General terms and conditions of business
Metalux Metallveredelung GmbH, Sportplatzweg 20, 68804 Altlußheim
§ 1 Scope of validity, form
(1) These terms and conditions apply to all our deliveries and commissioned services that we provide to customers. They are an integral part of all contract offers and contract acceptances and apply exclusively unless individual regulations have been made.
(2) The GT&C apply in particular to contracts for the sale and delivery or commissioned performance of movable goods (“goods” or “work”), irrespective of whether we manufacture and process the goods ourselves, purchase them from suppliers and process them or whether they are the property of the customer which we merely process (“work”). Unless otherwise agreed, the T&Cs in the version valid at the time at which the customer places an order, or in all instances in the version in text form provided to the customer as a framework agreement, shall also apply to all similar future contracts without any requirement for us to refer to them again on an individual basis.
(3) Our T&Cs apply exclusively. Deviating, contrary or supplementary general business terms of the customer shall only then and insofar become a part of the contract to the extent that we have explicitly approved their validity. This approval requirement shall apply in any case, for example also if, with the knowledge of the General Business Terms of the customer, we carry out the specified service or delivery to them without reservation.
(4) Material declarations and notifications which the customer makes with regard to the contract (e.g. setting deadlines, reporting of defects, withdrawal or reduction declaration) shall be made in written form or text form (e.g. letter, email, fax) to be legally valid. Legal formalities and further verifications, in particular doubts about the legitimation of the declaring party, remain unaffected.
§ 2 Quotation and conclusion of the contract
(1) Our offers are subject to change without notice and are non-binding unless they are expressly made in writing as a binding offer with an acceptance period. Unless it is a binding offer, a contract shall only be concluded when we confirm the customer’s job or order in writing or perform the ordered service or delivery. If we submit a binding offer, we are entitled to revoke the offer up until the point of acceptance by the customer.
(2) The commissioning of the service or ordering of the goods by the customer shall be deemed a binding offer of contract. Unless otherwise stipulated in the commissioning or order, we are entitled to convert this contractual offer into an order within 10 working days of it being received by us.
(3) The acceptance can be declared either in writing (e.g. through an order confirmation) or by shipping the goods to the customer.
§ 3 Documents provided, confidentiality and duty to cooperate
(1) We reserve the property rights and copyrights to all documents provided to the customer in connection with the placing of the order, such as execution documents, calculations, drawings, plans or other technical documents. The customer is obliged to keep documents made available to them secret, to store them properly and in particular to ensure that third parties cannot view them. They may not be reproduced, pledged or made accessible to third parties or otherwise disclosed without our written consent. They may only be used for the contractually intended purpose. Upon request, they must be returned to us without delay.
(2) Furthermore, the customer is obliged to keep secret all operating methods and figures and all other business and trade secrets and information in which there is an interest in secrecy that come to their knowledge in connection with the order. Such information shall not be made accessible to third parties without our written consent.
(3) The customer undertakes to pay a contractual penalty of € 10,000.00 for each breach of the duty of confidentiality.
(4) The customer is obligated to perform all acts of cooperation owed under the contract or required in good faith in a timely manner. In particular, the customer shall establish all prerequisites to enable us to perform the contractually agreed services. They are obliged to provide all information, documents and data required for the performance upon request. The customer is obliged to provide a competent contact person and to guarantee their availability.
(5) All additional costs resulting from the delay of a required cooperation action shall be borne by the customer.
§ 4 Delay in performance
(1) The delivery or performance period shall be agreed individually or shall be specified by us upon acceptance of the order or contract. Insofar as this is not the case, this period is 16 weeks from the conclusion of the contract.
(2) Insofar as we are not able to meet with the binding delivery or execution periods due to reasons for which we are not responsible (unavailability of service) we will inform the buyer of this immediately and will also inform the customer of the anticipated new delivery or execution period at the same time. If the service is also unavailable within the new delivery period we are entitled to partially or completely withdraw from the contract. We will immediately reimburse the customer for any counter-performance already implemented.
This applies in particular in the event that we are not supplied in good time by our supplier or we are not obliged to procure in the individual case.
(3) The occurrence of our delay in delivery is determined in accordance with the statutory regulations. In this case however a reminder by the customer is necessary. This shall also apply if a delivery or execution period has been agreed.
§ 5 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery shall be ex works, which shall also be the place of performance for the delivery, commissioned service and any subsequent performance based thereon. At the customer’s request and expense, the order or the work shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the method of shipping (in particular the shipping company, shipping route, packaging) ourselves.
(2) The risk shall pass to the customer as soon as the delivery has been handed over to the person carrying out the transport at the customer’s request or has left the factory for the purpose of dispatch or, in the case of collection by the customer, when the order or the factory is ready for collection and this has been announced to the customer. If the delivery is ready for dispatch and the dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification.
(3) If the customer is in default with the acceptance, omits to carry out an act of co-operation or causes the delivery to be delayed for other reasons then we shall be entitled to demand compensation for the damages arising from this including extra expenses incurred (e.g. storage costs). In this case, we charge a flat-rate compensation of € 50 per calendar day, starting with the notification that the delivery is ready for dispatch or collection. The proof of higher damages and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected. The flat rate is however to be offset against further monetary claims. The customer reserves the right to prove that we did not suffer any damages at all or only substantially less damages than the aforementioned flat rate.
§ 6 Prices and payment terms
(1) Unless otherwise agreed in writing, our prices are exclusive of shipping, packaging and other expenses ex works, plus statutory value added tax, in the case of freight and charge-free delivery of the items to be processed by the customer.
(2) The prices quoted are based on the current costs of materials, wages and energy. In the event of a change in this cost basis up to the time of delivery, the prices may be adjusted by us in reasonable proportion. If fixed prices have been agreed, a reasonable price change shall be negotiated. If no agreement can be reached on this, either side is entitled to withdraw. Unless we invoice the packaging costs actually incurred in the individual case, a flat rate for packaging costs of 3.00% of the order value or € 25 per order shall be deemed agreed. Any customs duties, fees, taxes, transport insurance and other public charges shall be borne by the customer. As a minimum order value, we charge a minimum quantity surcharge of € 150 per surface treatment or alloy.
(3) The purchase price is due and payable within 14 days with a deduction of 2.00% discount on the invoice amount or within 30 days net from the invoice date free of charges to our account. However, we are entitled at any time, even within the course of a running business relationship, to carry out a delivery in part or in whole only by means of prepayment. A corresponding caveat will be declared by us at the latest with the order confirmation.
(4) With the expiry of the above-mentioned term of payment the customer shall be considered to be in arrears. If the payment deadline is exceeded, interest on arrears amounting to 3% above the discount rate of the Deutsche Bundesbank plus VAT shall be payable. We reserve the right to assert further damages on default.
(5) If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the customer to pay (e.g. by an application for opening of insolvency proceedings) then according to the statutory regulations we are entitled to refuse service and – if applicable after setting a deadline – to cancel the contract (§ 321 BGB). With contracts concerning the production of custom-made goods (individual productions) we can declare the cancellation immediately. The statutory regulations concerning the dispensability of setting a deadline remain unaffected.
§ 7 Warranty and notice of defects
(1) The customer is obliged to inspect the goods or the work properly and to give notice of defects without delay. Obvious transport damage must be reported to the transport personnel on delivery and must be acknowledged in writing. In all other respects, defects which are obvious on proper inspection must be asserted in writing without delay, but at the latest within 10 working days of delivery or acceptance, otherwise the goods shall be deemed to have been approved.
General terms and conditions of business Page 1 of 2
General terms and conditions of business
Metalux Metallveredelung GmbH, Sportplatzweg 20, 68804 Altlußheim
(2) Claims for defects shall become statute-barred 12 months after delivery or acceptance. Our consent must be obtained before any goods are returned.
(3) Should our delivery or other service have a defect which already existed at the time of the transfer of risk, we shall, subject to timely notification of defects, provide a warranty by means of subsequent performance, either by rectification of the defect or by subsequent delivery, at our discretion. We are always entitled to provide supplementary performance within an appropriate period. In the event of rectification, we shall be entitled to use new or as-new spare parts.
(4) Only if the subsequent performance is impossible, refused, unreasonable or has failed, the customer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration. Subsequent performance shall be deemed to have failed after two attempts at subsequent performance at the earliest. The customer’s right to self-remedy of the defect and reimbursement of the expenses required for this in accordance with § 637 of the German civil code [BGB] shall only exist if the customer has granted us all necessary subsequent performance options in accordance with the above provisions.
(5) Claims for defects shall not exist in the case of natural wear and tear or in the case of damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable operating materials or due to special external influences which are not assumed under the contract. If the customer or a third party performs unprofessional modifications, no claims for defects shall exist for such works and for any resultant consequences.
(6) Claims of the customer for costs arising due to supplementary performance, in particular transport, travel, labour and material costs, are excluded insofar as such costs increase because the goods supplied by us are retrospectively moved to a location other than the customer’s branch, unless this relocation is associated with the intended use.
(7) In the event of fraudulent concealment of a defect or in the event of the assumption of a guarantee for the quality of the goods (§444 BGB), the rights of the customer shall be governed by the statutory provisions.
§ 8 Offsetting and right of retention
(1) The customer shall only have the right to offset if his counter-claims have been legally established or are undisputed. The customer is only entitled to exercise a right of retention insofar as their counter-claim is based on the same contractual relationship.
§ 9 Retention of title
(1) In the event of conduct of the customer which is in breach of the contract, in particular with non-payment of the due purchase price we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title or to withhold delivery of customer material. The demand for surrender does not at the same time include the declaration of withdrawal; rather, we are entitled only to retain the customer material and reserve the right to withdraw from the contract. If the customer does not pay the due purchase price we may only assert this right if we have set the customer a reasonable deadline for payment in advance without success, or if setting such period is not necessary according to the statutory provisions regarding contract cancellation.
(2) The customer is authorised, until rescinded per (c), to resell and/or to process the goods which are subject to reservation of title in proper business transactions. In this case the following provisions shall apply in addition.
(a) The reservation of title covers the full value of products which are produced by processing, mixing or combination of our goods, whereby we are deemed the manufacturer. If the ownership right of third parties continues to exist with a processing, mixing or combination, the seller shall acquire joint ownership in relation to the invoice value of the processed, mixed or combined goods. Moreover, the same shall apply to the produced product as to the goods delivered under reservation of title.
(b) The customer hereby now already assigns the claims against third parties, which are established from the resale of the goods or products in total or in the amount of our possible co-ownership share, to us as collateral in accordance with the aforementioned paragraph. We hereby accept the assignment. The obligations of the customer stated in section 2 shall also apply in view of the assigned claims.
(c) The customer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer meets their payment obligations towards us, there is no deficiency to their ability to pay and we do not we assert the reservation of ownership through the exercising of this right per section 3. However, if this is the case we can request that the customer informs us of the assigned claims and their debtors, provides all information necessary for the collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this event we shall also be entitled to revoke the authority of the customer to further sale and processing of the goods subject to the retention of title.