General terms and conditions Metaform - HSM GmbH

General Terms and Conditions of Delivery and Payment
MHU Metaform – HSM Umformtechnik
Metaform – HSM GmbH
Bessemerweg 7
58706 Menden
phone +49 2373 9891-15
e-mail: mhu@mhu-gmbh.com
Internet: http://www.mhu-gmbh.com
HRB 4801 AG Arnsberg Geschäftsführer Dipl.-Wirt.-Ing. Stefan Maaß, Ust. ID DE 258208226
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Area of application
1. These Terms of Sale apply to every (supply) framework agreement (hereinafter
“agreement”) and all individual agreements and/or orders in line with an agreement
(hereinafter “individual agreement”) with business operators, corporate bodies under
corporate law or special funds under public law (hereinafter “Partner”).
Our deliveries and services are solely based on these Terms of Sale. They also apply
to all future orders and contractual relationships between us and the Partner.
The Partner’s terms of business, which we do not explicitly acknowledge, do not have
any validity.
General provisions
2. The contracting parties must immediately confirm verbal agreements in detail and in
writing.
Insofar as written form is intended or required in these Terms of Sale, text form (§ 126
b of the German Civil Code – BGB) suffices in safeguarding the written form
requirement.
3. Orders are not binding until we confirm them with our order confirmation.
4. The information and illustrations shown in the brochures and catalogues are
approximate values customary in trade, unless we expressly designated them
binding.
5. We are also entitled to refuse the Partner’s delivery schedules and orders given
based on the agreements as well as the fulfilment of existing agreements and
individual agreements and the extension thereof if it becomes evident that our
payment claim would be at risk due to the lack of the Partner’s performance.
This is particularly the case if the Partner’s creditworthiness is assessed by our credit
insurance with “high risk” if and to the extent to which the sum insured made
available to us by our commercial credit insurer to cover our claims against the
Partner would be exceeded upon accepting the delivery schedule or the order or if our
amount retained. All agreed payment condition are no longer valid if the credit
insurance sum is cancelled or doesn’t cover the order amount sum.
The provisions in sections 6, 25 and 39 as well as § 321 of the German Civil Code
(BGB) and other statutory rights to refuse performance and rights of retention remain
unaffected.
6. We are entitled to terminate agreements and individual agreements without notice for
good cause.
In particular, good cause is indicated if, after the agreement has been made, it is
determined that our claims for payment defined in the agreement are at risk due to
the lack of the Partner’s performance – sec. 5 paragraph 2 applies accordingly -and
the Partner does not credibly assure its performance within a reasonable period of
time despite being requested to do so.
The provisions in sections 25, 25 and 39 as well as other statutory cancellation rights
and rights of withdrawal remain unaffected.
7. If individual parts of these Terms of Sale are or become invalid, the validity of the
remaining provisions is not affected thereby.
Long-term agreements and call-off purchase orders, price adjustments
8. Agreements and individual agreements that are indefinite or have a term longer than
1 year (“long-term agreements”), can be terminated giving 3 months’ notice to the end
of the month.
9. If there is a significant change in labour, material or energy costs in connection with
long-term agreements, we have the right to adjust the price.
10. If a binding order quantity is not stipulated, then we base our calculation on the non-
binding order quantity (target quantity) expected by the Partner for a specific period of
time.
If the Partner accepts less than the target quantity, we are entitled to increase the unit
price appropriately.
11. Unless otherwise stipulated, binding quantities for supply agreements on call order
must be conveyed at least 6 months prior to the delivery date by issuing the release
order.
Additional costs caused by our Partner by a late release order or subsequent
changes to the release order regarding time or quantity, must be borne by the
Partner, unless the Partner is not responsible for the delay or the subsequent change;
at the same time, our calculation is decisive.
Confidentiality
12. The Partner will only use any documents (including samples, models and data) and
knowledge obtained in connection with this business relationship for the mutually
pursued purposes. If we have marked these confidential or have an obvious interest in
keeping them confidential, the Partner must not disclose them to third parties and
must treat them with the same diligence as it would its own documents and
knowledge.
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This obligation applies from the time the documents or knowledge were/was first
obtained and ends 36 months after the end of the business relationship.
13. This obligation does not apply to documents and knowledge that are public or the
Partner was already aware of at the time they were obtained without being obligated
to maintain confidentiality, which were later transmitted by a third party authorised to
disclose them, or were developed by the Partner without using confidential documents
or knowledge of our company.
The provisions of the law under the German Trade Secrets Act (GeschGehG) remain
unaffected.
Drawings and descriptions
14. If we make drawings or technical documents pertaining to the goods to be delivered or
the manufacturing thereof available to the Partner, these remain our property.
Samples and manufacturing equipment
15. Unless otherwise stipulated, the manufacturing costs for samples and manufacturing
equipment (tools, moulds, templates, etc.) will be invoiced separately from the goods
to be delivered. This also applies to manufacturing equipment that needs to be
replaced as a result of wear.
16. We bear the costs for the servicing and proper storage as well as the risk of damage
to or destruction of the manufacturing equipment.
17. If the Partner suspends or terminates the collaboration during the time of
manufacturing samples or manufacturing equipment, all manufacturing costs that
resulted up to that point in time must be borne by the Partner.
18. The ownership of manufacturing equipment that we manufacture or procure ourselves
is not transferred to the Partner until full payment has been made.
We keep manufacturing equipment, even if the Partner has paid for it, at least until the
supply agreement has been executed. After that, the Partner has the right to request
the surrender of the manufacturing equipment if an amicable agreement has been
reached on the time of surrender, possible manufacturing costs that must be
reimbursed have been paid in full and the Partner has fully fulfilled its contractual
obligations.
19. We will store the manufacturing equipment free of charge for the duration of three
years after the last delivery to our Partner. We will then send a written request to our
Partner, to provide us with information within 6 weeks regarding the further use. Our
obligation to store said equipment ends if neither information is provided or a new
order is placed within this period of 6 weeks.
20. We will only use customer-specific manufacturing equipment that belongs to the
Partner for the supply of third parties with the prior written approval of our Partner.
Pricing
21. All prices are in Euro excluding value-added tax, packaging, freight, postage and
insurance.
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Payment terms
22. All invoices are payable within 30 days as of invoice date without discount.
23. If we undisputedly delivered partially defective goods, our Partner is still obligated to
pay for the share free of defects, unless the partial delivery is not of interest to the
Partner. Furthermore, the Partner can offset claims against compensation of costs for
remedial action and completion; with other counterclaims only if they are established
as final and absolute, ready for judgement or undisputed. Furthermore, the Partner’s
right of retention or right to refuse performance only exists within these limitations.
24. If the payment terms are not met, we are entitled to charge default interest amounting
to the per cent charged to us by the bank for loans on overdraft however, at least the
statutory default interest and the lump sum according to § 288 sec. 2, 5 of the German
Civil Code (BGB).
25. In the event of default in payment, we can suspend the fulfilment of our obligations
until receiving the payments after informing the Partner thereof in writing.
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Delivery
27. Unless otherwise stipulated, we deliver “ex works”. Decisive in adhering to the
delivery date or the delivery time is the notification of ready for dispatch or ready for
pick up by us.
28. The delivery time commences with the sending of the order confirmation and is
extended appropriately if the requirements defined in sec. 57 exist.
29. Partial deliveries are permitted to a reasonable extent. They are invoiced separately.
30. Production-related over-deliveries or short deliveries are permitted within a tolerance
of up to 10% of the total order quantity. Consequently, the total price is adjusted
accordingly.
Shipping and passing of risk
31. Goods that have been reported ready for dispatch must be immediately taken on by
the Partner. Otherwise we are, at our own option, entitled to send the goods or to
store them at the expense and risk of the Partner.
32. If there is no separate agreement, we choose the means of transport and the
transport route.
33. Upon transfer to the railway, the forwarding agent or the carrier or with the beginning
of storage however, upon leaving the factory or warehouse at the latest, the risk is
passed to the Partner, even if we have taken on the delivery.
Delay in delivery
34. The delivery dates stated are non-binding, unless we explicitly confirmed them in
writing or stipulated them as being binding, i.e. “binding delivery date”.
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If we expect that the goods will not be able to be delivered within the delivery time, we
will immediately inform the Partner of this in writing, explain the reasons for this as
well as state the estimated time of delivery as far as possible.
35. If the delivery is delayed due to a circumstance listed in sec. 57 or the Partner’s
actions or lack thereof, e.g. delayed transmission of required information or
documents, an extension of the delivery time appropriate under the circumstances is
granted.
36. The Partner is only entitled to withdraw from the agreement of individual agreement if
we are responsible for not complying with the delivery date and the Partner has given
us an appropriate respite that expired without results.
Retention of title
37. We reserve ownership of the delivered goods until all payments resulting from the
contractual relationship with the Partner have been received.
38. The Partner has the right to sell these goods in the ordinary course of business, as
long as the Partner meets its obligations resulting from the business relationship with
us in a timely manner. However, the Partner can neither pledge or assign the goods
subject to retention of title as collateral. The Partner is obligated to secure our rights in
the credited reselling of the goods subject to retention of title.
39. In the event of breaches of duty on the part of the Partner, in particular default in
payment, we are entitled to withdraw from the individual agreement and take back the
goods after the fruitless expiration of a reasonable deadline set for the Partner to
perform; the statutory provisions regarding the dispensability of setting a deadline
remain unaffected. The Partner is obliged to surrender the goods.
40. The Partner assigns all claims and rights resulting from the sale or if applicable, a
permitted renting of the goods by the Partner, for which we are entitled to property
rights, to us as security. We herewith accept said assignment.
41. Any possible processing or treatment of the goods subject to retention of title is
conducted by the Partner on our behalf. If the goods subject to retention of title are
processed or intrinsically mixed with other objects not under our ownership, we
acquire co-ownership to the new object proportional to the invoice value of the goods
subject to retention of title compared to the other processed or mixed objects at the
time of being processed or mixed.
If our goods are combined or intrinsically mixed with other movable objects to a
uniform object and if the other object is considered the principle object, the Partner will
transfer co-ownership to us proportionately, insofar as the principle object belongs to
the Partner. The Partner safeguards the ownership or co-ownership for us. Moreover,
the same applies to the object produced by processing, combining or mixing as does
to the goods subject to the retention of title.
42. The Partner must inform us immediately of any enforcement measures by third parties
against the goods subject to retention of title, against claims assigned to us or against
other securities and hand over all documents necessary for intervention. This also
applies to impairments of any other kind.
43. If the value of the existing securities exceeds the secured claims by more than 10% in
total, we are obligated to release securities at our option at the Partner’s request.
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Defects as to quality
44. The condition of the goods solely complies with the stipulated technical delivery
regulations. In the event that we must deliver according to our Partner’s drawings,
specifications, samples, etc., the Partner must bear the risk of suitability for the
intended use. The time of the passing of risk is decisive for the condition of the goods
according to sec. 33.
44 a. We adhere to the respectively effective legal requirements of the European Union
(EU) and the Federal Republic of Germany when delivering our goods. For instance,
this applies to – so far as relevant – the REACH Regulation (Regulation EC no.
1907/2006), the German Electrical and Electronic Equipment Act (ElektroG), the
German Ordinance on Hazardous Substances in Electrical and Electronic Equipment
(ElektroStoffV) and the German End-of-Life Vehicle Ordinance (AltfahrzeugV) as the
German implementation of the EU Directives 2011/65/EU (RoHS 2), 2012/19/EU
(WEEE Directive) as well as the EU Directive 2000/53/EC.
We will immediately inform the Partner of relevant changes to the goods, its supply
availability, applicability or quality caused by legal requirements, particularly by the
REACH Regulation and in individual cases, coordinate measures to be taken with the
Partner.
45. We are not responsible for defects as to quality that arise through inappropriate or
improper use, inaccurate assembly or commissioning by the Partner or a third party,
common wear, incorrect or careless handing and we do not answer for the
consequences of improper modifications or repair work by the Partner or a third party,
which were conducted without our consent. The same applies to defects that merely
reduce the value or efficiency in an irrelevant manner.
46. Unless otherwise stipulated, the statute of limitation for material defect claims
complies with the law.
47. The Partner’s warranty rights require that the Partner properly fulfilled its duty of
inspection and objection pursuant to § 377 of the German Commercial Code (HGB). If
the acceptance of the goods or initial sample testing was stipulated, notices of defects
are excluded, which the Partner would have been able to determine during diligent
acceptance or initial sample testing.
48. We must be given the opportunity to examine the defect. Rejected goods must be
immediately returned to us upon request; we bear the costs for transport if the notice
of defect is justified. If the Partner does not fulfil these obligations or makes changes
to the already rejected goods without our approval, the Partner forfeits possible
material defect claims.
49. In the case of a justified notice of defect within the time limit, we will, at our own
option, repair the rejected goods or supply flawless replacement.
50. If we do not fulfil these obligations or do not fulfil them according to contract within an
appropriate period, the Partner can grant us a last deadline in writing, within which we
must fulfil our obligations. After this deadline has expired without any results, the
Partner can demand a price reduction, withdraw from the individual sales agreement
or make the necessary repair itself or have the repair made by a third party at our
expense and risk. A reimbursement of costs is excluded insofar as the expenses are
higher because the goods were brought to another location after our delivery, unless
this complies with the designated use of the goods.
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51. The Partner’s statutory recourse claims against us only apply to the extent that the
Partner has not made any agreements with its customer, which exceed the statutory
claims for defects. Furthermore, sec. 50 last sentence applies accordingly to the
extent of the recourse claims.
Other claims, liability
52. Unless otherwise stipulated below, other and further claims of the Partner against us
are excluded. This particularly applies to damage claims based on the breach of
contractual obligations and tortious acts. We are not liable for damages that did not
arise on the delivered goods. In particular, we are not liable for lost profit or other
financial losses the Partner suffers.
53. The aforementioned liability limitations do not apply in the event of intent, gross
negligence of our legal representatives or executive employees and in the case of a
culpable breach of essential contractual obligations, i.e. obligations, which must be
fulfilled for proper execution of the agreement and which can typically be expected to
be fulfilled by the contracting parties. In the event of a culpable breach of essential
contractual obligations, we are only liable for reasonably foreseeable damages typical
for the agreement, except in cases of intent or gross negligence of our legal
representatives or executive employees.
54. Furthermore, the liability limitation does not apply in cases in which liability is
assumed according to the Product Liability Act personal injuries or material damages
on privately used objects due to defects of the delivered goods. Moreover, it does
apply in the event of fatal, physical or health injuries or if assured properties are
absent, if and to the extent to which the assurance was exactly intended for the
purpose of protecting the Partner against damages that were not caused on the
delivered goods themselves.
Finally, the liability limitation does not apply if we concluded a sales agreement with
the Partner and we are obligated to compensate for the expenses required for the
purpose of supplementary performance as per § 439 sec. 3 of the German Civil Code
(BGB).
55. Insofar as our liability is excluded or limited, this also applies to the personal liability of
our employees, workers, co-workers, legal representatives and vicarious agents.
56. This does not affect the laws on the burden of proof.
Force majeure
57. Force majeure, labour disputes, riots, military conflicts, terrorist attacks, official
measures, absence of deliveries from our suppliers, epidemics and other
unforeseeable, unavoidable and severe events relieve the contracting parties from
their liability for the duration of the disruption and to the extent of its/their effect. This
also applies if these events occur at a point in time in which the concerned contracting
party is in default, unless the contracting party caused the delay with intent or gross
negligence. Within reasonable bounds, the contracting parties are obligated to
immediately provide the necessary information and to adapt their obligations to the
altered circumstances in good faith.
Place of fulfilment, place of jurisdiction and applicable law
58. Unless otherwise stipulated, our registered office is the place of fulfilment.
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59. The place of jurisdiction for all legal disputes resulting from or in connection with an
agreement or individual agreement, including those related to payment of bills of
exchange and checks, is our registered office. We are also entitled to file actions with
the court having jurisdiction over the Partner’s registered office.
60. This contractual relationship is solely subject to the laws of the Federal Republic of
Germany.