General Terms and Conditions
of Metralytica GmbH (hereinafter referred to as "Seller")
§1 Applicability
1) Unless otherwise expressly agreed, the following T&C shall apply to all contracts, deliveries and other services in business transactions with non-consumers within the meaning of §310 para. 1 BGB (German Civil Code). Deviating conditions, in particular the Buyer's terms of purchase, are hereby rejected.
2) In the context of an ongoing business relationship between merchants, the terms and conditions shall become part of the contract even if the Seller has not expressly referred to their inclusion in individual cases.
§2 Offers and conclusion of contract
1) The offers contained in the Seller's catalogs and sales documents, as well as - unless expressly designated as binding - on the Internet, are always subject to change without notice, i.e. only to be understood as an invitation to submit an offer.
2) Orders shall be deemed accepted if they are either confirmed in writing by the Seller or executed immediately after receipt of the order. In this case, the delivery bill or the goods invoice shall be deemed to be the order confirmation.
3) If employees make oral side agreements or give assurances that go beyond the written sales contract, these always require the written confirmation of the seller. Oral statements made by the Seller or by persons authorized to represent the Seller shall remain unaffected by the above provision.
4) If, after conclusion of the contract, the Seller becomes aware of facts, in particular default of payment in respect of earlier deliveries, which, according to the best judgement of a prudent businessman, indicate that the claim to the purchase price is endangered by the Buyer's lack of ability to pay, the Seller shall be entitled, after setting a reasonable deadline, to demand from the Buyer, at the latter's option, payment by instalments or corresponding securities and, in the event of refusal, to withdraw from the contract, whereby the invoices for partial deliveries already made shall become due immediately.
5) Services of the wholesaler which go beyond his obligations as seller, such as the assumption of consulting and planning services incumbent on the buyer towards third parties require a special agreement and will only be assumed against payment.
6) Requests of the buyer for a subsequent reduction or cancellation of a legally effective order can only be taken into account on the basis of special agreements and - if the goods are not in stock - only insofar as the pre-supplier is prepared to take back the goods. In any case, the Seller shall be entitled to deduct from the credit note an appropriate percentage of the net invoice amount for handling costs, testing and repackaging for goods properly returned with his consent. Damaged goods will not be credited. In cases where the error is contested, the Seller shall be entitled to compensation for the damage incurred by him in accordance with §122 BGB.
§3 Data storage
1) The Buyer is hereby informed that the Seller processes the personal data obtained in the course of the business relationship in accordance with the provisions of the EU General Data Protection Regulation (GDPR).
§4 Delivery, transfer of risk and default
1) With the provision of the goods at the agreed place of delivery by the seller and notification of the buyer, the risk is transferred to the buyer.
2) If the shipment is delayed at the request or fault of the buyer, the goods will be stored at the expense and risk of the buyer. In this case, the notification of readiness for shipment is equivalent to shipment.
3) Partial deliveries are permitted to a reasonable extent.
4) The delivery period shall be extended - even within a delay - appropriately in the event of force majeure and all unforeseen hindrances occurring after conclusion of the contract for which the seller is not responsible (in particular also operational disruptions, strikes, lockouts or disruption of traffic routes), insofar as such hindrances can be proven to have a considerable influence on the delivery of the object sold. This shall also apply if these circumstances occur at the Seller's suppliers and their sub-suppliers. The seller shall inform the buyer of the beginning and end of such obstacles as soon as possible. The buyer can demand a declaration from the seller as to whether he wishes to withdraw from the contract or to deliver within a reasonable period. If the seller does not declare this immediately, the buyer can withdraw. Claims for damages are excluded in this case. The above provisions shall apply accordingly to the buyer if the aforementioned obstacles occur at the buyer's premises.
5) The seller is only liable with regard to timely delivery for his own fault and that of his vicarious agents. He shall not be liable for the fault of his suppliers, as they are not his vicarious agents. However, the seller is obliged to assign to the buyer upon request any claims he may have against his suppliers.
6) In the event of a delay in delivery, the Buyer shall be obliged to declare within a reasonable period of time at the request of the Seller whether he continues to insist on delivery or withdraws from the contract due to the delay and/or claims damages instead of performance.
§5 Packaging
1) Packaging will be charged separately.
2) Packaging material shall not be taken back if the Seller uses a suitable disposal company for disposal in accordance with the German Packaging Ordinance (VerpackV) in its currently valid version. In this case, the Buyer shall be obliged to keep the packaging material ready and hand it over to the disposal company. Insofar as the Seller agrees with the Buyer that the Buyer shall waive its right of return in return for a flat-rate disposal fee, the Buyer shall be obliged to hand over the used packaging to a recognized disposal company which guarantees orderly disposal in accordance with the provisions of the German Packaging Ordinance.
§6 Prices and payment
1) The prices are always plus the currently valid value added tax.
2) Unless otherwise agreed, the purchase price is due immediately upon receipt of the goods without deduction. The same applies to repairs.
3) The seller only accepts discountable bills of exchange on account of payment if agreed accordingly. Credit notes for bills of exchange and cheques shall be issued subject to receipt less expenses with value date of the day on which the seller can dispose of the equivalent value.
4) In case of default of payment, the statutory provisions shall apply. Possibly agreed discounts will not be granted if the buyer is in default of payment for earlier deliveries.
5) Irrespective of the term of any bills of exchange received and credited, the Seller's receivables shall become due immediately if the terms of payment are not observed or facts become known which indicate that the Seller's purchase price claims are endangered by the Buyer's inability to pay. In the latter case, the seller is entitled to make further deliveries dependent on a step-by-step payment or the provision of appropriate securities.
6) If the buyer is in default of payment or if he does not honour a bill of exchange when it becomes due, the seller is entitled to take back the goods after prior reminder, to enter the buyer's premises if necessary and to take the goods away. Taking back the goods does not constitute a withdrawal from the contract. If, however, the goods were delivered under an individual contract outside of a business relationship, the seller is obliged to withdraw from the contract beforehand. In any case, the seller can prohibit the removal of the delivered goods.
7) In the cases of points 6.5. and 6.6. the seller can revoke the direct debit authorization (paragraph 7.6.) and demand payment step by step for outstanding deliveries. However, the Buyer may avert this, as well as the legal consequences mentioned in Par. 6.6. by providing security in the amount of the endangered payment claim.
8) A refusal or retention of payment is excluded if the Buyer was aware of the defect or other reason for complaint at the time of conclusion of the contract. This shall also apply if he remained unknown to him due to gross negligence, unless the Seller has fraudulently concealed the defect or other reason for complaint or has assumed a guarantee for the quality of the item. Otherwise, payment may only be retained to a reasonable extent due to defects or other complaints. In case of dispute, an expert appointed by the Chamber of Industry and Commerce at the Buyer's place of business shall decide on the amount. This expert shall also decide on the distribution of the costs of his involvement at his own reasonable discretion.
9) A set-off is only possible with claims recognized by the seller or legally established.
§7 Reservation of title
1) The seller retains title to the goods until the purchase price has been paid in full. In the case of goods which the Buyer purchases from the Seller in the course of an ongoing business relationship, the Seller reserves the right of ownership until all his claims against the Buyer arising from the business relationship, including claims arising in the future, also from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of the Seller have been included in a current invoice and the balance has been struck and accepted. If a liability of the seller based on a bill of exchange is established in connection with the payment of the purchase price by the buyer, the retention of title shall not expire before the bill of exchange has been honoured by the buyer as drawee. If the buyer is in default of payment, the seller is entitled to take back the goods after a reminder and the buyer is obliged to surrender them. Section 6.6 sentences 2 to 4 shall apply accordingly.
2) If the goods subject to retention of title are processed by the Buyer to form a new movable item, the processing shall be carried out for the Seller without the Seller being obligated thereby; the new item shall become the property of the Seller. If the goods are processed together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new object in the ratio of the value of the goods subject to retention of title to the other goods at the time of processing and the processing value. If the goods subject to retention of title are combined, mixed or blended with goods not belonging to the seller according to §§947, 948 BGB, the seller becomes co-owner according to the legal regulations. If the Buyer acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to the Seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In these cases, the Buyer shall be obliged to return free of charge the item owned or co-owned by the Seller, which is also deemed to be a reserved goods within the meaning of the above conditions.
keep in safe custody.
3) If goods subject to retention of title are sold alone or together with goods not belonging to the seller, the buyer assigns already now, i.e. at the time of the conclusion of the contract, the claims arising from the resale in the amount of the value of the goods subject to retention of title with all ancillary rights and priority over the rest; the seller accepts the assignment. The value of the goods subject to retention of title is the invoice amount of the seller, which, however, is not taken into account if it is opposed by third party rights. If the resold reserved goods are co-owned by the Seller, the assignment of the claims shall extend to the amount corresponding to the Seller's share in the co-ownership.
4) If goods subject to retention of title are installed by the buyer as an essential component in the real estate, ship, ship structure or aircraft of a third party, the buyer hereby assigns to the seller the assignable claims for remuneration arising against the third party or the party it concerns in the amount of the value of the goods subject to retention of title with all ancillary rights, including such for the granting of a security mortgage, with priority over the rest; the seller accepts the assignment. Section 7.3, sentences 2 and 3 shall apply accordingly.
5) The Buyer shall only be entitled and authorized to resell, use or install the reserved goods in the normal course of business and only on condition that the claims within the meaning of paragraphs 3 to 4 are actually transferred to the Seller. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular to pledge them or assign them as security. The Buyer shall only be permitted to assign the goods by way of genuine factoring on condition that the Seller is notified of this by disclosing the factoring bank and the accounts of the Buyer maintained there and that the factoring proceeds exceed the value of the Seller's secured claim. With the crediting of the factoring proceeds, the seller's claim becomes due immediately.
6) The Seller authorizes the Buyer, subject to revocation, to collect the claims assigned in accordance with par. 3-5. The Seller shall not make use of its own collection authority as long as the Buyer meets its payment obligations, including those towards third parties. At the request of the Seller, the Buyer shall name the debtors of the assigned claims and notify them of the assignment; the Seller is authorized to notify the debtors of the assignment itself.
7) The Buyer shall notify the Seller immediately of any enforcement measures by third parties against the goods subject to retention of title or the assigned claims, and shall hand over the documents necessary for the objection.
8) With cessation of payment and/or application to open an account.
§8 Notice of defects, warranty and liability
1) The Seller shall only be liable for defects within the meaning of §434 BGB as follows: The Buyer shall immediately inspect the goods received for quantity and quality. Obvious defects must be notified to the seller within 14 days by written notice. In the case of mutual commercial transactions between merchants, §377 HGB (German Commercial Code) remains unaffected.
2) The seller only warrants the faultless condition of the goods, but not whether the object of purchase is suitable for the purpose intended by the buyer.
3) If the Buyer discovers defects in the goods, he may not dispose of them, i.e. they may not be divided, resold or further processed until an agreement has been reached on the handling of the complaint or a procedure for the preservation of evidence has been carried out by an expert appointed by the Chamber of Industry and Commerce at the Buyer's registered office.
4) The Buyer shall be obliged to make the object of purchase complained about or samples thereof available to the Seller for the purpose of examining the complaint. In the event of culpable refusal, the warranty shall lapse.
5) In case of justified complaints, the seller is entitled to determine the type of subsequent performance (replacement delivery, rectification of defects), taking into account the type of defect and the justified interests of the buyer.
6) The buyer must inform the seller as soon as possible about a warranty case occurring with a consumer.
7) Claims for material defects expire in 12 months. This does not apply if the law according to §§438 para. 1 No. 2 (buildings and items for buildings), §479 para. 1 (right of recourse) and §634a para. 1 No. 2 (building defects) BGB prescribes longer periods.
8) Recourse claims in accordance with §§478, 479 BGB shall only exist if the claim by the consumer was justified and only to the extent permitted by law, but not for goodwill arrangements not agreed with the Seller. Furthermore, they presuppose that the party entitled to recourse has complied with his own obligations, in particular the obligation to give notice of defects.
9) Section 9 (General limitation of liability) shall apply to claims for damages.
§9 General limitation of liability
1) Claims for damages and reimbursement of expenses by the Buyer (hereinafter: claims for damages), regardless of the legal basis, in particular due to breach of duties arising from an obligation and from tort, are excluded. This shall not apply in cases of assumption of a guarantee or a procurement risk. Furthermore, this shall not apply in cases of mandatory liability, e.g. under the German Product Liability Act (Produkthaftungsgesetz), in cases of intent or gross negligence due to injury to life, body or health, as well as breach of material contractual obligations. The claim for damages for the violation of essential contractual obligations is, however, limited to the contract-typical, foreseeable damage, provided that there is no gross negligence or liability for injury to life, body or health. This does not imply a change in the burden of proof to the disadvantage of the buyer.
2) This regulation applies to the buyer accordingly.
§10 Place of jurisdiction and applicable law
1) The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between the parties shall be Hamburg, provided that the Buyer is a merchant, a legal entity under public law or a special fund under public law. However, the seller is also entitled to sue the buyer at his place of business.
2) The relations between the parties to the contract shall be governed exclusively by the law applicable in the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
§11 Contractual obligation
1) In case of legal invalidity of individual provisions of this contract, the remaining parts shall remain binding.
Metralytica GmbH
Oehleckerring 13
22419 Hamburg
info@metralytica.eu
www.metralytica.eu
Tel.: +49 40 5936 175-00
Fax: +49 40 5936 175-99