Terms and conditions
1. General provisions, customers, language
(1) All offers, sales contracts and deliveries shall be subject exclusively to these General Terms and Conditions of Sale and Delivery of MEZ-TECHNIK GmbH, Bierwiesenstrasse 7, D-72770 Reutlingen, Commercial Register at Stuttgart District Court HRB 353071, VAT ID DE 811 993 105, in the version applicable at the time the order is placed. They shall be an integral part of all contracts concluded between MEZ-TECHNIK and its contract partners (hereinafter also referred to as the “Purchaser”) for the supply of the goods and services offered. They shall also apply to all future goods delivered, services rendered or offers submitted to Purchaser, even if they are not expressly agreed upon again.
(2) The terms and conditions of Purchaser or third parties shall not apply, even if Seller does not expressly objects to their application in each individual case. Even if Seller makes reference to a document which contains or refers to terms and conditions of Purchaser or a third party, this shall not constitute an agreement to the application of such terms and conditions.
(3) Our product range is intended exclusively for entrepreneurs. For the purpose of these General Terms and Conditions of Sale and Delivery, “entrepreneur” means any natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession (Sec. 14 (1) BGB – German Civil Code).
(4) Contracts with Purchaser will be concluded exclusively in German, English or French.
2. Offers, conclusion of contracts
(1) All our offers shall be non-binding and subject to confirmation, unless they are expressly designated as binding or contain reference to a specific acceptance deadline. The placement of an order by Purchaser shall constitute a binding offer to purchase the corresponding product. We shall be entitled to accept orders within fourteen days of receipt.
(2) The legal relationship between Purchaser and us shall be governed exclusively by the sales contract, including these General Terms and Conditions of Sale and Delivery, which contains the entire agreement and understanding between the Parties with respect to the subject matter. Any oral commitments given prior to conclusion of this contract shall be non-binding and any oral agreements between the Parties shall be replaced by the written contract, unless they expressly state that they continue to be effective and binding.
(3) Any amendments and modifications to the agreements made, including these General Terms and Conditions of Sale and Delivery, must be made in writing to be effective. Except for managing directors or authorised signatories, our staff members shall not be entitled to make any deviating oral agreements. Transmission by means of telecommunication, in particular by fax or by email, shall be deemed sufficient to observe the written form requirement.
(4) Our specifications concerning the goods or services (e.g. weights, dimensions, value in use, load capacity, tolerances and technical specifications) as well as our illustrations of the same (e.g. drawings and images) shall only be approximate, unless their usability for the contractually intended purpose requires exact conformity. They shall not constitute warranted quality features, but descriptions or characteristics of the goods or services. Deviations which are usual in commercial practice and deviations which are based on legal provisions or constitute technical improvements as well as the replacement of components by equivalent parts shall be permissible to the extent that the usability for the contractually intended purpose is not affected.
3. Prices, shipping costs and terms of payment
(1) The prices shall apply to the scope of services and delivery stated in the order confirmation. Additional or special services will be charged separately. The prices are quoted in EURO ex works (Incoterms 2010), exclusive of packaging and value-added tax, in the case of export deliveries exclusive of customs duties as well as fees and other public charges. The deduction of discounts is subject to a special written agreement.
(2) To the extent that the agreed prices are based on our list prices and the delivery is not carried out until more than four months after conclusion of the contract, the list prices applicable upon delivery shall apply.
(3) In the absence of a written agreement to the contrary, invoice amounts shall be paid in full within thirty days. Delivery to new customers will only be made against advance payment. The date of receipt by us shall be decisive for the timeliness of the payment. If Purchaser fails to pay the invoice amount by the due date, interest of 9% p.a. shall be payable on the outstanding amounts from the due date; the right to charge higher interest and assert further claims for compensation in the event of default shall remain unaffected.
(4) Purchaser shall only be entitled to exercise rights of setoff or retention if his claims are uncontested or have been finally established.
(5) We shall be entitled to deliver outstanding goods or provide outstanding services only against advance payment or provision of security if we become aware of circumstances after conclusion of the contract that are likely to substantially affect Purchaser’s creditworthiness or jeopardise the payment of our outstanding claims by Purchaser under the corresponding contractual relationship (including those arising from other individual orders that are covered by the same framework agreement).
4. Delivery and delivery period
(1) Deliveries will be made ex works (Incoterms 2010).
(2) All delivery deadlines and dates stated by us shall always be only approximate, unless a fixed deadline or fixed date has been expressly assured or agreed. Where shipping has been agreed, the delivery deadlines and delivery dates refer to the date of handover to the forwarding agent, carrier or other third party commissioned to take care of the transport.
(3) We shall be entitled – notwithstanding our rights based on default on part of Purchaser – to demand from Purchaser that the delivery and performance deadlines be extended or the delivery and performance dates be postponed by the period in which Purchaser fails to meet his contractual obligations towards us.
(4) We shall not be liable for impossibility of delivery or delays in delivery to the extent that they are caused by force majeure events or other events beyond our control that were not foreseeable upon conclusion of the contract (e.g. operational interruptions of any kind, difficulties of material or energy supply, delays in transport, strikes, legitimate lockouts, shortage of workforce, energy or raw materials, difficulties obtaining the necessary permissions from authorities, measures imposed by regulatory authorities, non-delivery, incorrect or untimely delivery by our suppliers). Where such events make it much more difficult or impossible for us to deliver the goods or provide the services and the hindrance is not only temporary, we shall be entitled to withdraw from the contract. In the event of temporary hindrances, the delivery or performance periods shall be extended and the delivery or performance dates shall be postponed by the duration of the hindrance plus a reasonable start-up period. If Purchaser cannot be reasonably expected to accept the delayed goods or services, he shall be entitled to withdraw from the contract by submitting an immediate written declaration to us.
(5) If we default on the delivery or goods or provision of services or are unable to deliver the goods or provide the services, no matter for what reason, our liability for compensation shall be limited pursuant to Sec. 8 of these General Terms and Conditions of Sale and Delivery.
5. Place of performance, shipping, packaging, transfer of risk, acceptance
(1) In the absence of an agreement to the contrary, the place of performance for all obligations arising from the contractual relationship shall be our place of business.
(2) The shipping method and the type of packaging shall be subject to our due discretion.
(3) The risk shall pass on to Purchaser no later than upon handover of the item (with the beginning of the loading process being decisive) to the forwarding agent, carrier or other third party commissioned to take care of the transport. This shall also apply if partial deliveries are made or if we have agreed to provide additional services (e.g. shipping or installation). If the shipping or handover is delayed as a result of circumstances in Purchaser’s sphere of responsibility, the risk shall pass on to Purchaser as soon as the item is ready for shipment and we have notified Purchaser thereof.
(4) Any storage costs after transfer of risk shall be borne by Purchaser. Where goods are stored by us, the storage costs will amount to 0.25% of the invoice amount of the delivered items to be stored per full week of storage. The right to claim higher storage costs and provide evidence of lower storage costs shall remain unaffected.
(5) We will only insure the shipment against theft, breakage, damage in transit, fire and water damage or other insurable risks at Purchaser’s express request and at his expense.
6. Warranty, material defects
(1) The delivered items shall be thoroughly inspected immediately after receipt by Purchaser or a third party named by him. They shall be deemed accepted by Purchaser if we do not receive a written notice of apparent defects or other defects recognisable upon immediate thorough inspection within seven working days of delivery. As regards other defects, the delivered items shall be deemed accepted by Purchaser if we do not receive a notice of defects within seven working days of the point in time at which the defect became apparent; if the defect was already recognisable during normal use at an earlier date, however, this earlier date shall be decisive for the commencement of the deadline for notification of defects. Upon our request, the defective item shall be returned to us carriage paid. If the notice of defect is justified, we will reimburse the costs of the cheapest shipping route; this shall not apply if the costs increase because the delivered item is located at a place other than the place of intended use.
(2) When ordering custom-made products, product variants, bulk materials and items not kept in stock, it should be noted that production-related quantity variations may occur.
(3) If the delivered items exhibit material defects, we shall be obliged and entitled to either rectify the defect or provide substitute delivery within a reasonable period. If the cure fails despite at least two attempts, i.e. in the event of impossibility, unreasonableness, refusal or undue delay of the rectification of defects or substitute delivery, Purchaser shall be entitled to withdraw from the contract or reduce the purchase price by a reasonable amount.
(4) If the defect is based on our fault, Purchaser shall be entitled to claim compensation subject to the conditions set forth in Sec. 8.
(5) If components of other manufacturers exhibit defects which we cannot rectify because of licensing restrictions or for other reasons, we undertake to either assert our warranty claims against the manufacturers and suppliers for the account of Purchaser or assign these claims to Purchaser. In the case of such defects, warranty claims can only be asserted against us under the other conditions and in accordance with these General Terms and Conditions of Sale and Delivery if the legal enforcement of such claims against the manufacturer and supplier has failed or is futile, e.g. due to insolvency. For the duration of the legal dispute, the limitation period for the corresponding warranty claims of Purchaser against us shall be suspended.
(6) The warranty shall expire if Purchaser modifies the delivered item or allows a third party to do so without our consent, making the rectification of the defect impossible or unreasonably difficult. In any case, any resulting extra costs of the rectification shall be borne by Purchaser.
(7) The delivery of used items arranged with Purchaser on a case-by-case basis shall take place to the exclusion of any warranty for material defects.
(8) According to the present state of the art, the faultlessness and/or permanent availability of data communication via the Internet cannot be guaranteed. For this reason, we accept no liability for the permanent and uninterrupted availability of our online trading system.
7. Proprietary rights
(1) In accordance with this Sec. 7, we guarantee that the delivered item is free from any industrial property rights and copyrights of third parties. Both Parties undertake to notify each other in writing without delay if claims are asserted against them based on the infringement of such rights.
(2) In the event that the delivered item infringes the industrial property rights or copyrights of a third party, we undertake, at our own expense, to either modify or replace the delivered item in such a way that the rights of third parties are no longer infringed but the delivered item continues to fulfil the contractually agreed functions or obtain the right of use for Purchaser by concluding a licence agreement. If we are unable to do so within a reasonable period, Purchaser shall be entitled to withdraw from the contract or reduce the purchase price by a reasonable amount. Any claims for compensation on part of Purchaser shall be subject to the limitations set forth in Sec. 8 of these General Terms and Conditions of Sale and Delivery.
(3) In the event that products of other manufacturers delivered by us infringe any rights, we undertake to either assert our claims against the manufacturers and upstream suppliers for the account of Purchaser or assign these claims to Purchaser. In such cases, claims in accordance with this Sec. 7 can only be asserted against us if the legal enforcement of such claims against the manufacturers and upstream suppliers has failed or is futile, e.g. due to insolvency.
8. Liability to pay compensation based on fault
(1) Our liability to pay compensation, no matter on what legal ground, in particular based on impossibility, default, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, shall, to the extent that such liability depends on proof of fault, be limited pursuant to this Sec. 8.
(2) We shall not be liable in the event of slight negligence of our executive bodies, legal representatives, staff members or other agents, unless material contractual obligations are breached. Material contractual obligations include the obligation of timely delivery and installation of the delivered item, its freedom from defects which affect its functionality more than just insignificantly as well as the duties of advice, protection and care which are to enable Purchaser to use the delivered item in the contractually agreed manner or are aimed at protecting the life and limb of Purchaser’s personnel or his property from considerable damage.
(3) To the extent that we are liable to pay compensation on the merits pursuant to Sec. 8 (2), our liability shall be limited to the compensation of damage which was foreseeable upon conclusion of the contract as a possible consequence of a breach of contract or should have been foreseeable by applying due care. Furthermore, indirect and consequential damage shall only be eligible for compensation to the extent that such damage can be typically expected when using the delivered item as intended.
(4) In the event of slight negligence, our liability to pay compensation for material damage and any resulting additional financial loss shall be limited to EUR 2,500,000.00 (in words: two million five hundred thousand) per claim, limited to two times the sum insured per insurance year (in accordance with the current sum insured of our product liability insurance or general liability insurance), even if material contractual obligations are breached.
(5) The foregoing exclusions and limitations of liability shall apply to the same extent in respect of our executive bodies, legal representatives, staff members and other agents.
(6) To the extent that we provide technical information or advisory services and this information and advice is not included in the contractually agreed scope of services, this shall take place free of charge and to the exclusion of any liability.
(7) The limitations of liability set forth in this Sec. 8 shall not apply to our liability for wilful intent, warranted quality features, injury to life, limb or health or our liability in accordance with the Product Liability Act.
9. Limitation period
(1) The warranty period shall be twelve months from the date of delivery.
(2) Special statutory regulations for real claims for recovery of third parties and fraud on part of Seller shall remain unaffected.
(3) The foregoing limitation periods under sales law shall also apply to Purchaser’s contractual and non-contractual claims for compensation based on a defect of the goods, unless the application of the regular statutory limitation period would lead to a shorter limitation period in the specific individual case. The limitation periods under the Product Liability Act shall remain unaffected in each case.
(4) Apart from that, in particular in the event of injury to life, limb or health, Purchaser’s claims for compensation pursuant to Sec. 8 shall be subject exclusively to the statutory limitation periods.
10. Retention of title
(1) The provisions on retention of title set forth below serves to secure all our present and future claims against Purchaser arising from the supply relationship between the Parties (including balance claims from a current account agreement limited to this supply relationship).
(2) We shall retain the title to the delivered goods until all secured claims have been paid in full. The goods as well as the goods subject to retention of title taking their place in accordance with the provisions below are hereinafter referred to as the “retained goods”.
(3) Purchaser shall keep the retained goods for us free of charge.
(4) Purchaser shall be entitled to process and resell the retained goods in the normal course of business until enforcement (paragraph 9). Pledging and transfer as security are not permissible.
(5) If Purchaser processes the retained goods, it is agreed that the processing shall take place in our name and for our account and that we immediately acquire the ownership or – if the processing involves materials of more than one owner or the value of the processed item exceeds the value of the retained goods – the co-ownership (ownership in fractional shares) of the newly created item in proportion of the value of the retained goods (invoice total incl. VAT) to the value of the newly created item. In case we should not acquire such ownership, Purchaser hereby transfers to us as security his future ownership or – in the above proportion – co-ownership of the newly created item. If the retained goods are combined with other items to form a uniform item or inseparably mixed with other items and one of the other items is regarded as the main item, we shall, to the extent that the main item belongs to us, transfer to Purchaser the proportionate co-ownership of the uniform item in the proportion stated in sentence 1 above.
(6) In the event that the retained goods are resold, Purchaser hereby assigns to Seller as security the resulting claim against the purchaser – if Purchaser holds co-ownership of the retained goods, proportionately in accordance with his share of co-ownership. The same applies to other claims that take the place of the retained goods or otherwise arise in respect of the retained goods, such as insurance claims or tort claims in case of loss or destruction. Seller authorises Purchaser on a revocable basis to collect the assigned claims in his own name. Seller may only revoke this collection authorisation in the event of enforcement.
(7) In the event of seizure of the retained goods by third parties, in particular by way of attachment, Purchaser shall immediately inform that third party of our ownership and notify us to enable us to enforce our rights of ownership. If the third party is unable to reimburse us for the judicial or extrajudicial costs arising in this connection, Purchaser shall be liable to reimburse us for these costs.
(8) We undertake to release the retained goods as well as the items or claims taking their place if their value exceeds the value of the secured claims by more than 50%. We shall be free to select the items to be released.
(9) If we withdraw from the contract (enforcement) due to breach of contract on part of Purchaser – in particular default of payment –, he shall be entitled to demand return of the retained goods.
11. Data privacy
12. Final provisions
(1) If Purchaser is a merchant, a legal person under public law or a special fund under public law or has no general jurisdiction within the Federal Republic of Germany, the place of jurisdiction for any and all disputes arising from the business relationship between us and Purchaser shall be, at our option, Tübingen or Purchaser’s place of business. In the event that legal action is brought against us, however, the exclusive place of jurisdiction shall be Tübingen. Mandatory statutory provisions governing exclusive jurisdiction shall remain unaffected by this regulation.
(2) The relationship between us and Purchaser shall be subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) To the extent that the contract or these General Terms and Conditions of Sale and Delivery contain any gaps or omissions, those legally valid regulations shall be deemed agreed to fill these gaps which the Parties would have agreed upon with a view to the economic objectives of the contract and the purpose of these General Terms and Conditions of Sale and Delivery, had they been aware of the gap or omission.
(4) In case of doubt, the INCOTERMS 2010 shall be decisive for the interpretation of commercial terms.