General Terms and Conditions
of MECON GmbH - hereafter “MECON” and/or “we” or “us” - Röntgenstraße 105, 50169 Kerpen, Germany, represented by the managing director Dipl.-Ing. Dirk Hamböcker, commercial register: Cologne Local Court, HRB 52534, VAT ID No.: DE 813470098.
1.1. The following General Terms and Conditions apply to all of our business relationships with entrepreneurs (Section 14 of the German Civil Code [Bürgerliches Gesetzbuch, BGB]), legal persons under public law and public funds under public law (hereafter referred to as the “customer”). Our General Terms and Conditions of Purchase may also apply.
1.2. These General Terms and Conditions also apply to future legal relationships of any kind with the customer, even if they are not expressly agreed to again.
1.3. Deviating, contrary or supplementary general terms and conditions or terms and conditions of purchase, delivery or other of the customer are hereby rejected. Unless we expressly agree to their applicability in writing, such terms and conditions will not be part of the contract, even if we are aware of them.
2. Offers and Contract Conclusion
2.1. Information about our products, services, delivery periods and prices on the Internet, in advertisements, prospectuses or other means of communication remain nonbinding and serve only to invite the submission of an offer from the customer. Anything to the contrary shall only apply if an express binding offer is made.
2.2. For binding offers, we reserve the right to make changes to the construction, form, weight, measurements, design or color of our products if ordered to do so by a public authority/court or if it is necessary due to changed legal circumstances and only if the changes do not alter the function and possible applications of our products and if they are reasonable for the customer according to prevailing public opinion.
2.3. Unless stated otherwise, our offers must be accepted within three months of the offer date. We may treat any acceptance we receive after this deadline as a new order.
2.4. The customer will remain bound to their order for 10 business days following our receipt of their order, though for no more than 13 business days from dispatch of the order to us.
2.5. We will accept orders from the customer through order confirmation in written or text form. The type and scope of the delivery will be determined solely by the order confirmation. Oral additions must be confirmed in text or written form to be effective. If an order confirmation differs from an order, this will - subject to the regulations concerning the commercial confirmation letter - be treated as a new offer which the customer may accept through unconditional acceptance of our service/delivery.
2.6. We have the right to accept the contractual offer contained in the customer's order within the aforementioned acceptance periods. If the customer does not immediately reject in writing a confirmation, delivery or execution of the service which was made after the expiry of the aforementioned period, the contract shall nevertheless be deemed concluded.
3.1. Unless expressly stated otherwise, the prices quoted by us are exclusive of the statutory VAT (net prices) ex works, without packaging, shipping, customs, import fees or insurance costs which will be quoted separately if applicable.
3.2. If contract conclusion and the agreed delivery/service date are separated by more than six months, we may adjust the price if the overall production costs increased between these dates for reasons for which we are not responsible in consideration of any cost reductions. If the current price exceeds the agreed price by more than 10 %, the customer may withdraw from the contract. The customer may obtain disclosure of the percentage increase and decrease of individual production cost segments and the corresponding reasons. This right to disclosure must be exercised within 3 weeks of the price increase.
3.3. Orders for replacement or individual parts have a minimum order value of net € 75.00.
4. Delivery Periods
4.1. The stated delivery periods apply subject to the following regulations.
4.2. Unless otherwise agreed and subject to the following regulations, the delivery period commences as of the day after contract conclusion, though, if the customer made the last contract declaration, as of the date of the declaration or acceptance declaration submission.
4.3. If delivery depends on a delivery by a pre-supplier in the sense of a congruent hedging transaction and if this delivery is delayed for reasons for which we are not responsible, this will result in a corresponding extension of the delivery period; if self-delivery fails in such a case, we may withdraw from the contract.
4.4. The same applies if the delivery becomes significantly more difficult or impossible due to force majeure or another event for which we are not responsible. Such events include: mobilization, war, unrest, fire, floods, labor disputes, operational disruptions, strikes and official orders that cannot be attributed to our operational risk.
4.5. If Sections 4.2 or 4.3 apply, the customer shall be notified about the delayed/lack of delivery and any payment made by the customer shall be refunded without delay. In such cases, the customer may withdraw from the contract after an appropriate grace period. Further claims due to delivery delays will then be excluded.
4.6. We will not be in default under any circumstances if the customer defaults on the fulfillment of their obligations from a contractual relationship with us or fails to cooperate as necessary. Delivery periods will especially only commence after the customer provides everything necessary for the performance of the order, e.g., documents, tools, etc.
4.7. In case of advance payment or down payments, the delivery period will commence on the day after the payment order is placed with the transferring bank or, in case of other payment means, on the day following contract conclusion and will end when the last day of the period ends.
4.8. If the last day of the period is a Sunday or a public holiday at the place of delivery, the business day following this date shall apply.
4.9. Any damage claims of the customer arising from a delayed delivery are determined by Section 7 of these General Terms and Conditions.
5. Delivery/Transfer of Risk
5.1. Deliveries will be made from our registered office. Unless otherwise agreed, deliveries will be made to the first front door.
5.2. We will select the form of transportation for the delivery of our products at our discretion, unless a specific form of transportation is agreed.
5.3. If we agree to hand over the goods to the customer at our registered office, the customer must accept the contractual object within 5 business days of the expiration of the agreed provision period and receipt of the provision notification. If the customer fails to comply with this acceptance obligation during this period, we will provide a grace period of 10 additional business days. If the customer fails to pick up the goods during this grace period, we may withdraw from the contract and exercise damage claims. A grace period is not required if the customer seriously and definitively refuses acceptance.
5.4. If the customer defaults on acceptance or if the contractual object is handed over to a party commissioned by the customer or to the Deutsche Bahn, the freight forwarder or carrier for shipping, the risk of random destruction and deterioration for the contractual object will be transferred to the customer even in case of freight-free delivery.
6. Payment Conditions
6.1. We accept the payment methods specified in the offer/order confirmation. If not stated there, we accept transfers to our business account and cash payments.
6.2. Agreed advance payments must be observed. Otherwise, deliveries will be made with an invoice.
6.3. Unless other payment targets follow from the offer/order confirmation, payments must be made within 30 days of the invoice date. Unless expressly agreed, we will not grant discounts or other reductions.
6.4. For orders that exceed net € 25,000.00, we may demand down payments. Advance invoices for one-third of the total order amount may then be submitted following order confirmation and notification of shipping readiness. Section 4.5 applies.
6.5. Checks and bills of exchange will only be accepted for payment purposes following a special agreement and without a discount. No deferment will be granted. Any resulting collection and discount expenses must be borne by the customer.
6.6. In case of payment default by the customer, we are entitled by law to withdraw from the contract and exercise damage claims. The damage claim amount is agreed at 15% of the net order price. We may exercise greater damage claims and the customer may demonstrate that we incurred no or significantly lower damages.
6.7. Additional rights from any agreed retention of title remain unaffected.
6.8. If the customer defaults on agreed installments by at least 10 days or suspends their payments or the opening of insolvency proceedings against their assets is applied for, the entire remaining amount will become due immediately.
6.10. Payments will, at our discretion, first be used to offset the oldest debts. If we already incurred legal costs - especially reminder fees -, we may use the customer’s payments to first settle these, then any interest and finally the main service costs.
7.1. The following applies to claims of the customer for compensation or reimbursement of futile expenses. Legal or other limitations of liability agreed with the customer in our favor, which go beyond these regulations, remain unaffected. The statutory provisions shall apply to our claims against the customer.
7.2. We shall be liable without limitation for damages resulting from injury to life, limb or health which are the result of a negligent breach of duty by us or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents.
7.3. Otherwise, we shall be liable without limitation only in the absence of a guaranteed quality as well as for intent and gross negligence on the part of our legal representatives and executive employees. We shall only be liable for the fault of other vicarious agents to the extent of liability for slight negligence as set out below.
7.4. We shall only be liable for simple negligence if a duty on the fulfillment of which orderly contract performance depends and on compliance with which the contract partner may regularly rely (essential contractual obligation) is breached. In case of a simply negligent violation of an essential contractual duty, our liability will be limited to typical damages foreseeable at the time of contract conclusion.
7.5. In case of data loss, we shall only be liable for the expenses required for risk-adequate and regular data backups by the customer for the data’s restoration. This limitation shall, however, not apply if and to the extent that regular data backups are part of the services to be performed by us.
7.6. The non-culpable guarantee liability of the landlord for material defects existing at the time of conclusion of the rental contract is excluded. Section 536a(1) of the German Civil Code does not apply, except in the case of fraudulent concealment of the defect.
7.7. Liability under the German Product Liability Act [Produkthaftungsgesetz, ProdHaftG] remains unaffected.
7.8. If the customer provides tools, construction plans or similar or if the customer adds our products to their own products, the settlement will be determined by Section 5 Sentence 2 of the German Product Liability Act depending on the extent to which the damages were caused primarily by one or the other part. We will conclude a separate quality assurance agreement with the customer for this purpose if necessary.
We guarantee that the contractual object will be defect-free in accordance with the following conditions and, unless otherwise specified therein, the applicable statutory regulations:
8.1. Guarantee claims are not granted for defects caused by non-intended use, improper treatment or alteration of the goods or non-compliance with the operating instructions by the customer or a third party after the transfer of risk.
8.2. Rectification will be performed at our discretion either by remedying the defect or providing a replacement delivery of a defect-free object. In case of a replacement delivery, the customer must return the defective object to us at our expense. Should rectification fail twice, the customer may reduce the purchase price or withdraw from the contract.
8.3. Guarantee claims will expire one year after the transfer of risk. However, this does not apply if longer limitation periods are required by law under Section 438(1) Number 2, Section 445b, Section 479(1) or Section 634a(1) Number 2 of the German Civil Code and in case of injuries to life, limb or health, intentional or grossly negligent breaches of duty by us, fraudulent concealment of a defect or liability under the German Product Liability Act.
8.4. If the customer is a merchant in the sense of the German Commercial Code [Handelsgesetzbuch, HGB] (a merchant who carries on a commercial business or is registered in the commercial register), they must observe the legal examination and reporting obligations. Defect reports must be submitted to us in writing or in text form.
8.5. The customer is only entitled to recourse claims against us for legal defect claims. Further agreements between the customer and their buyer will not establish recourse claims. Section 8.1. applies.
8.6. If a customer’s defect report proves to be unfounded, the customer must reimburse us for any costs we demonstrably incurred for the rectification of the alleged defect.
8.7. The liability regulations of Section 7 apply to any damage claims the customer has against us.
9. Retention of Title
9.1. We will retain title to any delivered object until the complete settlement of any outstanding claims from the business relationship with the customer. This retention of title extends to any recognized balances if we post receivables from the buyer on a current account basis (current account reservation) and for as long as retention of title to the object does not result in - non-temporary - excess security.
9.2. Until title passes to the customer, the customer must treat the object diligently. The customer must perform any necessary maintenance and inspection work in time at their expense. If the delivered object is seized or subjected to other third-party interference prior to the transfer of title, the customer must notify us in writing without delay. If the third party is unable to reimburse us for our court and out-of-court costs for proceedings in accordance with Section 771 of the German Code of Civil Procedure [Zivilprozessordnung, ZPO], the buyer will be liable for the loss incurred by us.
9.3. The customer may sell the reserved goods through the ordinary course of business. However, the customer hereby assigns any claims to us for the amount of the final invoice amount (including VAT) incurred through the sale to their buyer or against third parties, irrespective of whether the delivery object is sold with or without further processing. The customer may also collect these claims after their assignment. Our authorization to collect these claims ourselves remains unaffected. However, we will not collect these claims if the customer fulfills their payment obligations, is not in default and, especially, the opening of insolvency proceedings against their assets have not been applied for and payments are not suspended. In such cases, the customer must provide any necessary information to us for collecting the claims, hand over any required documents and inform the third party about the assignment.
9.4. Any alteration, processing or conversion of the object by the customer shall be performed in our name and on our behalf. The customer’s expectant rights to the object continue to apply for the converted object. If the object is converted using external items, we will acquire co-ownership of the new object for the ratio of the objective value of the original item to the other processed items at the time of their processing. The same applies in case of mixing. If mixing is performed so that the original object delivered by us is no longer to be considered the main object, the customer must transfer proportional co-ownership to us and stores the sole or co-ownership object created thereby for us. The customer must also assign claims to us to which they are entitled against a third party through the combination of the reserved goods with real estate property. We hereby accept the transfer and assignment of these rights.
9.5. On the customer’s request, we must release the security to which we are entitled if its value does not exceed the claims to be secured by more than 10%.
10. Data Protection
10.1 We process our customers’ data on the basis of the EU General Data Protection Regulation (GDPR) and the German Federal Data Protection Act [Bundesdatenschutzgesetzes, BDSG].
10.2. We process and save personal data provided by the customer or otherwise collected by us as part of contract conclusion/order performance to the extent necessary for establishing, performing or terminating contractual obligations with the customer (Art. 6(1) Letter b of the GDPR).
10.3. If we request advance payment, we reserve the right to transfer data to carefully selected credit agencies for credit assessments (Art. 6 (1) Letter f of the GDPR).
10.4. The customer may object to the use of personal data and/or obtain information about the processing of data concerning them at any time. For this, please contact us at our above-stated contact details.
10.5 Without the customer’s express consent (e.g., access granted for maintenance work), we cannot access data collected through the customer’s use of our software and/or hardware.
11.1. The customer must treat any information received from us—that is not generally accessible or of which the customer learns through other lawful means—confidentially towards third parties. This applies especially to the contract conditions provided by us.
12.1. If our offers/order confirmations refer to Incoterms®, we are referring to their 2020 version. The abbreviation “EXW” means the provision of our services ex works; “FCA” at the location of an agreed carrier. Neither includes services/costs relating to the unloading of the truck at the export port, loading fees at the export port, transportation to the import port, unloading fees at the import port, loading onto the truck at the import port, transportation to the destination, and unloading fees at the destination, import customs duties, import taxes and transportation insurance. These and the transportation risk ex handover location will be borne solely by the customer. Incoterms® is a registered trademark of ICC. For more information and to obtain access to the conditions, please see: https://iccwbo.org/resources-for-business/incoterms-rules/incoterms-rules-2010/.
12.2. Any contractual relationship between us and the customer is governed by the law of the Federal Republic of Germany under exclusion of United Nations Convention on Contracts for the International Sale of Goods (CISG) and German international private law.
12.3. Our place of business is agreed as the exclusive place of jurisdiction for any disputes that may arise directly or indirectly from the business relationship.
12.4. Assignments by the customer of claims from the contract concluded with us require our express consent. Section 354a of the German Commercial Code remains unaffected.
12.5. The customer is only entitled to set-off rights for claims based on the same contractual relationship or that have been legally established or are uncontested or ready for a decision.
12.6. The customer may only exercise rights of retention if their counterclaims are based on the same contractual relationship or have been legally established or are uncontested or ready for a decision.
12.7. Changes or additions to these regulations must be issued in text or written form. This also applies to any changes to this text/written form clause.
12.8. Should individual clauses in these General Terms and Conditions be or become ineffective, this will not affect the effectiveness of these General Terms and Conditions as a whole.