Terms of service

1. Scope
a) Our Terms and Conditions apply to commercial transactions with all our customers.
b) Our Terms and Conditions shall also be effective if we do not explicitly draw attention to them in connection with subsequent contracts during the course of an ongoing business relationship. Terms and conditions contradicting or differing from our Terms and Conditions shall only be binding on us if we have expressly agreed to them in writing for each individual case concerned.

2. Acceptance
a) Our offers are not binding on us. Accordingly, orders and other agreements shall only become effective once they have been confirmed in writing or upon the start of the delivery of goods.
b) In the event of custom orders, the quantities ordered are binding on the buyer and must always be accepted. There is no automatic entitlement to the additional production of smaller quantities.
c) The buyer shall be responsible for the complete, correct and timely submission of any export documents to be obtained or provided by the buyer. The onus shall be on the buyer to prove the receipt and completeness of documents.

3. Delivery
a) The place of fulfilment for deliveries shall be our company. All deliveries are carried out at the buyer’s own expense and risk.
b) We reserve the right to carry out orders in partial shipments unless otherwise agreed. Complaints concerning partial shipments shall not release customers from their obligation to accept the remainder of the goods ordered as per contract.
c) Concerning our obligation to deliver, we shall only be obliged to carry out advance performance if expressly agreed with the buyer. If no advance performance obligation has been agreed regarding our delivery obligation, we shall be entitled to refuse to meet our obligation to deliver until the payment for our delivery obligation has been made by the buyer. If the statutory requirements are met, we may also invoke our legal right of reservation of title against the buyer with respect to our delivery obligation. This right of reservation of title may only be exercised by us to the extent permitted by law. Should we effect (partial) deliveries despite the existence of the right of reservation of title, these deliveries shall have no bearing on our right of reservation of title regarding delivery obligations that arise subsequently. In particular, the (partial) deliveries carried out shall not be construed as either a waiver of current or future rights of reservation of title or as an advance performance obligation concerning our future delivery obligations.
d) If shipping or collection is delayed or not performed owing to circumstances beyond our control, the risk shall pass to the buyer on the day on which they have been notified that the goods are ready for shipping or inspection and acceptance.
e) If a delivery has been agreed, an access road that can be used by heavy lorries is required. If the delivery vehicle is instructed by the buyer to leave the paved access road, the buyer shall be liable for any damage resulting. An access road is deemed suitable for use by heavy lorries if the driver can in his opinion reach the unloading point without damage being suffered by the vehicle, cargo or other people’s property. The buyer must ensure that their construction site can be reached without risk to our delivery vehicles by complying with the maximum limits allowed by the Road Traffic Licensing Regulations. They shall also be responsible for the maintenance of access roads within the site and for paying for any damage suffered. If delivery by crane truck has not been agreed, unloading must be carried out in the proper manner by the buyer without delay. Driving on the construction site, intermediate transportation, reloading and waiting times will be charged.
f) If access is only possible with a special permit due to traffic weight restrictions, we must be notified in good time. We will then apply for the appropriate permit. The costs for this shall be borne by the buyer.
g) In the event of sale ex works, we shall place the goods on the vehicle of the person collecting them in accordance with the driver’s instructions. Ensuring state-of-the-art loading suitable for safe transport and operation shall be the responsibility of the person collecting the goods, who must also provide the necessary load securing equipment. We shall not check the load securing measures taken by the person collecting the goods or their agents and shall bear no liability for any damage stemming from failure to adequately secure the cargo.
(h) If the buyer does not accept the ordered ready-mixed concrete in its entirety, he shall be granted no credit for the remaining quantity remaining in the vehicle. We are entitled to charge the costs for disposing of the remaining quantities.
i) Delivery obligations for ready-mixed concrete at temperatures below 0°C require our express confirmation.
j) If we fail to meet a delivery deadline, we are to be granted a grace period of at least four weeks.
k) If the buyer specifies delivery at certain dates and times, we shall do our best to meet such requests but cannot accept any liability for failure to do so.
l) In the event of and for the duration of any shortage of raw materials or energy, strikes, lockouts, traffic disturbances and official court orders as well as non-observance of delivery deadlines and delays by our own suppliers, interruption of operations, any event of force majeure or any other circumstances which are beyond the control of us and our subcontractors, we shall be released from our obligation to deliver to the extent that these circumstances impair our delivery ability. In the aforementioned cases we shall furthermore be entitled to cancel the contract without liability for damages – without prejudice to Section 10 of these Terms and Conditions – if it becomes impossible for us to fulfil the order or the end of such an impediment is unforeseeable. In return, the buyer shall be entitled to cancel the contract if, after an order has been confirmed, materials and energy costs undergo exceptional price declines of 20% or more, affecting the selling price.
m) If deliveries or multiple partial deliveries on call are agreed, we shall be entitled to charge higher prices for deliveries made more than six months after the order was originally placed. The contractually agreed prices in such cases may be increased by the amount that the average price of the product to be delivered has risen in the period between the conclusion of contract and delivery.
n) Packaging placed in circulation by us may be returned to our business premises within the scope of statutory obligations, provided it has been emptied, is not soiled, and is delivered sorted by the buyer or at their expense.

4. Notice of defects
a) We guarantee compliance with DIN EN standards. Notification of recognizable defects, incorrect deliveries or incorrect quantities must be submitted without delay. The complaint must be made prior to processing, combining or mixing.
b) No claims for defects may be made for negligible deviation from the agreed condition, negligible impairment of usability, or natural wear or damage caused after the transfer of risk by improper or careless handling, excessive load, the use of unsuitable operating equipment, faulty construction work, unsuitable subsoil or as the result of specific external conditions that were not presumed in the contract. The delivered product may differ slightly from the prospectus descriptions submitted prior to the conclusion of the contract.
Samples and specimens serve illustrative purposes only and are not binding, and complaints will therefore not be accepted for minor deviations. If incorrect changes or maintenance work are carried out by the buyer or a third party, no claims for defects shall be accepted for this or any damage resulting.
c) Latent defects must also be reported to us in writing without delay following their discovery, and no later than by the time the warranty period expires.
d) We are to be given an opportunity to examine the defect ourselves and/or to have it examined by specialists commissioned by us. We shall be entitled to exercise these rights unless the buyer convinces us that immediate action needed to be taken on account of danger in delay. The assumption of costs for externally appointed experts shall require separate written agreement for each individual case.
e) Warranty claims shall expire in 12 months. This shall not apply if longer periods apply according to Section 438(1), no. 2 (buildings and things that have been used for buildings), Section 479(1) (claims to reimbursement of expenses) and Section 634a(1), no. 2 (building defects) of the BGB German Civil Code or in cases of injury to life and limb or damage to health, if the supplier infringes their obligations intentionally or through gross negligence, or if a defect is fraudulently concealed.

5. Additional notices of defects for transit-mixed concrete
a) Changes to our products that we did not induce or else did not approve preclude any liability on our part.
b) If the buyer requests a mixing ratio that differs from the quality categories offered in accordance with our delivery program, then a liability with regard to quality is precluded unless a performance test on the basis of the specified mixing ratio has been completed successfully prior to delivery of the material from the factory.
c) Apparent defects in any form whatsoever and the delivery of a material type that obviously differs from the ordered one must be reported by the businessmen immediately following acceptance. In this case, we must produce and mark test cubes according to the respective valid DIN regulations in the presence of an agent of the supply plant immediately upon delivery of the material. The buyer is obligated to store the test cubes conforming to standards and to turn them over to an officially recognized testing center for testing within 48 hours of production. Storage conforming to standards must be confirmed in the test certificate. If the cubes meet the terms of delivery, then the buyer shall assume the costs of testing.
d) Our agent (self-inspector) as well as the third-party inspector and the supreme building control authority reserve the right to enter the supplied construction site unannounced at any time during operating hours and take samples.

6. Warranty, compensation
a) In the event of substantiated defects, the cause of which existed at the time of the passage of risk, we shall at our discretion provide a flawless replacement delivery or remedy the defect. We are to be granted a reasonable period to carry out replacement or repair. If the replacement delivery or repair fails or entails disproportionate time and resources, following installation only a reduction of the purchase price may be demanded.
b) The buyer’s statutory rights of recourse against us shall exist only in so far as the buyer has made no agreement with their customer exceeding the claims for defects allowed by law.
c) In all other respects, claims for compensation are governed by Section 10 of these Terms and Conditions (‘Other claims for compensation’). Additional claims or claims other than those provided for under Section 10 brought against us or our agents by the buyer on the grounds of a defect shall be excluded.

7. Impossibility
If delivery is impossible for reasons which are not beyond our control, the customer shall be entitled to demand compensation. However, the buyer’s claim for compensation is limited to 10% of the value of the part of the delivery which, owing to impossibility, is not fit for purpose. This limitation shall not apply in cases of mandatory liability owing to wilful misconduct, gross negligence, or injury to life and limb or damage to health. This shall not entail a change in the burden of proof to the detriment of the buyer. The buyer’s right to cancel the contract remains unaffected.

8. Prices
a) Unless otherwise specifically agreed, prices for concrete goods are calculated ex concrete factory and namely exclusively for freight, packaging and VAT. The prices per square meter of pavement and plates as well as running meter for curbs, border stones and the like refer to the surface to cover and include the customary joint ratio to be realized in accordance with technical standards. Transit-mixed concrete deliveries are delivered free to the site for orders of at least 5 cbm. For deliveries of less than 5 cbm, we will charge freight equalization. This freight equalization will not be charged if the remaining quantity of a delivery of more than 15 cbm is less than 5 cbm.
b) Pallets required for delivery shall be charged extra. If pallets are returned to our delivery facility within four months after having been released by the buyer, the selling price shall be credited less a hire charge.
c) Pallets, lifting shackles and other separately invoiced transport and loading equipment are not subject to discount.
d) Goods which have been delivered by us and are free of defects may not normally be returned. However, under exceptional circumstances we may agree to accept the return of undamaged, flawless products. A restocking fee of 40% of the goods’ value shall be charged. Return transport shall be paid for by the buyer, even if the goods are collected by agents appointed by us. Credit notes granted as a result will not be paid out but instead can be offset against future deliveries. The risk when items are returned shall be borne by the buyer until unloading at the place of destination specified by us is complete.

9. Payment
a) Our invoices are immediately due at our company’s registered office. Trade discounts require a separate written agreement. Normally only the net value shown of goods is subject to discount. Trade discounts can only be agreed if no other invoices not subject to discount are unpaid. Any such agreement on the granting of discount shall not change the due date of our invoice claims. Our invoices are deemed to be accepted if no written objection is received within 30 days after the date of invoice.
b) We reserve the right to accept bills of exchange. Cheques will only be accepted as conditional payment and we may refuse to accept them if there is reasonable suspicion that they may bounce. Discounts, collection charges and all additional charges occurring will be charged to the buyer and are to be paid immediately in cash. We are not obliged to issue any submissions or objections etc by a certain time limit.
c) All our claims shall become immediately payable if the buyer defaults on the fulfilment of another obligation to us. The same shall apply if the buyer ceases payments, is over-indebted, bankruptcy proceedings are commenced against them or are rejected for insufficiency of assets, or if circumstances become known that justify doubt regarding the buyer’s creditworthiness.
d) In the event of default, we may – irrespective of any further claims – charge interest in accordance with bank practices, albeit at a rate of no less than 9 percentage points above the base rate of the European Central Bank. Following default, we shall be entitled at our discretion to make other deliveries and services dependent on advance payment or the provision of sureties, to demand compensation owing to delayed payment, or to cancel the contract. Moreover, we shall have the right to return received bills of exchange which have not yet expired and demand immediate payment in cash.
e) In cases of claims involving a number of deliveries and/or services, we shall decide for which deliveries and/or services the monies received are to be credited. The buyer is not entitled to retain payment due to any counterclaims, including warranty claims. Offsetting against counterclaims is only permissible if they are uncontested, recognized, or have the force of law.
f) If claims registered by us from sales are submitted for credit insurance but not accepted by the insurer, we shall have the right to cancel the contract without the buyer being able to assert any rights.
g) Should we become aware of facts or circumstances which prompt doubt on the solvency of the buyer and the buyer is not willing to make furnish collateral despite a request to do so, under Section 10 of these Terms and Conditions we shall be entitled to cancel the contract in part or in whole without liability to pay compensation.
h) Contractually made custom goods shall be due for payment as soon as we have provided notification that they are ready.
i) If a buyer who is resident outside the Federal Republic of Germany (foreign buyer) or his representative picks up goods or transports or dispatches the goods to a third country, the buyer has to provide us with the proof of export required for fiscal purposes. If such proof is not provided, the buyer must pay the sales tax applicable to the executed delivery within the Federal Republic of Germany on the invoice amount.

10. Security interests
a) We shall retain ownership of all goods delivered until all our outstanding claims stemming from our business relations with the buyer have been met, regardless of their legal basis. This shall also apply if some or all the outstanding claims have been included in a current account and the balance has been calculated and acknowledged.
b) The buyer shall be entitled to resell and process delivered goods in connection with their business operations. For this purpose, the buyer here and now assigns to us – and we accept – the claims against their customers stemming from the resale of the products subject to reservation of title together with all ancillary rights.
c) The processing or remodelling of goods by the buyer which are subject to reservation of title always takes place without any liability arising for us. Following combination or mixing, we shall also be entitled to ownership of the new product pro rata to the ratio between the value of the goods subject to reservation of title and the value of the other items used at the time of processing. In all other respects, the resulting product shall be treated in the same way as goods subject to reservation of title.
d) The buyer assigns to us here and now his claims from the installation of goods subject to reservation of title as an essential component in the property of a third party to the value of the goods subject to reservation of title together with all ancillary rights, including any entitlement to the granting of a security pledge. If the goods subject to reservation of title are installed as an integral part in the buyer’s own property, the buyer assigns to us here and now the claims arising from the sale of the property or property rights to the value of the goods subject to reservation of title together with all ancillary rights.
e) The buyer is authorized to collect claims assigned to us until this authorization is revoked.
f) If the value of goods subject to reservation of title or the securities given to us exceeds 20% of the monies owed to us by the buyer, we shall be obliged to release the excess amount upon the buyer’s demand.
g) If the buyer is in default or if circumstances come to our attention which significantly impair the buyer’s creditworthiness, we shall be entitled to disclose this assignment and to revoke the power of disposal and collection. In such cases, we shall also be entitled to take possession of the goods subject to reservation of title. For such cases, the buyer here and now waives the assertion of rights directly resulting from ownership. We accept this waiver.

11. Other claims for compensation
a) Claims for indemnification and the reimbursement of expenses (hereinafter: ‘claims for compensation’) for whatever legal reason, particularly for breaches of obligations or tort, are excluded.
b) This shall not apply wherever liability is mandatory, e.g. under the German Product Liability Act, in cases of wilful misconduct, gross negligence, or injury to life and limb or damage to health, or due to the breach of material contractual obligations. However, claims for compensation for the violation of material contractual obligations are limited to the foreseeable damage typical for the contract unless wilful misconduct or gross negligence is involved or if liability is incurred for injury to life and limb or damage to health. This shall not entail a change in the burden of proof to the detriment of the buyer.
c) If the buyer is entitled to compensation under the terms of this section, they shall expire upon the expiry of the warranty period for defects specified in Section 4e.

12. Advice
a) The drawings, structural analyses and designs delivered by us remain our property and may not – not even in part – be disclosed to third parties without our consent.
b ) If we or our employees give advice or information or make a recommendation before, during or after completion of the work or in other contexts, we are liable for it only if we have agreed on a special payment for it according to the applicable fee schedules.
c) The law of the FederalRepublic of Germany applies exclusively with the exclusion of the United NationsConvention on Contracts for the International Sale of Goods(CISG).

13. Final provisions
a) We save customer data acquired in connection with our mutual business dealings in compliance with the data protection legislation in force.
b) If the customer is a trader, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is the seat of the supplier (Stendal). However, the supplier is also entitled to sue the customer at the customer’s seat.
c) Contracts are subject to the substantive law of the Federal Republic of Germany to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
d) Should any provisions of these Terms and Conditions be or become wholly or partly legally ineffective, this shall not affect the validity of the remaining conditions.

Updated 1 January 2015
meyer-Polycrete GmbH · 39576 Stendal