General terms and conditions of delivery and payment
(As of 02/2022)
Please note that we only deliver to companies and public institutions (no private individuals!) and our deliveries are made exclusively (explicitly excluding other conditions) in accordance with our General Terms and Conditions (GTC), which you can download here.
- The following terms and conditions of delivery and payment shall apply exclusively to persons who, at the time of conclusion of the contract, are acting in the exercise of their commercial or independent professional activity (entrepreneurs).
- All deliveries and services of Messotron GmbH & Co. KG (hereinafter: MESSOTRON) are subject to these terms and conditions as well as any separate contractual agreements. Any deviating terms and conditions of purchase of the customer are hereby expressly rejected. They shall not become part of the contract even through acceptance of an order, unless Messotron has expressly agreed to their validity in writing.
- In the absence of a separate agreement, a contract shall be concluded with the written order confirmation of the supplier. Subsidiary agreements and amendments to the order must be made in writing and must be expressly confirmed in writing by the supplier.
- These general terms and conditions shall also apply to all future business with the Purchaser.
- Messotron reserves the property rights and copyrights to samples, cost estimates, drawings and similar information of a tangible and intangible nature - also in electronic form. These documents may not be made accessible to third parties.
Messotron undertakes to make information and documents designated as confidential by the customer available to third parties only with the customer's consent.
II. Prices and terms of payment
- Unless otherwise stated in the order confirmation, the supplier's prices shall apply ex works, excluding ancillary costs such as packaging, freight, customs and the like. These shall be invoiced separately.
- The statutory value added tax is not included in the prices of MESSOTRON. It will be shown separately in the invoice at the statutory rate on the day of invoicing.
- MESSOTRON reserves the right to change the prices appropriately if cost reductions or cost increases occur after conclusion of the contract, in particular due to collective wage agreements or material price changes. These shall be proven to the customer upon request.
- Claims for payment by MESSOTRON are due upon invoicing and delivery. The customer shall be in default if he has not settled the claim for payment within a period of 30 days after receipt of the service and invoicing.
- The deduction of a discount requires a special written agreement.
- Unless otherwise agreed in writing, deliveries abroad shall only be made by MESSOTRON against cash in advance.
- Discountable bills of exchange and cheques shall only be accepted on account of payment upon express agreement.
- Interest shall be payable on a monetary debt of the customer during the period of default. The default interest rate for claims for payment shall be 8 percentage points above the base interest rate. The assertion of further damages is not excluded.
- The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been recognised by Messotron. Furthermore, the customer is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
III. Retention of title
- MESSOTRON retains title to the delivery item until receipt of all payments under the delivery contract.
- In the event of a breach of contract by the customer, in particular in the event of default of payment, Messotron shall be entitled to take back the object of purchase. Taking back the goods shall constitute a withdrawal from the contract. After taking back the delivery item, Messotron shall be entitled to realise it. The proceeds from the realisation shall be credited against the customer's liabilities - less reasonable realisation costs.
- The customer is obliged to treat the delivery item with care. In particular, he is obliged to insure it adequately at replacement value against fire, water and theft damage at his own expense. Insofar as maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
- The customer may neither pledge the goods delivered to him nor assign them as security. In the event of seizure or other interventions by third parties, the customer shall immediately notify MESSOTRON in writing so that legal action can be taken in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse MESSOTRON for the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by Messotron as a result.
If the customer fails to notify MESSOTRON of seizures and other interventions by third parties, he shall be liable for the damage resulting from the failure to notify.
- The customer is entitled to resell the delivery item in the ordinary course of business. However, the customer hereby assigns to MESSOTRON all claims in the amount of the final invoice amount including value added tax of MESSOTRON's claim, which accrue to him from the resale against his customers or third parties, irrespective of whether the delivery item has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. The authority of MESSOTRON to collect the claim itself remains unaffected. However, MESSOTRON undertakes not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments have not been suspended.
If this is the case, however, Messotron may demand that the customer discloses to Messotron the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
- The processing or transformation of the delivery item by the customer shall always be carried out for MESSOTRON. If the delivery item is processed with other items not belonging to MESSOTRON, MESSOTRON shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the item delivered under retention of title.
- If the delivery item is inseparably mixed with other items not belonging to MESSOTRON, MESSOTRON shall acquire co-ownership of the new item in the ratio of the value of the delivery item (final invoice amount including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer's item is to be regarded as the main item, it is deemed to be agreed that the customer transfers co-ownership to MESSOTRON on a pro rata basis. The customer shall keep the sole ownership or co-ownership thus created for MESSOTRON.
- The customer assigns to MESSOTRON the claims against a third party arising from the combination of the delivery item as security for MESSOTRON's claims against the customer.
- MESSOTRON undertakes to release the securities to which it is entitled at the customer's request to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon MESSOTRON.
IV. Delivery time, delivery delay
- The delivery time results from the agreements of the contracting parties. Compliance with the delivery time by MESSOTRON requires that all commercial and technical questions between the contracting parties have been clarified and that the customer has fulfilled all obligations incumbent upon him, such as the provision of the necessary official certificates or approvals or the payment of a deposit. If this is not the case, the delivery period shall be extended accordingly. This shall not apply if MESSOTRON is responsible for the delay.
- Compliance with the delivery period is subject to correct and timely delivery to MESSOTRON. MESSOTRON shall inform the customer as soon as possible of any delays that become apparent.
- The delivery period shall be deemed to have been met if the delivery item has left MESSOTRON's premises by the expiry of the delivery period or if MESSOTRON has been notified that the delivery item is ready for dispatch. Insofar as acceptance is to take place, the acceptance date shall be decisive - except in the case of justified refusal of acceptance - alternatively the notification of readiness for acceptance.
- If dispatch or acceptance of the delivery item is delayed for reasons for which the Purchaser is responsible, the costs incurred as a result of the delay shall be charged to the Purchaser, starting one month after notification of readiness for dispatch or acceptance.
- If non-compliance with the delivery time is due to force majeure, labour disputes or other events beyond MESSOTRON's control, the delivery time shall be extended accordingly. MESSOTRON shall notify the customer of the beginning and end of such circumstances as soon as possible.
- The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for MESSOTRON before the transfer of risk. Furthermore, the customer may withdraw from the contract if the execution of a part of the delivery becomes impossible in the case of an order and he has a justified interest in refusing the partial delivery. If this is not the case, the customer shall pay the contract price attributable to the partial delivery. The same shall apply in the event of MESSOTRON's inability to perform. In all other respects, the provisions of section VII. 2. shall apply.
If the impossibility or inability occurs during the delay in acceptance or if the customer is solely or predominantly responsible for the circumstances, he shall remain obliged to counter-performance.
- If the customer sets MESSOTRON - taking into account the statutory exceptions - a reasonable deadline for performance after the due date and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the framework of the statutory provisions.
Further claims arising from delay in delivery shall be determined exclusively in accordance with Section VII. 2.
V. Transfer of risk, acceptance
- Unless otherwise stated in the order confirmation, delivery "ex factory" is agreed.
- The risk shall pass to the purchaser at the latest upon dispatch of the delivery, even if carriage paid or free delivery has been agreed or partial deliveries are made.
- If the shipment is delayed or does not take place due to circumstances for which the customer is responsible, the risk shall pass to the customer upon notification of readiness for shipment. MESSOTRON undertakes to take out, at the customer's expense, such insurance as the customer may require.
- Insofar as acceptance has to take place, this shall be decisive for the transfer of risk. It must be carried out immediately after the supplier's notification that the goods are ready for acceptance. The Purchaser may not refuse acceptance in the event of a non-substantial defect, provided that the Supplier expressly acknowledges its obligation to remedy the defect.
- Goods ready for dispatch shall be called off immediately. If the Supplier has set the Purchaser a reasonable deadline for the call-off, it may store the goods at the Purchaser's expense and risk after the fruitless expiry of such deadline.
- Claims for defects on the part of the Purchaser presuppose that the Purchaser has duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).
- At the discretion of the supplier, all parts which prove to be unusable within 12 months after delivery as a result of a circumstance prior to the transfer of risk or which prove to be significantly impaired upon closer inspection shall be repaired or replaced free of charge. The Supplier shall be notified immediately in writing of the discovery of such defects. Replaced parts shall become the property of the supplier. The parts subject to complaint must be sent to the supplier for inspection if the supplier deems it necessary. By way of derogation, a period of five years shall apply to items which have been used for a building in accordance with their customary use and have caused its defectiveness.
If the shipment is delayed through no fault of the supplier, the warranty ends 12 months after the transfer of risk.
- The limitation period is 12 months, calculated from the transfer of risk.
- After consultation with MESSOTRON, the customer shall give MESSOTRON the necessary time and opportunity to carry out all repairs and replacement deliveries that appear necessary to the supplier. Otherwise, the supplier shall be released from liability for any consequences arising therefrom. Only in urgent cases of danger to operational safety or to prevent disproportionately great damage, in which case the supplier must be notified immediately, or if the supplier is in default with the rectification of the defect, or if subsequent performance by the supplier is otherwise unreasonable for the customer, shall the customer have the right to rectify the defect himself or have it rectified by third parties and to demand reimbursement of the necessary expenses from the supplier.
- MESSOTRON shall bear the expenses necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs.
- MESSOTRON shall be liable for repair work and replacement parts to the same extent as it was liable for the original delivery item.
- No warranty shall be assumed in the following cases in particular: Unsuitable or improper use of the delivery item, faulty assembly or commissioning by the customer or third parties, natural wear and tear, faulty or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences, insofar as they are not the fault of the supplier.
- If the customer or a third party carries out improper repairs, MESSOTRON shall not be liable for the resulting consequences. The same applies to changes made to the delivery item without Messotron's prior consent.
- The customer shall have the right to rescind the contract (withdrawal) if MESSOTRON allows a reasonable period of grace granted to it for the rectification of a defect for which it is responsible or for the replacement delivery to expire fruitlessly. The customer's right to rescind the contract shall also exist in other cases of failure of the rectification or replacement delivery by MESSOTRON.
- After expiry of a reasonable grace period granted to MESSOTRON, the customer may demand a reduction in price in the same manner.
- If the use of the delivery item leads to an infringement of industrial property rights or copyrights within the periods specified in Para. VI. 2. and 3. above, MESSOTRON shall generally procure the right to further use for the customer or modify the delivery item in such a way that the infringement of property rights no longer exists. If this is not possible under economically reasonable conditions, Messotron shall take back the delivery item and refund the contract price less an amount to take into account the use by the customer and the condition of the delivery item.
In addition, MESSOTRON shall indemnify the customer against undisputed or legally established claims of the owners of the property rights concerned.
- These obligations on the part of the Supplier are, subject to Clause VII. 2, conclusive in the event of an infringement of industrial property rights or copyrights. They shall only exist if
• the purchaser notifies the supplier immediately of any asserted infringements of industrial property rights or copyrights,
• the purchaser supports the supplier to a reasonable extent in the defence against the asserted claims or enables the supplier to implement the modification measures,
• the supplier reserves the right to take defensive measures including out-of-court settlement,
• the delivery item has not been manufactured or modified according to the instructions of the purchaser and
• the infringement of rights was not caused by the fact that the buyer
- If, through the fault of MESSOTRON, the delivered item cannot be used by the customer in accordance with the contract as a result of omitted or faulty execution of suggestions and advice given before or after conclusion of the contract, as well as the breach of other contractual collateral duties - in particular instructions for operation and maintenance of the delivery item - the provisions of sections VI. and VII. 2. and 3. shall apply accordingly, to the exclusion of further claims of the customer.
- The supplier shall be liable for damage that has not occurred to the delivery item itself
• in the case of intent,
• in the event of gross negligence on the part of the owner or executive employees,
• in the absence of warranted characteristics, if the purpose of the warranty was to protect the customer against the damage that has occurred,
• in the event of defects in the delivery item, insofar as liability is assumed under the Product Liability Act for personal injury or property damage to privately used items.
In the event of culpable breach of material contractual obligations, the Supplier shall also be liable in the event of gross negligence on the part of non-executive employees and in the event of slight negligence, but limited to reasonably foreseeable damage typical for the contract.
- With regard to claims for damages, liability for damage caused intentionally or by gross negligence and for damage resulting from injury to life, limb or health caused by a negligent breach of duty on the part of the Supplier shall remain unaffected. An intentional or grossly negligent breach of duty on the part of the Supplier shall be deemed equivalent to a breach of duty on the part of its legal representative or vicarious agent. 4. 4. further claims - for whatever legal reason - are excluded.
VIII. Binding nature of contracts
In this case, the contracting parties undertake to replace the invalid provisions with a provision that comes as close as possible to the economic intent of the invalid provisions in the context of the overall contract.
IX. Applicable law, place of jurisdiction
- The legal relationship between MESSOTRON and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relationships between domestic parties, excluding the UN Convention on Contracts for the International Sale of Goods.
- The place of jurisdiction is the court responsible for MESSOTRON's registered office. However, MESSOTRON shall be entitled to bring an action at the customer's principal place of business.