General terms and conditions

General

1. All deliveries and services, including future deliveries and services, shall be based exclusively on the following General Terms and Conditions of Delivery and Payment, hereinafter referred to as "ALZB". We do not recognize any terms and conditions of the customer that deviate from our ALZB unless we have expressly agreed to their validity in writing.
2. Our ALZB shall also apply if we carry out the delivery or service to the customer without reservation in the knowledge that the customer's conditions are contrary to or deviate from our ALZB.
3. Our ALZB shall also apply if there is no written order confirmation.
4. If a written order confirmation is available, its content shall be authoritative for the contract. Subsidiary agreements, in particular promises, shall only be legally effective if confirmed in writing.
5. Our offers are generally subject to change.
6. Services of any kind such as e.g. drafts, written, calculated drafts or proposals, also mass determinations are not subject matter of our offers and therefore do not allow any recourse claims even in case of defectiveness.
7. Amendments to these terms and conditions shall apply to each contract as of the introduction of the amendments.

E-commerce, Marketplace

These General Terms and Conditions apply to contracts concluded between Mepa Metallhandels-Partner GmbH & Co. KG and customers via the e-commerce presence of Mepa Metallhandels-Partner GmbH & Co. KG, accessible at https://www.mepa-shop.de, accordingly.
The e-commerce presence of Mepa Metallhandels-Partner GmbH & Co. KG can only be used by registered customers. Sales to consumers are excluded.
Orders placed by the customer for services listed on the e-commerce site of Mepa Metallhandels-Partner GmbH & Co. KG shall be deemed to be an offer by the customer to conclude a corresponding contract with us. We shall send the customer an electronic confirmation of receipt of the offer immediately after receipt of the offer, which shall not constitute acceptance of the offer. The offer shall not be deemed accepted until we declare acceptance to the customer or provide the ordered services. We are not obliged to accept the offer. When concluding a contract, we store the text of the contracts concluded with customers. We are not obliged to continue to make these texts available to customers. The contract language is German. 

Prices and terms of payment

Our prices are ex works or ex Bochum, excluding packaging, shipping and insurance. The statutory value added tax valid on the day of delivery or performance shall be added and shown separately.

The minimum value of goods to be invoiced by us is 50.00 EUR per order.

The prices quoted by us are based on the material and personnel costs at the time of the offer or the conclusion of the contract. If duties and other external costs included in the agreed price change later than four weeks after conclusion of the contract, or if they are newly incurred, we shall be entitled to change the price to the corresponding extent. If the manufacturer increases his prices before we have delivered, we are entitled to increase the price agreed with the purchaser for the goods not yet delivered to the same extent if and to the extent that we increase our prices in general.

Unless otherwise agreed or stated in our invoices, the invoiced amounts shall be paid immediately after delivery without any discount in such a way that we can dispose of the amount on the due date. Costs of payment transactions shall be borne by the purchaser. The buyer shall only be entitled to a right of retention and a right of set-off insofar as his counterclaims are undisputed or have been legally established or result from the same contractual relationship (e.g. claims for defects or claims for completion costs). An agreed cash discount always relates only to the invoice value excluding freight. The cash discount requires the complete settlement of all due liabilities of the buyer at the time of the cash discount.

In the event of default, we shall be entitled to charge interest at a rate of 9% above the respective base interest rate, or, if we can prove that the debit interest rate payable by us to our bank is higher, to charge this rate.

If, after the conclusion of the contract, it becomes apparent that our claim for payment is endangered by the Buyer's lack of ability to pay, we shall be entitled to the rights under § 321 BGB (German Civil Code) (plea of uncertainty). The same shall apply if the trade credit limit set by us or our trade credit insurer is reduced or cancelled or if the Buyer defaults on payment of a substantial amount or if other circumstances arise which indicate a substantial deterioration in the Buyer's ability to pay after conclusion of the contract. We shall then also be entitled to declare due all claims not yet due from the current business relationship with the Buyer. In addition, the defense of uncertainty shall extend to all further outstanding deliveries and services from the business relationship with the purchaser. 

Delivery and delay

Our delivery obligation is subject to timely and correct self-supply, unless the incorrect or delayed supply or non-supply is our fault.

We reserve the right to withdraw from the contract in the event of incorrect or improper self-delivery. This shall only apply in the event that we are not responsible for the non-delivery and we have taken due care to conclude a specific covering transaction with the supplier. We shall make all reasonable efforts to procure the goods. In the event of non-availability or only partial availability of the goods, the customer will be informed immediately.

Information on delivery times are approximate. Agreed delivery periods shall commence on the date of our order confirmation and shall only apply on condition that all details of the order are clarified in good time and that all obligations of the Buyer are fulfilled in good time, e.g. provision of all official certificates, letters of credit and guarantees or payments on account.

The time of dispatch ex works or ex warehouse shall be decisive for compliance with delivery periods and dates. They shall be deemed to have been met upon notification of readiness for dispatch if the goods cannot be dispatched on time through no fault of our own. 

Liability for defects

The Purchaser shall give written notice of any defects or the absence of warranted characteristics without undue delay, but no later than 14 days after receipt of the goods at the place of destination.

Hidden defects shall be notified in writing immediately after their discovery. The same shall apply if the absence of a warranted characteristic could not be discovered by inspection. In case of wrong delivery, the purchaser is also obliged to give notice of defects as stated.

After execution of an agreed acceptance of the goods by the purchaser, the notification of material defects that were detectable during the agreed type of acceptance is excluded.

In the event of a justified notice of defect in due time, we may, at our discretion, either remedy the defect or deliver a defect-free item (subsequent performance). In the event of failure or refusal of subsequent performance, the Buyer may reduce the purchase price or, after setting and unsuccessful expiry of a reasonable deadline, withdraw from the contract. If a construction work is the subject of the liability for defects, the Buyer shall only be entitled to the right to reduce the purchase price. The same shall apply if the goods have already been sold, processed or transformed.

If the buyer does not immediately give us the opportunity to convince ourselves of the defect, in particular if he does not immediately provide the goods complained of or samples thereof upon request, all rights due to the material defect shall lapse. The same shall apply in the event of an insignificant reduction in the value or suitability of the goods.

In the case of goods that have been sold as declassified material, the Buyer shall not be entitled to any rights arising from material defects with regard to the specified reasons for declassification and those that he would normally have to expect.

Expenses in connection with the subsequent performance, in particular costs in connection with the installation and removal of the defective item, shall be borne by us only to the extent that they are reasonable in the individual case, in particular in relation to the purchase price of the goods, but in no case in excess of 150% of the value of the goods. Excluded are costs incurred by the buyer for the self-remedy of a defect, without the legal requirements for this being met. We shall not bear any expenses incurred because the goods sold have been taken to a place other than the Buyer's registered office or branch, unless this is in accordance with their contractual use.

Rights of recourse of the buyer according to § 478 BGB remain unaffected.

Compensation, limitation of liability and statute of limitations

Due to breach of contractual and non-contractual obligations, in particular due to impossibility, delay, culpa in contrahendo and tort, we shall also be liable for our executive employees and other vicarious agents only in cases of intent and gross negligence, limited to the typical contractual damage foreseeable at the time of conclusion of the contract. In the case of approx. delivery quantities, this shall be calculated on the basis of the minimum quantity of 90% of the delivery quantity provided for in the contract.

These limitations shall not apply in the event of culpable breach of material contractual obligations, in cases of mandatory liability under the Product Liability Act, in the event of damage to life, limb and health and also not if and to the extent that we have fraudulently concealed defects in the item or guaranteed their absence. Essential are specifically described contractual obligations, the breach of which jeopardizes the achievement of the purpose of the contract or such contractual obligations, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the buyer regularly relies and may rely.

The statutory provisions on the burden of proof shall remain unaffected.

Unless otherwise agreed, contractual claims, including claims for damages based on material defects, which the Buyer incurs against us as a result of or in connection with the delivery of the goods, shall become statute-barred one year after delivery of the goods, unless they involve compensation for bodily injury or damage to health or typical, foreseeable damage or are based on intent or gross negligence on the part of the Seller. This period shall also apply to such goods which are used in accordance with their usual manner of use for a building and have caused its defectiveness, unless this manner of use has been agreed in writing. In cases in which we have acknowledged the Buyer's claim for subsequent performance, the limitation period shall not start anew but shall be suspended until three months after the performance of the subsequent performance. 

Retention of title

All delivered goods shall remain our property (reserved goods) until all claims, in particular also the respective balance claims, to which we are entitled within the scope of the business relationship have been satisfied (balance reservation). This shall also apply to future and conditional claims, e.g. from acceptor's bills of exchange, and also if payments are made on specially designated claims. This reservation of balance shall finally expire upon settlement of all claims still outstanding at the time of payment and covered by this reservation of balance.

Treatment and processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code), without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title within the meaning of No. 1. If the goods subject to retention of title are processed, combined or mixed with other goods by the Buyer, we shall be entitled to co-ownership of the new item on a pro rata basis in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership lapses as a result of combining or mixing, the purchaser shall already now transfer to us the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us free of charge. Our co-ownership rights shall be deemed to be reserved goods within the meaning of No. 1.

The Buyer may only sell the reserved goods in the ordinary course of business under his normal terms and conditions of business and as long as he is not in default, provided that the claims from the resale pursuant to Nos. 4 to 6 are transferred to us. He shall not be entitled to dispose of the reserved goods in any other way.

The claims arising from the resale of the goods subject to retention of title shall be assigned to us here and now together with all securities which the Buyer acquires for the claim. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the Buyer together with other goods not sold by us, the claim arising from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods sold. In the event of the sale of goods in which we have co-ownership shares pursuant to No. 2, a part corresponding to our co-ownership share shall be assigned to us.

The buyer is entitled to collect claims from the resale. This authorization to collect shall expire in the event of our revocation, but at the latest in the event of default in payment, non-redemption of a bill of exchange or application for the opening of insolvency proceedings. We shall only exercise our right of revocation if it becomes apparent after conclusion of the contract that our claim for payment under this or other contracts with the Buyer is jeopardized by the Buyer's lack of ability to pay. At our request, the purchaser is obliged to inform his customers immediately of the assignment to us and to provide us with the documents required for collection.

The buyer must inform us immediately of any seizure or other interference by third parties. The purchaser shall bear all costs which have to be incurred in order to cancel the seizure or to return the goods subject to retention of title, insofar as they are not reimbursed by third parties.

If the buyer defaults on payment or does not honor a bill of exchange when due, we shall be entitled to take back the reserved goods and, if necessary, to enter the buyer's premises for this purpose. The same shall apply if, after conclusion of the contract, it becomes apparent that our claim for payment under this or other contracts with the Buyer is jeopardized by the Buyer's lack of ability to pay. Repossession shall not constitute withdrawal from the contract. Regulations of the Insolvency Code shall remain unaffected.

If the invoice value of the existing securities exceeds the secured claims including ancillary claims (interest; costs or similar) by more than 50% in total, we shall be obliged to release securities of our choice to this extent at the Buyer's request.

Copyright and property rights

1. The customer may only pass on to third parties or make known to them the drawings, plans, illustrations, calculations, samples, technical documents and know-how provided by us if we have agreed to this in writing in advance. We expressly reserve any copyrights.
2. In the case of deliveries according to drawings, models or information provided by the customer, the latter shall indemnify us against all claims for protection by third parties. He shall ensure that the use of the goods supplied by us does not infringe any third-party industrial property rights.
3. Tools which we use for the manufacture of the ordered goods shall remain our property. This shall also apply if the customer bears part of the manufacturing or maintenance costs. The tools shall be stored by us for a period of four years after processing of an order. If no further orders are placed during this period, the tools will be scrapped.

Place of performance, place of jurisdiction and applicable law

The place of performance for our deliveries is our delivery plant in the case of delivery ex works, and our warehouse in the case of all other deliveries. The place of jurisdiction shall be, at our option, the location of our principal place of business or the location of the buyer.

In addition to these terms and conditions, all legal relationships between us and the Buyer shall be governed by German non-uniform law, in particular by the BGB/HGB. The provisions of the Vienna UN Convention of 11 April 1980 on Contracts for the International Sale of Goods shall not apply.

Status 11/2018