General Terms and Conditions of Business and Delivery
of Merkel GmbH & Co. Baustoffe KG
These terms apply to contracts with businesses within the meaning of Section 14 of the German Civil Code (BGB). For consumers, the statutory provisions apply; their right of withdrawal is set out in the information on the right of withdrawal. This is an English translation for your information. Only the German version of these terms (AGB) is legally binding.
§ 1 Scope of these terms
The following terms and conditions of business and delivery apply exclusively to all contracts, deliveries and other services of the seller. Deviating provisions, in particular the buyer's purchasing conditions, only become part of the contract if this has been expressly agreed in writing; otherwise the seller objects to such provisions in advance for all future transactions as well. The written form requirement also applies to any amendment of this written form clause. An amendment of these terms and conditions is deemed to be a written agreement.
§ 2 Conclusion of the contract
The seller's offers are non-binding. Documents belonging to the offer, such as illustrations and details of weights and dimensions, are only approximately authoritative unless otherwise agreed. Samples are deemed to be average samples and remain the property of the seller. The buyer alone is responsible for choosing the correct goods and quantity. Orders, supply contracts and other contracts only become binding on the seller once the seller has confirmed them in writing. The seller reserves the right to make product changes that serve technical progress and do not impair use, or only insignificantly. The seller is not responsible for production-related variations in colour, shape or composition. Special requests by the customer regarding notes to be placed on business letters, invoices or the like will be fulfilled where possible, but cannot be made a condition for the validity of the document, nor can they invalidate or restrict any claims arising from the document. When accepting orders, the seller assumes that the buyer is creditworthy. If events occur on the buyer's side that cast doubt on the buyer's creditworthiness, or if such circumstances existing before conclusion of the contract only become known subsequently, the seller may withdraw from the contract without notice. The buyer shall compensate the seller for any damage incurred as a result. If the seller does not withdraw from the contract, the seller may demand immediate payment in cash. Such events are deemed proven by information from a credit agency or bank, without the buyer being entitled to demand that the information be presented or the institution named.
§ 3 Purchase price and additional costs
The price charged is the price valid according to the seller's price list on the day of delivery, plus value added tax at the applicable statutory rate. Fixed prices require express written agreement. Packaging materials, hire and wear charges for packaging material and the costs of any return of packaging material are borne by the buyer. If carriage-paid delivery has been agreed, the costs of freight and the associated incidental costs are to be advanced by the buyer. The buyer is entitled to deduct these costs from the invoice amount. Information on freight costs is non-binding. These prices are based on the freight and shipping costs applicable on the date of the offer. Changes in these costs up to the time of delivery are for the benefit or at the expense of the buyer. The seller reserves the right to assign receivables to third parties and/or to have invoices issued by third parties.
§ 4 Transfer of risk
Unless otherwise agreed, the shipping route and means of transport are at the seller's discretion. The risk of accidental loss and accidental deterioration of the goods passes to the buyer in all cases as soon as the goods have been handed over to a forwarding agent or carrier, and at the latest when the delivery item leaves the seller's business or storage premises. This also applies to deliveries free domicile. Delivery free construction site or free warehouse means delivery without unloading, on condition that the access road can be used by a heavy truck. If the delivery vehicle leaves the passable access road on the buyer's instructions, the buyer is liable for any damage that occurs. Unloading must be carried out by the buyer immediately and properly. Waiting times will be charged to the buyer. If dispatch of the goods is delayed for a reason for which the seller is not responsible, notification of readiness for dispatch is equivalent to dispatch, and the risk thereby passes to the buyer. The same applies if the seller exercises its right of retention. If the buyer is a merchant within the meaning of the German Commercial Code (HGB), the persons signing the delivery note are deemed authorised vis-à-vis us to accept the goods and to confirm receipt, and our terms and conditions are deemed accepted by signing the delivery note. The same applies to delivery notes from companies we have commissioned to make the delivery.
§ 5 Delivery period
Agreed delivery dates are non-binding unless otherwise stipulated in the written order confirmation. If a delivery period has been agreed as binding, it shall be extended appropriately, even during a delay, in the event of force majeure (e.g. traffic obstructions, lack of means of transport, strikes) and all unforeseen obstacles for which the seller is not responsible and which affect delivery of the item sold. Delivery periods are extended by the period during which the buyer is in default with its contractual obligations, within an ongoing business relationship also under other contracts. Any claim for damages by the buyer, provided the contract is connected with the buyer's commercial activity, is limited to the damage foreseeable at the time the contract was concluded, but to a maximum of 10% of the value of that part of the total delivery which cannot be used in time as a result of the delay or non-delivery. The seller shall under no circumstances be liable for deliveries delayed or not made through the fault of its suppliers. Partial deliveries are permissible to a reasonable extent.
§ 6 Refusal of acceptance / returns
If the buyer refuses to accept the goods, the seller may set the buyer a reasonable deadline for acceptance. If the buyer has not accepted the goods within the deadline set, the seller is entitled to withdraw from the contract or to claim damages for non-performance. In principle, goods cannot be returned. With the seller's written consent, a return is possible subject to a deduction of 10% of the value of the goods and any additional costs incurred by the seller.
§ 7 Payment of the purchase price
Unless expressly agreed otherwise, payments are to be made in full within the period stated on the invoice or, if no such period is stated, immediately upon receipt of the invoice. If a deadline is set, the buyer is in default without a reminder if it has not paid by the specified time at the latest (Section 284 (2) of the German Civil Code, BGB). Cash discounts are granted only on the basis of an express written agreement. Cash discounts are never granted if not all receivables that fell due earlier have been settled. The seller is not obliged to accept bills of exchange or cheques in payment; if they are accepted, they are accepted only on account of performance. Collection and discount charges as well as bill of exchange tax are borne by the buyer. These costs are to be reimbursed to the seller together with the invoice amount. The seller accepts no liability for the timely presentation, notification and return of a bill of exchange in the event of non-payment. The seller's receivables become due immediately if the terms of payment are not complied with or if facts become known that cast doubt on the buyer's creditworthiness. In the event of late payment, default interest is payable irrespective of the assertion of further damage caused by default. The buyer waives the assertion of rights of retention. Set-off against any counterclaims of the buyer not recognised by the seller is not permitted. Several buyers are jointly and severally liable.
§ 8 Buyer's default in payment
If the payment deadline is exceeded, the buyer shall pay the seller default interest at 5% above the respective discount rate of the Deutsche Bundesbank. The right to claim further damage caused by default is expressly reserved. If events occur on the buyer's side that cast doubt on the buyer's creditworthiness, or if the buyer files for the opening of bankruptcy or composition proceedings, the seller is entitled to demand advance payments or security. If the buyer is in default of payment, the seller is entitled to take back goods after a reminder. The buyer is obliged to surrender them. If a debt collection agency is instructed to collect the receivable because the buyer is in default of payment, the buyer shall bear the costs arising from this instruction, with the exception of the success fee.
§ 9 Warranty
The obligations under Sections 377 and 378 of the German Commercial Code (HGB) apply with the proviso that the buyer must notify all obvious defects, shortfalls in quantity or incorrect deliveries in writing within 5 working days of delivery, and in any case before processing or installation. Transport damage must be reported to the seller in writing without delay. In the event of a timely and justified notice of defects in faulty goods within the meaning of Section 459 (1) of the German Civil Code (BGB), the buyer is entitled to the statutory warranty rights, to the exclusion of claims for damages. Warranted characteristics within the meaning of Section 459 (2) BGB must be expressly identified as warranted. A reference to DIN standards generally constitutes a more precise description of the goods and does not constitute a warranty by the seller unless a warranty has been expressly agreed. Notices of defects affect neither the obligation to pay nor the due date, and the buyer waives the right to assert any right of retention, provided the buyer is a merchant within the meaning of the HGB. Lime efflorescence on concrete products is unavoidable and does not constitute a defect.
§ 10 Retention of title
All deliveries are made subject to retention of title. The goods delivered remain the property of the seller until full payment of the purchase price and of all other claims of the seller against the buyer arising from the ongoing business relationship (in the case of payment by cheque or bill of exchange, until it has been honoured). The value of these goods subject to retention of title is the seller's invoice amount plus a security surcharge of 10%, which is, however, disregarded insofar as rights of third parties conflict with it. The buyer may neither pledge the goods nor transfer them by way of security. If the goods are processed by the buyer, the processing is carried out for the seller, who is thus deemed the manufacturer within the meaning of Section 950 BGB without incurring any obligation. The seller acquires ownership of the intermediate or end product. If the goods are processed together with other goods not belonging to the buyer, the seller acquires co-ownership of the new item in the ratio of the value of the goods it supplied to the value of the third-party goods at the time of processing. If the buyer installs the goods subject to retention of title as an essential component in the land of a third party, the buyer hereby assigns to the seller the resulting claim for remuneration against the third party. The buyer is entitled to sell the goods or the processed product in the ordinary course of business. The buyer hereby assigns to the seller, as security, all its claims against the purchaser arising from the resale. The buyer is authorised and obliged to collect the receivables as long as the seller does not revoke this authorisation. The authorisation to collect, as well as the right to resell, use or install the goods subject to retention of title, expires without any express declaration by the seller upon suspension of payments or upon the application for or opening of bankruptcy proceedings or of judicial or out-of-court composition proceedings. At the seller's request, the buyer must name the debtors of the assigned receivables and notify them of the assignment. The seller is authorised to notify the assignment itself. The seller will not make use of its right to collect as long as the buyer duly meets its payment obligations. The buyer must inform the seller without delay of any enforcement measures by third parties against the goods subject to retention of title or the assigned receivables, handing over the documents required for an objection.
§ 11 Place of performance and jurisdiction
The place of performance for all obligations arising from the supply transaction and the place of jurisdiction for all disputes in connection with the supply transaction is the location of the seller's head office.
§ 12 Invalidity
Should individual provisions of these terms and conditions of business and delivery, or parts thereof, be or become invalid, they shall be replaced by the statutory provisions. This shall not affect the validity of the remaining provisions.