Terms of delivery and payment
The following terms of delivery and payment apply to all legal transactions with our customers.
Contracts shall only be concluded by us on the terms and conditions set out herein, unless we expressly accept different terms and conditions in writing.
Any deviating terms and conditions of our business partners are hereby rejected.
These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services.
II. Offer and conclusion of contract
1. Our offers shall always be non-binding and subject to confirmation, unless they contain any declarations to the contrary. An order shall only be deemed to have been accepted when it has been confirmed by us in writing or by telex. The same shall also apply to sales concluded through representatives. Additions, amendments and verbal subsidiary agreements or promises made by our employees shall also require written confirmation to be effective, unless verbal agreements have been agreed as effective in individual cases.
2. We reserve the copyright and ownership rights to quotations, drafts, drawings and other documents in all cases. They may neither be made accessible nor handed over to third parties without our consent. In the event that a corresponding order is not placed, we reserve the right to appropriate remuneration depending on the expenses incurred for quotation documents, estimates or similar work specially prepared at the customer’s request which significantly exceed the usual scope of a quotation submission.
3. Illustrations, drawings, dimensions, weight specifications and colour shades in catalogues, price lists and other documents as well as samples of goods presented or provided may represent approximate values customary in the industry unless they are expressly designated as binding.
4. We reserve the right to make design changes provided that the function of the ordered part is not impaired thereby. However, we are not obliged to make such changes to products already delivered.
1. Unless otherwise agreed, our prices are ex works excluding packaging. The statutory value added tax applicable at the time shall be added to these prices.
2. The prices stated in our offers are always subject to change unless they have been expressly agreed as fixed. If no declarations to the contrary have been made, we shall only be bound to the price agreement for 30 days. In the event of cost increases due to changes in material prices or similar factors, we shall be entitled to increase prices up to the amount of the additional costs actually incurred.
3. The costs of packaging and shipping as well as freight costs shall be borne by the buyer, unless otherwise agreed in the individual case.
IV. Delivery periods
1. A delivery period is only approximate unless a fixed delivery date has been expressly agreed
2. The delivery period shall commence on the date of the order confirmation, but no earlier than the date on which the buyer has provided all the preliminary services required for the realisation of the order and both parties are in agreement on the terms of the transaction
3. The delivery deadline shall be deemed to have been met if the goods have left the factory by the end of the agreed deadline, notification has been given that the goods are ready for dispatch or the customer has been requested to collect the goods as may have been agreed.
4. We are not responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us – this includes in particular strikes, lockouts, official orders, etc., even if they occur at our suppliers and their sub-suppliers – even in the case of bindingly agreed deadlines and dates. They entitle us to postpone the delivery or service for the duration of the impediment plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
If the impediment lasts longer than three months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if we are released from our obligation, the business partner cannot derive any claims for damages from this. We can only invoke the aforementioned circumstances if we notify the buyer immediately.
5. In the event of a delay in delivery for which we are responsible, the buyer may only withdraw from the contract after the unsuccessful expiry of a reasonable grace period. If we are responsible for non-compliance with bindingly agreed deadlines and dates or if we are in default, the buyer shall be entitled to compensation for default in the amount of ½ % for each full week of default, but in total not more than up to 5 % of the invoice value of the deliveries and services affected by the default.
Any further claims are excluded unless the delay is due at least to gross negligence on our part.
6. We are entitled to make partial deliveries and render partial services at any time.
V. Dispatch and transfer of risk
1. Unless otherwise agreed or special instructions have been given by the customer, the choice of the means of transport and the transport route shall be made at our discretion, without assuming liability for the cheapest, quickest and most risk-free shipment.
2. If the goods are not collected by the buyer himself but sent to him at his request, the risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon delivery to the shipping agent, but no later than upon leaving the factory or warehouse, irrespective of whether the shipment is made from the place of performance and who bears the freight costs. If the dispatch or collection of the goods is delayed for reasons for which the buyer is responsible, the risk shall pass to the buyer upon notification of readiness for dispatch.
3. For deliveries below an order value of € 75.00, we reserve the right to charge a handling surcharge of 10 – 20% of the value of the goods.
1. Payments – also for partial deliveries – are to be made within 30 days from the date of invoice strictly net without any deductions, unless otherwise agreed in individual cases. We generally grant a 2% discount for payment within 10 days and for shipment of the goods against cash on delivery, without, however, being obliged to do so in individual cases. Deliveries can also be made dependent on immediate payment on handover or on payment in advance.
2. The buyer is obliged to pay invoices within the specified period to the specified account. We shall only accept discountable and properly taxed bills of exchange or cheques on account of payment if this has been expressly agreed. In the case of bills of exchange, the customary bank discount and collection charges shall be borne by our customer and are due immediately. The debt on acceptance of bills of exchange or cheques shall only be deemed to have been repaid upon final encashmentt.
3. If the buyer is in default, we shall be entitled to charge interest from the relevant date at the interest rate charged by commercial banks for open overdrafts plus the statutory value added tax. They shall be set at a lower rate if the buyer proves a lower charge.
4. Should circumstances become known to us after conclusion of the contract which give rise to justified doubts as to the buyer’s ability to pay and creditworthiness, we can make all claims – even if bills of exchange or cheques are given – due immediately. The same applies if the buyer falls into arrears with older debts to us. In such cases, we shall also be entitled to make further deliveries only against advance payment or to withdraw from the contract altogether if the buyer does not provide any securities requested by us within a reasonable period of time.
5. Should the buyer permanently violate his payment obligations, we are entitled to claim damages for non-performance.
6. Counterclaims of the buyer may not be set off against our claims unless such counterclaims have been expressly recognised by us or have become res judicata. A right of retention of payment by the buyer is excluded, insofar as this is legally permissible.
VII. Retention of Title
1. The delivered goods shall remain our property until payment has been made in full. The retention of title shall also apply if there are claims from previous or future performances on our part. This also includes conditional claims. The goods subject to retention of title shall be stored by the buyer for us free of charge.
2. The buyer shall be entitled to resell or process the goods subject to retention of title in the normal course of business as long as he is not in default. He is not permitted to transfer ownership by way of security or to pledge the goods
3. In the event that the goods subject to retention of title are combined with other items, it is hereby agreed that we shall acquire co-ownership of the new item in proportion to the value of the sales price charged to the buyer, including value added tax. The processing of the goods shall always be done for us as manufacturer without any obligations arising for us.
4. In the event of a resale of the goods subject to retention of title, the buyer shall assign to us his resulting claims against the third party purchaser as well as claims arising from another legal ground (insurance, tort) in the amount of the invoice amount. We already accept this assignment now. The buyer shall be entitled to collect the claim assigned to us from the third-party buyer, whereby he shall pay to us the share attributable to us in the amount of the purchase price. This authorisation to collect may only be revoked if the customer does not meet his payment obligations in an orderly manner.
5. At our request, the buyer is obliged to inform the third party purchaser of the assignment of the claim arising from the extended retention of title and to provide us with all the information necessary to assert our rights against the third party purchaser. We are entitled to collect the assigned claims from third-party debtors in our own name if we consider our claims to be at risk.
6. The buyer is obliged to notify us immediately of any access or any other impairment of our rights by third parties to the goods subject to retention of title or the claims assigned to us or any other impairment of our rights and to support us in every way against the third party.
7. the buyer shall bear the costs incurred for all necessary measures to secure our property. In the event of breach of contract by the buyer – in particular default of payment – we shall be entitled to take back the goods subject to retention of title or, if applicable, to demand assignment of the buyer’s claims for return against third parties. Our taking back or seizure of the goods subject to retention of title shall not constitute a withdrawal from the contract, unless the German Installment Purchase Act (Abzahlungsgesetz) applies.
VIII. Liability for defects
1. The buyer shall notify us in writing of any complaints due to incomplete or incorrect delivery, defective goods or the absence of warranted properties of the delivery item immediately upon receipt of the goods, unless the delivered goods obviously deviate from the order to such an extent that we must consider the buyer’s approval to be excluded. Otherwise, the delivery shall be deemed approved and accepted. If, despite careful inspection of incoming goods, concealed defects are not immediately detected, these must be brought to our attention immediately after discovery.
2. Our liability for defects is generally limited to the statutory period of 24 months after handover of the goods to the buyer and to the obligation, at our discretion, to carry out repairs free of charge, to replace defective parts or to make a replacement delivery. At our request, the defective products shall be returned to us at our expense beforehand. Should repairs or replacement remain unsuccessful within a reasonable period of time, the buyer shall have the right to rescission or reduction of the purchase price.
3. For defective third-party products, we may, at our discretion, provide warranty in the form of assigning the statutory warranty claims against our upstream supplier.
However, we shall assume the warranty if our customers do not succeed in enforcing their claims against the upstream supplier.
4. We shall not be liable for defects which have their causes in incorrect order documents of the purchaser. A warranty claim shall also not apply to defects or damage caused by the behaviour of the buyer or third parties. This includes, in particular, improper use and improper installation, non-observance of guidelines and operating instructions, violent or negligent handling, unsuccessful repair attempts by the purchaser, unauthorised changes to technical settings, the use of unsuitable or contaminated operating materials and natural wear and tear.
5. The buyer’s warranty claim shall also be void if he has carried out unauthorised improvements or repairs or had them carried out by third parties without giving us the opportunity to remedy the defect or make a replacement delivery and has thus made it impossible or more difficult for us to determine the cause of the defect.
6. A warranty can be refused by us if the buyer has not fulfilled his payment obligations in accordance with the contract. 7. liability for normal wear and tear is excluded.
7. Liability for normal wear and tear is excluded.
8. Only the direct purchaser shall be entitled to warranty claims against us and such claims shall not be assignable.
9. The above paragraphs contain the final warranty for the products and exclude other warranty claims of any kind. This does not apply to claims for damages arising from the warranty of characteristics, which is intended to protect the buyer against the risk of consequential damage.
10. Claims for damages arising from positive breach of contract, from culpa in contrahendo and from tort are excluded against us as well as against our vicarious agents or assistants, except in the case of wilful intent or gross negligence. This also applies to claims for damages due to non-fulfilment, but only to the extent that compensation is demanded for indirect or consequential damage, unless the liability is based on an assurance intended to protect the purchaser against the risk of such damage. Any liability shall be limited to the damage foreseeable at the time of conclusion of the contract.
Products may only be returned to us by prior arrangement and with our express consent, as we otherwise reserve the right to refuse acceptance. After acceptance of the return, we will issue a credit note minus a 10% handling fee.
Cases of justified warranty claims or conversions will be handled free of charge.
X. Place of performance and jurisdiction
The place of performance for all obligations arising from the contractual relationship is Hamburg.
The place of jurisdiction for all disputes is Hamburg.
The law of the Federal Republic of Germany shall apply exclusively to the resolution of disputes.
The provisions of the United Nations Convention on Contracts for the International Sale of Goods of 11.04.80 are not applicable.
XI. Data protection
We declare that we store data in the interests of data protection.
Unless expressly agreed otherwise in writing, information submitted to us in connection with orders shall not be deemed to be confidential.
XIII. Final provisions
The invalidity of individual provisions shall not affect the validity of these terms of delivery and payment in their entirety. The invalid provision shall then be replaced by a provision which comes as close as possible to the invalid provision in legal terms.
Müller Gastechnik GmbH, Industriestraße 3, 25462 Rellingen