GENERAL TERMS AND CONDITIONS of MEA Bautechnik GmbH
Section I – General Provisions
§ 1 General Definition of Terms
1.1 In these General Terms and Conditions (“General Terms and Conditions”), MEA Bautechnik GmbH, Sudetenstraße 1, D – 86551 Aichach, Germany is referred to using the term “User”. The contracting partner of the User is the “Client”. The contractual relationship to be concluded is the “Contract”. The “Website” is the online shop under www.shop.mea-bausysteme.com and any other online shop of the User.
1.2 The object of the contractual obligations of the User, to the extent that these pertain to the sale and delivery of objects, is the “Delivery”. “Services” refer to all services toward the Client listed in the Contract, regardless of whether they are performed in conjunction with the Delivery of objects or separately.
§ 2 Validity of the General Terms and Conditions, written form, applicable law, jurisdictional venue, set-off, retention, severability clause
2.1 These General Terms and Conditions are in effect for all Services that the User provides for the Client, with the following conditions:
2.1.1 The provisions in Section II. are only in effect toward Clients that are entrepreneurs (§ 14 of the Bürgerliches Gesetzbuch (the Civil Code, the “BGB”), legal entities under public law, or special funds under public law in the meaning of § 310 para. 1 sent. 1 BGB, if and to the extent that the Contract is not concluded through the website of the User or other telemedia offerings of the User.
2.1.2 The provisions in Section III. are only in effect for Services of the User, if and to the extent that the Contract is concluded through the website of the User or other telemedia offerings of the User.
2.2 These General Terms and Conditions of the User always have sole validity; contradictory conditions of the Client or those that deviate from these General Terms and Conditions are hereby expressly rejected. These General Terms and Conditions are also in effect for all future business relationships, even if they are not expressly agreed upon once again.
2.3 All agreements made between the User and the Client for the purpose of executing the Contract must be recorded in written form, as well as changes and supplements to this Contract and waiver of this written form equirement. Oral agreements and additional agreements are only binding if they are confirmed by the User in written form.
2.4 Only the laws of the Federal Republic of Germany are in effect for all legal disputes between the Client and the User excluding the UN Convention on Contracts for the International Sale of Goods (CISG). This choice of law is only in effect toward consumers to the extent that they do not contradict compulsory provisions in the law of the state in which the consumer has his habitual residence.
2.5 If the Client is a businessman, legal entity under public law, or a special fund under public law, the sole jurisdictional venue for all disputes arising from this Contract is the court responsible for the business headquarters of the User. However, the User is also entitled to sue the Client in his place of general jurisdiction. The same is true if the Client has moved his place of residence or habitual residence abroad, or his place of residence or habitual residence is unknown at the time the suit is filed.
2.6 A right of retention, right to withhold performance, or set-off is only permissible in the case of undisputed or legally determined counterclaims. The Client is also only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship. Assignment of claims by the Client is only permissible with the express consent of the User.
2.7 If a provision of these General Terms and Conditions is or becomes ineffective, impracticable, or incomplete, this shall not affect the effectiveness of the remaining provisions. The ineffective, impracticable, or missing provision shall be replaced by one that the parties would have reasonably agreed upon had they been aware of the ineffectiveness, impracticability, or incompleteness.
§ 3 Note regarding data protection
3.1 Credit assessment and scoring
If the User makes an advance outlay, such as when making a purchase on account, Creditsafe Deutschland GmbH or Bisnode D&B Deutschland GmbH shall provide the address and credit worthiness data of the Client saved in their databank (including data determined on the basis of mathematical-statistical procedures) to the User for the purpose of assessing credit worthiness, provided that the User has plausibly demonstrated a justifiable interest therein.
The User shall use the received information regarding the statistical probability of nonpayment for a considered decision regarding the initiation, implementation, or termination of the contract.
The User will not save the inquiry in the databank of Creditsafe Deutschland GmbH or Bisnode D&B Deutschland GmbH. The interests of the Client that are worth being protected shall be taken into consideration pursuant to the legal provisions.
3.2 Data protection provisions
Personal data shall be fundamentally processed pursuant to the data protection law provisions and laws. The interests of the Client that are worth being protected shall be taken into consideration pursuant to the legal provisions during data processing and transmission.
Upon conclusion of the Contract, the Client declares that the data protection provisions of the User in the respective current version at https://shop.meabausysteme.com/de/datenschutz.html are in effect for him and that he permits the User to collect, transmit, secure, and save his personal data and other data pursuant to the provisions of the data protection guidelines. The data protection provisions shall be updated regularly.
§ 4 ODR Platform
The platform for out-of-court online dispute resolution (so-called ODR platform) of the EU Commission is available at http://ec.europa.eu/consumers/odr/.
§ 5 Note regarding the Consumer Dispute Resolution Act
MEA Bautechnik GmbH it is not obligated and not willing to participate in dispute resolution proceedings before a consumer arbitration board.
Section II – Provisions for the conclusion of offline contracts
§ 1 Offers – offer documents – scope of performance
1.1 Offers of the User are always subject to change and nonbinding, if they are not expressly designated as binding in the individual case. The User is only bound to binding offers until the time stated in the offer. Otherwise, he is bound for a period of two weeks after the date of the offer.
1.2 The Delivery and/or Service – if the intent of the performance is the achievement of a certain economic success or the creation of works – must have the characteristics stated in the Contract. These quality characteristics conclusively stipulate the Delivery / Service. The User is entitled to change the characteristics unilaterally if this is done due to legal provisions or represents a technical improvement and the contractually prescribed use is not adversely affected by this.
1.3 The conformity of the materials and semi-finished goods provided by the Client with contractual specifications or submitted drawings and samples will only be checked by the User after prior express agreement with the Client. The Client is fundamentally personally responsible for the correctness and completeness of the documents and information to be provided by the User.
1.4 The Client shall receive all necessary documents for the fulfillment of the Contract (assembly and maintenance instructions, documentation, calibration and testing certificates, plans, etc.) in German, subject to an agreement to the contrary. Translations shall only be made at the express wish and expense of the Client and without accepting liability for the correctness and completeness of the translation.
1.5 The User retains all rights to drawings, patterns, samples, and other documents that are provided to the Client or third parties affiliated with him within the scope of the contractual negotiations or the Contract. These may not be made available to third parties and must be returned to the User without being requested and in whole if the order is not granted to the User. No copies or duplicates may be made without the prior consent of the User. Otherwise, section II, § 6 of these General Terms and Conditions is in effect.
1.6 Offers for Services involving (particularly graphic-construction) expenses for the design creation or in which technical measurements, recordings, or experiments must be conducted at the site of the Client will only be created by the User for compensation. If no agreement is reached regarding the amount of the remuneration, the Client owes the normal remuneration. The remuneration will be added to the purchase price if the Contract is concluded with the Client.
1.7 The Contract is considered to be concluded upon the declaration of acceptance by the User, usually the mailing of the order confirmation or unconditional beginning of the performance of Services by the User.
§ 2 Prices and price components
2.1 The prices of the User are “ex work”, subject to an agreement to the contrary.
2.2 Freight costs, value-added tax, and other costs immediately related to the implementation of the Contract, such as customs fees, demurrage, packaging,
assembly, insurance, calibration fees, and other registration fees, unloading and reloading costs (“Additional Costs”) are not included in the price and must be additionally borne by the Client if these are actually incurred. These must be demonstrated by the User upon request. If nothing else is provided for in the Contract, all price information provided by the User is in Euro. The Client assumes the bank and currency risks.
2.3 The price is derived from the agreement of the parties, or, where this has not taken place in individual cases, from the current price lists of the User at the time the Contract is concluded. If the performance by the User takes place more than four months after the conclusion of the Contract pursuant to the Contract or for reasons that are not the fault of the User and the wage and material costs of the User change by more than 5% up or down in the meantime, the agreed-upon price shall change accordingly. Here, a wage and material share of 45% each and a fixed price share of 10% shall serve as the basis for the calculation of the price. If the price changes by more than 15% up or down, both the User and the Client are entitled to withdraw from the Contract. If, after the granting of the order, it is discovered that additional work is necessary for the proper performance of the order, the User will perform this additional work only after coordination with the Client and submit an appropriate additional offer to the Client. Delivery and performance deadlines that have been agreed upon as binding are extended accordingly in this case.
2.4 Otherwise, the “Incoterms” of the International Chamber of Commerce in Paris, in respective current version upon conclusion of the Contract are in effect as a
§ 3 Payment conditions
3.1 Subject to differing agreements, payments are due immediately and without deduction. They are only considered to have been made starting with the day on which the User can dispose of the entire invoice amount, free of loss. The acceptance of checks, bills of exchange, letters of credit, etc. is reserved and our only accepted on account of performance. The Client is fully responsible for the interest, expenses, and costs associated with this.
3.2 The User is entitled to demand partial payments from the Client for partial Services performed.
3.3 If the Client is in default of payment or reasonable doubts arise with regard to his ability to pay after the conclusion of the Contract, the User is authorized to immediately call in all claims against the Client from the business relationship for payment and to demand the provision of security even before the fulfillment of the Contract and wholly or partially withhold any outstanding Services from this and other contracts with the Client pending prepayment or the provision of security. Additional rights of the User, especially the right to wholly or partially withdraw from the existing contracts with the Client, remain unaffected.
3.4 For the duration of the default of payment, the User shall apply default interest, while reserving the right to assert additional damage caused by delay, starting on the day payment was due, pursuant to § 288 para. 2 BGB. Both contracting partners reserve the right to prove a lesser or greater damage.
§ 4 Delivery deadlines, delivery and acceptance, risk assumption
4.1 Delivery dates and deadlines are non-binding, if no binding delivery date or deadline has been agreed-upon in written form. If the User is in arrears with the Delivery / Service, the Client can set an appropriate additional deadline, which must usually be at least four weeks. After the expiration of this deadline, the Client is allowed to withdraw from the unfulfilled portion of the Contract, if fulfillment is no longer of interest to him. No withdrawal is possible if the User has begun Delivery / Service upon expiration of the additional period. Damage claims of the Client only exists pursuant to Section II. § 8 of these General Terms and Conditions.
4.2 If exceptionally a delivery deadline or a date has agreed upon as being binding in individual cases, the following is in effect:
4.2.1 Deadlines / dates are no longer binding if the scope of performance changes or expands after conclusion of the Contract.
4.2.2 Deadlines begin at the earliest upon payment of the agreed-upon advance payments and the fulfillment of the Client’s other duties to cooperate.
4.2.3 A deadline has been met when the Service has begun by the time it expires.
4.2.4 Deadlines are extended appropriately in case of conditions that are not the fault of the User and in case of all kinds of force majeure (e.g. in case of unforeseeable malfunctions, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of power, energy, raw materials, or auxiliary materials, subsequent material bottlenecks, import and export restrictions, strikes, lockouts, official decrees, epidemics, armed conflicts, upheavals, and similar unforeseeable events, which subsequently make performance more difficult or impossible for the User or his suppliers or shippers) by the time of the hindrance plus an appropriate restart period. The Client will be immediately informed of these hindrances to performance. The hindrances to performance in sentence 1 are also not the fault of the User if these occur when he is in arrears.
4.2.5 If the User is not able to perform for a period of 6 months due to the aforementioned events, each of the contracting partners is entitled to withdraw from the not yet performed portion of the Contract. Already performed counter-performances must be reimbursed, if these do not pertain to already performed partial deliveries.
4.2.6 Otherwise, Section 4.1 sentences 2 to 4 above are in effect.
4.3 The place of delivery and performance is fundamentally the factory or the delivery warehouse of the User (“ex works”). If the Services are delivered “ex works”, the risk of loss is transferred to the Client at the time that the User informs the Client that the Service is ready to be picked up. The Client is obligated to make up the Service within seven days after receipt of the notification of provision.
4.4 If shipment or pickup of the Service is delayed for reasons which are not the fault of the User by more than one month from the date of the notification of provision, the User is entitled to store the Service at the expense and risk of the Client at his own discretion. If the User stores the Service, he is entitled to charge the Client 0.5 % of the net purchase price per month of storage or part thereof, whereas the Client reserves the right to prove a missing or lesser damage. In case of third-party storage, the Client shall bear the actual storage costs. Otherwise, No. 4.5. below is in effect accordingly for default in acceptance by the Client.
4.5 If the Client refuses to accept the Service even after the expiration of an appropriate subsequent deadline (default in acceptance), the User is entitled to withdraw from the Contract and demand reimbursement of damages, notwithstanding additional claims. Here, the User is entitled to demand 20% of the agreed-upon net purchase price as a lump sum reimbursement for damages without demonstrating damages, unless the Client proves that no damages were incurred or only a lesser damage.
4.6 If the User ships the Service at the request of the Client, the risk of loss is transferred to the Client on the date that the Service is ready for shipment, but no later than the date it is given to the carrier.
4.7 The User is entitled to perform partial Services under appropriate consideration for the interests of the Client.
4.8 If inspection is agreed-upon in the individual case or is legally required due to the Service, the Client is obligated to perform this within seven calendar days after notification of completion by the User. If the Client does not inspect the Service for reasons for which he is responsible, Sections 4.4 and 4.5 above are in effect accordingly.
§ 5 Reservation of ownership
5.1 The User reserves the ownership to all Deliveries until the Client has paid all claims from the business relationship, especially including any current account balance (goods subject to retention of title).
5.2 The Client must treat the goods subject to retention of title with care. He is obligated to sufficiently ensure the goods subject to retention of title at his own expense against fire, water, and theft damage at the gross value of the goods and hereby assigns his claims for compensation from these insurance policies in the amount of the gross value of the goods to the User by way of security, who hereby accepts this.
5.3 The Client is entitled to sell the delivered goods in the proper course of business, as long as he is not in default of payment or violating another major contractual obligation. If the goods subject to retention of title are sold by the Client, he may only deliver the goods subject to retention of title to his customers with an effectively agreed-upon reservation of ownership pending full payment (extended reservation of ownership), whereas the current account reservation agreed upon in No. 5.1 is not in effect for the extended reservation of ownership. At this time, the Client assigns the entirety of his claims or other remuneration claims against his customers from this sale to the User. The assignment is hereby accepted. In case of the processing, combination, blending, and/or mixing of the goods subject to retention of title, the claims are only assigned in the ratio of the gross value of the goods to the value of the third-party goods that were also sold. Even after the assignment, the Client is still authorized to collect the claim. The authorization of the User to collect the claim himself remains unaffected by this, but the User will not collect the claim as long as the Client properly meets his payment obligations and other major contractual
5.4 Processing, combination, blending, and/or mixing of the goods subject to retention of title by the Client is always performed for the User, without the latter being obligated thereby. If processing, combination, blending, and/or mixing is performed with objects that do not belong to the User, the User becomes a co-owner of the new object in proportion of the gross value of the goods subject to retention of title to the other objects at the time of processing, combination, blending, and/or mixing. If the Client obtains sole ownership of the new object, it is agreed that the Client will assign coownership to the User in accordance with the gross value of the goods, which the User hereby accepts. If the Client comes into possession of the new object, he will store the goods to which he has sole or co-ownership for the User. Storage by the Client shall be free of charge. Otherwise, the same rules that exist for goods delivered under retention of ownership apply for goods created through processing, combination, blending, and/or mixing.
5.5 If the goods subject to retention of title or objects manufactured from these are installed in the property of a third party so that the goods subject to retention of title are a major component of the property, the Client hereby assigns the claims of the Client against its customer in the amount of the gross value of the goods to the User by way of security instead of the property rights to the goods subject to retention of title. The User hereby accepts this.
5.6 The Client is not permitted to pledge or assign as security the goods subject to retention of title. The goods subject to retention of title must be expressly excluded from the assignment of entire warehouse stocks as security. The User is obligated to release securities at the request of the Client, to the extent that the value of the securities exceeds the value of the claims to be secured by more than 20%.
5.7 In case of third-party access to the goods subject to retention of title, the Client will point out the ownership of the User and immediately inform the User. The Client is responsible for expenses and damages.
5.8 Authorization to resell the goods subject to retention of title and to collect the Client claims is automatically rescinded in case of default in payment or an insolvency application against the assets of the Client. The Client is obligated to disclose the assigned claims and their debtors upon request and to disclose all necessary information for collection and to surrender the related documents, particularly the business records.
5.9 In case of default of payment or another violation of a major contractual obligation by the Client, the User is entitled to repossess the goods subject to retention of title or to demand the assignment of the rights of surrender and to use the goods subject to retention of title. The utilization proceeds shall be credited against the obligations of the Client, minus the utilization costs. The Client reserves the right to prove that the utilization resulted in inappropriately high costs. Repossession and pledging of the goods subject to retention of title does not – if §§ 488 to 507 BGB are not applicable – constitute a withdrawal from the Contract. The provision above is also applicable if the Client wholly or predominantly ceases his business activities for a period of more than 6 weeks, regardless of the reason for the cessation.
5.10 If the goods subject to retention of title are delivered to a location outside of the Federal Republic of Germany or brought to such a location by the Client, the following primarily applies with regard to the provisions above: The Client shall ensure that the retention of ownership is effectively protected in the country in which the goods subject to retention of title are located or to which they are taken. If certain actions are necessary for this (e.g. a special marking or a local registration), the Client will perform this on behalf of the User at his expense. If the cooperation of the User is necessary, the Client will inform the User immediately. In addition, the Client will also inform the User of all major circumstances that are of importance for the most extensive protection of the property of the User. He will especially provide all documents and information that are necessary for the assertion of the rights with regard to ownership. The provisions in this No. are in effect accordingly, even if no retention of ownership can be effectively agreed upon pursuant to the legal system in the location where the goods subject to retention of title are located, for the creation of a legal position, which protects the interests and claims of the User in a similarly effective manner or in another suitable manner, to the extent that this is legally possible.
§ 6 Confidentiality, property rights, and copyrights
6.1 The Client is obligated to always treat all (not obvious) technical, economical, and personal processes and relationships of the User or a group-affiliated company of the User, of which he becomes aware in conjunction with the Contract, its offers, additional Services, discussions, and information, as company or business secrets of the User, to maintain confidentiality with regard to this, and to ensure that third parties (including family members and employees not involved with the matter) do not obtain unauthorized knowledge of this from him. The confidentiality obligation remains in effect even after the termination of the Contract.
6.2 The User retains ownership and the exclusive copyrights and exportation rights of all documents (e.g. written documents, plans, drawings, calculations, illustrations, patterns, samples, models, constructions) and confidential concepts and ideas that are provided to the Client or paid for by the User, pursuant to § 5. These documents, concepts, and ideas may not be given to third parties or otherwise made accessible without prior consent. It is only permissible to copy such documents within the scope of the requirements of the Contract and under consideration of the copyright provisions and the simple license granted by the User after the transfer of ownership. The documents must be returned in their entirety upon request at any time if the Client does not need the documents (any longer) to fulfill the Contract or to use the Service. Third parties who properly come into contact with the documents, concepts, and ideas shall be obligated by the Client accordingly. No right of retention may be exercised on the documents.
6.3 If the Client culpably violates his obligation from No. 6.1 or 6.2, he must pay a contractual penalty of 5% of the agreed-upon net order remuneration as a lump sum reimbursement for damages for each individual case of violation, unless the Client proves that the User suffered no damage or lesser damage. Additional claims of the User remain unaffected.
§ 7 Inspection and examination obligation, liability for material defects
7.1 Obvious defects, incorrect deliveries, or amount deviations must be immediately reported to the shipper and the User must be notified of this in writing immediately upon receipt or inspection of the Service. Hidden defects must be reported immediately upon determination (notification of defect). If the Client fails to report it in good time, the Service is considered to have been authorized and accepted. For Clients who are businessmen within the meaning of the Handelsgesetzbuch (the Commercial Code, the “HGB”), § 377 HGB it is also in effect.
7.2 After the notification of defect, the Client must immediately grant the User the necessary time and opportunity for inspection. In case of an unwarranted notification of defect, the Client shall bear the expenses caused by the inspection.
7.3 The User can refuse to eliminate the defects if the Client does not fulfill his obligations toward the User. The assertion of warranty claims and respective rights to refuse performance and rights of retention of the Client pursuant to No. I, No. 2.6 remain unaffected by this.
7.4 In case of a justified notification of defect of the Client, he has a right to two free repairs or to replacement delivery / new manufacture at the discretion of the User. If the second repair or replacement delivery / new manufacture is not successful within a reasonable period of time, the Client has legal rights, with the provision that the Client is only entitled to withdraw from the Contract if and to the extent that the Service has not yet been installed as a major component of a property. In this case, the Client is only entitled to reduce the purchase price. In case of a minor defect, the right to supplementary performance does not apply. § 8 of these General Terms and Conditions below is in effect for claims for damages.
7.5 The warranty of the User does not apply if the defect is unimportant or based on the fact that the Service was improperly stored, assembled, set up, commissioned, used, operated, changed, repaired, insufficiently maintained, excessively stressed, or connected to unsuitable parts or installed in such parts by the Client or third parties. The warranty also does not apply in case of defects caused by the use of unsuitable equipment and replacement materials, by defective construction work of the Client or third parties, unsuitable building sites, or due to chemical, electrochemical, or electrical factors. Sentence 1 and Sentence 2 do not apply if and to the extent that the Client proves that the defect was still caused by the Service of the User.
7.6 Claims of the Client due to a defect expire after one year, starting from the date of acceptance / delivery. Notwithstanding Sentence 1, the legal statutes of limitations are in effect for defects in Services that pertain to construction materials, construction components, a structure, or planning and monitoring services for a structure.
7.7 The statute of limitations does not begin again if a replacement delivery is made within the scope of liability for defects. The rights of the Client from §§ 478, 479 BGB remain unaffected by this.
7.8 Notwithstanding No. 7.6, § 8 of these General Terms and Conditions below has sole application for damage claims of the Client.
§ 8 Returns
8.1 Goods delivered by the User can only be returned if they are not soiled and/or damaged and are properly palletized and secured. The goods must be in re-salable condition.
8.2 The Client has no fundamental claim to return.
8.3 Special components / special orders cannot be returned.
8.4 Only goods from the current delivery program of the User are fundamentally returnable and only after written confirmation of the return by the User.
8.5 The User shall charge an amount of 30% of the net value of the goods as a processing fee for incoming goods inspection and restocking, but at least 120.00 Euro. Return deliveries must be freight prepaid for the User to the respective point of delivery of the original Client order. The risk is transferred at the ramp of the User.
8.6 If the returned goods are not received by the User in a salable condition, the Client is obligated to assume any reprocessing fees or disposal costs.
§ 9 Liability, claims for damages
9.1 No claims for damages of the Client that arise directly or indirectly in conjunction with the Service of the User may be exercised, regardless of legal reason.
9.2 This exclusion of liability is not in effect in case of a violation of a major contractual obligation (cardinal obligation). Cardinal obligations are obligations whose fulfillment makes the proper implementation of the Contract possible at all and the compliance of which the contracting partner regularly relies upon and may rely upon, meaning rights and obligations that are guaranteed by the content and purpose of the Contract. In this case, the liability of the User is limited to damages typical for the Contract. Damage claims of the Client, which are based on contractual penalty claims of the customers of the Client, are in no way foreseeable and typical for the Contract in the sense above.
9.3 The exclusions and limitations of liability above are not in effect for damages resulting in injury to life, limb, or health, which are caused by an intentional or negligent violation of an obligation by the User or by a legal representative or agent. The exclusions and limitations of liabilities are also not in effect for other damages that are due to intentional or grossly negligent violation of obligations by the User or one of his legal representatives or agents or if the damage was caused by malicious nondisclosure. In addition, claims pursuant to the product liability act are also unaffected.
Section III – Special provisions for the conclusion of online contracts
§ 1 Area of validity
1.1 The provisions of this Section are in effect for consumers within the meaning of § 13 BGB as well as for entrepreneurs within the meaning of § 14 BGB for all contracts, deliveries, and other services, if and to the extent that the Contract is concluded through the website of the User or other telemedia offerings of the User.
1.2 A consumer is any natural person, who concludes a legal transaction for purposes that primarily cannot be attributed to his commercial or freelance work.
1.3 An entrepreneur is a natural or legal person or a partnership with legal capacity, who is acting in the exercise of his commercial or freelance work when concluding a legal transaction.
1.4 Clients within the meaning of this Section are both consumers and entrepreneurs.
§ 2 Conclusion of a contract
2.1 The offers of the User on the website represent legally nonbinding offers and serve as an invitation to submit an offer (invitatio ad offerendum).
2.2 The Client has the opportunity to select the services listed on the website of the User by clicking on them, to place them in a shopping cart, and to thus create an order. The offer of the Client regarding the goods contained in the shopping cart is created by clicking on the “order for a fee” button after going through the ordering procedure. After submitting his order, the Client is immediately informed via email of the receipt of the order (order confirmation). This order confirmation also contains these General Terms and Conditions and the legal Client information.
2.3 The purchase contract is not created upon receipt of the order confirmation, but only when a delivery notice is sent by the User or the goods our delivered. If an order is placed and paid for by means of PayPal or advance bank transfer, the order is accepted upon payment prompt during checkout. If payment is not made by means of PayPal or advance bank transfer, the User is entitled to accept the contract offer in the order within 5 working days or to refuse the acceptance of the order without giving reason.
§ 3 Right of cancellation for consumers
3.1 If the Client is a consumer, the following applies:
Cancellation policy for the right of cancellation
You have the right to cancel this Contract within fourteen days without giving reason.
The cancellation period is fourteen days from the day on which you or a third party designated by you who is not the shipper received the goods. If you ordered several items in one order, which are delivered separately, the cancellation period is fourteen days from the day on which you or a third party designated by you who is not the shipper received the last item. If the goods are delivered in several partial deliveries or pieces, the cancellation period is fourteen days from the day on which you or a third party designated by you who is not the shipper received the last partial delivery or the last piece.
In order to exercise your right of cancellation, you must notify us of your decision to cancel this Contract at
MEA Bautechnik GmbH
Sudetenstraße 1, 86551 Aichach, Germany
Fax: +49 (0) 8251 91-1852
by means of a clear declaration (e.g. a postal letter, fax, or email). You can use the attached sample cancellation form for this purpose, but this is not required.
In order to comply with the cancellation deadline, it is sufficient for the notification of the exercise of the right of cancellation to be sent before the expiration of the cancellation period.
Consequences of the cancellation
If you cancel this Contract, we must return to you all payments that we received from you, including delivery costs (with the exception of Additional Costs resulting from the fact that you have chosen another type of delivery than the most reasonably priced standard delivery offered by us) immediately and no later than within fourteen days from the day on which the notification of your cancellation of this Contract was received by us. We will use the same means of payment for this repayment that you used in the original transaction, unless something else has been expressly agreed upon with you. We will in no case charge you a fee for this repayment. We can refuse repayment until we have received the goods again or until you have proven that you have returned the goods, whichever comes first.
You must send back or return the goods to us immediately and in any case no later than fourteen days from the day on which you informed us of the cancellation of this Contract. The deadline has been met if you ship the goods before the expiration of the deadline of fourteen days. You shall bear the immediate expenses for the return of the goods.
You must only pay for any loss in value of the goods if this loss in value is due to handling of the goods beyond what was necessary to ascertain the condition, characteristics, and function of the goods.
End of the cancellation policy
3.2 The right of cancellation does not exist for articles that are custom made to customer specifications.
3.3 In case of a cancellation, the Client shall bear the costs for the return of the goods.
§ 4 Prices, shipping costs, payment conditions
4.1 All payment obligations are due in Euro. All prices are final prices and especially include the respective legally valid value-added tax.
4.2 Unless stated otherwise, the delivery and shipping costs are not included in the prices. The incidental delivery and shipping costs are listed in the electronic order process as a flat shipping rate. Costs for packaging already included in the listed flat shipping rate.
4.3 The Client can pay for the Services of the User (i) via advanced bank transfer (“payment in advance”) or (ii) on account or (iii) by means of PayPal, whereas only payment by means of PayPal results in additional fees that are listed during the ordering process. The claim of the User to remuneration is due in full upon conclusion of the Contract when purchasing on account and must be paid within 14 days. When purchasing by means of PayPal or payment in advance, the claim to remuneration must be paid within seven days. It is only considered to have been fulfilled on the day on which the User can dispose of the entire invoice amount free of loss.
4.4 If the Client is in default of payment or reasonable doubts arise with regard to his ability to pay after the conclusion of the Contract, the User is authorized to wholly or partially withhold any outstanding Services from this and other contracts with the Client. Additional rights of the User remain unaffected by this.
§ 5 Delivery and transfer of risk
5.1 The User will ship the Service to the delivery address listed in the order of the Client. The goods will be shipped to the Client within one week (i) of the time the money is received or has been unreservedly credited to the account of the User when paying by advance payment (ii) when paying by invoice within 5 days of the mailing of the invoice by the User (iii) when paying by means of PayPal after receipt of the release by PayPal, unless the User informs the Client otherwise with the contract confirmation.
5.2 The User is entitled to partial performance under appropriate consideration of the interests of the Client. If partial deliveries are made, the Client will not be charged for additional shipping costs beyond the one-time flat shipping rate.
5.3 If the Client is a consumer, the risk of accidental loss and accidental deterioration of the goods is transferred to the consumer upon transfer of the goods. If the Client is an entrepreneur, the risk is transferred to the shipper, the carrier, or other person or institution tasked with implementation upon shipping of the goods. If the Client delays in accepting the goods, the transfer shall still be deemed to have taken place.
§ 6 Delivery delays
6.1 If the Client is an entrepreneur, the provisions in Section II, Nos. 4.1 and 4.2 are in effect accordingly for delivery delays by the User.
6.2 If the Client is a consumer, the User is entitled to withdraw from the Contract if he is not able to deliver the ordered goods through no fault of his own, because the subsupplier has not fulfilled his contractual obligations or if the goods ordered by the Client will not be available for a period of at least one month due to force majeure. In case of delivery difficulties of this nature, the User will immediately inform the Client. In case of a withdrawal pursuant to this item, the User will immediately reimburse the Client for any payments already made. Additional legal claims of the Client remain otherwise unaffected.
§ 7 Retention of ownership
7.1 If the Client is an entrepreneur, Section II. § 5 is in effect accordingly.
7.2 If the Client is a consumer, the User retains ownership of the Service pending complete payment of the total price.
§ 8 Warranty
8.1 If the Client is an entrepreneur, Section II. § 7 is in effect for the warranty of the User.
8.2 If the Client is a consumer, the legal provisions are in effect with regard to warranty.
§ 9 Liability, damages
9.1 Section II, § 8 is applicable for the liability of the User with regard to damages toward a Client, who is an entrepreneur.
9.2 If the Client is a consumer, the User is liable pursuant to the legal provisions, to the extent that liability is not excluded by the following provisions.
9.2.1 Liability for slightly negligent violation of obligations is excluded, unless damages resulting in injury to life, limb, or health or guarantees or warranties pursuant to the product liability act are affected. Liability for the violation of obligations whose fulfillment makes the proper implementation of the Contract possible at all and the compliance of which the contracting partner regularly may rely upon also remain unaffected (contractual obligations).
9.2.2 The provisions of No. 9.2 are also in effect for violations of obligations by agents of the User
Status: July 2017
General Terms and Conditions of MEA Metal Applications GmbH
§ 1 General definitions
1.1 In the following General Terms and Conditions (hereafter: GTCs) MEA Metal Applications GmbH will be denoted by the term “User”. The contractual partner of the User is denoted as the “Customer”, and the contractual relationship to be concluded, inclusive of all ancillary performances, advice and information, is denoted as the “contract”.
1.2 The subject of the contractual obligations of the User, in so far as these are directed at the sale and supply of items, is the “supply”. In each instance, “performances” relate to the performances to the Customer named in the user’s contract and/or order confirmation, irrespective of whether they are rendered in connection with the supply of products or not in connection with them.
§ 2 Validity of terms and conditions
2.1 The supplies/performances and offers of the User are subject exclusively to these GTCs. These will also apply to all future business dealings, even if the GTCs are not expressly agreed again. Any counter-confirmations on the part of the Customer with reference to his commercial and/or purchase terms and conditions are herewith rejected.
2.2 All agreements made between the User and the Customer for the execution of the contract must be in writing. Amendments and additions to the contract and/or its appendices as well as any waiver of the requirement for the written form must be submitted in writing. There will be no verbal subsidiary agreements.
§ 3 Offer – Offer documents – Scope of supply and performances
3.1 Offers by the User are non-binding. The documents, information and performance specifications forming part of the offer are approximate values as customary within this sector. The User is entitled to sell on the supply to a third party between the offer and acceptance. Orders by the Customer are only binding for the User if they were expressly confirmed in writing by the User or if the User has provided the supply/performance. A confirmed order may only be amended by the Customer with the User’s written approval and allowing for any conditions the User may have imposed. This also applies to any changes to these General Terms and Conditions.
3.2 The supply and/or performance – insofar as the performance is aimed at achieving a specific commercial outcome or the creation of works – need only have the characteristic properties as stated in writing in the contract. These characteristic properties form the definitive description of the supply/performance. The User is entitled to change unilaterally the characteristic properties if this is done due to legal requirements or if it represents a technical improvement and the suitability for the use specified in the contract is not affected by this.
3.3 The conformity of Customer-provided materials and semi-finished products with the contractual specifications or submitted drawings and samples submitted will only be checked by the User after a written agreement with the Customer. The Customer is responsible for the correctness and completeness of the documents and information that he makes available to the User.
3.4 The User reserves all the rights without limitation, on any cost estimates, drawings, samples, specimens, diagrams or other documents (“documents”) which it may make available to the Customer. The Customer is not entitled to make the documents themselves, nor their content, available to third parties without the prior written agreement of the User. On being requested to do so by the User, the Customer is obliged to release all documents immediately and in their entirety to the User if, in the normal course of business, they are no longer required by the Customer or an order placement by the Customer is ultimately not forthcoming.
§ 4 Prices and price components
4.1 The prices specified by the User are net prices – weighed ex works. Freight costs, value-added tax and other costs associated directly with the execution of the contract (“additional costs”) are not included. Unless stated otherwise in the contract, all the User’s price information is given in euro. Provided a respective agreement has been reached, the prices are made up of the basic price + metal surcharge (MTZ) + energy surcharge (EZ).
4.2 The Customer is only obliged to pay additional costs where these have actually been incurred and the User, at the request of the Customer, is able to furnish supporting evidence.
4.3 The price is the price stated by the User, or, where not stated in a particular case, the price given in the current price lists of the User at the time of the order. Should a substantial increase in material and manufacturing costs have occurred, a change in suppliers be necessary, or exchange rate fluctuations, currency regulations, customs changes have occurred between the time of ordering and the time of supply/performance that is beyond the control of the User and which will entail substantial financial costs for the User, then the User, after having notified the Customer in good time and before the supply/performance provision, is entitled to raise the agreed price by an appropriate amount. Where a price increase of over 10% takes place, the Customer is entitled to terminate the contract, unless the price adjustment (e.g. a change to the MTZ or EZ) was agreed in the order.
4.4 If the User, as a gesture of goodwill and without acknowledging any legal obligation, takes back a supply, then the User is entitled to compensation for costs in the amount of 10% of the invoice value for the respective supply. The amount must be reduced if the Customer can prove that the actual cost must be applied at a lower rate than the flat rate given in sentence 1.
§ 5 Terms of payment
5.1 The Customer must pay for the supplies/performances of the User after their provision within 30 days of the date of the invoice and without any deductions. If and while no accounts receivable from the Customer to the User from previous supplies/performances are outstanding, the User will grant the Customer a 2% discount on the net value of the goods upon payment within 14 days from the invoice date. The timeliness of the payment will depend upon the date of the payment receipt or unconditional credit to the User’s account.
5.2 Payment must be made primarily in cash, or – if a cash payment is not possible – by a bank transfer to the User. The User is not obliged to accept payment by check or a bill of exchange; in each instance, the presentation of a cheque or bill of exchange may only be made on account of performance. Such a presentation shall not constitute the deferment of the account receivable. All costs associated with the encashment of a cheque or a bill of exchange will be chargeable to the Customer. If the Customer’s payments are made by payment methods which the Customer has secured by discounting a bill of exchange, the payment claim shall be deemed to have been satisfied only once the bill of exchange has been honoured by the Customer.
5.3 Should the Customer not fulfil his payment obligations within the period specified in Paragraph 5.1 (“Payment delay”), the User is entitled to demand due date interest at 8% above the base interest rate applicable at the time, as most recently publicised in the Federal Gazette by the Federal Bank, from the payment deadline.
5.4 In the event of a delayed payment, the User is entitled to demand a one-off payment of 1% of the invoice value, but 50 euro as a minimum, as compensation for the resulting administration costs. The amount must be reduced if the Customer can prove that the actual cost must be applied at a lower rate than the flat rate given in sentence 1.
5.5 Should the Customer be in default with a payment obligation or should circumstances arise through which the financial standing of the Customer worsens or his credit worthiness is affected, all other accounts receivable from the Customer to User will become due immediately. In such a case, the User is entitled to withdraw from the contract and/or, after giving prior written notice to the Customer, to withhold further supplies/performances until full payment is made and/or there is a change in circumstances as per sentence 1.
5.6 Provided it is permitted by law, the Customer may only offset the User’s claims for payment with undisputed, legallyenforceable counter-claims for payment, or counter-claims that are ready for a decision. The same applies to an assertion of the right of retention, including the rights stemming from § 369 of the German Commercial Code.
5.7 Where material reasons are present, and in deviation from Paragraph 5.1, the User may also demand payment before provision of the supply/performance. Paragraph 5.3 and Paragraph 5.4 shall not apply to payments before provision of the supply/performance.
§ 6 Terms of delivery, deliveries, risk of loss
6.1 Supply/performance dates or deadlines may be agreed as either being binding or non-binding.
6.2 An agreement concerning delivery or performance times will only be binding if this has been declared expressly and in writing by the User.
6.3 Supply and performance delays attributable to force majeure or events that make the supply/performance not just considerably more difficult or impossible temporarily for the User – such events include, in particular, strikes, lock-outs and government regulations, even if they occur with the User’s suppliers or their sub-suppliers – are not the responsibility of the User, even in the case of bindingly agreed dates and deadlines. They entitle the User to delay the supply/performance by the duration of the disruption, plus an appropriate ramp-up time, or, in the case of the impossibility of the
supply/performance because of the part of the contract not yet performed, to withdraw fully or partially from the contract if the User has taken all reasonable measures to redress the impairment in contract performance. Sentences 1 and 2 apply accordingly in the case of delays in supply or performance attributable to documents and information, which the User considers as necessary for the supply/performance, but which have not been made available in good time by the Customer to the User ahead of the supply/performance.
6.4 If the delay in supply/performance exceeds one month, the Customer is entitled, after the setting of a reasonable time limit, to withdraw from the not-yet-fulfilled part of the contract.
6.5 Where the User is responsible for the non-adherence to bindingly agreed time periods and fixed dates and is in default, the Customer may claim delay compensation at a rate of 0.5% of the invoice value for the respective supply/performance for every full week of the delay, however up to a maximum of 5% of the invoice value for the respective supply/performance. The amount must be reduced if the User can prove that the actual damages must be assessed at a lower rate than the flat rate given in sentence 1. Any claims over and above this are excluded, unless the delay is deliberate or due to gross negligence on the part of the User.
6.6 The User is entitled to provide partial supplies or performances at any time, unless such partial supplies or performances are of no benefit to the Customer. The User has the right to transfer the rights and obligations from the contract to a third party, including the provision of the supply/performance.
6.7 If a supply/performance takes place in response to a call-forward from the Customer, the Customer is obliged, at least four weeks prior to the provision of the supply/performance, to notify the User in writing of the call-forward, giving a detailed description of the supply/performance and stating the supply/performance date.
6.8 The place of supply/performance is always the factory or the despatch warehouse of the User (“ex works”). If the goods are delivered ex works, the risk of loss is transferred to the Customer at the point in time at which the User advises the Customer that the goods are ready for collection.
6.9 If the goods are supplied free carrier (FCA), the place of transfer is the registered office of the User. Freight costs are to be borne by the Customer, unless the User is responsible for transport, contrary to Paragraph 4.1.
6.10 If the User dispatches the goods at the request of the Customer, the risk of transportation shall be borne by the Customer, irrespective of who bears the freight cost. This applies in particular to despatch or transport by the User, without a delivery obligation deemed as agreed with the Customer. Should despatch be delayed as a result of circumstances for which the Customer is responsible, the loss risk is transferred to the Customer from the day the goods are ready for despatch. Should the Customer default in acceptance, the loss risk is transferred to the Customer at the time at which the User offers to hand over supplies.
6.11 If the User bears the freight costs either in full or in part, the User retains the right to specify both the route of despatch and the mode of despatch. If the Customer requests a different route and/or mode of despatch and if the User conforms to this request, the Customer will bear the difference in costs between the route and/or mode of despatch requested by him and the route and/or mode of despatch specified by the User. Otherwise Paragraph 6.10 applies accordingly.
6.12 In the cases of Paragraph 6.10, the User will undertake storage at the Customer’s risk and expense.
6.13 If supplies/performances take place delivery free site, the Customer must ensure usable access roads, i.e. roads which can be used by a loaded heavy tractor-trailer unit. Any possible delays, costs, damages and off-loading times will be borne by the Customer.
§ 7 Reservation of ownership
7.1 Until the full settlement of all accounts receivable (including all unsettled balances from any current account), which the User is entitled to from the Customer, presently or in the future, irrespective of the legal basis, the ecurities listed in the following paragraphs will be conferred to the User. The User will release these securities upon request at his discretion, provided their value effectively exceeds the total and the value of all accounts receivable by over 20%.
7.2 The User will remain the owner of all goods supplied. Any processing or reshaping will always be performed for the User as manufacturer, but without any obligation for the User. Should the User’s ownership cease through an amalgamation of goods, it is now already agreed that the Customer’s ownership of the unitary item will transfer, pro rata according to value (invoice value) to the User. The Customer will safeguard the User’s property without remuneration. Goods to which the User is entitled to ownership will be designated hereinafter as “reserved-title goods”.
7.3 The Customer has the right to process and sell the reserved-title goods as a part of regular business, as long as he is not in payment arrears with the User. Pledges or transfers of ownership by way of security are not permissible. The Customer assigns to the User in advance in full, by way of security, all accounts receivable with respect to the reserved-title goods (including all unsettled balances in any current account) which arise from a resale or any other legal grounds (insurance, prohibited action). The User authorises the Customer, subject to revocation, to collect on the User’s account and in its name the accounts receivable assigned to the User. This collection authorisation may only be revoked if the Customer does not properly fulfil its payment obligations. On being requested to do so by the User, the Customer will disclose the assignment and give him the required details and information.
7.4 In the case of seizure of the reserved-title goods by third parties, the Customer will point out the User’s ownership and advise him of this without delay. All costs and damages will be borne by the Customer.
7.5 Where the Customer acts in contravention of his obligations – in particular payment default – the User retains the right to take back the reserved-title goods or, if necessary, to demand assignment of the Customer’s property repossession rights against third parties. The act of repossession and the act of seizure of the reserved-title goods by the User does not constitute a withdrawal from the contract.
7.6 If and as long as reserved-title goods are built into the premises of a third party as a substantial component by the Customer, then the Customer will already assign claims for receivables arising against the third party or against whomsoever it concerns, to the value of the reserved-title goods with all additional rights incl. such for the grant of a security mortgage; the User will accept such an assignment. The Customer is authorised to effect the registering of a security mortgage but is obliged, at the demand of the User, to transfer the rights to the User (cf. §§ 1153, 1154 Para. 3, 873, German Civil Code). Cash payments, bank transfers or payments by cheque, which are made against remittance of a bill of exchange, issued by the User and accepted by the Customer, are only valid as fulfillment in accordance with sentence 1, if the bill of exchange is redeemed by the drawee and thus the User is released from the liability on the bill of exchange. The agreed retention of ownership (irrespective of any continuing agreements) therefore remains in favour of the User until the bill of exchange is redeemed.
§ 8 Commercial patent rights and copyright
8.1 If and in so far as a third party asserts justified claims against the Customer due to the violation of an industrial property right or copyright (hereinafter known as “property rights”) through a supply/performance developed and/or provided by the User, the User is liable as follows, as long as there are no opposing legal provisions:
a) The User will at his discretion and at his expense either obtain a right of use for the developed and/or provided supply/performance, alter the supply/performance in such a way as to no longer be in violation of the property right, or exchange the supply/performance if the use of the supply/performance designated in the contract is not affected by this. If and in so far as the User cannot definitively grant to the Customer the contractually owed right of use through the measures named in sentence 1, the Customer has the right, after a reasonable time-scale, to withdraw
from the Contract.
b) The User is only obligated to carry out the measures in a) sentence 1, if the Customer reports the claims being asserted by the third party to the User without delay in writing and with an indicative description of the infringement, does not concede the existence of an infringement and if the Customer grants without limitation to the User all decision making authorities with regard to the legal defence and the carrying out of settlement negotiations. Should
the Customer cease to use the supply/performance to reduce the amount of damage or for other significant reasons, he is obliged to point out to the third party that the cessation of use does not constitute acknowledgement of infringement of a property right.
8.2 The Customer’s entitlements according to Paragraph 8.1 are excluded if and in so far as the Customer is responsible for the property right infringement. The Customer’s claims are further excluded if and in so far as the property right infringement is caused by the special requirements of the Customer, by a usage that the User was unable to foresee, or due to the fact that the supply/peformance was altered or used by the Customer together with supplies/peformances not provided by the User.
8.3 The Customer is obliged to support the User to the best of his ability in the defence against the property right infringement.
8.4 Conversely, the Customer exempts the User from all claims by third parties, which the latter may make against the User due to an infringement of an industrial property right or copyright, if the infringement results from a specific instruction of the Customer to the User or the Customer alters the supply/peformance or integrates it into a third party’s system.
8.5 Programmes and accompanying documentation made available by the User are only intended for the sole use of the Customer within the context of a simple, non-transferable licence, and exclusively for supplies/peformances supplied by the User. The Customer may not make these programmes and this documentation accessible to third parties without the prior written agreement of the User, not even in the case of the User’s hardware being sold on. Copies may only be made – without the User accepting any costs or liability – for archival purposes, as a replacement or for fault-finding. Where the originals carry a comment on the protection of copyright, this must be included by the Customer on the copies as well.
§ 9 Liability for quality defects, acceptance and testing
9.1 The User’s liability for material defects for supplies – and for peformances as long as the peformance is aimed at achieving a specific commercial success or the construction of works – shall be governed by statutory provisions, unless a contrary arrangement below has been agreed.
9.2 Where the User has made a sample or a specimen available to the Customer prior to or after the conclusion of the contract, the condition of the samples and specimens may differ, unless another has been expressly agreed. Sentence 1 applies accordingly to drawings, depictions, dimensions, weights and other data which the User makes available to the Customer prior to or after the conclusion of the Contract.
9.3 Any material defect claims of the Customer will lapse 12 months after supply/peformance. The period commences irrespective of whether the Customer knows of any defect in the supply/peformance, from the time of hand-over to the Customer.
9.4 The Customer is obliged to inspect the supply/peformance directly after hand-over. The Customer must advise the User immediately in writing of any obvious defects found during inspection of the supply/peformance, and any other defects immediately after their discovery, giving a description of the defect and the time of its discovery. If the Customer does not conform properly and punctually to this obligation to disclose, the supply/peformance is deemed to have been approved by the Customer. Initially, the Customer may only demand supplementary performance from the User. The User may, by way of supplementary performance, at his discretion undertake to repair the defect or supply a fault-free item. Should the supplementary performance by the User fail, legal rulings will apply, provided that the Customer only has the right to withdraw from the Contract, if and in so far as the goods have not yet been built in as an integral component part of a landed property. In this case the Customer is only entitled to reduce the purchase price. In the case of an insignificant fault, the right to supplementary performance is excluded.
9.5 In the case of an infringement of a supply/peformance obligation by the User which does not consist of a defect in the supply/peformance, the Customer is only entitled to withdraw from the contract if the User is responsible for the infringement of the supply/peformance obligation. The User is not responsible for the supply/peformance working fault-free in conjunction with other products.
9.6 In so far as there are no opposing statutory regulations, material defect claims by the User are excluded in the following cases:
a) The Customer has had changes made to the supply/peformance by a third party or has processed the supply/peformance;
b) The Customer disregards the User’s specific instructions for use in connection with the supply/peformance, in particular the enclosed or attached processing and/or assembly instructions, or he uses accessories or spares unknown to the User in connection with the User’s supplies/peformances;
c) The Customer does not use the supply/peformance for the contractually intended purpose and/or for the usual purpose, does not assemble it faultlessly or does not put the supply/peformance into operation correctly, in the light of current scientific and technical knowledge;
9.7 If the supply/peformance is defective, the Customer may, provided there are no opposing statutory regulations, only assert a claim for compensation for damages against the User under the following additional conditions:
a) If and in so far as the User does not provide a supply/peformance which is due, or does not provide it as required under the Contract, the Customer must set in writing for the User a reasonable time-limit for the supply/peformance. The time-limit must include the explanation that the Customer will refuse to accept the supply/peformance after expiry of the time-limit. If the time-limit set by the Customer expires with no outcome, the claim for the
supply/peformance is excluded.
b) If the Customer is asserting claims on account of a defect, the User is entitled to demand from the Customer that the latter should explain in writing to the User, within a period of 2 weeks from exercising the withdrawal, whether he is adhering to the withdrawal or whether instead he will demand compensation for damages. Should the Customer not exercise his right of choice vis-à-vis the User, the Customer’s claim for compensation for damages will be excluded.
9.8 In so far as acceptance is agreed, the Customer is obliged to undertake this within one week after the User has advised of completion. The Customer is also obliged to accept the peformance if insignificant defects are present which do not particularly prevent usage.
9.9 In case the Customer, for reasons for which he is responsible, does not accept the peformance, or he accepts the peformance and does not complain about any significant defects within ten days after usage, the peformance is considered to have been accepted.
9.10 Fabrication and performance delivery by the User in connection with gratings shall take place in accordance with the guidelines of RAL-GZ 638 in the version that is valid when the contract is concluded. Unless otherwise agreed in writing, all inspections will take place in the factory of the User. An inspection in the presence of the Customer or his 5 representative must be separately agreed in writing between the parties and must take place no later than the date of
acceptance at the factory of the User.
§ 10 Amount of damages
10.1 Irrespective of the legal basis, the User is liable for damages which can be traced back to a defect in the supply/peformance itself or to a treatment or neglect, only to the extent of damage typical under such a contract and predictable damage, and only within the following limits:
a) unlimited, in the case of intent or gross negligence by lawful representatives, an employee or other vicarious agents of the User;
b) limited to the invoice value of the peformance, in the case of a culpable violation of significant contractual obligations (cardinal obligations) by the User, his lawful representative or other vicarious agents without intent or gross negligence.
10.2 The User is only liable for damages that can be traced back to the conduct of an employee or vicarious agent, if these persons have acted in the execution of their work. The User is also exempt from this liability if the damage is due to circumstances which, even with the greatest of care, he could not avoid and the consequences of which he could not avert (e.g. strike, force majeure).
10.3 The liability of the User is limited, per incidence of damage for risks insured by the User, to the liability total of the company liability insurance taken out by the User.
10.4 Any liability by the User for the loss of data and programmes and/or their recovery, is again restricted solely to the scope of Paragraph 10.1 and 10.2 and only to the extent that this loss could not have been avoided through reasonable preventative measures undertaken by the Customer, in particular the daily production of back-up copies of all data and “accuracy checks” programs.
10.5 Any additional liability on the part of the User is excluded, unless mandatory legal provisions stipulate otherwise. In particular, the User shall not be liable for violations of ancillary obligations, lack of economic success, lost profits, indirect damages, consequential damages and damages from claims by third parties against the Customer.
10.6 The limit of liability according to Paragraphs 10.1 to 10.5 does not apply to damages to body, life and health.
§ 11 Advertising, labelling
In the case of public statements by the manufacturer, the User, an employee or other agent on the characteristics of the peformance or supply (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) in particular in advertising or in labelling, it is assumed that these statements were not causal in the signing of the contract by the Customer.
§ 12 Legal domicile, applicable law, severability clause
12.1 The Customer may not transfer the rights and obligations stemming from the contract with the User to third parties without prior written agreement of the User.
12.2 For any disputes arising from or in connection with the contract and the fulfillment thereof, the legal domicile is Aichach.
12.3 The law of the Federal Republic of Germany applies exclusively to all relationships between the Customer and the User. The application of the UN Agreement on the Purchase of Goods dated 11th April, 1980 is excluded.
12.4 Should one of the clauses in these General Terms and Conditions be or become invalid, unworkable or incomplete, this will not affect the validity of the remaining clauses. A clause will be deemed as agreed, in place of the invalid, unworkable or missing clause, which the parties would have reasonably agreed if they had been aware of the invalidity, unworkability or the incompleteness.