or to improve defective goods, due to contractual subsidiary obligations, default at the conclusion of the contract or tort, as long as said damages do not arise immediately from death, personal injury or illness or from our obligations from the Product Liability Act (ProdHaftG) and as long as they are not caused intentionally or as a result of gross negligence.

VIII. Place of performance and place of jurisdiction

If the customer is a registered trader, a legal person in accordance with public law or an asset fund under public law, the place of performance shall be the registered address of our company in Kuchen, Germany, and the place of jurisdiction shall be Geislingen, Germany. However, the place of jurisdiction can also be the court responsible at the registered address of the customer, at our discretion.

IX. Partial validity

Should individual provisions of these terms and conditions or of a contract be invalid, the remaining provisions shall not be affected in terms of their validity.

 
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