General terms and conditions
TERMS AND CONDITIONS
Harry Maas Galvano- und Pulvertechnik GmbH
(As of: November 15, 2023)
1. General
1.01 The following terms and conditions only apply to business transactions and are the basis for all of our offers, orders, deliveries and services.
1.02 As far as “in writing” is mentioned within the scope of these General Terms and Conditions when submitting advertisements or declarations to the user, this means text form (e-mail, letter, fax, etc.) within the meaning of Section 126b of the German Civil Code (BGB).
1.03 Other terms and conditions are only recognized to the extent that they correspond to our general terms and conditions or are expressly made by us in individual cases as the basis of the respective contract or service or we have subsequently agreed to them.
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2 offers
2.01 Our offers are always subject to change. In case of doubt, the contract is only concluded with and in any case only in accordance with the terms and content of our written order confirmation, if such is issued. Individual contractual agreements remain unaffected by this.
2.02 The recommended prices communicated are not offers and only become the basis of the contract if agreed. We are bound to our offer prices for a maximum period of four months until the order is placed.
2.03 Offers and attachments may not be made accessible to third parties without our consent.
3. Prices and payment terms
3.01 Our prices are purely net without any cash discount or other discount in euros ex works, excluding packaging, freight and insurance plus the applicable statutory sales tax. The granting of discounts requires the express agreement of the contracting parties. The prices apply exclusively to parts designed and manufactured for processing. For additional work required, such as the removal of paint, oil, grease, tar, scrap metal coatings and the subsequent installation of openings on hollow bodies as well as the creation of test reports, we charge the surcharges previously agreed with the client, in the absence of such surcharges in accordance with Section 315 of the German Civil Code (BGB). Prices corresponding to equity.
3.02 If the cost factors relevant to pricing (manufacturing materials, energy, operating materials, wages and salaries, etc.) change significantly in the period from the conclusion of the contract to the contractually stipulated time of delivery, i.e. by more than 5%, we are liable to compensate In the event of such cost increases, we are entitled to demand that the client agree on new, appropriate prices by changing the offer prices. This only applies after 4 months after the conclusion of the contract. If an agreement cannot be reached, we and the customer are entitled to withdraw from the contract. If the cost factors mentioned in sentence 1 are reduced, the customer is entitled to agree on a corresponding price reduction and, in the absence of agreement, the right to withdraw from the contract.
3.03 Unless otherwise expressly agreed, payments after delivery must be made within 8 days of receipt of the invoice without deductions of discounts. In the event of late payment, we charge default interest of 9 percentage points above the base interest rate (§§ 286, 288 Para. 2 BGB), without prejudice to other rights. 3.04 The client only has the right to set off against our claims if his claim is undisputed or has been legally established.
4. Delivery
4.01 Unless otherwise agreed, the delivery period begins upon receipt of the order confirmation; If the material to be processed is delivered later by the client, however, only at this point in time.
4.02 If delivery is postponed as a result of unforeseeable circumstances at our company, upstream suppliers or subcontractors, such as: B. force majeure, strike, shortage of raw materials, operational disruption or energy failure, the client is entitled to withdraw from the contract after granting a reasonable grace period. § 323 Para. 2 BGB remains unaffected. If delivery is impossible for us due to the aforementioned circumstances, we will be released from our obligation to deliver. If delivery is no longer reasonable for us due to these circumstances, we are entitled to refuse delivery. The client is not entitled to compensation if we are not responsible for these circumstances.
4.03 If the client defaults on his obligation to provide or cooperate after a written reminder, we are entitled to withdraw from the contract by setting a written grace period of 14 days and to demand compensation instead of performance.
4.04 Partial deliveries are permitted as long as they are reasonable for the client in individual cases. Reasonableness exists if the contractor's interest in making changes outweighs the customer's interest in the immutability of the agreed service provision or is at least equivalent.
4.05 Deliveries are made ex works excluding packaging.
4.06 The risk for the client's items to be processed is transferred to the client when they leave our factory, but at the latest when they are handed over to the forwarding agent or freight carrier. With regard to transport damage, the contractor is only liable for intent and gross negligence. This does not apply in the event of a breach of pre-contractual information and information obligations. Liability for simple and slight negligence is excluded unless it involves a breach of an essential contractual obligation within the meaning of the case law of the Federal Court of Justice. In this respect, what is essential to the contract is an obligation whose fulfillment shapes the contract and on whose compliance the customer can rely. This does not apply in the event of a breach of pre-contractual information and information obligations.
4.07 If the goods to be processed are picked up by us at the request of the client, the transport risk is borne by the client. The client is free to insure these risks. With regard to the contractor's liability for transport damage, reference is made to clause 4.06, sentences 2 and 3.
4.08 The aforementioned provisions also apply if we have guaranteed freight-free deliveries.
4.09 If the goods are ready for dispatch and dispatch or acceptance is delayed for reasons for which we are not responsible, the risk is transferred to the client upon receipt of notification of readiness for dispatch.
4.10 Shipping route, type and means of shipping are to be left to us without any guarantee for the fastest and cheapest transport. The interests of the customer are taken into account appropriately. If we act as a freight forwarder, the General German Freight Forwarder Conditions also apply.
4.11 The client must retrieve goods reported as ready for dispatch immediately, but at the latest after a reasonable period of time has elapsed after notification. If there is no call-off, this entitles us to store the goods at the customer's expense and risk at our fair discretion and to invoice them as delivered ex works.
4.12 If the dispatch or delivery of the goods is delayed at the request or instigation of the client, a storage fee of 1% of the invoice amount may be charged for each month or part thereof, starting one month after notification of readiness for dispatch. The storage fee is limited to 5% of the invoice amount unless we can prove higher storage costs. The client can provide proof that storage costs were not incurred at all or that they were significantly lower than the flat rate.
4.13 We are not liable for any resulting waiting times, provided that these are still reasonable overall and in any case do not exceed one week, unless pick-up and delivery dates have been bindingly agreed.
4.14 Insurance against transport damage is only provided at the order and expense of the client
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4.15 If processed goods are returned to us for reasons for which we are not responsible, the client bears the risk until we receive the goods.
4.16 Surface-treated parts will only be packaged to the extent that the material to be processed was sent packaged, return packaging was requested and the packaging material is reusable. If additional packaging is required after surface treatment, this will be charged separately and will not be taken back.
5. Claims for defects
5.01 All liability restrictions in these General Terms and Conditions do not apply to liability for damages resulting from injury to life, body or health, which is based at least on a negligent breach of duty by us or an intentional or negligent breach of duty by our legal representative or vicarious agent. We only assume liability for our services in accordance with the following provisions and only to the client as the first purchaser. The assignment of claims for defects to third parties is excluded unless the customer's interest in the assignability outweighs our interest in non-assignment.
5.02 We guarantee professional surface treatment of materials and workmanship in accordance with the recognized rules of technology, the applicable DIN regulations or - if relevant - corresponding standards, ie EN or ISO standards. During galvanic and chemical processes as well as due to differences in the quality of the raw material, deviations from the sample on which the order is based are sometimes unavoidable.
5.03 Parts with defective surface treatment will be professionally repaired by us free of charge.
5.04 The contractual partner's claims for defects expire one year from the start of the statutory limitation period; This period is extended by the period of time that is typically required to identify the reported defects in the subject matter of the contract. The aforementioned deadline does not apply in the cases of Sections 438 Paragraph 1 No. 2 and Section 634a Paragraph 1 No. 2 BGB. The delivered goods must be inspected immediately to ensure that they are free of defects, insofar as this is possible in the normal course of business. Obvious defects must then be reported immediately in writing. The obligation to inspect also applies if failure samples have been sent. In the case of defects that are not immediately recognizable, the same applies within the aforementioned period after the defect is discovered.
5.05 If the complaint is not made in the correct form or on time, the goods are deemed to have been approved by merchants within the meaning of the German Commercial Code (HGB).
5.06 The items handed over to us for processing must be delivered with a delivery note or with precise written information about the number of items and total weight. The gross weight information is non-binding for us, even if it is important for the client. Replacement for missing parts will only be provided if their delivery is documented by a delivery note signed by us or can be otherwise proven and the risk for the missing parts has passed to us. In the case of small and mass-produced parts, we generally accept no liability for rejects or shortages of up to 3% of the total quantity delivered, unless this is due to gross negligence or intent on the part of us, our representatives or our vicarious agents, or if this has been agreed otherwise.
5.07 The client reserves the right, if the subsequent performance fails or if the seller refuses both the subsequent improvement and the subsequent delivery or the subsequent performance is unreasonable, to reduce the purchase price or the remuneration or, at his discretion, to withdraw from the contract and in accordance with Section. 5.08 to demand compensation. A repair is deemed to have failed after the unsuccessful second attempt, unless the nature of the item or the defect or other circumstances indicate otherwise.
5.08 Within the scope of the contractual claims for defects - except for damages resulting from injury to life, body or health - the contractor is only liable for damages caused by intent and gross negligence, including intent and gross negligence by its representatives and vicarious agents, unless otherwise specified below . Liability for simple or slight negligence is excluded unless it involves a breach of an essential contractual obligation within the meaning of the case law of the Federal Court of Justice. In this respect, what is essential to the contract is an obligation whose fulfillment shapes the contract and on whose compliance the customer can rely. If the aforementioned exclusion of liability does not apply due to the breach of an essential contractual obligation, the contractor is only liable for damages typical of the contract and foreseeable at the time the contract was concluded. Any further claims of the customer are excluded. The above limitations or exclusions of liability do not apply in the event of a breach of pre-contractual information and information obligations. The contractor's liability under the Product Liability Act remains unaffected. Contractual penalties are not recognized.
5.09 A defect in the partial delivery does not entitle the client to withdraw from the contract, unless the defect in a partial delivery is so significant that the acceptance of further partial deliveries is no longer of interest to the client.
5.10 The warranty only applies to stress under normal operational and climatic conditions in the Federal Republic of Germany. If the goods are intended for special conditions and we have not been informed of this beforehand so that this does not become the subject of the contract, a warranty for these special conditions is excluded. Claims for defects expire in relation to defects in which repairs have already been attempted by someone else and this has made repairs by the user more difficult, provided that the user has not previously had a reasonable opportunity to remedy the defects.
5.11 To the extent that properties of the goods are guaranteed in terms of appearance, layer thickness, corrosion resistance and coefficient of friction, the guarantee is subject to the condition that the goods remain in an uninstalled condition. Guaranteed properties apply under the condition that the goods are handled properly by the contractual partner, in particular through proper transport, storage, sorting or packaging processes. If the contractual partner wants to rely on the guaranteed properties, he must prove that the goods were treated properly.
5.12 The material to be processed must be free of casting skin, molding sand, scale, carbon, burnt-in grease, welding slag, graphite, paint; it must not have any pores, voids, cracks, duplication, etc.; Threads must be sufficiently undercut. If this is not the case, we are entitled to refuse processing or to withdraw from the contract. If the client nevertheless insists on processing or if the material delivered to us for surface treatment is not technologically suitable for such surface treatment for reasons that we cannot identify, we assume no liability for a specific dimensional accuracy, adhesion, color retention and corrosion-preventing properties of the applied layer, to the extent that a defect is due to the unsuitability of the material and is not due to gross negligence or intent on the part of us, our representatives or our vicarious agents. Furthermore, no liability is assumed for adhesion if the material has been deformed after surface treatment, even if test-galvanized parts could be deformed without the galvanic layer flaking off and the client has requested processing despite pointing out the risk of flaking.
5.13 If the goods intended for surface treatment or a material sample suitable for this purpose are not provided to us for testing purposes for a sufficiently long period of time determined by us in accordance with Section 315 of the German Civil Code (BGB), but at least six weeks, before the start of processing, we will be liable for corrosion damage that neither No liability is assumed if this is due to intent or gross negligence on the part of us, our representatives or our vicarious agents. If in individual cases, given the delivery time specified by a customer, it is not possible for us to carry out short-term tests or other chemical and/or mechanical tests or to create measurement reports or test certificates for scheduling reasons and the customer requests surface treatment without, despite a corresponding prior notice from us Carrying out short-term tests or other chemical and/or mechanical examinations or creating measurement protocols or test certificates, we decline any liability for damages that can be attributed to the lack of inspection, except in cases of intent or gross negligence.
5.14 Hollow parts are only treated galvanically on the outer surfaces, unless cavity treatment has been agreed in special cases. Immediate corrosion on untreated surfaces does not give rise to any right to make a complaint. Surface-treated material is at risk from condensation and fretting corrosion. It must be packed, stored and transported properly.
5.15 The client must determine the minimum layer thicknesses at a measuring point to be agreed upon and take appropriate measures to prevent chemical and mechanical damage to the surface. We are only liable for weather damage and any damage caused by residues from the treatment process that later seep out of duplications and other inaccessible cavities in the event of gross negligence or intent on the part of us, our representatives or our vicarious agents. If the client considers hydrogen debrittlement to be necessary, we will only undertake this after appropriate agreement and to the exclusion of any liability, except in cases of intent and gross negligence. The above limitations or exclusions of liability do not apply in the event of a breach of pre-contractual information and information obligations.
6. Limitations of liability outside of liability for defects
The contractor is liable for damages outside of Section 5.08 - except for damages resulting from injury to life, body or health - also only in accordance with Section 5.08. These limitations of liability also do not apply in the event of a breach of pre-contractual information and information obligations. Contractual penalties are not recognized.
7. Security interest
7.01 We are entitled to a statutory business lien on the items processed by us. Regardless of this, the client grants us a contractual lien on the items handed over to us for the purpose of surface treatment, which serves to secure our claim from the order. Unless the parties to the contract have agreed otherwise, the contractual lien also applies to claims from orders and services carried out previously, provided that they have an internally related, uniform relationship with the subject matter of the order. If the surface-treated parts are delivered to the client before full payment has been made, it has already been agreed with the client that ownership of these parts is then transferred to us in the ratio of the value of our claim to the value of the delivered parts to secure our claims and this replaces the transfer of ownership is that the client keeps the parts safe for us. The same applies with regard to the client's expectant right to objects handed over to us for the purpose of surface treatment that have been delivered to the client by a third party under retention of title. We are entitled to cause the retention of title to cease. The client's claims for retransfer against a third party to whom he had previously transferred the items handed over to us for the purpose of surface treatment as security are hereby assigned to us. We accept the assignment.
7.02 The client may neither pledge nor transfer ownership of items on which we have a lien or which are our security property. However, he may resell or process the goods in the normal course of business unless he has already effectively assigned the claim against his contractual partner to a third party in advance. Any processing of the goods transferred to us as security by the client into a new movable item will be carried out on our behalf with effect for us, without this resulting in any liabilities. We already grant the client co-ownership of the new item in the ratio of the value of the new item minus the value of our performance to the value of the new item. The client must store the new item with commercial care and free of charge.
7.03 In the event that the client acquires sole or joint ownership of this property by combining, mixing or mixing our secured goods with other movable items to form a uniform new item, he will now transfer this ownership right to us in proportion to the value of our secured goods in order to secure our claims to the value of the other item with the simultaneous promise to properly store the new item for us free of charge.
7.04 In the event of the resale of the goods processed by us and transferred to us as security or the new item made from them, the client must inform his customers of our security ownership.
7.05 In order to secure the fulfillment of our claim, the client assigns to us all future claims arising from the resale or further processing of the goods transferred to us with additional rights in the amount of the value of the goods. We accept the assignment.
7.06 The client is authorized to collect the claims against third parties resulting from the resale or further processing for our benefit. At our request, the client must provide proof of the claims individually and disclose the assignment to third parties with a request to pay us up to the amount of our claims. We are also entitled to notify the subsequent purchaser of the assignment at any time and to collect the claim. However, we will not ask the client to collect the claims or to disclose the assignment, nor will we collect the claim ourselves nor will we disclose the assignment ourselves, as long as the client properly fulfills his payment obligations to us.
7.07 The client is obliged to inform us immediately of any enforcement measures taken by third parties in the security interests.
7.08 The client is obliged, as far as possible, to adequately insure the goods under our security ownership against the risk of fire and theft and, upon request, to assign to us the claims against the insurer and the person causing the damage.
7.09 At the request of the client, the securities to which we are entitled in accordance with the above provisions will be released to the extent that their value exceeds the claims to be secured by more than 10%.
7.10 In the event that third parties assert rights to the collateral, the client undertakes to immediately hand over all necessary documents to us and to reimburse us for any intervention costs incurred, provided that the intervention is successful and the enforcement against the third party as the cost debtor is in vain was attempted.
7.11 All of our claims, including those from other contracts, become due immediately, even in the event of a deferral, as soon as the client culpably defaults on the fulfillment of other, not insignificant obligations to us, stops making payments, becomes over-indebted, or opens insolvency proceedings against his assets or the opening of such proceedings is rejected due to a lack of assets. In such a case, we are entitled to refuse deliveries and services that are still outstanding and to set a reasonable period of time for the customer in which he must, at his discretion, make payment or provide security against our service or delivery. If the deadline has expired without success, we are entitled to withdraw from the contract.
8. Place of performance and place of jurisdiction
8.01 If the client is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parts of the contract is the registered office of the contractor. The place of performance is our place of business, unless it concerns warranty claims or claims in connection with the reversal of a contract.
8.02 The laws of the Federal Republic of Germany apply, excluding foreign law and the standardized international sales law. The German version of a contract text is authoritative.
9. Employees
The contractual partner is not permitted to poach our employees if this is objectionable under competition law, i.e. if this represents a violation of Section 4 No. 4 UWG. Our contractual partner has the burden of proof that there are no reprehensible circumstances in the sense of competition law, in particular within the meaning of Section 4 No. 4 UWG. If he fails to provide this proof, he is obliged to pay the contractual partner an appropriate contractual penalty, which we can determine in accordance with Section 315 of the German Civil Code (BGB). However, the contractual partner is free to judicially review the contractual penalty for appropriateness. The contractual penalty amounts to at least half of the net monthly salary of the poached employee for each month until the expiry of the deadline for ordinary termination by the employee.
10. Severability clause
If one of the aforementioned provisions of these General Terms and Conditions is void, ineffective or unenforceable for any reason, the validity of the remaining provisions and the underlying contract remains unaffected.
