M + E Industrieservice GmbH

General Terms and Conditions of Sale

Section 1: Scope of application

These General Terms and Conditions of Sale shall only apply to enterprises, legal persons under public law or special funds under public law within the meaning of section 310 subsection (1) German Civil Code [Bürgerliches Gesetzbuch, BGB]. We shall not recognise any conditions of the purchaser which are contrary to or deviate from our General Terms and Conditions of Sale unless we have expressly agreed to them in writing.
These General Terms and Conditions of Sale shall also apply to all future transactions with the purchaser, insofar as these are legal transactions of a similar nature.

Section 2: Offer and conclusion of contract

If an order is to be regarded as an offer pursuant to section 145 German Civil Code, we can accept it within two weeks.

Section 3: Provided documents

We reserve any property rights and copyrights to all documents provided to the purchaser in connection with the order, such as calculations, drawings, etc. These documents must not be made available to third parties unless we have given the purchaser our express written consent to do so. If we do not accept the offer of the purchaser within the period of time stated under Section 2, these documents must be returned to us without undue delay.

Section 4: Prices and terms of payment

Unless otherwise agreed in writing, our prices are “EXW (Ex Works) Incoterms 2010” and do not include packaging and the respective amount of applicable value-added tax. Packaging costs shall be invoiced separately.
Payment of the purchase price must be made exclusively to the company’s bank account. The deduction of a discount is only permissible with a written special agreement. Invoice amounts for repairs, changes, or maintenance services are payable without deduction from the date of the invoice.
Unless otherwise agreed, the purchase price is due without any deductions within 14 days from the date of the invoice. Default interest shall be charged at a rate of 8% above the respective basic rate of interest p.a. We reserve the right to assert a higher damage caused by default.
Unless a fixed-price agreement has been made, we reserve the right to make reasonable price changes due to changed payroll, material, and distribution costs for deliveries which take place three or more months after conclusion of the contract.
If, after conclusion of the contract, it becomes apparent that our payment claim is at risk due to the customer’s inability to perform or if the customer falls into default of payment of a considerable amount or if other circumstances arise which indicate a significant deterioration in the customer’s financial circumstances after conclusion of the contract, we shall be entitled to the rights arising from section 321 German Civil Code (defence of uncertainty). We shall then also be entitled to accelerate all claims not yet due arising from the current business relationship with the customer, even if the customer has been granted payment terms. Furthermore, the plea of uncertainty shall apply to all further outstanding deliveries and services arising from the business relationship with the customer.

Section 5: Set-off and rights of retention

The purchaser shall only be entitled to set-off if his counterclaims are undisputed or have been confirmed by a final and non-appealable judgment. The purchaser shall only be entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship

Section 6: Delivery period

The beginning of the delivery period specified by us shall require the timely and proper fulfilment of the purchaser’s obligations. The right to defence of unperformed contract remains reserved.
If the purchaser falls into default of acceptance or culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us as a result, including any additional expenses. We reserve the right to assert further claims. If the above conditions apply, the risk of accidental loss or accidental deterioration of the purchased item shall be transferred to the purchaser at the point in time at which the purchaser is in default of acceptance or debtor’s delay.
In the event of a delayed delivery which is not the result of intent or gross negligence on our part, we shall be liable to pay a lump-sum compensation for delay amounting to 3% of the delivery value for each completed week of delay, but not more than 15% of the delivery value.
Further legal claims and rights of the purchaser due to a delayed delivery shall remain unaffected.

Section 7: Transfer of risk upon shipment

Transporting the goods to the customer and handling the associated formalities are the responsibility of the customer unless these tasks are expressly assigned to us according to the delivery clause in the order confirmation. The interpretation of the delivery clauses is based on the Incoterms in the version valid at the time of conclusion of contract. If the order confirmation does not state otherwise, the delivery is “EXW (Ex Works)¹” or the corresponding follow-up regulation applies.
Upon transfer of the goods to a haulier or carrier, however, no later than at the time when the respective goods leave our plant the risk, including the risk of a seizure of the goods, shall be transferred to the customer in all transactions. Upon customer request, a transport insurance of the delivery can be arranged. The customer shall bear the costs incurred in this respect. Any unloading obligations and charges shall be borne by the customer.
If, through no fault of our own, transport on the intended route or to the intended destination in the intended time becomes impossible or considerably more difficult, we shall be entitled to deliver via an alternative route or to an alternative destination. The customer shall bear the additional costs incurred. In advance, the customer will have the opportunity to state his opinion on the matter.
The return of packaging is subject to separate agreements.

Section 8: Retention of title

We retain title to the delivered goods until full payment of all receivables arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this provision. We are entitled to withdraw the purchased item if the purchaser acts in breach of the contract.
The purchaser is obliged to treat the purchased item with care until ownership of the item has been transferred to him. In particular, the purchaser is obliged to insure the item adequately and at his own expense against theft, fire, and water damage at replacement value. If maintenance and inspection work is to be carried out, the purchaser must perform it in due time and at his own expense. As long as the ownership has not been transferred, the purchaser has to notify us in writing and without undue delay in case the delivered item is seized or subject to other interferences by third parties. If the third party is not able to reimburse us for the court and out-of-court costs of an action pursuant to section 771 German Code of Civil Procedure [Zivilprozessordnung, ZPO], the purchaser shall be liable for any resulting loss incurred by us.
The purchaser is entitled to resell the goods subject to retention of title in the ordinary course of business. The purchaser hereby assigns to us his buyer’s receivables arising from the resale of the goods subject to retention of title in the amount of the final invoice amount agreed upon with us (including value-added tax). This assignment applies regardless of whether or not the purchased item was resold without or after further processing. The purchaser remains authorised to collect the receivables even after the assignment. Our power to collect the receivables ourselves remains unaffected. However, we will not collect the receivables as long as the purchaser meets his payment obligations arising from the proceeds collected, is not in default of payment, and particularly as long as no application for commencement of insolvency proceedings has been filed or payment has not been suspended.
Any treatment, processing, or alteration of the purchased item by the purchaser always takes place in our name and on our behalf. In this case, the purchaser’s expectant right to the purchased item shall continue in the altered item. If the purchased item is processed together with other items not owned by us, we acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed items at the time of processing. The same applies in case of intermixture. If the items are intermixed in such a way that the item of the purchaser is to be seen as the main item, it is deemed to be agreed that the purchaser proportionately assigns co-ownership to us and holds the arising sole or joint ownership in safe custody for us. To secure our claims against the purchaser, the purchaser also assigns to us any receivables which arise against a third party as a result of the combination of the goods subject to retention of title with a plot of land. We hereby accept this assignment.
We commit to releasing the securities we are entitled to upon the purchaser’s request if their value exceeds the receivables to be secured by more than 20%

Section 9: Warranty and notice of defects and recourse/manufacturer’s recourse

Any warranty rights of the purchaser require that the purchaser has properly fulfilled his obligation to inspect the goods and to give notice of complaints as required pursuant to section 377 German Commercial Code [Handelsgesetzbuch HGB].
Claims for defects become statute-barred in 12 months after successfully delivering the product to the purchaser. The above provisions shall not apply in cases in which longer periods are prescribed by law pursuant to section 438 subsection (1) no. 2 German Civil Code (regarding buildings and goods for buildings), section 479 subsection (1) German Civil Code (regarding the right of recourse), and section 634a subsection (1) German Civil Code (regarding construction defects). Our consent must be obtained prior to any return of goods.
If the delivered goods, despite all care taken, have a defect that already existed at the time of transfer of risk, we will, at our discretion, either repair the goods or deliver replacement goods, provided that the notice of defects was given in due time. We must always be given the opportunity for supplementary performance within a reasonable period of time. The above provision does not affect any rights of recourse in any way.
If supplementary performance fails, the purchaser can—without prejudice to any claims for damages—withdraw from the contract or reduce the remuneration.
There shall be no claims for defects in cases of only insignificant deviations from the agreed quality, only minor impairment of usefulness, natural wear and tear, or damage arising from faulty or negligent handling after the transfer of risk, excessive use, unsuitable equipment, defective construction work, unsuitable subsoil or particular external influences not specified in the contract. If the purchaser or third parties carry out improper repair work or modifications, there shall also be no claims for defects for these or consequences thereof.
Claims of the purchaser for expenses incurred for the purpose of supplementary performance, in particular transport, travel, labour, and material costs, are excluded if the expenses increase because the goods delivered by us have subsequently been brought to a destination other than the purchaser’s establishment, unless the transfer corresponds to their intended use.
The purchaser’s rights of recourse against us exist only insofar as the purchaser has not made any agreements with his customer that go beyond the mandatory statutory claims for defects. Section 6 shall also apply accordingly to the scope of the purchaser’s right of recourse against the supplier.

Section 10: Miscellaneous

This contract and the entire legal relations of the parties are subject to the law of the Federal Republic of Germany, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Place of performance and exclusive court of jurisdiction and for all disputes arising from this contract shall be our registered office unless otherwise stated in the order confirmation.
All agreements made between the parties for the purpose of executing this contract are established in writing in this contract.
Should individual provisions of this contract be or become invalid or contain a loophole, the remaining provisions shall remain unaffected. The parties undertake to replace the invalid provision with a legally permissible provision that comes closest to the economic purpose of the invalid provision or fills this loophole.

+49 (0) 86 21 / 6 47 63-0

M + E Industrieservice GmbH
Dorfen 9
D-83352 Altenmarkt a.d. Alz

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