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 essential part of all contract offers and contract acceptances and apply exclusively if no individual regulations have been made.
(2) The General Terms and Conditions apply in particular to contracts for the sale and delivery or contract performance of movables („goods“ or „work“), regardless of whether we manufacture and process the goods ourselves or buy them from suppliers and process them or whether it is the customer’s property that we merely process („Work“). Unless otherwise agreed, the General Terms and Conditions in the version valid at the time the customer places the order or in the version most recently communicated to him in text form also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our terms and conditions apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer only become part of the contract if and to the extent that we have expressly agreed to their validity. This approval requirement applies in any case, for example even if we carry out the commissioned service or delivery to the customer without reservation in knowledge of the customer’s terms and conditions.
(4) Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Statutory formal requirements and other evidence, especially in the case of doubts about the legitimacy of the declarant, remain unaffected.
§ 2 Quotation and conclusion of the contract
(1) Our offers are subject to change and non-binding unless they are expressly submitted in writing and specify a period of acceptance as a binding offer. If it is not a binding offer, a contract is only concluded when we confirm the order or the customer’s order in writing or carry out the commissioned service or delivery. If we submit a binding offer, we are entitled to revoke the offer until acceptance by the customer.
(2) The commissioning of the service or ordering of the goods by the customer is considered a binding contract offer. Unless otherwise stated in the commission or order, we are entitled to convert this contractual offer into an order within 10 working days of its receipt by us.
(3) Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.
§ 3 Documents provided, confidentiality and duty to cooperate
(1) All documents provided to the customer in connection with the placing of the order, e.g. B. execution documents, calculations, drawings, plans or other technical documents, we reserve the property rights and copyrights. The customer is obliged to keep the documents made available to him secret, to store them properly, and in particular to ensure that third parties cannot inspect them. They may not be reproduced, pledged, made accessible to third parties or disclosed in any other way without our written consent. They may only be used for the contractually intended purpose. Upon request, these must be returned to us immediately.
(2) The customer is also obliged to keep secret all operating methods and figures that we have come to know about in connection with the order and all other business and company secrets and information in which there is an interest in confidentiality. Such information may 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 violation of the confidentiality obligation.
(4) The customer is obligated to provide all cooperation activities that are owed according to the contract or required in good faith in a timely manner. In particular, the customer must create all the prerequisites to enable us to carry out the contractually agreed services. He is obliged to provide all information, documents and data required for the service on request. The customer is obliged to provide a competent contact person and to ensure that he is available at the right time.
(5) All additional costs due to the delay in a necessary cooperation act shall be borne by the customer.
§ 4 Delay in performance
(1) The delivery or execution period is agreed individually or specified by us when accepting the order or contract. If this is not the case, the period is 16 weeks from the conclusion of the contract.
(2) If we are unable to meet binding delivery or execution deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the customer of this immediately and at the same time communicate the expected new delivery and execution deadline. If the service is also not available within the new period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the customer.
This applies in particular if our suppliers do not deliver to us on time or if we are not obliged to procure in individual cases.
(3) The occurrence of our delay in delivery is determined by the statutory provisions. In any case, however, a reminder by the customer is required. This also applies if a delivery or execution period has been agreed.
§ 5 Delivery, transfer of risk, acceptance, default of acceptance
(1) Delivery is ex works, which is also the place of performance for the delivery, commissioned service and any subsequent performance based thereon. At the request and expense of the customer, the order or the work will be sent to another destination (sales by mail). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk is transferred 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 works for the purpose of shipment or upon collection by the customer when the order or the works are ready for delivery collection is ready and this has been indicated 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 passes to the customer upon receipt of the notification.
(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this we charge a flat-rate fee of €50 per calendar day, starting with the notification that the delivery is ready for dispatch or collection. Evidence of greater damage and our legal claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be offset against further monetary claims. The customer is entitled to prove that we have suffered no damage at all or only a significantly lower damage than the above 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 examine the goods or the work properly and to report defects immediately. Obvious transport damage must be reported to the transport person upon delivery and acknowledged. Apart from that, defects that are obvious during a proper inspection must be reported in writing immediately, but at the latest within 10 working days after delivery or acceptance, otherwise the goods are deemed to have been approved.
(2) Claims for defects expire 12 months after delivery or acceptance. Prior to returning the goods our permit is to be requested.
(3) If our delivery or other service has a defect that was already present at the time of the transfer of risk, we shall, subject to timely notification of the defect, provide a warranty through supplementary performance, at our discretion through repair or subsequent delivery. We must always be given the opportunity to remedy the defect within a reasonable period of time. In the event of a repair, we are entitled to use new or as good as new spare parts.
(4) Only if subsequent performance is impossible, refused, unreasonable or failed can the customer – without prejudice to any claims for damages – withdraw from the contract or reduce the payment. A failure of the supplementary performance occurs at the earliest after two attempts at supplementary performance. The customer’s right to rectify the defect himself and reimbursement of the expenses required for this in accordance with § 637 BGB only exists if the customer has granted us all necessary supplementary performance options in accordance with the above provisions.
(5) Claims for defects do not exist in the case of natural wear and tear or damage that occurs after the transfer of risk as a result of incorrect or negligent handling, excessive stress, unsuitable equipment or due to special external influences that are not assumed under the contract. If improper changes are made by customers or third parties, there are also no claims for defects for these and the resulting consequences.
(6) Claims by the customer for the expenses required for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as these increase because the goods delivered by us are subsequently sent to a different location than the location of the customer, unless the shipment corresponds to its intended use.
(7) In the case of fraudulent concealment of a defect or in the case of the assumption of a guarantee for the quality of the goods (§444 BGB), the rights of the customer are based on the statutory provisions.
§ 8 Offsetting and rights of retention
(1) The customer only has the right to offset if his counterclaims have been legally established or are undisputed. The customer is only authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 9 Retention of title
(1) If the customer acts in breach of contract, in particular if the purchase price due is not paid, 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 the delivery of customer material. The demand for return does not include a declaration of withdrawal; on the contrary, we are entitled to only hold back the customer material and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously unsuccessfully set the customer a reasonable deadline for payment or setting such a deadline is unnecessary under statutory provisions.
(2) Until revoked, the customer is authorized in accordance with (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply.
(a) The retention of title extends to the products created by processing, mixing or combining our goods at their full value, whereby we are considered the manufacturer. If third-party goods are processed, mixed or combined with third-party goods, we acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
(b) The customer hereby assigns to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The customer’s obligations mentioned in paragraph 2 also apply with regard to the assigned claims.
(c) The customer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the customer meets his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all the information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. In this case, we are also entitled to revoke the customer’s authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer’s request.
§ 10 Extended business lien
(1) Due to our claims from the order, we have a contractual right of lien on the items that have come into our possession as a result of the order. The contractual right of lien can also be asserted because of claims from work carried out earlier, replacement deliveries and other services, insofar as they are related to the subject of the order.
(2) For other claims from the business relationship, the contractual right of lien only applies if these are undisputed or there is a legally binding title.
§ 11 Liability
(1) Claims for damages by the customer are excluded unless otherwise specified below. The above exclusion of liability also applies to our legal representatives and vicarious agents if the customer asserts claims against them.
(2) Claims for damages due to injury to life, limb or health and claims for damages resulting from the breach of essential contractual obligations are excluded from the exclusion of liability specified in Section 1.
(3) Liability for damages based on an intentional or grossly negligent breach of duty, including that of our legal representatives or vicarious agents, is also excluded from the exclusion of liability.
(4) Provisions of the Product Liability Act (ProdHaftG) remain unaffected.
§ 12 Limitation of Liability
(1) Liability is limited to foreseeable and contract-typical damage.
(2) Apart from that, subject to § 11, the amount of liability is limited to the order value.
§ 13 Choice of Law and Place of Jurisdiction
(1) Für diese AGB und die Vertragsbeziehung zwischen uns und dem Kunden gilt das Recht der Bundesrepublik Deutschland unter Ausschluss internationalen Einheitsrechts, insbesondere des UN-Kaufrechts.
(2) Ist der Kunde Kaufmann iSd Handelsgesetzbuchs, juristische Person des öffentlichen Rechts oder ein öffentlich-rechtliches Sondervermögen, ist ausschließlicher – auch internationaler Gerichtsstand für alle sich aus dem Vertragsverhältnis unmittelbar oder mittelbar ergebenden Streitigkeiten unser Geschäftssitz in Altlußheim. Entsprechendes gilt, wenn der Kunde Unternehmer iSv § 14 BGB ist. Wir sind jedoch in allen Fällen auch berechtigt, Klage am Erfüllungsort der Lieferverpflichtung gemäß diesen AGB bzw. einer vorrangigen Individualabrede oder am allgemeinen Gerichtsstand des Kunden zu erheben. Vorrangige gesetzliche Vorschriften, insbesondere zu ausschließlichen Zuständigkeiten, bleiben unberührt.
§ 14 Miscellaneous
Altlussheim, as of November 2021