General Terms of Sale and Delivery
Kettenfabrik Mester GmbH
1. Scope of the General Terms of Sale and Delivery
1.1 Our General Terms and Conditions of Sale and Delivery (hereinafter also referred to as our Terms of Delivery) shall apply exclusively. They apply when we deliver goods to the contractual partner or provide other services to the contractual partner. Terms and conditions of business of the contractual partner that deviate from our Terms and Conditions of Delivery shall not apply. However, our Terms of Delivery shall only apply if the contractual partner is an entrepreneur, a legal entity under public law, or a special fund under public law.
1.2 The contracting party shall be notified in writing of any amendments to our Terms of Delivery. They shall be considered to have been approved if the contractual partner does not object in writing. We shall point out this consequence when announcing the changes. The contractual partner must send their objection to us within one month after the changes are announced.
2. Conclusion of the contract
2.1 Our offers are subject to change and only represent an invitation to the contractual partner to place an order.
2.2 The order of the contractual partner is a binding offer to conclude a contract. We can accept this offer at our discretion within two weeks by sending a written order confirmation or by starting the execution of the service ordered within the period such that this can be recognized by the contractual partner. The contract is concluded upon acceptance.
3. Prices and payments, rights of retention of the contracting party; offsetting; loss of profit in case of rescission
3.1 Unless otherwise agreed to, our price list shall apply. Prices are ex works excluding packaging, transport, shipping, and assembly. Our prices are net prices. The corresponding statutory value added tax (VAT) shall be charged separately.
3.2 In the case of contracts where the period between the conclusion of the contract and the delivery date (delivery period) is more than four months, we reserve the right to increase the prices in accordance with the cost increases incurred due to collective bargaining agreements or increases in material prices.
3.3 Unless otherwise agreed to, the following shall apply to payments: a) Our claims shall be paid immediately without deduction, but no later than 14 days, after invoicing and providing the product or service. This shall not constitute an advance performance obligation for us. Likewise, rights of retention and the right to object if the contract is not fulfilled shall remain unaffected. b) Our invoices shall be paid without a discount unless explicitly agreed otherwise. In addition to meeting all conditions agreed to with the contractual partner, application of the discount requires full payment of our legitimate and undisputed claim within the discount period. If payment is not made in due time or not in the amount owed, then a deduction for discount is completely inadmissible. Furthermore, a deduction for discount shall always be subject to the condition that the contractual partner is not in arrears with any other of our claims.
3.4 The contractual partner has the right to object without restriction if the contract is not fulfilled and the statutory requirements are met. The following provisions shall apply to other rights of retention. The contractual partner shall only be entitled to a right of retention with regard to claims that are undisputed and have been or are expected to be established. Rights of retention may only be asserted to the extent of and in the amount corresponding to the value of the counterclaim. We shall be entitled to defer rights of retention by providing collateral security, which may also be provided in the form of a bank guarantee; the collateral security shall be deemed to have been provided no later than when the contractual partner defaults on acceptance of the security.
3.5 The contractual partner may only offset claims against our claims that are undisputed and have been or are expected to be established.
3.6 If we are entitled to withdraw from a contract for a reason for which the contractual partner is responsible, we may demand 25% of the net purchase price as compensation for loss of profit, subject to proof of greater damage, an agreement to the contrary, or Section 7.2. The contractual partner shall be entitled to prove that no damage or significantly less damage has been incurred. The fixed amount shall then be reduced accordingly.
4. Rights of retention in our favor, deliveries, default of acceptance
4.1 If the contractual partner is in arrears with payments of any kind to us or our payment claim is jeopardized by a lack of solvency on the part of the contractual partner, then we shall be entitled to refuse all further products and services and to demand payment in advance unless the contractual partner provides adequate collateral. A lack of solvency shall be assumed in particular if bills of exchange or checks are protested or if the limit set by a credit insurer and previously agreed to by us and the contractual partner is exceeded or would be exceeded by the intended delivery. A lack of solvency shall also be deemed to exist if the limit set by a credit insurer for the contractual partner is reduced or rescinded unless the contractual partner proves that the decision of the insurer regarding their lack of solvency is unjustified. Finally, lack of solvency shall be deemed to exist if there is a significant deterioration in the contractual partner’s credit rating issued by a recognized credit agency unless the contractual partner proves that the deterioration in the credit rating was unjustified. A lack of solvency shall be deemed to exist in the aforementioned cases until evidence to the contrary has been provided by the contractual partner.
4.2 Other rights of retention/rights to refuse service in our favor shall remain unaffected.
4.3 An agreed delivery date shall be extended appropriately if the contractual partner fails to provide documents, records, materials, or similar items in due time that are necessary to process the order.
4.4 We may make reasonable and appropriate partial deliveries and invoice them separately unless the contractual partner expresses a special interest in a full delivery.
4.5 The contractual partner can request us in writing to deliver within a reasonable period of time two weeks after exceeding a non-binding delivery date or a non-binding delivery period.
4.6 If delivery is delayed at the behest of our contractual partner or for reasons for which the contractual partner is responsible, then we shall be entitled to demand a flat-rate storage fee of 0.5% of the net value of the goods for each week or part thereof, but no more than 5% of the net value of the order. The contractual partner shall have the right to prove that no costs or only lower costs were incurred; the flat-rate storage fee shall then be reduced accordingly. We reserve the right to prove higher costs or greater damage was incurred.
5. Transport risk
The risk of accidental loss and accidental deterioration shall pass to the contractual partner upon delivery of the goods/services to the forwarding agent, the carrier, or the person or agency otherwise designated to carry out the shipment or, in cases where the goods/services are transported by our own employees, upon transfer of the goods/services to the employs and departure from our premises. This shall also apply when we bear the cost of shipping or the shipment is made directly from the location of our supplier. In the latter case, though, only if it is possible for the contractual partner to recognize that delivery does not begin from our location.
6. Force majeure, reservation of self-delivery
6.1 Cases of force majeure shall release us from the fulfillment of our delivery (service) obligation until the force majeure ceases to exist. Delivery periods shall be extended and delivery dates shall be postponed for the duration of the force majeure event. This shall not apply if we are responsible for the service hindrance. However, we are not responsible for force majeure events even if they occur at a time when we are already in default of delivery. The impossibility of procuring a sufficient supply of raw and auxiliary materials, the impossibility of procuring means of transport, strikes, and lockouts shall be deemed equivalent to a case of force majeure; Articles 1 and 2 shall apply accordingly. We shall inform the contractual partner immediately of the occurrence of the force majeure event and the extension of the delivery period or the postponement of the delivery date. If the service hindrance lasts longer than six weeks, both we and the contractual partner may withdraw from the contract; the contractual partner may withdraw from the contract even before this if provision of the product or service at a later date would be of no interest to him. In the event of withdrawal, we shall immediately refund any down payment or similar payments already received.
6.2 We reserve the right to timely and correct self-delivery.
7. Retention of title
7.1 We shall retain the title to all items to be delivered by us (hereinafter also referred to as “goods subject to retention of title”) until all our claims against the contractual partner arising from the business relationship have been settled. In the event of transfer to a current account, the retention of title shall apply to the respective balance (both the abstract and the causal balance).
7.2 In the event of a breach of contract by the contractual partner, in particular in the event of default in payment, we shall be entitled, after setting a reasonable deadline, to take back the goods subject to retention of title; the contractual partner shall be obliged to surrender them. The demand to return the goods shall constitute a rescission of the contract. The setting of a deadline in accordance with Article 1 shall be waived if we are also entitled to withdraw from the contract without setting a deadline. The actual proceeds from the realization of the goods subject to retention of title shall be credited to our claims against the contractual partner after realization and after deduction of the realization and acceptance costs. We shall be entitled to sell the goods on the open market.
7.3 The contractual partner is obliged to insure our property against fire, water, breakage, theft, and other damage. The claims against the insurer shall be assigned to us. If the contractual partner does not prove to us on request that sufficient insurance coverage is available, then we shall be entitled to insure the goods subject to retention of title against theft, breakage, fire, water, and other damage at the contractual partner’s expense.
7.4 In the event of seizures, confiscations, or other dispositions or interventions by third parties, the contractual partner shall notify us immediately. Insofar as the third party is not able to reimburse us for the judicial or extrajudicial costs of an action pursuant to Section 771 of the German Code of Civil Procedure (ZPO) or other legal remedy to assert our property rights, the contractual partner shall be liable for the loss incurred by us.
7.5 The contractual partner may process the goods subject to retention of title in the ordinary course of business or resell them upon agreement on an extended retention of title. The contractual partner shall not be entitled to any other dispositions. Furthermore, the contractual partner shall not be entitled to agree with its customer on an assignment prohibition or on any other prerequisites (e.g. requirements for consent) which impede assignment. The contractual partner’s right to process and dispose of the goods shall expire if he defaults on its payment obligations to us, otherwise grossly violates the contracts concluded with, us or suffers from a deterioration of assets. The cessation of payments, over-indebtedness, or application for the opening of insolvency proceedings, unless this is unjustified, compulsory execution measures by third parties against the goods subject to retention of title, and any other serious change in the financial circumstances of the contractual partner which may lead to a risk to our security shall be considered a deterioration of assets.
7.6 The processing or modification of the goods subject to retention of title by the contractual partner shall be carried out for us. In the event of joint processing for several suppliers, we shall be entitled to co-ownership of the new item in the ratio of the value of our item(s) to the other processed items at the time of processing.
If the goods subject to retention of title are inseparably combined or mixed with other items not belonging to us, then we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the other combined or mixed items at the time of combination or mixing. If the combination or mixing takes place in such a way that the contractual partner’s item is to be regarded as the main item, then the contractual partner shall hereby assign us a co-ownership share in the main item in the ratio of the value of our item to the value of the main item. The contractual partner shall hold the co-owned item in safe custody for us.
In addition, the same shall apply to the items resulting from the processing or combination or mixing as to the goods subject to retention of title.
7.7.1 The contractual partner hereby assigns to us all claims arising from the resale of the goods subject to retention of title. The following shall apply to assignment:
a) If the sale takes place after processing, combination, or mixing, then the contractual partner hereby assigns to us a portion of the claims arising from the resale corresponding to our co-ownership share in the sold item if co-ownership has arisen through processing, combination, or mixing.
b) If the sale takes place along with items owned by third parties without it being evident which part of the claim from the resale is attributable to our goods subject to retention of title, the contractual partner shall hereby assign a part of the claim arising from the resale corresponding to the ratio of the value of our goods subject to retention of title to the value of items owned by third parties.
c) In the event that the claim from the resale assigned in accordance with all of the above provisions in Section 7.7.1 has not been determined yet at the time the assigned claim arises, the contractual partner shall assign to us the claims resulting from the resale in the amount of our final invoice (gross sales price of the corresponding goods subject to retention of title).
7.7.2 The contractual partner hereby assigns to us the claims accruing to it against a third party as a result of combining of the goods subject to retention of title with real property or another item to be regarded as the main item. This shall apply regardless of whether the combining is done by the contractual partner or a third party.
7.7.3 The contractual partner hereby assigns to us compensation claims against credit insurers if and to the extent that insurance coverage exists for the claim assigned to us or to be assigned in accordance with the above provisions. The contractual partner hereby assigns to us the claims accruing to it from the sale of the claims assigned to us to a factoring company. Without prejudice to the effectiveness of the above assignment to us according to property law, the assignment of the claims assigned to us under the extended retention of title is only possible and permitted for the contractual partner within the framework of genuine factoring (i.e. if the factor assumes the risk of the solvency of the debtor of the claim).
7.7.4 If the contractual partner agrees with its customer or other third party (e.g. the credit insurer, the factoring bank, etc.) on a current account relationship in which the claim arising from the resale (combination with real property/another item as the main item) or the claim against the credit insurer/factor bank is included, then the contractual partner hereby assigns to us the balance of the current account (both abstract and causal) in the amount of the claim arising from the resale (connection with a property/another item as the main item), in particular the claim to the closing balance upon termination of the current account; in the cases of Section 7.7.3, the said balance shall be assigned in the amount of the claim assigned pursuant to Section 7.7.3.
7.7.5 The contractual partner shall be entitled to collect the assigned claims in the ordinary course of business. The contractual partner’s authority to collect shall expire in the cases specified in Section 7.5. Our authority to collect the claim ourselves shall remain unaffected; however, we shall undertake not to collect the claim as long as the contractual partner duly meets its payment obligations and is not in default of payment. If the contractual partner defaults on payment, then he shall be obliged to notify us of the assigned claims and their debtors, to provide all information required for collection, to hand over the relevant documents, and to notify the debtors of these claims of the re-assignment. We shall not disclose the assignments to us to third parties (or request the contractual partner to disclose such) and shall not collect the claims until we have previously set the representative partner a grace period of at least one week to settle our claims against him unless immediate disclosure/collection is feasible.
7.8 We undertake, at the request of the contractual partner, to release the securities to which we are entitled under these Terms of Delivery at our discretion to the extent that their realizable value exceeds the total claim to be secured by more than 20%. The realizable value shall take into account any existing liability for value added tax (Article 13(c) of the Value Added Tax Act (UStG)).
8. Obligations of the contractual partner to provide information, our performance, right of modification
8.1 Obligations of the contractual partner to provide information
8.2 If the wheels for the calibrated chains are not ordered at the same time, then the corresponding wheels are to be sent in immediately after receiving an order confirmation from us for the purpose of exact calibration of the chains.
8.3 In particular, slogan-like designations that refer to generally recognized standards, the use of trademarks or quality marks, or the submission of samples or test specimens shall not in themselves constitute the assumption of a guarantee or warranty.
8.4 We reserve the right to make minor changes if there is a compelling necessity or a significant interest on our part and the changes are reasonable for the contractual partner. Minor changes are only those changes that do not have a noticeable negative impact on the value or quality of our products and services and do not have a relevant impact on the overall impression (e.g. material changes to hidden parts, minimal dimensional changes, etc.). A compelling necessity for these changes exists if we are otherwise unable to provide our products or services (e.g. because one of our suppliers has made material changes; because certain areas are inaccessible); there is a significant interest for us if the provision of the product and/or service originally agreed to would involve a disproportionate effort, taking into account the scope of the changes and the legitimate interest of the contractual partner. A change is unreasonable for the contractual partner if the contractual partner has a legitimate interest in the product and/or service originally agreed to (e.g. minor dimensional changes when this means that the product and/or service can no longer be used by the contractual partner); this definition does not constitute a change in the burden of proof to the detriment of the contractual partner. Properties that we have guaranteed shall not be covered by the right of modification pursuant to Section 8.4.
9. Warranty (claims for defects from the contractual partner)
9.1 Complaints and notifications of defects. If the contractual partner is a merchant, Sections 377, 381 of the German Commercial Code (HGB) shall apply to deliveries of goods and contracts for work and services. With regard to notices of defects, the following letters c) and d) shall also apply. For all other cases as well as when Sections 377, 381 of the German Commercial Code (HGB) do not apply (e.g. for contracts for work and services), the following shall apply:
a) We must be notified of obvious defects within two weeks of delivery/completion of our services. We shall be notified of detected defects within two weeks of their discovery unless our product and/or service is already considered to have been approved in accordance with letter b). If we are not notified, then our product and/or service shall be considered to have been approved. This shall not apply if we are culpable of intent or gross negligence with regard to a defect. Claims for damages of the contractual partner in cases of injury to life, body, or health as well as claims for damages of the contractual partner if we are culpable of intent or gross negligence shall not be affected by the non-compliance with the obligation to notify.
b) Insofar as it is feasible in the ordinary course of business, the contractual partner shall inspect our product and/or service upon receipt and notify us of any defects discovered within two weeks. If no such notification is issued, then our product and/or service shall be considered to have been approved. If the inspection is omitted, then our product and/or service shall be considered approved unless it would have been impossible to detect the defect during an inspection. This shall not apply if we are culpable of intent or gross negligence with regard to a defect. Claims for damages of the contractual partner in case of injury to life, body or health as well as claims for damages of the contractual partner if we are culpable of intent or gross negligence shall not be affected by the non-compliance with this notification/inspection obligation.
c) The notifications (letters a) and b)) as well as notices of defects according to Sections 377, 381 of the German Commercial Code (HGB) must be made in writing (text form is sufficient). In order to comply with the time limit, prompt dispatch shall suffice if we receive the notification/notice of defect. d) Any processing of a notice of defect/complaint by us, in particular the inspection of the goods upon return from the contractual partner, shall in no case constitute a waiver of the contractual partner’s duty to comply with the obligation to issue a notice of defect/complaint.
9.2 Warranty (claims for defects from the contractual partner)
a) We guarantee that our products are free of material defects or defects of title. The standard for the contractual compliance of our products and/or services shall be the respective contractual description of the products and/or services and their known and approved purpose of use in the contract which we have concluded with the contractual partner. Insignificant changes to the services with regard to color, shape, layer thickness, design, and other aspects of the values specified in the description as well as other insignificant changes are to be accepted by the contractual partner provided they are reasonable or they are within customary quantity, quality, or design tolerances. The change is reasonable in the sense of the above if the legitimate interests of the contractual partner are unaffected, in particular if the value or use by the contractual partner is unaffected.
b) In the event of a defect, we shall be entitled at our own discretion to eliminate the defect or to deliver a defect-free item (subsequent fulfillment). In the event of subsequent fulfillment, we shall be obliged to bear all expenses necessary for the purpose of subsequent fulfillment, in particular for transport, travel, labor, and material costs unless these are disproportionately increased by the fact that the goods have been relocated to a place other than the place of fulfillment.
In case of failure of the subsequent fulfillment, the contractual partner may reduce the price (reduce the payment) or, if the object of the contract is not construction work, withdraw from the contract at its own discretion; the right of withdrawal shall not exist if any of the following apply:
aa) The infringement (i.e. the defect) is immaterial.
bb) The contractual partner is solely or predominantly responsible for the circumstance that would entitle him to withdraw from the contract.
cc) The circumstance, for which we are not responsible, occurs at a time when the contractual partner is in default of acceptance. Parts objected to by the contractual partner shall only be returned to us at our request and, if necessary, in proper packaging and with a packing slip enclosed stating the order number. Upon request, we shall make an advance payment for the costs of the return shipment.
c) We may refuse subsequent fulfillment if it is only possible at disproportionately high cost. This shall be the case in particular if – the expenses associated with the elimination of the defect are expected to exceed the amount of 100% of the market value of the performance; – in the case of subsequent delivery, the costs of replacement procurement by us exceed the amount of 150% of the market value of the item.
The other legal rights of the contractual partner (reduction, withdrawal, compensation for damages, compensation for futile expenses) shall remain unaffected.
d) Unless otherwise stipulated by law, the contractual partner shall first grant us a reasonable period of time for subsequent fulfillment in writing before asserting any other warranty rights. As a general rule, we shall be granted a period of at least two weeks for subsequent fulfillment; this shall not apply if a different period is contractually agreed in individual cases or if a shorter period is required, e.g. in urgent cases where excessive damage is imminent. If subsequent fulfillment is not achieved within this period, then the contractual partner shall be entitled to assert its legal rights, in particular to withdraw from the contract, to declare a reduction in price or – subject to the conditions set out in Section 10 below – to claim damages. It is not necessary to set a deadline if the subsequent fulfillment has failed.
e) The limitation period for claims due to material defects (warranty) is 12 months from the date of delivery of the item or, if necessary, acceptance of the delivery. This does not apply in the following cases:
aa) In the case of purchase contracts for structures and for items that have been used for a structure in accordance with their customary use and have caused the structure to be defective
bb) In the case of contracts for work and services relating to structures and for work whose success depends on the provision of planning or supervision services for such structures and works
cc) In cases where we are culpable of intent or gross negligence with regard to the defect
dd) For damage claims of the contract partner when we are culpable of intent or gross negligence
ee) For damage claims of the contract partner in case of injury to life, body, or health.
For completed work performed for subsequent fulfillment or spare parts supplied under warranty, a warranty shall only exist until the expiration of the limitation period for the original delivery unless the limitation period was interrupted or suspended due to the subsequent fulfillment.
f) Self-help in accordance with Section 637 of the German Civil Code (BGB) is only permissible in all cases if we are in default and do not remedy the defect within a reasonable period of time even though a deadline was set. This shall not imply a reversal of the burden of proof to the detriment of the contractual partner.
g) The existing rights of the contractual partner mentioned in Sections 478, 479 of the German Civil Code (BGB) shall remain unaffected by the provisions of these Terms of Delivery, with the exception of the claim for damages, if the contractual partner is rightfully held liable by its customer and the defect was already present at the time of the transfer of risk from us to the contractual partner.
10. Compensation for damages
10.1 Our liability for compensation for damages shall be limited in accordance with the following insofar as it is based on fault or an obligation to represent. We shall be liable for damages arising from fault-based liability or liability that is dependent on an obligation to represent, regardless of the legal basis, in the following cases only:
a) If our legal representatives, our vicarious agents, or we have acted intentionally or with gross negligence
b) If we have provided guarantees, for the fulfillment of these guarantees to the extent agreed to
c) In case of injury to life, body, and health,
d) In the event of a simple negligent breach of material contractual obligations. Material contractual obligations in the sense of these General Terms and Conditions are obligations whose fulfillment is essential for proper fulfillment of the contract and on which the contractual partner may regularly rely. In the event of a breach of material contractual obligations due to simple negligence, our liability for damages shall be limited to compensation for foreseeable damage typical for the respective contract.
Letters a) to d) shall not imply a reversal of the burden of proof to the detriment of the contractual partner.
10.2 The above provisions shall apply to claims for reimbursement of futile expenses (Section 284 of the German Civil Code (BGB)).
10.3 The limitations of liability in Section 10 shall apply to the liability of our employees, executives, and representative bodies.
10.4 Further statutory limitations of liability or further limitations of liability in these Terms of Delivery shall remain unaffected.
Due to our claims, we shall acquire a lien on items transferred to our possession. The lien secures all claims we shall have against the contractual partner. At the request of the contractual partner, we shall release the items subject to the lien at our discretion if the realizable value of the securities to which we are entitled exceeds the total claim to be secured by more than 20%.
12. Transfer of ownership by way of security
12.1 We and the contractual partner hereby agree to the acquisition of ownership by us of all items of the contractual partner that the contractual partner shall transfer to us for the purpose of fulfillment of the contract (if the contractual partner is only entitled to an expectancy right to the items, we and the contractual partner hereby agree to the transfer of the expectancy right to us). The agreement is conditional on the fulfillment of all our claims against the contractual partner arising from the business relationship. We shall store the items securely for the contractual partner as long as they are in our possession according to the provisions of this contract. The items transferred as security shall serve as security for our (present and future) claims against the contractual partner arising from the business relationship.
12.2 The items shall remain our property even after they have been handed over to the contractual partner or to a third party on the instruction of the contractual partner. The provisions for the items delivered by us under retention of title pursuant to Section 7 shall apply accordingly to this ownership; however, Sections 7.3 and 7.4 shall not apply.
13. Final provisions
13.1 German law shall apply. German material and formal law shall also apply even if German law provides for the applicability of foreign law. Application of the UN Convention on Contracts for the International Sale of Goods is excluded.
13.2 If the contractual partner is a merchant, then the exclusive place of jurisdiction shall be 44145 Dortmund. We may, at our discretion, also bring an action against the contractual partner at its place of business. If the contractual partner is not a merchant, then the following shall apply: The place of jurisdiction shall be 44145 Dortmund if the contractual partner does not have a place of jurisdiction in Germany or changes its domicile or place of habitual residence outside the territory of the Federal Republic of Germany after conclusion of the contract or its domicile or place of habitual residence is not known at the time the action is filed.