Terms and Conditions

GENERAL BUSINESS TERMS AND CONDITIONS OF STRUKTURMETALL GMBH + CO. KG
Application of the terms and conditions
  1. These terms and conditions apply to all, including future offers, delivery contracts and other services.
  2. Conflicting purchaser's purchase or business terms and conditions shall be binding only if they are acknowledged by the management in writing; the written recognition by our field staff is not enough.
  3. All agreements must be established in writing. This applies both to collateral agreements and assurances, as well as to subsequent amendments to the contract.
  4. Transfers of the purchaser's rights and obligations from the purchase contract to third parties require our written consent.
  5. These terms and conditions shall only apply to entrepreneurs in the context of para. 14 BGB, (German civil code), to merchants,  legal persons governed by public law.
  6. Our terms and conditions shall be deemed to be exclusively agreed upon at upon the acceptance of the goods or services, at the latest.
Offer and conclusion of contract
  1. The vendor's offers are non-binding and without liability. Declarations of acceptance and all orders require the vendor's written or remote confirmation to be legally effective. The same applies to supplements, modifications or subsidiary agreements. The purchaser is aware that individual special agreements only apply to the particular case, and not to earlier or later transactions.
  2. Information relating to appearance, performance, dimensions and weights, fuel consumption, and operating costs of the purchased goods, which are valid at the time of the conclusion of the contract, shall be considered non-binding and approximation. They also require optimum operating conditions. This does not apply to characteristics of the purchased item expressly guaranteed in writing. Should we use description or numbers to designate the order or the ordered item of purchase, no rights can be derived therefrom.
  3. The vendor's sales representatives are not authorized to make oral ancillary agreements or give verbal assurances that go beyond the content of the written contract.
  4. Each order shall be accepted or confirmed by the vendor, subject to the proviso that in the event of the immediate conclusion of a congruent cover transaction the vendor shall also be supplied by his supplier in time and in full.
Prices
  1. Unless otherwise stated, the vendor is bound to the prices contained in his offers for up to thirty days after their date. The vendor's prices stated in the order confirmation, plus the respective statutory value-added tax are decisive. Additional deliveries and services shall be billed separately.
  2. All prices are ex works or warehouse. These do not include packaging costs, unless this is expressly agreed upon during the conclusion of the contract. The packaging is provided by the vendor and calculated at cost price. The packaging prices are calculated taking into account all transactions. The prices on the day of delivery are calculated.
Delivery and performance time
  1. Delivery dates or deadlines, which can be agreed bindingly or non-bindingly, require the written form.
  2. In the case of binding deadlines and dates, the vendor is also not responsible for delays in delivery and performance due to force majeure and due to events, which make the delivery considerably more difficult or impossible for the vendor - including in particular strike, lock-out, official orders, etc., even if they occur at suppliers of the vendor or their subcontractors. The vendor is entitled to delay the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part with regards with the part not yet fulfilled. Specified delivery dates or delivery deadlines, even if they are agreed upon as binding, are subject to our complete and correct delivery to us by our suppliers, unless the non-delivery or delay is caused by us. The self-supply reservation of para. II 4 shall apply mutatis mutandis.
  3. If the hindrance lasts longer than 6 weeks, the purchaser is entitled, after a reasonable extension period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or the vendor is released from his obligation, the purchaser cannot derive any claims for damages from this. The purchaser can only rely on the aforementioned circumstances if he immediately notifies the vendor.
  4. If the vendor is responsible for the non-observance of binding deadlines and dates or is behind schedule, the purchaser is entitled to a default compensation of 0,5 % for each completed week of delay, but up to a total of 5 % of the invoice value of the delay goods and services affected by the delay. Any further claims are excluded, unless the delay is at least caused by gross negligence on the part of the vendor.
  5. The vendor is entitled to partial deliveries and partial services at any time.
  6. Changes in design and shape, deviations in the colour shade as well as changes in the scope of delivery by the vendor remain reserved during the delivery period, provided the purchase item is not significantly altered and changes are reasonable for the purchaser. This reservation of the performance does not apply, if we have expressly guaranteed the properties in writing.
Transfer of risk / acceptance
  1. The risk shall transfer to the purchaser as soon as the consignment has been handed over to the transporting person and has left the warehouse for dispatch. If the shipment becomes impossible due to no fault of the vendor, the risk is transferred to the purchaser with the notification of readiness for shipment.
  2. The purchaser has the right to examine the purchase object at the agreed acceptance point within 8 days after the receipt of the notification of the readiness of the object of purchase and the obligation to accept the purchase item within this period.
  3. If the purchaser culpably fails to comply with his obligation to examine and accept the goods as specified in section 2, the purchase item shall be deemed to be contractual accepted after the expiry of the eighth day after receipt of the notification of the readiness. We expressly point this out in the notification of the readiness
  4. If the purchaser does not meet the obligation to cooperate, in particular his obligation to accept and collect the object of purchase, despite a reasonable additional period of time set by us, or if the purchaser seriously and finally refuses acceptance or collection, or if the purchaser is obviously not in a position to pay the purchase price, we are entitled to withdraw from the contract or to demand compensation for non-fulfilment. If we claim damages, this shall represent 15 % of the purchase price. The amount of the damage shall be increased or reduced if a higher or a lower loss can be proven by us. The purchaser is free to prove that no damage has occurred at all.
Guarantee
  1. In the case of justified warranty claims by the purchaser, we shall, at our discretion, rectify the defect by repair or substitute a defect-free item for the defective item (supplementary performance). In the case of subsequent delivery of a defect-free item, the purchaser is obliged to return the defective item.
  2. We retain the right to refuse the supplementary performance, should this be feasible only at disproportionately high costs. In assessing proportionality, the value of the goods in the absence of defects, the importance of the defect, and the question of whether the other type of supplementary performance can be used without significant disadvantages for the purchaser, shall be considered.
  3. In the case of rectification, we are entitled to carry out the rectification at our company headquarters at our discretion.
  4. Within the scope of the rectification, we are entitled to repair any damage caused by the defect.
  5. The purchaser's right of withdrawal from the contract is excluded if the defect merely represents a negligible impairment of value or fitness of the purchased item.
  6. Within the scope of the warranty, we are only liable for our own publicly expressed properties/characteristics. Liability for public statements by third parties regarding the properties of the purchased goods, in particular in advertising or in the labelling of certain characteristics of the goods, is excluded.
  7. No warranty obligations exist if
    - the purchased item has been improperly treated or used,
    - the purchased item has previously been repaired, maintained or serviced by a company which we have not approved for the maintenance,
    - parts have been installed in the purchased items, the use of which we have not approved or the purchase item has been altered in a manner which we have not authorized,
    - the purchaser has not complied with the regulations on the treatment, maintenance and care of the purchased item (for example operating instructions), if it cannot be ruled out that one of these circumstances has led to the occurrence of the defect.
  8. Natural wear is excluded from the warranty.
  9. The purchaser is obligated to conscientiously inspect and investigate the object of the contract as soon as it has been received, and to carry out random sampling. Obvious defects are to be reported immediately to us in writing; no later than 8 days after receipt of the object of the contract. If immediate notification is not given, warranty claims are excluded.
  10. The object of the contract shall be properly stored and returned to us upon our explicit request.
  11. Consultations are made to the best of our knowledge, but without any liability. Statements and information, suitability and application or use of the purchased item are not binding, unless they are expressly guaranteed. The information does not release the customer from his own examinations.
  12. After the beginning of the processing or the installation of delivered goods, complaints can be raised only if it is shown that the defect of our goods was already manifested before processing or before installation.
  13. From the outset, the purchaser shall have the full burden of proof for all claims, in particular for the existence of a defect at the time of the transfer of risk.
  14. Claims for material defects become statue-barred 12 months after the date of transfer of risk or earlier after a maximum specified number of cycles, operations or releases. This shall not apply insofar as the law prescribes longer periods pursuant to §§ 438 para. 1 No. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 No. 2 (defects of construction work) German Civil Code, as well as in cases of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents and in the event of fraudulent concealment of a defect. The same time limits shall apply to the assertion of withdrawal and reduction. The statutory provisions on suspension of expiration, suspension and resumption of the time limits shall remain unaffected.
  15. If the customer reuses/re-sells the object of purchase and/or uses it for example with third parties or incorporates it into the property of third parties and the customer incurs expenses (for instance assembly and disassembly costs) due to justified warranty claims due to the replacement of the object of purchase, we shall not assume any liability in this respect. This shall not apply if the subject matter of the contract is sold to third parties as part of a supply chain and the last contract in the chain is a so-called sale of consumer goods pursuant to § 474 German Civil Code.
Property rights reservation
  1. The goods delivered by us remain our property until the payment for all our claims have been made, irrespective of the legal basis, until the clearance of all accepted checks or bills of exchange, even if the purchase price is paid for specially designated claims. In the case of current invoices, the reserved property is also used as collateral for our balance claims. Our property shall remain in place for as long as the purchaser has freed us from a possible liability under the bill of exchange in his interest. The retention of property rights shall also remain in force for all claims which we subsequently acquire against the purchaser, for example, due to repairs, spare parts deliveries or ongoing business relations.
  2. The purchaser shall be obliged to keep the object of purchase in proper condition during the period of the retention of property rights, to have all maintenance and repair work required by the manufacturer immediately performed, except for emergencies, by us or by a repair shop approved by the manufacturer.
  3. The purchaser shall be obliged to insure the purchase item adequately at his or her own value against fire, water and theft damage at his own expense.
  4. During the period of the retention of title, the purchaser is entitled to the possession and use of the reserved goods, provided he fulfils his obligations under the retention of property rights in accordance with the provisions of this section and is not in arrears with the payment. If the purchaser is in default or does not meet his obligations from the reservation of property rights, we can demand the purchase item from the purchaser who is obligated to immediately return the purchase item to us, with the exclusion of any rights of retention unless they were based on the purchase contract. If we have demanded the reserved goods from the purchaser, we are entitled to liquidate the reserved goods by means after a reasonable extension period of time by crediting the purchase price by means of direct sale. The purchaser bears all costs for the return and liquidation of the reserved goods. The liquidation cost is 10% of the proceeds of the sale including VAT, without proof. They can be set at less or more if higher costs can be proven by us or if the purchaser proves lower costs. The purchaser is free to prove that no exploitation costs were incurred at all.The proceeds shall be paid to the purchaser after deducting the costs and other claims due to us in connection with the purchase contract.
  5. The purchaser is entitled to resell the purchase item in the ordinary course of business; however, he already transfers to us all claims in the amount of the final invoice amount (including value-added tax) arising from the resale against his customer or third party, irrespective of whether the purchase item has been resold without or after processing. The purchaser shall remain authorized to collect this receivable even after the transfer. Our authority to collect the receivable shall remain unaffected. However, we undertake to not collect the receivables as long as the purchaser complies with his payment obligations from the revenue collected, is not in default with payment, and in particular if there has been no application for the opening of a bankruptcy or settlement proceedings or insolvency proceedings. If this is the case, we are entitled to demand that the purchaser notify us of the assigned claims and their debtors, as well as provide all the information necessary for collection, hand over the related documents and notify the debtors (third parties) of the transfer.
  6. In the case of access by third parties, in particular in the case of seizures of the object of purchase or in the case of the entrepreneur's right of lien by a workshop, the purchaser shall immediately inform us in writing and immediately inform the third party about our property. The purchaser shall bear all costs which are incurred to cancel the access and to restore the purchased item, if it cannot be recovered from third parties.
  7. The processing or transformation of the purchase item by the purchaser is always made for us, without liabilities arising to us as a result. If the object of purchase is processed with other items not belonging to us, then we shall have co-ownership of the new item in the ratio of the value of the purchased item to the other processed items at the time of the processing. The same applies to the items resulting from the processing, as for the purchased items delivered under retention of property rights.
  8. We undertake to release the collateral to which we are entitled at the purchaser's request, if the value of the securities to which we are entitled exceeds the receivables to be secured by more than 20 %.
  9. If the purchaser sells the reserved goods or the co-ownership of the resulting goods specified in para. 7, transferred to us to, he hereby transfers to us all claims arising therefrom in the amount of the final invoice against the purchaser with all subsidiary rights in the value of the secured claim to us.
  10. The purchaser shall notify us without delay of any third-party enforcement measures regarding the assigned receivables, as well as provide us with all the information and documentation necessary for the defence.
Payment
  1. Unless otherwise agreed, the invoices of the vendor shall be payable without deduction, within 30 days after issuance of the invoice.
  2. The vendor is entitled, despite different provisions by the purchaser, to firstly apply payments to his older debt. If costs and interest have already been incurred, the vendor is entitled to firstly apply the payment to the costs, then to the interest and lastly to the main performance.
  3. A payment is only deemed to have been made if the vendor can access the amount. In the case of cheques, payment shall only be deemed to have been made when the cheque is cleared.
  4. If the purchaser is in default, the vendor is entitled to charge interest from the relevant date at the rate calculated by the commercial banks for open overdraft credits plus statutory value-added tax. They shall then be less if the purchaser proves a lower charge.
  5. If the purchaser fails to meet his payment obligations, in particular, if he does not pay a cheque or if he suspends his payments, or if the vendor becomes aware of other circumstances that call the creditworthiness of the purchaser into question, the vendor is entitled to claim the entire residual debt, even if he has accepted cheques. In this case, the vendor is also entitled to demand advance payments or security payments.
  6. The purchaser is only entitled to setting off, retention or reduction of the goods, even if claims of defect or counter-claims are asserted, if the counter-claims have been legally established or are undisputed.
Limitation of liability
  1. Claims for damages and reimbursement of expenses by the purchaser (hereinafter referred to as "claims for damages"), regardless of the legal basis, in particular due to breach of duties arising from the contractual obligation and from tort, are excluded.
  2. This shall not apply if liability is mandatory, e.g. under the Product Liability Act. Furhtermore, this shall not apply to claims for damages due to injury to life, limb or health and to claims for damages due to the breach of essential contractual obligations.
  3. Essential contractual obligations are such obligations fulfiment of which is necessary to achieve the objective of the contract, for example the faultless delivery of the object of purchase.
  4. The exclusion of liability does not apply to claims for damages which are based on an intentional or grossly negligent breach of duty by the seller, his legal representative or his vicarious agent.
  5. In the event of a violation of essential contractual obligations, liability shall, however, be limited to the foreseeable damage typical of the contract.
Applicable law, court of jurisdiction, partial invalidity
  1. The law of the Federal Republic of Germany shall apply. Provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
  2. The exclusive place of performance for all our obligations to the purchaser arising from the contract, including the obligation to guarantee is our company headquarters.
  3. Exclusive place of jurisdiction for all disputes arising from this contract - including bills of exchange and cheques - is our company headquarters. The same applies if the purchaser does not have a general court of jurisdiction in Germany, or if his domicile, or permanent address is not known at the time of the action.
  4. If any provision of this contract should be or become invalid, the legal validity of the remaining provisions shall not be affected thereby. The parties undertake to replace the invalid provision with a valid provision the purpose of which comes as close as possible to that of the invalid provision.

Hoja informativa

Contacto

SM STRUKTURMETALL GmbH & Co. KG
Moosbachstraße 22
D-74626 Bretzfeld-Schwabbach


Tel. +49 (7946) 9250-0
Fax +49 (7946) 9250-50