General terms and conditions
General Terms and Conditions (GTC) of (AGB) der
CUTMETALL Recycling Tools Germany GmbH, Am Eichgraben 8, 98673 Eisfeld, Germany,
as of 1 January 2022
§1 Scope of application
- All deliveries and services from CUTMETALL Recycling Tools Germany GmbH (hereinafter referred to as CUTMETALL), including offers, consulting or other ancillary services, shall be carried out on the basis of the following GTC. Purchasing or other terms and conditions of the purchaser shall not be recognised nor become part of the contract, even without an express written objection from CUTMETALL. Even if CUTMETALL refers to a letter that contains purchasing or other terms and conditions of the purchaser or a third party, or refers to such, this does not constitute consent to the validity of the purchasing or other terms and conditions on the part of CUTMETALL.
- The General Terms and Conditions of CUTMETALL also apply to all future deliveries of CUTMETALL goods or services to the purchaser until new GTC come into force. The version of the General Terms and Conditions valid at the time of contract conclusion is decisive and can be accessed at https://recyclingtoolsgermany.de/en/agb/.
- Rules deviating from these General Terms and Conditions are only effective if CUTMETALL has consented to them expressly in writing or in text form (via email).
- The General Terms and Conditions only apply if the purchaser is an entrepreneur within the meaning of Section 14 of the German Civil Code (Buergerliches Gesetzbuch - BGB), a legal entity under public law or a special asset under public law.
- Indications to the validity of statutory provisions are just of clarifying meaning. Even without such a clarification, the statutory provisions are valid, insofar as they are not directly changed or explicitly excluded in these terms and conditions.
§2 Offer and conclusion of contract
- Offers from CUTMETALL are subject to change. An amended offer must always be reviewed. The payment terms and conditions specified are subject to a successful credit check. The contract shall come into force through an order placed by the customer on the basis of the offer and its written confirmation by CUTMETALL to the customer. In case of doubt, the content of the order confirmation shall apply.
- The documents attached to the offer, including images, drawings, weight and dimensional information, performance and other property descriptions as well as other information about contractual products and services, are only approximately binding. Certain properties of the goods to be delivered shall only be considered warranted if this has been agreed in writing. Any reference to standards or agreed specifications alone only contains a more detailed description of the goods or services and does not constitute an assurance of product properties.
- Any additions, amendments and verbal ancillary agreements require the written form in order to be effective.
- CUTMETALL reserves the right to make changes during the delivery period to the function and form as well as changes to the scope of delivery which in each case result in a technical improvement.
- Cost estimates are non-binding. CUTMETALL reserves the right to request a fee to draw up cost estimates.
- CUTMETALL reserves property rights and copyrights in cost estimates, drawings and other documents. They may not be made accessible to third parties. CUTMETALL undertakes to only make documents which are marked as confidential by the customer accessible to third parties with the customer’s consent.
- The customer may not return any goods to CUTMETALL, unless CUTMETALL expressly consents to the return. This does not apply insofar as the customer withdraws from the contract effectively in law or justifiably demands subsequent performance.
§ 3 Preise und Zahlungsbedingungen
- CUTMETALL shall charge the prices applicable at the time of the delivery, plus statutory value-added tax. Additional, ancillary and special services provided and extra costs incurred by CUTMETALL, such as factory, test and material certificates, packaging, customs duty for export deliveries, as well as fees and other public charges shall be charged separately, unless otherwise agreed in writing.
- CUTMETALL is entitled to amend the prices appropriately if between the time the contract is concluded and the time of delivery there are increases or decreases in costs, in particular on the basis of changes in labour costs, energy costs or material prices. CUTMETALL shall inform the customer about the price change in good time before the delivery. If CUTMETALL fails to provide the information in good time, the price which formed the basis of the order confirmation shall apply.
- The customer agrees to receive invoices from CUTMETALL electronically, more specifically by e-mail. The invoice shall be sent by post or electronically at CUTMETALL's discretion. Subject to agreements deviating from this, the following payment terms apply: The payment shall be made strictly net within 30 days. In the case of orders over 25,000 euros, one third of the purchase price is due when the order is confirmed, one third upon notification of readiness for dispatch, and the remainder is due net (without cash discount) within 30 days from the date of the invoice, unless otherwise agreed in the order confirmation. In the case of export transactions, the delivery shall be made against advance payment, unless payment is agreed through an irrevocable and confirmed letter of credit. Payments are to be made in such a way that CUTMETALL can freely dispose of the amount on the due date.
- If the customer does not properly fulfil its payment obligations, it suspends its payments or if insolvency proceedings are opened over its assets or the opening of such proceedings is rejected for lack of assets, the full purchase price still open shall be due. If the customer defaults on a payment, CUTMETALL shall be entitled to demand interest on the defaulted payment at the statutory rate. The right to assert claims for any further damages remains unaffected.
- If special circumstances give reasonable cause for considerable doubt about the creditworthiness of the Purchaser, all claims arising from the business relationship become due immediately and CUTMETALL is entitled to demand deliveries against advance payment as well as advance payment prior to release for production. Sentence 1 also applies in the event of default of payment by the customer under other contracts. If partial payment has been agreed and the Purchaser remains in arrears with an amount of more than 10% of the outstanding purchase price, the entire outstanding balance shall become due for payment immediately. The Purchaser may assert rights of retention or set-off only with respect to undisputed counterclaims recognized by CUTMETALL or counterclaims that have been finally determined by a court of law.
§ 4 Lieferungen, Liefer- und Leistungszeit
- Unless otherwise agreed in writing, deliveries shall be made exclusively "ex works" from CUTMETALL in 98673 Eisfeld, Germany
- In the absence of instructions from the purchaser, CUTMETALL shall determine and commission the carrier, mode of transport and means of transport at the expense and risk of the purchaser.
- In the absence of instructions from the purchaser, CUTMETALL shall determine and commission the carrier, mode of transport and means of transport at the expense and risk of the purchaser.
- Observation of the delivery deadline is subject to correct and timely self-delivery.
- The following applies to compliance with bindingly agreed delivery dates or deadlines:- Insofar as the goods are delivered at CUTMETALL's business premises, the transfer of possession to the customer (transfer of possession) is decisive.
- Insofar as the goods are not shipped from the business premises of CUTMETALL due to a special agreement, the point in time at which the goods leave the commissioned plant, CUTMETALL warehouse or company commissioned by CUTMETALL for production or storage is decisive.
- Force majeure events entitle CUTMETALL to defer the delivery or service for the duration of the hindrance, plus an appropriate start-up period. A force majeure event shall be equivalent to all circumstances which make the delivery or service substantially more difficult or completely impossible for CUTMETALL on the basis of circumstances which CUTMETALL is not responsible for, in particular foreseeable interruptions in operations or traffic disruptions, strikes, lawful lock-out, sovereign measures etc., and indeed irrespective of whether these circumstances arise for CUTMETALL, its suppliers or its sub-contractors. If the hindrance lasts longer than 3 months, or if the enforcement of the contract becomes unreasonable for other reasons, each party is entitled to withdraw from the contract with regard to the part not yet fulfilled.
- Im Falle eines von CUTMETALL zu vertretenden Lieferverzuges darf der Besteller - sofern er glaubhaft macht, dass ihm hierdurch ein Schaden entstanden ist – nach Ablauf von 2 Wochen für jede weitere vollendete Woche des Verzuges unter Ausschluss weiterer Ansprüche eine pauschalierte Verzugsentschädigung in Höhe von 0,2% - höchstens aber 5%- vom Wert des Teiles der Lieferung verlangen, der infolge des Verzugs nicht wie beabsichtigt genutzt werden kann.Über die vorstehend benannten Schadenersatzansprüche wegen Verzuges sind weitere Schadenersatzansprüche ausgeschlossen, es sei denn- der Verzug beruht auf Vorsatz oder grober Fahrlässigkeit von CUTMETALL oder ihrer Erfüllungsgehilfen oder- es liegt eine schuldhafte Verletzung einer wesentlichen Vertragspflicht vor oder- es wurde ein kaufmännisches Fixgeschäft vereinbart.
- Insofar as the maximum compensation limit has been reached according to Section 4.7, the customer may, after setting a reasonable deadline for performance, declare the cancellation of the contract relating to the defaulted part if CUTMETALL does not meet the performance deadline.
- If the customer defaults on a material duty arising from the contractual relationship, CUTMETALL shall be entitled to extend the delivery deadline by the period of the default.
- Goods notified as ready for collection are to be collected immediately. If the goods are not collected within 5 work days, CUTMETALL is entitled at its own option to ship the goods to the customer at the latter’s costs, or at its discretion to store the goods at the customer’s costs and to designate them as delivered. The statutory provisions regarding the default of acceptance remain unaffected.
- CUTMETALL is entitled at all times to make part deliveries and part services, unless the acceptance of the part delivery or part service is unreasonable for the customer in the individual case.
§ 5 Transfer of risk
- The risk of damage to and loss of the goods shall pass to the Purchaser as follows:- insofar as the goods are delivered on the business premises of CUTMETALL, at the time CUTMETALL informs the Purchaser that the goods are ready for collection,- insofar as the goods are not delivered on the business premises of CUTMETALL, at the time of handover (also to a transport person) or, if the Purchaser is in default of acceptance, at the time CUTMETALL offers to hand over the goods.
- 2. Deliveries must be accepted by the customer without prejudice to his right to defects, even if they do not show any signs of significant defects. The customer shall bear the costs for storage, insurance, protective measures, etc. incurred as a result of delayed acceptance.
- CUTMETALL warrants that the goods are free from material defects. Insofar as nothing else is agreed expressly and in writing, the qualities described in the product descriptions, technical specifications and labels authorised by CUTMETALL are considered as agreed qualities. Public statements, praise or advertising are neither part of a quality agreement, nor do they define the contractually required use; Section 434 (3) No. 2b BGB [German Civil Code] does not apply in this regard. Technical details are only approximately applicable.
- Claims for defects are excluded if, in the case of patent defects, they are not raised immediately in writing, but at the latest within 8 days following receipt of the goods, stating the delivery note and invoice number as well as with a description of the defect reported. Concealed defects are to be reported immediately after they are discovered; the burden of proof for the concealment of the defects is carried by the customer.
- Should a product from CUTMETALL, contrary to expectations, display defects, the customer can claim for defects according to the applicable law and these General Terms and Conditions. The warranty period is 1 year after the transfer of risk. The provision in Section 377 of the German Commercial Code shall not be affected hereby. Defect claims by the customer are initially limited to the right to subsequent performance (subsequent improvement or replacement delivery). Until the subsequent performance fails, the customer is not entitled to reduce the purchase price or withdraw from the contract, at its discretion.
- Unless already covered by the aforementioned provisions, CUTMETALL shall not be responsible for breaches of contract and damage – regardless of the legal grounds. This applies to any damage caused by defects, including loss of production, loss of profit or other indirect damage (damage not caused to the delivery item itself). In the event of a culpable breach of material contract duties, CUTMETALL shall only be liable for reasonably foreseeable damage typical for the contract. However, in every case CUTMETALL shall be liable for gross negligence and particularly rendered guarantees as well as fraudulent intent, culpable injury to life, limb and health, or for bodily injury or material damage to privately used objects, if applicable under the “Produkthaftungsgesetz” [German law on product liability].
- Deviations in quantities, dimensions, quality, weights or similar, which are customary in the trade, are permitted. The same applies to colour deviations that do not impair usability as well as minor contamination from oils, for example.
- The customer must follow the supplier's instructions relating to the treatment or use of the contractual products. If the customer fails to observe these instructions and damage occurs as a result, he must bear the costs for the damage himself.
- CUTMETALL is not responsible for damages which arise as a result of improper handling, failure to comply with the assembly, operating or service and maintenance instructions delivered by CUTMETALL together with the product, or an installation site unsuited for the operation of the product or as a result of natural wear and tear.
- Maintenance and service work may only be carried out by CUTMETALL technicians or authorised service companies in order to make a warranty claim, unless the customer proves when making warranty claims that the defect concerned was not caused by the maintenance and service work carried out by others. CUTMETALL is not liable for damages which arise as a result of interference by third parties
- The customer is responsible for providing evidence of the careful and proper handling and proper storage of the goods.
§8 Compensation for damages
- Unless stated otherwise in these Terms and Conditions, CUTMETALL is only liable to pay compensation for damages in the case of intent and gross negligence and only in all other cases if a material contract duty (cardinal duty) is breached. Material contract duties are such duties which allow for the proper fulfilment of the contract in the first place and on the fulfilment of which the customer had entrusted and may have entrusted, and the culpable failure to fulfil such duties puts the achievement of the purpose of the contract at risk. In the case of simple negligence, CUTMETALL is in any case only liable for foreseeable damages typical to the contract.
- Compensation of indirect damages, consequential losses and lost profits is excluded.
- Liability for personal injury, liability for fraudulent intent, from a guarantee of quality given by CUTMETALL as well as liability under the “Produkthaftungsgesetz” remain unaffected by the limitations of Section 8.1 and 8.2.
- The customer indemnifies CUTMETALL from possible claims by third parties which arose for these third parties either on the basis of changes in the object of the delivery which the customer or a third party made after the transfer of risk without the prior written consent of CUTMETALL, or on the basis of the installation or the operation of the object of the delivery at an installation site not recommended by CUTMETALL in the assembly instructions or not released by CUTMETALL in the individual case because of its lack of suitability for safe operation. The same applies to improper handling and use of the object of delivery by the customer.
§9 Retention of title
- All delivered goods shall remain the property of CUTMETALL until all claims resulting from the business relationship have been paid in full. The also applies if individual or all claims of CUTMETALL are recorded, balanced and acknowledged in a current invoice.
- The customer is entitled to resell the goods in the ordinary course of business, provided that the customer receives payment from the purchaser or agrees upon the condition that the purchaser shall only acquire ownership once all payment obligations have been met.
- The customer shall support CUTMETALL in implementing any measures required to protect its property. The customer shall inform CUTMETALL immediately of any risk to his property. This applies in particular to third-party powers of disposal or official measures (confiscations, seizures, etc.).
- CUTMETALL is entitled to take possession of goods subject to retention of title in the event of a breach of contract by the customer, in particular a default in payment. The return does not constitute a withdrawal from the contract.
- At his own expense, the customer shall take out insurance for the delivered goods against theft, fire, water damage and other risks, covering the period until the purchase price has been paid in full.
- If the value of the securities exceeds the value of the claims to be secured by more than 10%, CUTMETALL shall be responsible for selecting which securities to release upon request.
- The customer is obligated to treat the goods subject to retention with care for CUTMETALL, to maintain and repair them at its own costs, as well as to insure them against loss and damage at its own costs within the framework of what is demanded of a prudent businessman. It hereby assigns its claims from the insurance contracts to CUTMETALL in advance. So long as and insofar as the customer is not in default on payment, CUTMETALL shall make payments from the insurer to the customer for the costs of repair services already undertaken. Payments by the insurer for the loss of the goods subject to retention shall be offset by CUTMETALL with possible payment obligations of the customer not yet fulfilled, and excess amounts shall be paid out to the customer, where applicable.
- In the case of processing or other restructuring of the goods subject to retention, the customer shall be active for CUTMETALL, but without obligating CUTMETALL. If the goods subject to retention are processed, mixed with or attached to things belonging to third parties, CUTMETALL shall acquire co-ownership in the results in the ratio of the respective invoice values. If the goods subject to retention are processed, attached or mixed with a principal item of the customer, the customer transfers from now the co-ownership in the new item to CUTMETALL in the ratio of the purchase price to the value of the principal item. The respective share of co-ownership is considered goods subject to retention within the meaning of these general terms and conditions.
- The customer may sell the goods subject to retention in the ordinary course of business under the normal terms and conditions, provided that he is not in default on payment. The same applies for any use of goods subject to retention in the fulfilment of a work contract. It is not permissible to resell if the customer agrees a non-assignment clause with its buyer. In the case of a resale, the customer is to make the transfer of ownership dependent on the full payment of the purchase price or work payment. The customer is not entitled to pledge, agree chattel mortgages or other encumbrances on the goods subject to retention.
- In order to secure CUTMETALL’s claim to the purchase price, the customer assigns all claims arising from a resale to CUTMETALL within the meaning of the above Section. All claims which arise for the customer from damage or loss to the goods subject to retention against the respective party which caused the damage are also assigned. So long as the customer fulfils its contractual duties entered into towards CUTMETALL and the fulfilment of these duties is not put at risk, the customer can collect the claims assigned itself.
§10 Property rights and copyrights
- If the proper use of the goods delivered leads to the infringement of industrial property rights or copyrights domestically, CUTMETALL shall, as it chooses, grant the customer the right to further use or modify the object of the delivery in a way which is reasonable for the customer so that there is no longer any breach of the property right (subsequent performance). The customer is obligated - to inform CUTMETALL immediately about claims for possible breaches of property rights or copyrights against the customer and/or its buyers, - to support CUTMETALL to defend against the claims made and to allow for the enforcements of the subsequent performance measures, and - to take judicial defence measures following instruction from CUTMETALL and only to acknowledge such third party claims or to conclude judicial or extrajudicial settlements regarding them following the written consent of CUTMETALL.
- CUTMETALL’s right to refuse subsequent performance pursuant to Section 439 (2) BGB remains unaffected.
- CUTMETALL indemnifies the customer from undisputed or legally established claims of the holder of the property right concerned.
- CUTMETALL is not liable for the breach of property rights if at least one of the property rights from the family of property rights from which the claims are derived, is not disclosed either by the European Patent Office or in one of the following states: the Federal Republic of Germany, France, Great Britain Austria or the USA. Furthermore, CUTMETALL is not liable - if the breach of the property right was caused by the fact that the customer arbitrarily changed the object of the delivery or used it in a way which did not conform with the provisions of the contract; - the breach of the property right is based on an instruction from the customer carried out on the delivered goods by CUTMETALL. The above-mentioned claims of the customer prescribe one year after the transfer of risk. The authoritative time for the start of the prescriptive period is the time risk is transferred. Mandatory statutory requirements on prescription remain unaffected, in particular for intentional or grossly negligent fault, for personal injury, for breach of material contract duties for claims under the “Produkthaftungsgesetz” [German law on product liability] or from a warranty undertaken.
- All commercial or technical information (including features which can be derived from objects or software handed over) which originate from CUTMETALL, so long as and insofar as they were not evidently publicly known to the customer or were known to the customer without any breach of the confidentiality obligations of a third party, or are known following their disclosure by CUTMETALL or were determined by CUTMETALL for resale by the customer, are to be kept secret from third parties and may only be provided to such persons in the customer’s own business or a sub-contractor of the customer who are also both obligated to maintain confidentiality and instructed to fulfil their respective operational tasks on the basis of knowledge of this information; the information remains the exclusive property of CUTMETALL. With the agreement of CUTMETALL, such information may not be reproduced or used commercially. On request, all information originating from CUTMETALL including copies and recordings produced and objects handed over on loan are to be returned to CUTMETALL immediately and in full, or are to be destroyed in coordination with CUTMETALL.
- CUTMETALL reserves all rights to any information stated in Section 11 (1) (including copyright and the right to file industrial property rights such as patents, designs, semi-conductor protection, etc.).
§12 EU VAT identification number
- Insofar as the customer is domiciled outside of Germany, it is obligated to observe the respective relevant VAT rules of the Member States of the European Union (EU). This includes in particular the notification of its VAT ID number to CUTMETALL without having to be specially requested to do so. The customer is obligated to issue CUTMETALL on request with the necessary information regarding its capacity as a businessman, regarding the use and transport of the delivered goods as well as the fulfilment of the statistical reporting obligation. The customer is obligated to reimburse any expenses, in particular processing fees, which CUTMETALL incurs as a result of incorrect information from the customer regarding VAT.
§13 Advertising market
- In the "Customer Classifieds" section, CUTMETALL offers its customers a bulletin board where customers can post advertisements to sell used goods, spare parts or surplus parts independently to other customers.
- "Customer Classifieds" is a free service that CUTMETALL offers to its customers. CUTMETALL is entitled to limit, change or discontinue this section entirely at any time. Users are not automatically entitled to use the functions of the service.
- The seller is only involved in arranging contracts between customers and does not become a contractual partner in contracts that are concluded from offers in the "Customer Classifieds" section. Furthermore, CUTMETALL does not act as a representative for the seller or customer. The contracts are concluded exclusively between the seller named in the relevant advertisement and the customer. All claims resulting from the purchase contracts exist exclusively between the seller and the customer. Accordingly, the contracting parties can agree their own terms and conditions.
- Customers wishing to sell an item can send the details to the seller via email at sales@CUTMETALL.com. The offer text must contain information from the seller's disclaimer, more specifically the name of the company and the full address and contact details of the seller. Furthermore, the offer text must contain all the most important features of the goods and all labelling requirements. Offer texts must not contain advertising for any items other than the one advertised. Customers who submit an offer text absolve the seller from any claims by third parties resulting from a breach of the aforementioned obligations or other infringements derived from the text of an offer. 4. There is no entitlement to publish an offer text. CUTMETALL only publishes offers that complement the seller's range of products in a meaningful way. He reserves the right to reject offers in whole or in part.
§14 General provisions, court of jurisdiction and place of performance
- Any amendments, additions, and other ancillary agreements relating to these GTC or concluded contracts require the written form. The same applies to changes to or cancellation of the written form.
- Should individual clauses of these General Terms and Conditions be ineffective in whole or in part, this shall not affect the effectiveness of the remaining clauses or the remaining elements of the ineffective clause. The parties shall replace an ineffective provision with such a provision which comes closest to the economic purpose of the ineffective provision. The same applies for any loopholes.
- The customer only has rights of retention or offset with regard to legally established or undisputed claims.
- The customer may use or register the trademarks, trade names, and other marks and protection rights of CUTMETALL only with prior written agreement and only in the interests of CUTMETALL.
- The place of performance and payment is 98673 Eisfeld in Germany, unless otherwise agreed.
- The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UNCISG of 11th April 1980.
- The place of jurisdiction for all disputes arising from or in connection with the contractual relationships governed by these General Terms and Conditions shall be the district court which is competent for the location of the headquarters of CUTMETALL. However, CUTMETALL is also entitled at its discretion to take legal action against the customer at the place where the customer’s registered office or branch office is located or at the place of performance.
- The customer acknowledges that CUTMETALL stores data from the contractual relationship in accordance with Section 28 of the Federal Data Protection Act for the purpose of data processing and reserves the right to transmit the data to third parties (e.g. insurance companies) insofar as this is necessary for contract fulfilment. For further details, refer to the attached information pursuant to Art. 13 of GDPR.