General terms and conditions
1. General provisions
1.1 Offers and sales take place - including for future business - exclusively on the basis of the following terms and conditions, which are considered to be accepted at the latest on receipt of the goods. We hereby disagree to any buyer terms and conditions that contradict our own terms and conditions.
1.2 Subsidiary agreements, deviations from these terms and conditions, amendments, their exclusion and other declarations from our employees require written confirmation in order to be legally valid.
2.1 Our deliveries generally take place ex works; risk transfers to the buyer at the latest on delivery of the goods to the carrier or another transport person - including the company’s own employees. This shall also apply in the event that carriage paid shipping has been agreed. Risk shall also transfer to the customer if we have indicated readiness for shipping and the customer does not retrieve the goods, despite a subsequent reminder with fixing of a period of time, or the goods are stored by us at the request of the customer.
2.2 Partial deliveries are permitted unless they are economically unacceptable for the buyer.
2.3 The German DIN EN shall apply, otherwise the relevant DIN standards and the EN 508, which can be provided to the customer on request. References to standards, material data sheets or in-shop testing do not represent a guarantee of quality. Public statements by us, our agents or any manufacturers and their agents, in particular in promotional materials, about the characteristics of the goods shall only constitute a quality agreement if they have been explicitly determined as such between the parties.
2.4 Information on delivery periods is generally only approximate. The delivery period otherwise begins with the sending of the order confirmation, although not before submission of all of the documents, authorisations and approvals to be provided by the customer, nor before clarification of all technical conditions.
2.5 The delivery period shall be extended appropriately in the event of industrial action and in the event of any other hindrances for which we or our suppliers are not responsible. This also includes operational disruptions (e.g. machine breakdowns, etc.) and obstacles along transport routes. We shall also not be held responsible for the aforementioned circumstances if they occur during our delay. We will inform the buyer as soon as possible in the event of such hindrances.
2.6 The customer is obliged to inspect the goods on delivery and compile a report on this jointly with the carrier. Any damage/underdelivery found is to be reported to us immediately. If the customer has given the authorization to put the goods down in his absence, the goods are unloaded by a carrier, who is commissioned by us, using a crane. In order to be able to document that the goods are both free from defects and complete, photos are taken of them after unloading. The reason for this is that Münker Metallprofile GmbH can provide evidence of the completeness and freedom from defects if such evidence is required. .
2.7 Our service and delivery obligations are subject to correct and timely delivery to ourselves.
2.8 In the event of call orders, the buyer is obliged to retrieve orders within two weeks of notification of the readiness for handover or despatch. If retrieval or acceptance does not occur in a timely fashion, we are entitled, regardless of other claims, to claim for reimbursement of our additional costs, such as through storing the goods at the expense and risk of the customer.
2.9 If order quantities beyond those initially stated are called up for call orders, we are entitled to only supply the order quantity or invoice for the excess quantity at the current price.
2.10 No particular packaging type is agreed. The goods are packaged in accordance with the generally customary method. Special packaging types must be ordered separately and are invoiced.
2.11 If the goods are despatched by us as requested, a grace period of at least 2 hours applies to the anticipated arrival time in the event of a full lorry load or agreed special deliveries. Arrival times given by us are always non-binding for lorry loads that are not full, called additional loads or combined freight, and for which no special delivery has been agreed.
2.12 We do not accept returned used packaging or excess material, nor do we bear the costs of their disposal.
3.1 Our prices are ex works, excluding packaging and additional corrosion protection. The legal VAT applicable on the day of invoicing is to be added. If delivery only takes place six weeks following conclusion of contract, we are entitled to correspondingly increase the prices if cost increases, in particular due to collective agreements or material price increases, take place following conclusion of the contract.
4.1 Our invoices are payable immediately after the invoice date without deduction.
4.2 Default interest amounting to eight per cent above the base rate shall apply for the period of the customer’s delayed payment, insofar as we do not have any other legal right to apply a higher rate of interest. We reserve the right to claim further damages and exercise other legal rights due to default.
4.3 Where several accounts receivable against the customer are open and a payment by the customer is not sufficient to repay all the receivables, we are entitled, notwithstanding Section 366 of the German Civil Code (BGB), to always credit payments by the customer against the oldest payable debt, or shared proportionately in the event of equal debts.
4.4 The off-setting or exercising of any legal right of retention is excluded if the counter-claim is not determined to be undisputed or legally binding. The exercising of a right of retention or right to refuse performance is also excluded to the extent that the customer’s counterclaims do not refer to the same contractual relationship.
4.5 If, following conclusion of contract, circumstances become apparent which raise doubts about the buyer’s creditworthiness, we are entitled to only perform any outstanding deliveries on pre-payment and any receivables incurred by that time shall become immediately payable in full.
5.1 Material defects affecting the goods are to be notified in writing immediately, but at the latest within 7 days of delivery. Defects that cannot be discovered within this period, even on careful inspection, are to be reported in writing immediately following discovery, at the latest before the statutory period of limitation expires, subject to the immediate discontinuation of all handling and processing. No complaints can be accepted for processed or mounted goods.
5.2 We provide a guarantee for defects through supplementary performance - rectifying the defect or supplying a defect-free item-. We must be provided with a suitable period and period of grace for supplementary performance. In the event of refused performance due to disproportionate costs and in the event of the failure of the supplementary performance, the buyer can choose to either withdraw from the purchase agreement or reduce the purchase price. In the event of only minor breach of contract, a right of renunciation is not given. Damage claim obligations are limited according to point 6.
5.3 There is no guarantee that the exact same paint shade will be achieved for paint coatings for deliveries of primary materials or goods from various manufacturers, for deliveries of various batches from the same manufacturer or for various material thicknesses from the same manufacturer. Colour uniformity cannot be guaranteed for nominal thicknesses smaller than 25μm for technical reasons, even within a coil.
5.4 Claims for defects become time-barred in one year. This does not apply in the event of intent or malicious non-disclosure of the defect, on infringement of a quality guarantee provided by us and in the event of an item that has been used for a built structure in accordance with its usual mode of use and caused the defectiveness of the built structure.
5.5 For defects that relate to an instruction or requirement from the customer, we are only liable in accordance with the legal regulations and these General Terms and Conditions of Sale and Delivery when we have accepted in writing the risk of the occurrence of defects from the customer as a result of the instruction or requirement. This shall also apply to changes to the standard purpose of use, lack of notification of the purpose of use, and improper further processing and assembly. The customer is responsible to us that instructions and requirements do not lead to a defect in the goods we have manufactured or supplied, unless we have accepted the aforementioned risk of the occurrence of defects in writing.
5.6 If, during the inspection of alleged defects, it transpires that there is no guarantee claim, the buyer is obliged to bear the costs incurred for the inspection..
6. Limitation of liability
6.1 We shall be liable for damage that relates to intent or gross negligence by our legal representatives, our executive employees and our agents. In the event of ordinary negligence, we are only liable on breach of fundamental contractual obligations. Any liability based on this in the event of intent or gross negligence by agents and in all cases of ordinary negligence based on the amount is limited to the type and scope of foreseeable damage for us on conclusion of contract. In the event of liability for delivery and performance delays, an amount is anticipated up to 5% of the invoice value of the part of delivery or performance affected by the delay.
6.2 Our liability in accordance with Art. 6.1 is limited to a maximum of three times the amount of the value of the affected delivery or, for pure financial losses, to a maximum of two times the value of the affected delivery. Otherwise, customers’ claims for compensation for direct or indirect damage are excluded - regardless of the legal basis for this including any compensation claims due to infringement of pre-contractual obligations and due to unauthorised actions.
6.3 Liability for damage resulting from personal injury, bodily harm or damage to health and liability for mandatory legal regulations, in particular those of the German Product Liability Act [Produkthaftungsgesetz], remain unaffected.
6.4 Compensation claims outside of the claims for defects (Point 5) are time barred in two years from the time of the buyer’s awareness of the facts justifying the claim and the damaging party, although at the latest following three years from the time of the event that caused the damage, if no intent, malice or gross negligence by our legal representatives or executive employees exists.
6.5 Advice, recommendations, execution proposals etc. are regularly non-binding and not subject to liability. It is the customer’s duty to verify carefully the suitability of the goods for his anticipated purpose of use for himself - and, where possible, after receiving professional advice from a third party.
7. Retention of title
7.1 The goods remain our property until full payment of all receivables arising from the business relationship. On current account, the reservation of title applies as security for the respective balance claim.
7.2 Processing or altering the goods subject to reservation of title by the buyer is always undertaken on our behalf without resulting in any liability for us. If the goods are processed with items not belonging to us, we shall acquire joint ownership of the new item in relation to the value of the goods to the other processed items at the time of processing. In the case of combining, mixing or blending of the goods subject to reservation of title with moveable items in such a way that the buyer’s item is considered to be the main item, his ownership of the whole item already passes to us now in relation to the value of the goods subject to reservation of title compared with the value of the other combined, mixed or blended goods. If goods subject to reservation of title are combined, mixed or blended with moveable items from a third party in such a way that the third party’s item is considered to be the main item, the buyer already passes to us now the remuneration claims he is entitled to against the third party corresponding to the invoiced value of the goods subject to reservation of title. The resulting new item, property rights to this, the ceded remuneration claims and the goods subject to reservation of title serve as security for our receivables.
7.3 The buyer is entitled to re-sell the goods subject to reservation of title/new item in the proper course of business under retention of title. The receivables from this re-sale of the goods subject to reservation of title are already ceded to us now. If the buyer sells the goods subject to reservation of title together with other goods that we have not supplied, the assignment of the receivables only applies to the sum of the invoice final amount resulting from the re-sale of the goods subject to reservation of title. In the event of the re-sale of goods that are under our joint ownership (as a result of combining, mixing or blending), the cession of the receivables applies amounting to the proportion of our joint ownership.
7.4 Should the buyer have sold the accounts receivable within the scope of real factoring, the buyer assigns the accounts receivable from the factor which replace them to the seller. The seller explicitly accepts all these preceding cessions.
7.5 The buyer is authorised to collect the receivables transferred to us. This authorisation can be revoked by us in the event of an application to open bankruptcy proceedings or in other cases of restricted credit and trustworthiness. In the event of revocation, the buyer is obliged to inform his customers immediately of the release of covenant to us and transfer to us within a short space of time all information and documentation required for collection. In this case, he must also transfer or release to us any securities that he holds.
7.6 We are obliged to release securities to which we are entitled on the request of the contractual partner insofar as the realisable value of the securities exceeds the receivables to be secured by more than 10%; the selection of the securities to be released falls to us.
7.7 The buyer is obliged to insure the goods subject to reservation of title sufficiently against all risks. He hereby cedes to us claims from the corresponding insurance contracts; we accept this cession.
7.8 He must inform us immediately of any garnishment or other legal or actual impairment or endangering of the goods subject to reservation of title. In the event of delay in payment or any other breach of contract of a more than minor nature by the customer or in the case of any rescission of the contract, the customer already declares his approval now for us to withdraw the goods subject to reservation of title held by the customer or have this done by a third party.
7.9 If we take back the goods due to retention of title, this is only to be considered a withdrawal from the contract is we explicitly state this. We are authorised to sell the goods on the open market.
8. Place of fulfilment, place of jurisdiction, applicable law
8.1 The place of fulfilment for delivery and payment is the headquarters of our company.
8.2 Insofar as the buyer is a tradesman, a legal entity under public law or a special fund under public law, Siegen shall be the exclusive place of jurisdiction for all disputes arising from the contractual relationship.
8.3 The law of the Federal Republic of Germany shall apply to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
9.1 If individual provisions of the agreement become void, the validity of the other provisions is not affected by this. The legally permitted provisions that the parties would have wanted on becoming aware of these circumstances shall apply in their place.
General conditions for creation of technical preparations
1. Insofar as we create technical preparations, the following terms and conditions may apply to these as a supplement to the General Terms and Conditions of Sale and Delivery.
2. We reserve our property rights and copyrights over the listed preparations, even after handing these to the buyer. On non-issue of a contract, we reserve the right to request the return of documents that have been handed over and to bill separately for our time and effort.
3.1 Technical preparations prepared by us for customers, in particular static calculations and layout drawings, must immediately be carefully and professionally inspected by the customer or someone on his behalf. Any errors must be reported to us immediately on discovery. We accept no liability for the consequences of errors that could have been identified on proper inspection of our preparations.
3.2 Insofar as we create technical preparations for a specially agreed fee, we shall only be liable for the accuracy of the preparations up to the amount of the fee.