Terms and Conditions
General Terms of Delivery and Payment of Melcher + Frenzen Armaturen GmbH, 42551 Velbert,
(Commercial Register: Wuppertal HR B 17233)
Our deliveries and services are exclusively carried out based on the following conditions that are recognised by placing an order or accepting a delivery or service. Differing conditions of a customer are not a part of a contract, even if we do not contradict these separately. Such contractual conditions are already contradicted at this point.
1. Offer and Conclusion of a Contract
1.1 Our offers are always without engagement. They are simply an invitation to the customer to submit an offer of an order. A contract is only formed with our written order confirmation. Verbal agreements - including those concerning the version, dimensions and the like in the case of custom-made orders - need to be in writing in order to be valid. Agreements with our commercial employees, as long as they do not have the power of representation, require our written confirmation.
1.2 The documents supplied by the customer (data, drawings, samples, models, etc.) are decisive for us; the customer is responsible for the correctness of their contents, their technical feasibility and completeness; we are not obliged to check these.
1.3 It is the customer's responsibility that the rights of third parties are not infringed upon by the use of the documents he has supplied. He shall hold us non-actionable, as well as safe and harmless with regard to any damages that result from such an infringement of a right.
1.4 We shall invoice any delivered samples requested by the customer - unless agreed otherwise.
2.0 Scope of Obligation
2.1 Our written order confirmation is decisive for the content and scope of our supplies or services. Our data pertaining to deliveries or services (such as weights, dimensions, tolerances, quality, technical data) as well as our layouts of the same (such as drawings and illustrations) are approximate figures, which are customary in this line of business, inasmuch as an exact conformity has not been explicitly agreed an a specific case. If nothing else has been explicitly agreed in a specific case, this data does not imply any commitment, guarantee with regard to attributes, quality or durability or any other guarantees, but simply serve to give a description or distinctive feature of the delivery or service. Customary deviations and deviations that are based on legal provisions or represent technical improvements, as well as the use of other equivalent components, constructions or materials is admissible without consulting the customer, as long as their use does not impair the contractually intended purpose.
2.2 The above applies accordingly to data used in our catalogues, prospectuses, promotions or advertising concerning dimensions, weights, quality, durability, performance values, as well as shipping weights, crate dimensions and similar specifications, inasmuch as they are data pertaining to quality in a certain case. Data used in order confirmations prevail on all accounts over data used in catalogues, prospectuses, promotions or advertising.
2.3 Data given to us about the product by the customer for custom-made orders with regard to weight, dimensions and any other quantities are subject to a tolerance of +/- 10%, unless, in an individual case, an exact conformity has been explicitly agreed.
3. Prices and Payment
3.1 Our prices refer to the scope of delivery and service ex works stated in the order confirmation, if nothing else has been agreed, however without the required VAT and packaging. Valid prices for orders, for which fixed prices have not been expressly agreed, are calculated based on their day of delivery.
3.2 The customer bears all the costs associated with transportation, including insurance. The customer shall also bear the costs for providing any possible official approvals required, such as those for import approvals, etc.
3.3 All taxes, fees and any other duties incurred outside the Federal Republic of Germany are to be paid by the customer. We need the VAT identification number for deliveries to other countries within the European Union and a written conformation that the goods have been received. If these details or documents are missing, we are entitled to charge the current amount of VAT required in Germany.
3.4 On account of payment, cheques and - after prior agreement - drafts can be accepted. Discount and collecting charges are to be paid by the customer. When a payment target is granted, the due date for all types of payment is taken to be the day we are able to draw on the transferred sum.
3.5 When payment is made within 14 days after the date of the invoice, we give a 2% discount. Otherwise our invoices are to be paid within 30 days net cash. Discount deductions are possible, apart from cash payments, for cheques, as long as the payment deadline is met, that is if we can draw on the amount on the cheque within 14 days. On the other hand, we cannot grant a discount for drafts due to the remaining credit risk.
3.6 If the customer completely or partially falls in arrears with his payment, he shall - independent of any further rights - pay the officially recognised amount of interest on arrears from this time on. The raising of a claim for further damage is not ruled out.
3.7 If we realise, after a contract has been concluded that our claim to consideration in return is endangered, due to the customer's lack of ability to pay (in particular, if the customer has completely or partly fallen into arrears with his payment, foreclosure is being carried out on the customer's assets, the customer has stopped paying or he is seeking a scheme of arrangement or a moratorium), we are entitled to demand advanced payment or the furnishing of security amounting to the then still outstanding demand for payment before deliveries out of the contract or other contracts yet to be made are carried out. This also applies if we have accepted a draft for the then still outstanding demand for payment. If the customer fails to meet the demand for advanced payment or to furnish security after a reasonable time period, we are then entitled to withdraw from the contract and to demand pecuniary damages.
3.8 The withholding of payments on the part of the customer or the customer's balancing of accounts with counter claims is only admissible if and inasmuch as the counterclaims are indisputable or have become legally binding.
4.0 Packaging, Delivery and Shipment
4.1 The costs for packing the goods to be delivered are born by the customer. The packaging is calculated at its original cost and 2/3 of the price is credited to the customer in the case of crates, if he returns them completely to us without delay in a good condition and without any further cost to ourselves, at the latest however within 3 weeks after receiving the delivery. If - possibly for forwarding by air or sea transport - special packaging is required for transporting the goods, the details must be explicitly agreed between the customer and ourselves in each case. Customary packaging expenses are charged for such custom-made packaging.
4.2 The delivery is always ex works and carried out at the customer's risk. The risk is born by the customer as soon as the forwarding agent or carrier or whoever forwards the goods picks up the goods, at the latest however when the goods leave our factory or warehouse. This also applies to part deliveries or if we have taken on other services, such as dispatch costs or carriage. If the dispatch is delayed due to circumstances over which we have no control or lie with the customer, the risk is born by the customer when he is notified that the goods are ready for shipment.
4.3 The weights and quantities determined at time of dispatch are relevant for issuing the invoice. The volume of the order in each case is relevant for granting bulk discounts. In the case of orders called up in part, the called amount is relevant in each case.
5. Delay and Impossibility
5.1 Deadlines and dates for deliveries and services are always considered to be approximations, unless a fixed delivery deadline or a fixed delivery date has been agreed. In the case of agreements with a deadline, this starts with the date of the order confirmation, and not before the documents to be presented by the customer are received (such as data, drawings, approvals, samples, models) nor before any possible releases are to be clarified by the customer. The delivery deadline is extended by the period of time in which the customer has not fulfilled his obligations with us. This does not effect our rights with respect to a possible delay on the part of the customer.
5.2 Under the same premises under which a delivery deadline begins later or is extended, a fixed delivery date is also shifted.
5.3 Delivery deadlines and dates have been kept when the goods have been supplied before the same. If the customer has to pick up the goods, the delivery deadlines and dates are considered to have been kept when the customer is notified that the goods are ready.
5.4 If the despatch or acceptance is delayed for reasons that lie with the customer, we are entitled, beginning two weeks after notification that the goods are ready has been given, to charge the customer for the costs incurred by storing the goods. We are also entitled, however, after a reasonable deadline has been set and expired to no avail, to sell the goods elsewhere. In such a case the delivery period starts again.
5.5 In cases of force majeure or other interfering occurrences that could not have been predicted when the contract was concluded (such as all types of operational disturbances, transportation delays, strikes, official lock outs, governmental measures, difficulties in procuring materials or energy, unfavourable weather conditions, as well as non-delivery, incorrect or belated delivery on the part of our suppliers), for which we are not responsible, and that make the supply considerably more difficult or impossible, we are entitled to withdraw from the contract, as long as the interference is not of a temporary nature and we have not taken on a procurement risk. If a withdrawal from the contract occurs, the consideration already provided shall be returned. § 275(2) of the BGB (German Civil Code) remains unaffected.
5.6 In the case of disturbing events of a temporary nature - including those within a delivery default - the delivery deadline is extended by the duration of the disturbance plus an appropriate initiating period.
5.7 When a disturbing event occurs, we shall inform the customer immediately. The customer can demand that we inform him whether we want to deliver within a reasonable period or withdraw from the contract.
5.8 Inasmuch as the customer cannot be expected to accept the delivery due to the delay incurred, he can, in an immediate written declaration based on the notification of the disturbing event, withdraw from the contract with us.
5.9 Any claims to pecuniary damages in the cases under items 5.5 - 5.8 are ruled out.
6.0 Guarantee
6.1 The customer's claims and rights based on all types of defects are subject to the following provisions, and any others are ruled out:
6.2 Delivered goods shall be carefully inspected by the customer immediately after their receipt. The delivery is counted as accepted when a claim in the form of a written notice of defects is not received within five working days after the delivery has arrived or, in the case of defects that cannot be seen, immediately after they have been discovered, at most, however, within a year after the goods have been received. All letters of claim shall be submitted in writing immediately, at the latest, however, within five working days, in the case of defects that cannot be seen immediately after they have been discovered, at most, however, within a year after the goods have been received.
For claims to pecuniary damages for reasons mentioned under § 309 Item 7 of the German Civil Code, as well as for mandatory claims to pecuniary damages, the official follow-up periods are valid.
6.3 We are obliged to replace defects free of charge, including the necessary expenses, when they have been submitted on time and are justified. However, we can refuse the kind of replacement chosen by the customer, if this is associated with disproportional costs. The customer can choose between, a reduction in price or his withdrawal from the contract when a replacement fails.
6.4 We are only liable for defects in the delivered goods to the extent that they were incurred by circumstances that took place before the risk for the goods was passed on, in particular for a faulty construction or an inadequate design and were caused when the goods were used in a normal way. Other defects that are caused by normal wear and tear, improper treatment, unauthorised modification or improvement, etc. are excluded from our liability if we were not responsible for the defect.
6.5 If delivered goods that the customer saw to be defective were nevertheless installed, we are not liable for the costs of removal and reinstallation.
6.6 The returning of goods has to be explicitly agreed with us. They are to be returned by the forwarding agent or postal service stipulated by us. The cost of returning the goods is born by the customer, unless the reason for returning the goods is our fault (for example defects we have caused or an incorrect delivery we have instigated).
7. Reservation of Ownership
7.1 All items we supply (reserved goods) remain our property until all obligations in connection with the business connection have been paid, including those that might occur in future. Drafts and cheques count as payment only after they have been drawn on.
7.2 The customer is entitled to draw on his reserved goods within the scope of orderly business transactions. Any further rights to draw on goods, such as pledging, assigning as security or sale after payment has been stopped, are not permitted without our written consent. The customer is obliged to notify us immediately in the case of any pledging, confiscation or other third-party dispositions and to send us copies of the corresponding documents.
7.3 If the customer sells reserved goods on credit, the purchase-money claims in favour of the customer are passed on to us for security's sake as soon as they come into existence. The customer is entitled to draw on these purchase-money claims until we prohibit him from doing so based on a delay in payment or an expiry of his assets. In such a case, the customer shall, on demand, inform us for security's sake about every transferable claim and hand over a declaration of assignment in duplicate.
7.4 If the customer acts contrary to the terms of the contract, particularly with regard to delayed payment, we are entitled to withdraw from the contract and to take back the reserved goods after a peremptory order of time or warning has been issued and the customer is obliged to hand over the goods. After the reserved goods have been returned, we are entitled to resell them, whereby the resulting returns less reasonable reselling costs are to be offset against the customer's debt with us.
7.5 If the customer's assets expire, we are entitled to demand that the reserved goods are handed out immediately. What is stated under Item 7.4 is applicable to the reselling of the reserved goods. Undated demands are also immediately due in such a case. Submitted drafts are to be cashed in immediately, no matter when they are due.
7.6 We are entitled to make the fulfilment of current sales contracts dependent on advanced payments or the provision of security, inasmuch as this appears to be advisable due to the customer's financial position.
7.7 If the customer has processed, connected or mixed the reserved goods with other goods that do not belong to us, we become partial owners of the new product to the proportion of the price of the reserved goods in the sum of the value of the other goods used.
8. Place of Fulfilment, Jurisdiction, Applicable Law, Partial Ineffectiveness
8.1 These terms of delivery only apply to companies; selling our goods to consumers is not envisaged.
8.2 The place of fulfilment for all obligations resulting from this contract is the location of our Company.
8.3 The place of jurisdiction for all litigations resulting from this contractual relationship, as well as its origin and effectiveness, including draft and cheque proceedings, is the court that has jurisdiction at our Company's location. However, we reserve the explicit right to instigate legal action at any other justified place of jurisdiction, such as at the customer's location.
8.4 The contractual relationship is subject to the law of the Federal Republic of Germany. The application of the rules in the United Nations Agreement with regard to contracts on the international sale of goods - CISG - is ruled out.
8.5 The ineffectiveness of individual provisions in these Terms of Delivery does not mean that the whole contract or the other terms of delivery become invalid. The parties to the contract are obliged to make a new rule instead of the ineffective provision that provides the targeted economic success and which is as close to the ineffective provision as possible.
9. Data Protection
9.1 The customer's data - inasmuch as required by law or are necessary for our business relationship - shall be processed and used by us. We shall treat data referring to individuals in line with the regulations laid down in Federal Data Protection Law.