Invoices are due for payment 10 days after receipt of the goods without deduction. In the event of late payment, Muckhoff GmbH shall be entitled to charge interest on arrears in the amount of 12.5 % p.A. Unless the customer proves, to the satisfaction of Muckhoff GmbH, that Muckhoff GmbH has not suffered any damage at all or that the damage is substantially less than the damage specified in the contract.G. Interest rate has arisen. Muckhoff GmbH is entitled to claim higher damages. A set-off of the customer against claims of Muckhoff GmbH with any counterclaims is only permissible if the counterclaims are undisputed or have been legally established. The same shall apply to the exercise of a right of retention by the customer against claims of Muckhoff GmbH. The date of receipt by Muckhoff GmbH shall be decisive for the timeliness of payment. If the customer is in arrears of payment, Muckhoff GmbH is entitled to stop further deliveries/services until the customer has settled all arrears including interest and costs. If there is justified reason to doubt the creditworthiness of the Customer and if this is accompanied by a serious risk to the counter-performance claim of Muckhoff GmbH (z.B. Deterioration of assets, endangerment of assets, opening of insolvency proceedings, default of payment of the Customer), Muckhoff GmbH may u.A. Make all outstanding claims immediately due and payable, make further deliveries subject to advance payments or to collateral (in Section 8. Not conclusively regulated), withdraw from the contract after a reasonable period of grace and/or claim damages.
5. Retention of title
The goods delivered by Muckhoff GmbH shall remain the property of Muckhoff GmbH until full payment of all claims arising from the business relationship with the customer. The Customer shall not be entitled to assign or pledge goods subject to retention of title of Muckhoff GmbH to third parties as security. Until full payment of all claims arising from the business relationship of Muckhoff GmbH, the Customer shall assign to Muckhoff GmbH, which accepts this assignment, all claims arising from any resale (for security reasons only permissible in accordance with clause 19) of the goods delivered by Muckhoff GmbH.
6. Collection and transport of gases
The transport of the gases including the containers and pallets from the ramp of the delivery point Neuenrade or other warehouse) as well as the transport of the empties from the customer to the delivery point to the ramp shall be at the expense and risk of the customer. If Muckhoff GmbH provides loading or unloading assistance to the customer or the transport company during loading or unloading, Muckhoff GmbH shall not be responsible for loading or unloading in a manner that is safe for operation and transport. The customer shall indemnify Muckhoff GmbH against any claims asserted against Muckhoff GmbH due to damage events caused by loading or unloading which is not safe for operation or transport.
7. Rental containers / deposit containers
Containers of Muckhoff GmbH shall be returned to the customer in principle ( s. Exceptions 10) on a rental basis / by way of a deposit against payment of a rental fee / deposit, which is based on the respective valid rates of Muckhoff GmbH, for the own consumption of the gases purchased from Muckhoff GmbH. The Customer shall return the containers provided on a rental basis / by way of deposit to the supplying Muckhoff GmbH immediately after emptying at his own expense and risk. The return shall only be deemed to have been effected if it is made against a written receipt from Muckhoff GmbH. The return shall be deemed to have been effected by the customer who has obtained the containers from Muckhoff GmbH. The customer shall check the correctness of the stocks of Muckhoff GmbH containers at the customer's premises as shown in the rental invoice/statement of account. Objections have to be raised with Muckhoff GmbH within one month after receipt of the rental invoice/statement of account, otherwise the reported inventories are considered accepted, unless the verification has been impossible for the customer through no fault of his own. The customer is liable for damage / contamination to or loss of the containers provided to him by Muckhoff GmbH .
8. Collateral
Muckhoff GmbH shall be entitled to demand a non-interest-bearing security deposit from the Customer before or after handover for the containers up to the amount of their replacement value, if the value of the rental containers exceeds the value of the gas delivery including rental, after handover furthermore, if the Customer becomes insolvent, is in default of payment or otherwise significantly violates his obligations under the contract. The Customer shall receive the security deposit back after the return of the containers, reduced by the costs incurred by Muckhoff GmbH for the procurement of replacements, removal of contamination and damage, or reduced by the amount that can be retained to compensate for the backlog.
9. Compensation
In the event of loss or destruction of the Muckhoff GmbH containers, Muckhoff GmbH shall be entitled to demand compensation from the Customer in the amount of the respective replacement value, whereby the Customer shall be granted the option of proving a lower loss or damage. In cases of mere damage to the Muckhoff GmbH containers, the customer owes compensation for this up to the amount of the respective replacement cost ( replacement value minus Pfandt ), unless the repair costs are lower. Any further claims of Muckhoff GmbH shall remain unaffected by this provision.
10. Customer container
Containers of the customer received at the delivery point will be filled according to the customer's order. The subject of the order is at the same time necessary inspections of the containers and/or necessary repairs thereto in accordance with the applicable regulations. The customer places the filling, inspection and repair order by signing the empties delivery note. The costs for filling, inspection and repair shall be borne by the customer.
11. Material defects
The assertion of claims for material defects by the customer presupposes that he has fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The customer must immediately notify Muckhoff GmbH in writing of any material defects, may not use any containers/pallets that appear defective and must immediately return them conspicuously marked. Muckhoff GmbH has the right to inspect and check containers/pallets in case of a notice of defect. If the inspection shows that there is no material defect, the cause of which was already present at the time of the transfer of risk, or that the defect is not the responsibility of Muckhoff GmbH, the customer shall bear the costs incurred by Muckhoff GmbH in the course of the inspection. If there is a material defect for which Muckhoff GmbH is responsible, Muckhoff GmbH shall first be entitled to remedy the defect by subsequent performance within a reasonable period of time. In case of failure of the subsequent performance, the Customer shall be entitled to withdraw from the contract, to reduce the purchase price or to claim damages in accordance with clause 13. To claim damages. Claims for material defects shall become statute-barred within a period of 1 year beginning with the passing of risk, unless longer periods are prescribed by law. Only in urgent cases of danger to operational safety and to prevent disproportionately large damage, in which case Muckhoff GmbH must be notified immediately, shall the Customer have the right to remedy the defect himself or have it remedied by a competent third party and to demand reimbursement of the necessary costs from Muckhoff GmbH. Of the direct costs incurred by the replacement delivery, Muckhoff GmbH shall bear the costs of any necessary fitters and assistants, insofar as the complaint proves to be justified. Otherwise, the customer bears the costs. For equipment or other materials supplied by Muckhoff GmbH, the liability of Muckhoff GmbH is initially limited to the assignment of the liability and warranty claims to which Muckhoff GmbH is entitled against the supplier / manufacturer / seller of these third-party products, Muckhoff GmbH is only subsidiarily liable under the terms of the warranty agreement set out under item 12. Preceding and of the verbalization described in paragraph 13. Following yourself.
12. Liability
The Muckhoff GmbH is liable without limitation for intentional or grossly negligent acts or omissions and in case of personal injury. In the case of slight negligence, it is only liable for breach of essential contractual obligations in a manner that endangers the purpose of the contract, but then limited to the foreseeable damage that typically occurs. All rights beyond this. Claims are excluded regardless of their legal basis. This is especially true for the compensation of indirect damages. Claims under the Product Liability Act remain unaffected by these limitations of liability. The limitations of liability shall apply mutatis mutandis to claims against legal representatives, employees and agents/ vicarious agents of Muckhoff GmbH. Any claims for damages become statute-barred within one year of the statutory start of the limitation period, with the exception of claims based on intent or gross negligence or which result in a different limitation period due to mandatory statutory regulation.
13. Force majeure
In cases of force majeure and other events beyond the control of muckhoff GmbH, such as power supply disruptions, natural disasters, or other extraordinary events that lie outside the risk or sphere of influence of muckhoff GmbH, the delivery / performance / acceptance obligations of Muckhoff GmbH shall be suspended for the duration of the obstacle. This also applies if such a circumstance occurs with a pre-supplier of Muckhoff GmbH. Muckhoff GmbH is not responsible for the aforementioned circumstances, even if they occur during a delay.
14. Promises, assurances, guarantees
The employees of Muckhoff GmbH are not authorized to deviate from the contents of contracts by oral or written promises or assurances or to supplement the contents of the contract. Guarantees may only be given by bodies. Guarantee promises of others are ineffective.
15. Quantity survey
The quantity m3 or liter or kg refers to a gas state at +15 degrees Celsius and 1 bar. Any remaining contents of returned containers will not be refunded.
16. Assignment
The customer is not entitled to transfer or assign to third parties any rights or claims arising from the business relationship of Muckhoff GmbH.
17. Safety regulations and use of gases
The customer must observe the current regulations on accident prevention and occupational health and safety as well as the current rules of technology that apply to the handling of gases and, in particular, to the storage and transportation of gases. GPG keeps the relevant regulations at its delivery points, hands them out to customers on request or sends them a copy on request. For safety reasons, the customer is generally only allowed to use the gases for his own consumption. The customer may only pass on the gases to third parties by way of exception if, after being informed by the customer of the change in intended use, GPG has previously ensured that the customer is capable of handling the gases responsibly and in compliance with all applicable technical and transport regulations, such as z.B. TRG, UVV, ADR , to use and distribute. The customer must inform every person whose contact with the product he allows about the dangers of handling gases for persons and property.
18. Data protection
Customer data is stored exclusively for business purposes in accordance with the German Data Protection Act.
19. Jurisdiction
The place of jurisdiction is Neuenrade, Germany, if the customer is a merchant, a legal entity under public law or a special fund under public law. This shall also apply if the customer does not have a general place of jurisdiction in Germany, if he has moved his place of residence or habitual abode outside the territory of the Federal Republic of Germany after conclusion of the contract or if his place of residence or habitual abode is unknown at the time the action is brought.
20. Choice of law
Only the law of the Federal Republic of Germany is valid, the application of the UN- purchase right is excluded.
21. Contract changes
Other than in the gas supply contract and these terms and conditions agreements are not made. Cancellation or override of the written form also requires the written form.