General Terms and Conditions of Business
General Terms and Conditions of the company Metal-Castings and More GmbH hereinafter referred to as MCM
§ 1 General
The following general terms and conditions are an integral part of the contract for every business transaction concluded with our customers. Other terms and conditions of the buyer or customer are only binding for us if we have expressly acknowledged them in writing and insofar as they do not contradict mandatory law. This also applies to all agreements made verbally, by telephone or by our sales representatives. Oral agreements are only binding for both parties after they have been fixed in writing. In the event of a continuing business relationship, our general business conditions shall also form part of the contract even if they are not expressly included in the individual contract each time.
§ 2 Offer and conclusion of contract
Our written, verbal and telephone offers are subject to change with regard to price, delivery date and other content. We do not assume any liability for verbal information provided by our employees.
We reserve the right of ownership and copyright for offers, associated documents and other organizational means which bear our or our supplier's company logo. They may not be made accessible to third parties without our consent. By placing an order, the customer undertakes to accept the goods ordered.
§ 3 Delivery
Partial deliveries are permissible. We reserve the right to deliver 10% more or less for stock items.
With the handing over of the goods to the railroad, the forwarding agent or carrier, at the latest, however, when the goods leave our warehouse, the risk is transferred to the purchaser, even if carriage paid delivery has been agreed.
We make every effort to comply with stated delivery deadlines. However, delivery dates are subject to change unless they are expressly designated by us in writing as binding. In the case of binding, the customer has the right to withdraw from the contract under the conditions of § 326 BGB, but a claim for damages is excluded.
Force majeure, special events that may jeopardize the smooth processing of the order, as well as impossibility through no fault of our own or our suppliers, shall entitle us to withdraw from the contract in whole or in part or to postpone the delivery without any claims accruing to the purchaser. This shall also apply if the aforementioned events occur at a time when we are in default. A reasonable period of grace may be agreed.
The filing of bankruptcy or composition proceedings, the issuance of a declaration in lieu of an oath pursuant to § 807 of the German Code of Civil Procedure (ZPO), the occurrence of payment difficulties or the discovery of a significant deterioration in the financial circumstances of the customer shall entitle us to immediately cease deliveries and to refuse the performance of current contracts.
§ 4 Refusal of acceptance
Costs and damages resulting from the customer's refusal to accept the goods shall be borne by the customer, regardless of the reason for the non-acceptance or non-acceptance.
In case of non-acceptance of the goods, the company -Castings and More GmbH is entitled to assert a claim for damages in the amount of 115% of the purchase price, whereby an assertion of a higher claim for damages is not excluded by this. The orderer/customer is at liberty to prove a lower damage.
§ 5 Shipping and packaging
Unless otherwise agreed in the contract, shipment of the goods shall be at the expense and risk of the Purchaser. This also applies if we deliver the goods with our own vehicle; in this case, we are entitled to charge delivery costs up to the fee that would be incurred if we chose a different shipping method.
In the interest of the buyer, please note the following: Shipments that show the slightest signs of robbery or damage upon arrival may only be accepted with reservations. The damage must be clearly documented. Until then, the shipment must remain unpacked. In the case of truck transport, the forwarding agent, haulage contractor, etc. concerned shall be made to ascertain the damage (note on the consignment note). Unless otherwise specified by the customer, the mode of shipment shall be at our discretion. We do not assume any liability for the cheapest shipment.
If the customer refuses a notified shipment, to which the company MCM is expressly entitled, all costs are to be borne by the refuser. Transport insurance will only be taken out at the express request of the buyer and will be at his expense. Within the scope of the legal regulations we take back packaging delivered by us, if they are returned to us by the buyer within an appropriate period freight-free.
§ 6 Prices
Our prices are subject to change. Unless expressly stated otherwise, our quotations do not include value added tax; this will be charged additionally. The Seller reserves the right to correct prices due to errors on invoices as well as on delivery bills.
§ 7 Eigentumsvorbehalt
Until complete satisfaction of all our claims arising from the business relationship, we retain title to all goods delivered. This shall also apply if the purchase price for certain deliveries of goods designated by the purchaser has been paid. Bills of exchange and checks shall only lead to satisfaction upon their encashment.
Transfer of ownership by way of security, pledging and other disposals affecting rights are not permitted to the purchaser and must be reported immediately.
The customer herewith assigns to us by way of security all claims to which he is entitled from a resale or for any other legal reason with regard to the goods now or later. MCM accepts this assignment. Upon request, he shall at any time send a list of the claims assigned to us and notify the debtor of the assignment. However, he is authorized to collect the claims assigned to us as long as he meets his payment obligations as agreed. The amounts included are to be paid to us immediately as long as we are entitled to due claims against the customer.
Any access by a third party to the goods delivered by us under retention of title is inadmissible. In the course of asserting our reservation of title, we shall be entitled to demand the immediate surrender of the reserved goods to the exclusion of any right of retention.
The buyer expressly grants us the right to enter the storage location of the delivery at any time for the purpose of inspection, retrieval, loading, etc. by us or our representative.
If the buyer processes our goods subject to retention of title with other goods, we shall be entitled to co-ownership of the new items in the ratio of the value of our goods to the newly created item. The Buyer hereby assigns to the Seller his claims in respect of the new work product created by sale, combination, processing or mixing; the Seller expressly accepts this assignment. If the buyer has claims against third persons, he already now undertakes to ensure that he obtains the consent to the assignment of this claim to MCM from the third person or persons.
Should the buyer fail to obtain the consent of the third person, the buyer already now undertakes to compensate MCM for the resulting damage. The buyer declares that he can assign his claims against third persons to the seller at any time.
§ 8 Complaint
The Buyer shall inspect the delivered goods immediately upon receipt with reasonable thoroughness; any defects discovered in the process shall be notified within a period of 7 days, enclosing our delivery note and stating the reason; receipt of the notification shall be decisive for compliance with the deadline. If the purchaser fails to make this immediate notification, the delivered goods shall be deemed to have been approved.
In the event of a justified notice of defect, we shall have the right, at our discretion, either to take back the defective item and credit the amount charged for it, or to provide a replacement free of charge within a reasonable period of time, or to remedy the defect by repair. If a notice of defect proves to be unfounded after inspection, we may charge all related costs to the buyer.
As long as the buyer does not give us the opportunity to convince ourselves of the defect, in particular if he does not provide us with the rejected goods or samples thereof upon request, he cannot invoke defects in the goods.
§ 9 Duty of inspection and warranty
The technical application advice, instructions for use and the like are non-binding and do not release the buyer from his own examination of the goods for their suitability for the intended purposes and processes. A warranty for defects of goods delivered by us is limited to a period of one year from the transfer of risk to the purchaser.
The warranty shall commence on the date of delivery. The date of delivery is also the date of commissioning. In the event of a warranty claim, the purchase of the defective goods must be proven by the original purchase receipt.
Warranty claims of the purchaser require proof that the defect is not due to incorrect installation, incorrect commissioning or improper operation and handling, incorrect or excessively long storage, use of improper third-party materials, e.g. incorrect sealing media, adhesives or lubricants, as well as unsuitable tools or components supplied by third parties.
We shall be released from any warranty if the purchaser has made unauthorized interventions, changes or repairs to the goods.
§ 10 Returns
Goods that have been properly ordered and delivered will not be taken back as a matter of principle.
§ 11 Payments
Our invoices are payable 14 days from date of invoice net. If the payment deadline is exceeded, at the latest after a reminder, we shall be entitled to charge interest on arrears at the statutory rate in accordance with § 288 BGB.
We reserve the right to claim further damage caused by default. We accept bills of exchange and checks only on account of performance, the former only by agreement. Costs for bills of exchange and discount charges according to the rates of private banks shall be borne by the debtor. If a customer defaults on a payment or if his financial situation deteriorates significantly after conclusion of the contract, all claims arising from the business relationship, even in the event of a deferral, shall become due for immediate payment in cash; this shall also apply if we have accepted bills of exchange or cheques. In addition, we shall be entitled to demand advance payments or the provision of security, as well as to withdraw from the contract after a reasonable period of grace or to demand damages for non-performance.
Withholding of payments or offsetting is only permitted if the customer's counterclaims have been acknowledged by us in writing or have been legally established.
§ 15 Data service + copyright
We reserve the copyright for printed products such as brochures, lists and offers provided to the customer against payment or free of charge. Reprinting or copying, even in part, requires our prior approval. The same applies to EDP software programs or data created by us. We assume no liability for the correctness and completeness of the data media distributed by us. The liability responsibility for data media created by the product manufacturer can be found in his terms and conditions, which can be requested from us.
If we have delivered items according to drawings, models, samples or other documents provided by the purchaser, the purchaser shall guarantee that the industrial property rights of third parties are not infringed.
§ 16 Data storage
We shall be entitled to process all data relating to the Buyer within the meaning of the German Federal Data Protection Act (BDSG) which we receive from the Buyer himself or from third parties within the scope of or in connection with the business relationship.
§ 17 Place of performance and jurisdiction
Place of performance and jurisdiction for both parties is Mannheim.
§ 18 Final clause
German law shall be decisive. Should individual provisions of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions.
Status May 2012