I. General Provisions
The provisions of the contract between us, MEKRA Lang GmbH & Co. KG (“MEKRA Lang”), and our customers (“purchasers”) solely underlie these General Terms and Conditions. Our offers are exclusively meant for entrepreneurs as defined in § 14 BGB (German Civil Code). Deviating business terms of the purchaser, even if they are known to us, will not become part of the contract. Our offers are always subject to change without notice. Our General Terms and Conditions of Sale and Delivery are considered accepted upon placement of order, at the latest upon receipt of goods. These General Terms and Conditions of Sale and Delivery apply in the case of repeated business relations also for all future transactions. Should individual provisions be or become completely or partially ineffective, then the validity of the other provisions will thereby not be affected. In this case, MEKRA Lang and the purchaser will agree on a regulation whose economic success will be as close as possible to the ineffective regulation. Until such time, the relevant legal provisions will apply.
II. Contract Conclusion and Prices
- By ordering merchandise the purchaser bindingly declares that he wants to buy the merchandise ordered. He will be bound to this statement for two weeks. We are entitled to accept the offer of a contract underlying the order within two weeks upon receipt of the latter by us. The acceptance may be declared in writing, electronically, or by delivery to the purchaser.
- The obligations in electronic commerce according to § 312e Sec. I sentence 1 Nos. 1 to 3 and sentence 2 BGB are excluded.
- The conclusion of the contract takes place subject to the correct and timely delivery by our sub-suppliers to us. This applies only in case we are not responsible for the non-delivery, especially in case of the conclusion of a congruent hedging business transaction with our sub suppliers. The purchaser will be informed about the nonavailability of the product without delay, and the equivalent, insofar as already paid, will be reimbursed immediately.
- All contractual financial obligations are to be fulfilled solely in EURO.
- Prices are understood to be net as ex factory or supply depot. Freight, packing and import costs, customs duties and other additional taxes are payable by the purchaser.
III. Period of Delivery and Delivery Commitment
- Our written or electronic order confirmation is decisive for extent, type, and date of the delivery. Partial shipments are allowed.
- A liability in meeting delivery deadlines determined as binding shall only be accepted under the condition of undisturbed flow of operations and distribution, in particular in cases of acts of God and other disruptive events at our facilities or those of our suppliers or transport contractors, for example operational or traffic disruptions, fire, flooding, labor, energy, or traffic shortages, strikes, lockouts, official measures as well as technical or technological situations that considerably aggravate the execution of the contract, release us from liability in punctual delivery or give us the right to stop delivery without obligation for subsequent delivery.
- If not agreed otherwise, we have the right to deliver earlier than the delivery deadline. Additionally, we do not consider any delivery of up to two weeks past a stated delivery date delayed, except where there is an agreement to the contrary.
- Delivery deadlines are considered met when the goods have left the factory or dispatch depot or the purchaser has received notice by expiration of the deadline of our readiness to deliver. Subsequent alteration of contract is cause for a reasonable extension of delivery deadlines.
- In the case of contracts whose performance consists of several deliveries, non-performance, defective or delayed performance of one delivery remains without influence upon the other deliveries of the contract.
- Default of payments, application for the opening of an insolvency proceeding, handing in of a state meant in lieu of an oath of disclosure in accordance with § 807 ZPO, temporary shortage of liquid funds, or public knowledge of a considerable deterioration of the financial circumstances of the purchaser entitles us to stop deliveries immediately and to deny performance of current contracts. At the same time we are entitled to make immediately due and payable those accounts receivable from the ordering company which are not due yet.
IV. Shipping, Transfer of Risk
- Packing, shipping route and method of transportation remain at our discretion unless special agreements have been made.
- The risk of accidental loss and accidental deterioration of the merchandise will pass over to the buyer upon handing it over, in case of a mail order purchase upon delivery of the matter to the forwarding agent, the carrier, or another person or institution determined to execute the shipment. If the buyer is overdue in accepting, this will be equal to a handing over of the merchandise.
- Merchandise out of call orders shall be accepted within 3 months after issuance of the acknowledgment of order, unless otherwise agreed.
- Insurance against breakage and transportation risks is only taken out upon special request and will be billed.
- Customs duties and other expenses, also the costs for payment of the necessary papers for import into country of destination, are payable by the purchaser.
V. Payments, Payment Terms
- Invoices are payable:
within 14 days from date of invoice with 2 % cash discount of the invoice end value;
within 30 days from date of invoice without cash discount of the invoice end value.
- Cash discount is only granted when all payment commitments out of earlier deliveries have been fulfilled and the invoice amount has been punctually paid to us in cash or has been credited to our account by the aforementioned due dates. The drawing of a bill of exchange can thus not lead to the granting of a cash discount. In case of cashless payment, especially when a cheque is submitted, the date of the credit entry will be decisive. A cash discount cannot be granted in the case of payment or credit entry with limiting conditions or any other restrictions. The purchaser assumes all risks of method of payment. Invoices for tools are subject to immediate payment without cash discount.
- Bills of exchange and checks are only accepted on account of payment. Corresponding credit entries are made only under the limiting condition of correct receipt of the complete amount due. We reserve the right to take in external or own acceptances. Costs and discount expenses are payable by the purchaser. We assume no responsibility for submission and protest. Protest imposed against the purchaser's own bills of exchange or non-immediate repayment of protested external bills of exchange entitles us to return all bills in circulation. At the same time we are entitled to make immediately due and payable those accounts receivable from the purchaser which are not due yet. Post-dated checks are not accepted.
- In the case of missed payment dates, interest on defaulted payment of 9 % above the discount rate of the German Central Bank according to § 247 BGB shall be payable, as well as default damages in the amount of € 40.00 according to § 288 Sec. 5 BGB. The right of assertion of further damages caused by delayed performance and other claims remains reserved.
- Advance and part payments are not subject to interest.
- The purchaser is only entitled to offset or withhold payment if his counterclaim is undisputed or has been determined legally binding. The client may execute a right of retention only if his counter claim is based on the same contractual relationship.
- Customer and invoice numbers are to be given by the purchaser when invoices are balanced. Delays or incorrect bookings resulting from failure to do so are payable by the purchaser.
VI. Retention of Ownership, Factoring
- The delivered goods remain our property until payment of all claims has been received. The purchaser has the right to resell the proviso goods within the scope of proper and orderly course of business; however, a pledge or transfer by way of security is not permissible. The purchaser is required to ensure our rights in the case of resale of proviso goods on credit.
- The purchaser’s accounts receivable based on the resale of the merchandise subject to reservation are transferred to us in the amount of the invoice value at this time already. We hereby agree to accept this transfer. Regardless of the assignment, the purchaser retains the right to collect payment under the condition that he fulfills his responsibilities to us according to the underlying contractual relationship and does not fall into financial decline. Otherwise the purchaser must provide the information about the assignment necessary for collection upon our demand and notify his debtors of the assignment. In this case we reserve the right to collect the accounts receivable by ourselves.
- A possible finishing or processing of the merchandise sold subject to reservation will always take place on our behalf and by order for us, without any obligations resulting for us from this, however. In the case of processing of proviso goods with other goods not belonging to us, we are entitled to the co-owner portion of the resulting product corresponding to the value of the proviso goods in relation to the other processed goods. Insofar as here and following the value of the proviso goods is referred to, it results out of our invoice value.
- Should the purchaser acquire sole ownership of the new product according to § 947 Sec. 2 BGB, so is it agreed that the purchaser grants co-ownership in the proportion of the value of the processed, attached, or mixed proviso goods, and that he protects these rights free of charge.
- In the case of resale of the proviso goods together with other goods, regardless of with or without processing, attachment or mixing, the assignment in advance agreed to above is valid only to the extent of the value of proviso goods that were resold together with the other goods. We agree to release on demand the securities entitled as provided above, when the value exceeds secured payments by 20 %.
- The purchaser must immediately notify us and provide the material necessary for an intervention in the case of compulsory execution by third parties against the proviso goods or the advance assigned claims. Intervention costs resulting there from are payable by the purchaser.
- The purchaser has to adequately insure the merchandise sold subject to reservation against fire and burglary and has to prove this to us on demand.
- The warranty period is 1 year from the dispatch of the merchandise.
- First of all, we shall remedy a defect or make a substitute delivery at our discretion. In case of failure to rectify defects or to substitute deliver, the customer can demand rescission of the contract or reduction of compensation. In case there is only a minor contract violation, especially if there are only minor defects, the client will not have the right of cancellation, however.
- The purchaser must notify us in writing of any obvious defects immediately, at the latest within 7 days after receipt of goods, and must refrain from any eventual working of protested goods. Otherwise the warranty is excluded. The timely dispatch will suffice for the observance of the warranty deadline. The full burden of proof for all claim prerequisites rests with the purchaser, especially for the defect itself, for the date of the establishment of the defect, and for the timeliness of the complaint about the defect.
- Defects which could not be ascertained within this time span despite careful inspection are to be reported to us in writing immediately upon discovery. If the purchaser opts for a withdrawal from the contract because of a legal imperfection or a physical defect after a failed subsequent fulfillment, then he will not be additionally entitled to a claim for compensation because of the defect.
- If, after a failed subsequent fulfillment, the client opts for the compensation of the damage, then the merchandise will remain with the client if this can be expected of him. The compensation is restricted to the difference between the purchase price and the value of the defective product. This will not apply if we caused the contract violation maliciously.
- Goods which have been replaced by us become our property and are to be returned to us for a refund.
- Claims cannot be made for damages that resulted from the purchaser culpably
improperly handling or overstressing the purchased item or
altering the purchased item in an unapproved manner or
not following the instructions of the assembly instructions or operating manual or
not observing the complaint and delivery responsibility according to para. 3 and 4 above or
further using the purchased item after ascertaining the defect.
Natural wear and tear is excepted from the warranty.
- In case of slightly negligent violations of obligations our liability will be restricted to an average damage predictable for the type of merchandise, typical for such a contract, and immediate. This also applies in case of slightly negligent duty violations of our legal representatives or employees. We shall not be held liable in case of a slightly negligent violation of nonessential contract obligations.
- The liability by virtue of warranted properties as well as due to product liability remains unaffected; the same applies in case of bodily harm or health impairment attributable to us or in the event of loss of life of the purchaser.
- Compensation claims of the client because of a defect will superannuate after one year from the delivery of the merchandise to the client. This will not apply if we may be charged with gross negligence as well as in case of bodily harm or health impairment attributable to us or in the event of loss of life of the purchaser.
Properly ordered and delivered goods shall in broad principle not be taken back. Returns that have been arranged with us are the exception. In addition, the following prerequisites must be met:
- The products must have been acquired directly from us or from one of our works depots.
- Flawless and unaltered condition of the goods.
- In principle, return shall only be possible when the articles in question are still in the program of delivery.
- Return shipment must be "free domicile" to our Ergersheim works or to the appropriate works depot with accompanying delivery note date and number. Value reduction for returns:
- in the first year after delivery date ./. 10 % of the contract price
- In the second year after delivery date ./. 25 % of the contract price
- between the 3rd & the 5th year after deliv.date ./. 50 % of the contract price
- merchandise over five years old no return possible.
Technical inspection and completion of the credit slip shall be carried out under consideration of eventual value reduction upon receipt of the articles. Freight costs, insofar as any occurred to us for the original shipping, reduce the remaining value.
X. Industrial Property Rights
- The purchaser is held liable to us for the exemption from industrial protection rights of third parties on custom-made articles ordered, indemnifies us against any possible claims of third parties and has to reimburse any damage to us possibly resulting from a violation of this obligation.
- Our designs and design proposals are to be kept confidential and may not be passed on to third parties.
All drawings, construction plans, and samples which the purchaser has received, will remain our intellectual property.
XI. Place of Fulfillment and Jurisdiction, Other Agreements
- On principle, the product description of the manufacturer is understood to be decisive for the characteristics of the goods. Public statements, sales talks, or advertisements made apart from this do not represent a contractual description of the characteristics of the goods. Samples and specimens serve as approximate illustrative articles for quality, measurements and colour. Legal claims cannot be inferred from this. Technical changes as well as alterations in shape, colour, and/or weight are reserved within the scope of what may be expected.
- If the purchaser receives a faulty assembly instruction, we shall only be obliged to furnish a faultless assembly instruction, and this only if the fault of the assembly instruction is in contradiction with a proper assembly.
- The client does not receive warranties in the legal meaning from us; warranties of the manufacturers will remain unaffected by this.
- Place of fulfillment for our deliveries ex works is the delivery works, for delivery ex storage the warehouse. Place of fulfillment for all payments is Ergersheim/ Bavaria, Germany.
- The exclusive place of jurisdiction for all litigations from this contract is Fürth / Bavaria, Germany. This applies to lawsuits based on a cheque or bill of exchange as well.
- The Law of the Federal Republic of Germany is governing these provisions. The provisions of the UN Purchase Law are not applied. The German-language version of these General Terms and Conditions of Sale and Delivery shall apply exclusively.
- The special terms of our products published with the appropriate price lists apply as well.
- The purchaser is responsible for examining the suitability of the goods for their intended use.
German law (BDSG) requires us to note that all purchaser data required for order processing will be stored electronically.
Last Update: 06/2017