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Terms and Conditions

General sales and delivery conditions of METALCON GmbH

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  1. scope

  1. The following General Terms and Conditions of Sale and Delivery (hereinafter: “Terms of Delivery”) apply exclusively to the entire current and future business relationship between METALCON GmbH (hereinafter: “METALCON”) and the buyer regarding the purchase of movable objects (“delivery items”).

  1. With the order by the buyer, at the latest with the receipt of the delivery of the delivery items, the buyer recognizes the sole liability of these delivery conditions. If the buyer uses conflicting, deviating or supplementary conditions, their applicability towards METALCON is excluded, even if METALCON does not expressly object to them.

  1. Unless otherwise agreed, the terms of delivery in the version valid at the time of the purchaser's order or at least in the version last communicated to him in text form also apply as a framework agreement for similar future contracts, without METALCON having to refer to them again in each individual case.

  1. In individual cases, individual agreements made with the buyer (including ancillary agreements, additions and changes) always take precedence over these terms of delivery. Subject to evidence to the contrary, a written contract or the written confirmation by METALCON is decisive for the content of such agreements.

  1. Offer and conclusion of contract

  1. METALCON's offers are non-binding. By placing an order, the buyer submits an offer to which he is bound for 3 (three) weeks from receipt by METALCON. A contract is only concluded with the written order confirmation from METALCON and is based exclusively on the content of the order confirmation and/or these delivery conditions.

  1. METALCON reserves all rights to its own sales documents (in particular illustrations, weight and dimensions) and the samples. They may not be made accessible to third parties and must be returned to METALCON immediately upon request.

  1. If the delivery items ordered are to have a special quality that does not result from the standard product description or product designation or that require special processing by METALCON or third parties, the buyer must provide the relevant description of the quality, plans, sketches, current drawings, etc. (hereinafter "Specifications"). Such a quality is only agreed if METALCON accepts it with the order confirmation.


Delivery times and dates

  1. Delivery dates and delivery periods are only binding if they have been confirmed in writing by METALCON and the buyer has informed METALCON in good time of all information, specifications, approved plans, documents, approvals and approvals required for the execution of the delivery and has paid any agreed down payments as agreed Has. Agreed deadlines begin with the date of the order confirmation or declaration of acceptance. In the case of additional or extension orders placed later, the deadlines are extended accordingly.

  1. Events that are unforeseeable, unavoidable and beyond METALCON's sphere of influence ("force majeure"), such as in particular war, natural disasters, strikes, lockouts, epidemics, official measures or similar events release METALCON for their duration plus a reasonable start-up period from the obligation to deliver or Performance. Agreed deadlines are extended by the duration of the disruption plus a reasonable start-up time; the buyer will be informed in an appropriate manner of the occurrence of the disruption. If the end of the disruption is not foreseeable or if it lasts longer than two months, each party is entitled to withdraw from the contract.

  1. In the case of delivery items that METALCON does not manufacture itself but obtains from suppliers, the correct and timely delivery is subject to the reservation of self-delivery.

  1. The occurrence of the delay in delivery is determined by the statutory provisions. In any case, a reminder by the buyer is required.

  1. If the buyer is in default of acceptance or violates other obligations to cooperate, METALCON is entitled, without prejudice to its other rights, to store the delivery items at the risk and expense of the buyer or to withdraw from the contract after a reasonable period set for the buyer.

  1. METALCON can make partial deliveries if they are reasonable for the buyer.

  1. Shipping, transfer of risk, insurance

  1. The delivery of the delivery items to the buyer takes place EXW METALCON Düsseldorf (ICC INCOTERMS 2020), which is also the place of performance for the delivery and for any supplementary performance. At the request and expense of the buyer, the delivery items will be sent to another destination (sales by mail).

  1. Unless otherwise agreed, METALCON is entitled to determine the type of shipment (in particular transport company, shipping route, packaging). The risk of accidental loss and accidental deterioration passes to the buyer when the delivery item is handed over to the transport company or to the buyer himself. The handover is the same if the buyer is in default of acceptance.

  1. The costs for packaging and shipping are borne by the buyer and are shown separately by METALCON on the invoice.

  1. Transport insurance is only provided upon request and at the expense of the buyer.

  1.   Prices, terms of payment

  1. The prices agreed between METALCON and the buyer are (subject to Section 4.3) fixed prices, unless the parties have agreed otherwise.

  1. The billing of the semi-finished products ordered from METALCON is based on the weight of the semi-finished products weighed by METALCON.

  1. If unforeseeable changes in costs occur after the conclusion of the contract, in particular due to wage agreements or fluctuations in material costs as a result of changes in the market price, METALCON is entitled to adjust the agreed price accordingly at its reasonable discretion.

  1. METALCON prices are in euros from the distribution center or works, excluding the respective statutory sales tax and the packaging and shipping costs, which are calculated separately.

  1. METALCON is entitled to issue partial invoices for partial deliveries within the meaning of Section 2.9.

  1. Each METALCON invoice is due for payment without deduction within 30 days of receipt of the invoice. If the buyer does not pay despite the expiry of this period, default occurs; Otherwise, the legal regulations for default on the part of the buyer apply.

  1. Payments by the buyer are only deemed to have been made when METALCON can dispose of the amount.

  1. If the buyer is in default of payment, METALCON is entitled to demand default interest at the statutory rate. The assertion of further default damages remains unaffected.

  1. The buyer is only entitled to set off or to assert a right of retention if his counterclaim is undisputed or has been legally established. In the event of defects in the delivery, the counter rights of the buyer, in particular to retain a part of the purchase price that is reasonable in relation to the defect, remain unaffected.

  1. METALCON is entitled at any time, even within the framework of an ongoing business relationship, to carry out deliveries in whole or in part only against advance payment or the provision of security. METALCON will declare a corresponding reservation at the latest with the order confirmation.

  1. If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that METALCON's claim to payment of the purchase price is jeopardized by the buyer's lack of ability to pay, METALCON is entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract contract entitled.

  1. retention of title

  1. The delivery items remain the property of METALCON until all claims of METALCON from the business relationship with the buyer have been paid in full. In the case of a current account, the retention of title applies to secure the balance claim to which METALCON is entitled.

  1. The buyer is permitted to sell the delivery items subject to retention of title ("reserved products") in the ordinary course of business. The buyer hereby assigns the claim from the resale to METALCON; METALCON already accepts this assignment. The buyer is revocably authorized to collect the claims assigned to METALCON in trust for METALCON in its own name. METALCON can revoke this authorization and the right to resell if the buyer is in arrears with essential obligations such as payment to METALCON; in the event of revocation, METALCON is entitled to collect the claim itself.

  1. The buyer is not entitled to pledge the reserved products, to assign them as security or to make other disposals that endanger the property of METALCON.

  1. If the buyer sells the reserved products after processing or transformation or after connecting or mixing with other goods or otherwise together with other goods, the assignment of claims is only agreed in the amount of the part that corresponds to the price agreed between METALCON and the buyer plus a security margin of 10% corresponds to this price.

  1. Any processing or transformation of the reserved products by the buyer is always carried out for METALCON. If the reserved products are processed with other items, METALCON acquires co-ownership of the new item in relation to the value of the reserved products to the other processed items at the time of processing. For the rest, the same applies to the new item created by processing as to the delivery items delivered under reservation.

  1. If the reserved products are connected or mixed with other items, METALCON acquires co-ownership of the new item in the ratio of the value of the reserved products to the other items at the time of connection or mixing. If the connection or mixing takes place in such a way that the buyer's item is to be regarded as the main item, it is agreed that the buyer transfers proportionate co-ownership to METALCON. The co-ownership created in this way will be kept by the buyer for METALCON.

  1. The buyer will provide METALCON at any time with all desired information about the reserved products or about claims that have subsequently been assigned to METALCON.

  1. The buyer must notify METALCON immediately of any access or claims by third parties to products subject to retention of title and hand over the necessary documents. At the same time, the buyer shall inform the third party of METALCON's retention of title. The buyer bears the costs of defending against such access and claims.

  1. The buyer is obliged to treat the reserved products carefully for the duration of the retention of title.

  1. If the realizable value of the securities exceeds the entire claims to be secured by METALCON by more than 10%, the buyer is entitled to demand release in this respect.

  1. If the buyer is in arrears with essential obligations such as payment to METALCON, METALCON can, without prejudice to other rights, take back the reserved products and, after withdrawing from the contract, use them elsewhere for the purpose of satisfying due claims against the buyer. In the event of a demand for return, the buyer will immediately grant METALCON or METALCON's agents access to the reserved products and hand them over. If METALCON demands surrender based on this provision, this alone does not count as withdrawal from the contract.

  1. In the case of deliveries to countries outside the Federal Republic of Germany, in which the above retention of title regulation does not have the same security effect as in the Federal Republic of Germany, the buyer will do everything necessary to immediately order corresponding security rights for METALCON. The buyer will participate in all necessary measures such as registration or publication.

  1. At the request of METALCON, the buyer is obliged to insure the reserved products appropriately, to provide METALCON with the corresponding proof of insurance and to assign the claims from the insurance contract to METALCON.

  1. Agreed quality, buyer's rights in the event of defects, obligation to inspect

  1. The statutory provisions shall apply to the buyer's rights in the event of material defects and defects of title, unless otherwise specified below.

  1. The basis of METALCON's liability for defects is the agreement reached regarding the quality of the delivery items.

  1. The buyer is responsible for ensuring that the specifications made by him and handed over to METALCON and approved, including supplements, are correct and implementable.

  1. The buyer is not entitled to any warranty claims against METALCON for errors resulting from a defect in the specification supplied by the buyer or as a result of instructions given by the buyer for the execution of the delivery items.

  1. Information in catalogues, price lists and other information material made available to the buyer by METALCON as well as information describing the product are no guarantees for the quality of the delivery item; any quality guarantees must be expressly agreed in writing.

  1. Customary quantity and weight deviations of up to 10% of the order quantity are permissible. Customary quality deviations / quality deviations that are caused by the delivery item are also permissible.

  1. METALCON is not liable for defects that the buyer is aware of at the time the contract is concluded or is unaware of due to gross negligence.

  1. The buyer's rights due to defects in the delivery item presuppose that the buyer has complied with his statutory inspection and notification obligations (§ 377 HGB). If a defect becomes apparent upon delivery, inspection or at a later point in time, METALCON must be notified immediately in writing, stating the invoice number. Obvious transport damage must be reported to METALCON immediately in writing. Hidden defects must be reported to METALCON in writing immediately after their discovery.

  1. In the event of any notification of defects, METALCON has the right to inspect and test the object of delivery complained about. The buyer will grant METALCON the necessary time and opportunity for this. METALCON can also demand from the buyer that he sends back the object of delivery to METALCON.

  1. METALCON will remedy defects at its own discretion by remedying the defect free of charge for the buyer or by delivering a defect-free item as a replacement (collectively "subsequent performance"). METALCON's right to refuse supplementary performance in accordance with the statutory requirements remains unaffected.

  1. METALCON shall bear the transport, travel, labor and material costs required for the purpose of supplementary performance in accordance with the statutory provisions if there is actually a defect.

  1. If the notice of defects proves to be unjustified, the buyer is obliged to reimburse METALCON for all expenses incurred in this connection (e.g. test, travel or shipping costs), unless the lack of defectiveness was not recognizable to the buyer.

  1. Subsequent performance includes neither the dismantling of the defective delivery item nor the renewed installation if METALCON was not obliged to install the delivery item.

  1. If the supplementary performance fails or if METALCON has refused it, the buyer can choose to withdraw from the contract in accordance with the statutory provisions, reduce the purchase price and/or demand compensation for damages or reimbursement of his expenses in accordance with Section 7. In the case of an insignificant defect, there is no right of withdrawal.

  1. Claims from supplier recourse are excluded if the defective delivery item has been further processed by the buyer or another entrepreneur, for example by installing it in another product.

  1. Claims by the buyer for damages or reimbursement of expenses also exist in the case of defects only in accordance with Section 7 and are otherwise excluded.

  1. Liability and Damages

  1. METALCON is liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions, unless otherwise stated in these terms of delivery.

  1. METALCON is liable for damages within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, Hempel Special is only liable, subject to statutory limitations of liability
    (i) for damage resulting from injury to life, limb and health,
    (ii) for damages resulting from the breach of a material contractual obligation (i.e. an obligation the fulfillment of which is essential for the proper execution of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, METALCON's liability is limited to compensation for the foreseeable, typically occurring damage.

  1. The limitation of liability resulting from Section 7.2 also applies to breaches of duty by persons whose fault METALCON is responsible for according to the statutory provisions.

  1. The limitation of liability resulting from Section 7.2 does not apply if METALCON has fraudulently concealed a defect or has assumed a guarantee for the quality of the delivery items and for claims under the Product Liability Act.

  1. product liability

  1. The buyer releases METALCON internally from product liability claims of third parties, insofar as the buyer is responsible for the error triggering the liability.

  1. As part of his obligation to indemnify, the buyer has to reimburse expenses according to §§ 683,670 BGB that result from or in connection with the claims of third parties.

  1. statute of limitations

  1. The general limitation period for claims arising from material and legal defects is one year from handover. If acceptance has been agreed, the limitation period begins with acceptance.

  1. The statute of limitations of sales law also applies to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory statute of limitations (§§ 195, 199 BGB) would lead to a shorter statute of limitations in individual cases.

  1. Claims for damages by the buyer according to Section 7.2 sentence 1 and sentence 2 (i) and according to the Product Liability Act lapse exclusively according to the statutory limitation periods.

  1. General Provisions

  1. The buyer may not assign his claims against METALCON to third parties without the written consent of METALCON.

  1. If a provision of the contract and/or these terms of delivery is wholly or partially invalid, the validity of the remaining provisions shall remain unaffected.

  1. Place of performance for all mutual claims is Düsseldorf.

  1. The exclusive place of jurisdiction for all disputes arising from the contractual relationship is Düsseldorf. However, METALCON is entitled to sue the buyer at any other legal place of jurisdiction.

  1. The law of the Federal Republic of Germany applies, excluding conflict of laws and the United Nations Convention on the International Sale of Goods (CISG).


Status: May 2020

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