- Menzel Metallchemie
- Terms and Conditions
General Conditions of Sale
MENZEL METALLCHEMIE GmbH
As of 1st August 2019
These conditions of delivery and payment, as amended from time to time, apply to all of our current and future offers, transactions and deliveries. They are agreed with our confirmation of order, but at the latest with the acceptance of the goods. Individual agreements require our written acknowledgement at all times, also during the implementation of the contract. We reject the conditions of purchase and/or general trading conditions of the customer. They are not binding towards us even if we do not object to them again after receipt.
I. Scope of validity
- These conditions of sale apply exclusively to entrepreneurs, legal persons under public law or special funds under public law as defined by section 310 (1) BGB (German Civil Code). We only recognise conditions of the customer which are to the contrary or which differ from our conditions of sale if we expressly agree to their validity in writing.
- These conditions of sale also apply to all future legal transactions with the customer insofar as they are of a related nature.
- Agreements that are reached with the customer in individual cases in writing (including side agreements, supplementations and amendments) take precedence over these conditions of sale at all times.
II. Offer and conclusion of contract
Insofar as an order by the customer is considered to be an offer according to Section 145 BGB, we are able to accept it within two weeks.
III. Documents submitted
We reserve ownership rights and copyright to all documents which are submitted to the customer in connection with the issuing of the order – also in electronic form – including, for example, cost calculations, drawings, etc. These documents must not be made accessible to third parties unless we provide the customer with our express written approval accordingly. If we do not accept the offer of the customer within the period of II., these documents are to be sent back to us without delay.
IV. Prices and payment
- Unless otherwise agreed in writing, our prices apply ex works exclusive of packaging and delivery, plus the current statutory rate of value added tax. The costs of the packaging and delivery can be invoiced separately.
- The payment of the purchase price may only be made to a bank account which is stated on our invoice. Discounts for early payment are only valid with a separate written agreement.
- Unless agreed to the contrary, the purchase price is to be paid within 14 days of the delivery. Late payment interest is calculated to the amount of 9% above the respective basic rate of interest p.a. and a flat-rate reminder fee to the amount of EUR 40.00. The assertion of a higher rate of damage for default of payment remains reserved.
- Insofar as no fixed price agreement has been reached, appropriate price alterations due to changed costs of wages, materials and distribution remain reserved for deliveries which take place 3 months or later following the conclusion of the contract.
V. Rights of retention
The customer is only entitled to exercise a right of retention insofar as his or her counter claim is based on the same contractual relationship.
VI. Period of delivery
- Unless otherwise agreed in writing, the delivery period which we stipulate is always non-binding and assumes the punctual and proper fulfilment of the obligations on the part of the customer. The defence of the non-performance of the contract remains reserved.
- If the customer is in default of acceptance, or if s/he culpably infringes other cooperation obligations, we are entitled to demand compensation for damage we may suffer in this respect, including possible additional expenses. Other claims remain reserved. The risk of the accidental loss or deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor's delay.
- In the event of default in delivery not caused by intent or gross negligence on our part, we shall accept liability for every full week of the duration of default in the scope of the fixed rate compensation for default to the amount of 3% of the value of the delivery, but not more than 15% of the value of the delivery. Other legal claims and rights of the customer due to default in delivery remain unaffected.
VII. Transfer of risk upon shipment
If the goods are shipped to the customer at the customer's request, the risk of the accidental loss or the accidental deterioration of the goods shall transfer to the customer upon leaving the factory/warehouse. This applies irrespectively of whether the goods are shipped from the place of performance or who is responsible for the freight costs.
VIII. Retention of title
- We reserve the ownership of the delivered item until full payment of all claims arising from the contract of delivery. This also applies to all future deliveries, even if we do not always make express reference to this fact. We are entitled to take back the purchased item if the customer behaves contrary to the terms of the contract.
- The customer is obliged to handle the reserved goods with care for as long as the ownership has not yet been transferred to them. In particular, they are obliged to insure them appropriately at their own cost against theft, fire damage and water damage. If it is necessary for maintenance and inspection work to be carried out, the customer must carry this out in good time at his or her own expense. As long as the ownership has not yet been transferred, the customer must inform us immediately in writing as to whether the delivered item is seized or subject to other interventions by third parties. Insofar as the third party is not able to reimburse us for the judicial or extra-judicial costs of legal action pursuant to Section 771 of the ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
- The customer is entitled to resell the reserved goods in the normal course of business. The customer hereby assigns to us the claims against the buyer arising from the resale of the reserved goods to the amount of the final of the invoice which is agreed with us (including value added tax). This assignment shall apply irrespectively of whether the reserved goods have been resold without or after processing. The customer also remains authorised to collect the receivable after the assignment. Our authority to collect the receivable ourselves shall remain unaffected. However, we shall not collect the claim as long as the customer meets his or her payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency proceedings or suspended payment.
- The treatment and processing or transformation of the reserved goods by the customer shall always take place in our name and on our behalf. In this case, the contingent right of the customer to the transformed object continues. Insofar as the purchased item is processed with other items which are not our property, we acquire the joint ownership of the new item in relation to the objective value of our reserved goods to the other processed items at the time of processing. The same shall apply in the case of mixing. If the mixing is carried out in such a way that the item of the customer is to be considered the main item, it shall be agreed that the customer shall transfer the proportionate co-ownership to us and shall keep the resulting sole ownership or co-ownership in safe custody for us.
- We undertake to release the securities to which we are entitled upon the request of the customer insofar as its value exceeds the receivables to be secured by more than 20 %.
IX. Warranty and claims for defects
- Warranty rights of the customer presuppose that the customer has duly complied with his or her obligations to inspect the goods and give notice of defects in accordance with Section 377, HGB (German Commercial Code).
- Claims for defects on the part of the customer shall become statute-barred 12 months after our delivery of the goods to the customer. The statutory limitation period shall apply to claims for damages launched by the customer in cases of intent and gross negligence as well as in cases of injury to life, limb and health which are based on an intentional or negligent breach of duty.
- Should, despite every effort, the goods delivered by us show a defect which had already existed at the time of transfer of risk, at our discretion, we shall, subject to timely notification of the defect, either rework the goods or deliver replacement goods. We are always to be given the opportunity to remedy the defect within a reasonable period of time. Our consent must be obtained before any return of the goods by the customer.
- If the supplementary performance fails, then without prejudice to any claims for damages, the customer may withdraw from the contract or reduce the purchase price.
- Warranty claims shall not exist in the event of insignificant deviations from the agreed quality, in the event of only an insignificant impairment of usability, in the event of natural wear and tear, or in the event of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable equipment or due to particular external influences which are not taken into account according to the contract. If the customer or a third party carries out improper maintenance work or implements changes, claims for defects regarding such and its respective consequences are not valid.
- The customer shall have no claims with respect to necessary expenses incurred in the course of remedial action, including but not limited to the costs of transport, labour and materials, to the extent that the expenses increase because the goods we delivered were subsequently brought to another location than the delivery location, unless the other location corresponds to its intended use.
- The customer's right of recourse against us shall only exist to the extent that s/he has not entered into any agreements with his/her purchaser which extend beyond the mandatory statutory claims that are based on defects. The scope of the customer's right of recourse against the supplier is also subject to paragraph 6 accordingly.
- This contract and all legal relations between the parties are governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
- The place of fulfilment and sole court of jurisdiction for all disputes arising from this contract is our head office.