Condizioni Generali di Contratto | General Terms and Conditions (GTC)

§ 1 Scope of Application

(1) All deliveries and services of CUTMETALL Recycling Tools Germany GmbH (hereinafter referred to as CUTMETALL), including offers, consultations or other ancillary services, are provided on the basis of the following General Terms and Conditions. Purchasing or other terms and conditions of the customer (hereinafter also referred to as: "buyer", "purchaser" or "customer") are not recognised and shall not become part of the contract even without express written objection by CUTMETALL. Even if CUTMETALL refers to a letter which contains or refers to the purchasing or other terms and conditions of the Buyer or a third party, this does not constitute agreement with the validity of those purchasing or other terms and conditions.

(2) The GTC of CUTMETALL shall also apply to all future deliveries and services of CUTMETALL to the Buyer until new GTC come into force. The version of the GTC valid at the time of conclusion of the contract, which can be accessed at https://www.cutmetall.com/it/legal/gtc/, shall apply.

(3) Provisions deviating from these GTC shall only apply if CUTMETALL expressly agrees to them in writing or in text form (by e-mail).

(4) The GTC shall only apply if the buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law or a special fund under public law.

(5) References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Offer and Conclusion of Contract; Contract Language

(1) Offers from CUTMETALL are subject to change. Any change requires a review of the offer. The stated terms of payment apply subject to a positive credit check. The contract is concluded by 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.

(2) The documents belonging to an offer, including illustrations, drawings, weights and dimensions, performance and other property descriptions and other information on contractual products and services are only approximately binding. Certain properties of the goods to be supplied shall only be deemed to be warranted if this has been expressly agreed in writing. A reference to standards or agreed specifications alone shall only contain a more detailed description of the goods or services and not a guarantee of properties.

(3) Additions, amendments and verbal collateral agreements must be made in writing to be effective.

(4) CUTMETALL reserves the right to make changes in function and form as well as changes to the scope of delivery which result in a technical improvement during the delivery period.

(5) Cost estimates are non-binding. CUTMETALL reserves the right to charge a fee for the preparation of cost estimates.

(6) CUTMETALL reserves the right of ownership and copyright to cost estimates, drawings and other documents. They may not be made accessible to third parties. CUTMETALL undertakes to make documents labelled as confidential by the customer accessible to third parties only with the customer's consent.

(7) The customer may not return any goods to CUTMETALL unless CUTMETALL expressly agrees to the return. This does not apply if the customer cancels the contract with legal effect or justifiably demands subsequent fulfilment.

(8) The language provided for the conclusion of the contract is exclusively German. Translations into other languages are for information purposes only. In the event of contradictions between the German text and the translation, the German text shall take precedence.

§ 3 Prices and Terms of Payment

(1) CUTMETALL charges the prices valid at the time of delivery plus statutory VAT. Additional, ancillary and special services and costs of CUTMETALL such as packaging, works, test and material certificates, customs duties in the case of export deliveries as well as fees and other public charges are charged separately, unless otherwise agreed in writing.

(2) CUTMETALL is entitled to change the prices appropriately if cost increases or cost reductions occur between conclusion of the contract and delivery, in particular due to changes in labour costs, energy prices or material prices. CUTMETALL shall inform the customer of the price change in good time before delivery. If CUTMETALL fails to inform the customer in good time, the price on which the order confirmation is based shall apply.

(3) The customer agrees to receive invoices from CUTMETALL electronically, in particular by e-mail. The invoice shall be sent by post or electronically at CUTMETALL's discretion. Subject to deviating agreements, the following payment modalities apply: Payment shall be made within 30 days strictly net. For order values over EUR 25,000, one third of the purchase price is due upon order confirmation, one third upon notification of readiness for dispatch and the remainder net (without discount deduction) within 30 days of the invoice date, unless otherwise agreed in the order confirmation. In the case of export transactions, delivery shall be made against advance payment, unless payment by irrevocable and confirmed letter of credit has been agreed. Payments must be made in such a way that CUTMETALL can freely dispose of the amount on the due date.

(4) If the customer does not properly fulfil his payment obligations, suspends his payments or if insolvency proceedings are opened against his assets or their opening is rejected for lack of assets, the entire outstanding purchase price shall become due. If the Customer defaults on payment, CUTMETALL is entitled to demand default interest at the statutory rate. The assertion of further damages remains unaffected by this.

(5) If special circumstances give reasonable cause for considerable doubt about the creditworthiness of the customer, all claims arising from the business relationship shall become due immediately and CUTMETALL shall be entitled to demand deliveries against advance payment as well as advance payment before production release. Sentence 1 also applies if the customer is in default of payment from other contracts. If payment by instalments has been agreed and the customer remains in arrears with an amount of more than 10% of the outstanding purchase price, the entire outstanding balance shall be due for payment immediately.

(6) The customer may only assert rights of retention or set-off with regard to counterclaims that are undisputed, recognised by CUTMETALL or legally established.

§ 4 Deliveries and delivery time

(1) Unless otherwise agreed in writing, deliveries shall be made exclusively "ex works".

(2) In the absence of instructions from the customer, CUTMETALL shall determine and commission the carrier, mode of transport and means of transport at the expense and risk of the customer.

(3) CUTMETALL shall always endeavour to deliver as quickly as possible. Binding delivery dates or deadlines must be expressly agreed. An expected delivery date stated by CUTMETALL is not binding.

(4) Compliance with the delivery period is subject to correct and timely delivery to CUTMETALL.

(5) The following applies to compliance with bindingly agreed delivery dates or deadlines:

• Insofar as the goods are delivered to the business premises of CUTMETALL, the transfer of possession to the Customer (transfer of possession) is decisive.
• If the goods are not delivered to the business premises of CUTMETALL on the basis of a special agreement, the time at which the goods leave the factory or warehouse commissioned by CUTMETALL or the company commissioned by CUTMETALL to manufacture or store the goods is decisive.

(6) Force Majeure

a) Insofar as CUTMETALL is prevented from the fulfilment or timely fulfilment of its contractual obligations to the customer as a result of an event of force majeure within the meaning of paragraph b) (e.g. if such an event leads to operational or traffic disruptions), CUTMETALL is released from these obligations for the duration of the event of force majeure. In particular, CUTMETALL is not liable to the customer for damages incurred as a result of non-fulfilment or delayed fulfilment of the contract due to a force majeure event.

b) Force majeure is an event that is external to CUTMETALL, brought about from outside by elementary forces of nature or by the actions of third parties, which is unforeseeable according to human insight and experience, cannot be prevented or rendered harmless by economically acceptable means, even by the utmost care that could reasonably be expected in the circumstances, and could not be accepted by CUTMETALL due to its frequency. This includes in particular natural disasters, war, terrorism, strikes, epidemics and measures by governments, courts or authorities (regardless of their legality) such as embargoes or transport restrictions.

c) CUTMETALL must notify the customer immediately and inform him of the reasons for the force majeure and the expected duration of the event. CUTMETALL shall endeavour to use all technically possible and economically justifiable means to ensure that it can fulfil its contractual obligations again as quickly as possible.

d) If the hindrance due to a force majeure event lasts longer than 3 months or if the fulfilment 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.

(7) in the event of a delay in delivery for which CUTMETALL is responsible, the customer may - if he can credibly demonstrate that he has suffered damage as a result - after the expiry of 2 weeks for each further completed week of delay, to the exclusion of further claims, demand a lump-sum compensation for delay in the amount of 0.2% - but not more than 5% - of the value of the part of the delivery which cannot be used as intended as a result of the delay.

In addition to the above-mentioned claims for damages due to delay, further claims for damages are excluded unless

• the delay is due to intent or gross negligence on the part of CUTMETALL or its vicarious agents or
• there is a culpable breach of an essential contractual obligation or
• a commercial transaction for delivery by a fixed date has been agreed.

(8) Insofar as the maximum amount of compensation for damages according to clause 4.7 is reached, the customer may, after setting a reasonable deadline for performance, declare the cancellation of the contract with regard to the delayed part if CUTMETALL does not perform beforehand.

(9) If the customer is in default with an essential obligation arising from the contractual relationship, CUTMETALL is entitled to extend the delivery period by the period of default.

(10) Goods notified as ready for collection must be collected immediately. If the goods are not collected within 5 working days, CUTMETALL is entitled, at its own discretion, to dispatch the goods to the customer at the customer's expense or to store the goods at the customer's expense at its reasonable discretion and to label them as delivered. The statutory provisions on default of acceptance remain unaffected.

(11) CUTMETALL is entitled to make partial deliveries and render partial services at any time, unless acceptance of the partial delivery or partial service is unreasonable for the Customer in the individual case.

§ 5 Transfer of risk

The risk of damage to and loss of the goods is transferred to the customer as follows:

• if the goods are delivered to the business premises of CUTMETALL, at the time at which CUTMETALL informs the customer that the goods are ready for collection,
• if the goods are not delivered to the business premises of CUTMETALL, at the time of handover (also to a transport person) or, if the customer is in default of acceptance, at the time at which CUTMETALL offers the handover.

§ 6 Acceptance

Deliveries are to be accepted by the customer, even if they do not have significant defects, without prejudice to the customer's rights in respect of defects. The customer shall bear the costs of storage, insurance, protective measures, etc. incurred as a result of delayed acceptance.

§ 7 Warranty

(1) CUTMETALL warrants that the goods are free from material defects. Unless otherwise expressly agreed in writing, the agreed quality shall be the quality described in the product descriptions, technical specifications and labelling authorised by CUTMETALL. Public statements, promotions or advertising are neither part of a quality agreement, nor do they determine the contractually assumed use; § 434 Para. 3 No. 2b BGB does not apply in this respect. Technical specifications are only approximate.

(2) Claims for defects shall be excluded if they are not raised immediately in writing in the case of obvious defects, but at the latest within 8 days of receipt of the goods, stating the delivery note and invoice number and a description of the defect complained about. Hidden defects must be reported immediately after discovery; the burden of proof for the hidden nature of the defect shall be borne by the customer.

(3) If, contrary to expectations, a CUTMETALL product should be defective, the Customer shall be entitled to claim for defects in accordance with the applicable law and these General Terms and Conditions. The warranty period in this case is 1 year from the transfer of risk. The regulation of §377 HGB remains unaffected by this. The customer's claims for defects are initially limited to the right to subsequent fulfilment (rectification of defects or replacement delivery). Only if the subsequent fulfilment fails is the purchaser entitled to reduce the purchase price or withdraw from the contract at his discretion.

The Customer is obliged, within reasonable limits, to co-operate in the rectification of defects against reimbursement of costs and in accordance with CUTMETALL's instructions. On request, the Customer shall send replaced parts or the goods themselves to CUTMETALL for subsequent improvement.

Only in urgent cases (risk of disproportionately large damage, danger to operational safety) may the customer rectify defects himself or have them rectified by third parties. He must inform CUTMETALL immediately and obtain its prior consent. The urgency must be proven by the customer. In the case of only insignificant defects, the customer is only entitled to reduce the purchase price (§ 440 BGB - German Civil Code).

(4) Unless already regulated in the aforementioned provisions, CUTMETALL is not responsible for any lack of conformity and damages - 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 that has not occurred to the delivery item itself). However, in the event of culpable breach of essential contractual obligations, CUTMETALL shall only be liable for reasonably foreseeable damage typical of the contract. However, CUTMETALL is liable in any case for gross negligence and for specially assumed guarantees, in the event of fraudulent intent, culpable injury to life, limb and health or if liability is assumed under the Product Liability Act for bodily injury or property damage to privately used objects.

In the event of culpable breach of material contractual obligations, however, CUTMETALL shall only be liable for reasonably foreseeable damage typical of the contract. However, CUTMETALL is liable in any case for gross negligence and for specially assumed guarantees, for fraudulent intent, for culpable injury to life, body and health or if liability exists under the Product Liability Act for bodily injury or property damage to privately used objects.

(5) Deviations in quantities, dimensions, quality, weights and the like are permitted within the scope of what is customary in the trade. The same applies to colour deviations that do not impair usability and to slight soiling caused by oils, for example.

(6) The Buyer shall comply with the Supplier's instructions on the handling or use of the contractual products. If the Customer does not comply with these instructions and this results in damage, the Customer shall be responsible for such damage.

(7) CUTMETALL is not responsible for damage caused by improper handling, non-compliance with the assembly, operating or care and maintenance instructions supplied by CUTMETALL together with the product or an installation site unsuitable for the operation of the product or by natural wear and tear.

(8) Maintenance and service work may only be carried out by CUTMETALL technicians or authorised service companies in order to maintain warranty claims, unless the customer proves, when asserting warranty claims, that the defect in question was not caused by maintenance or service work carried out by others. CUTMETALL is not liable for damage caused by third-party intervention.

(9) The customer is responsible for providing evidence of the careful and proper handling and proper storage of the goods.

§ 8 Damages

(1) Unless otherwise stipulated in these terms and conditions, CUTMETALL shall only be liable for damages in cases of intent and gross negligence, and in all other cases only if an essential contractual obligation (cardinal obligation) has been breached. Essential contractual obligations are those which make the proper fulfilment of the contract possible in the first place and on the fulfilment of which the customer has relied and was entitled to rely and the culpable non-fulfilment of which jeopardises the achievement of the purpose of the contract. In the event of merely simple negligence, CUTMETALL shall in any case only be liable for the foreseeable damage typical of the contract.

(2) Compensation for indirect damage, consequential damage and loss of profit is excluded.

(3) Liability for personal injury, liability for fraudulent intent, liability arising from a guarantee of quality given by CUTMETALL and liability under the Product Liability Act shall remain unaffected by the limitations of Clauses 8.1 and 8.2.

(4) The customer shall indemnify CUTMETALL against any claims by third parties for damages incurred by these third parties either due to changes to the delivery item made by the customer or a third party after the transfer of risk without the prior written consent of CUTMETALL, or due to the installation or operation of the delivery item at an installation site not recommended by CUTMETALL due to a lack of suitability for safe operation, either in the assembly instructions or not approved in individual cases. The same applies to improper handling and use of the delivery item by the customer.

§ 9 Retention of title

(1) All delivered goods remain the property of CUTMETALL until full payment of all claims arising from the business relationship. This shall also apply if individual or all claims of CUTMETALL are included in a current account and the balance has been struck and recognised.

(2) The customer is entitled to resell the goods in the ordinary course of business provided that the customer receives payment from his customer or agrees the reservation that the customer only acquires ownership upon fulfilment of all payment obligations.

(3) The customer shall support CUTMETALL in any measures necessary to protect its property. The customer shall inform CUTMETALL immediately if risks to its property arise. This applies in particular to dispositions by third parties or official measures (seizures, confiscation, etc.).

(4) CUTMETALL is entitled to take back the goods subject to retention of title in the event of behaviour by the customer in breach of contract, in particular in the event of default of payment. The repossession does not constitute cancellation of the contract.

(5) The customer shall take out insurance for the delivered goods against theft, fire and water damage as well as other risks at his own expense for the period until the purchase price has been paid in full.

(6) Insofar as the value of the securities exceeds the claims to be secured by more than 10%, CUTMETALL shall release securities of its choice upon request.

(7) The customer is obliged to handle the reserved goods for CUTMETALL with care, to maintain and repair them at his own expense and to insure them at his own expense against loss and damage to the extent to be expected of a prudent businessman. He hereby assigns his claims from the insurance contracts to CUTMETALL in advance. As long as and insofar as the customer is not in default of payment, CUTMETALL shall disburse payments from the insurer to the customer for the costs of repair work already carried out. CUTMETALL shall offset payments made by the insurer due to the loss of the reserved goods against any payment obligations of the customer that have not yet been fulfilled and, if applicable, pay out any excess amounts to the customer.

(8) In the event of processing or other transformation of the reserved goods, the customer shall act on behalf of CUTMETALL, however without obligating CUTMETALL. If the reserved goods are processed, mixed or combined with items belonging to third parties, CUTMETALL acquires co-ownership of the products in proportion to the respective invoice values. If the reserved goods are processed, combined or mixed with a main item of the Customer, the Customer hereby transfers co-ownership of the new item to CUTMETALL in the ratio of the purchase price to the value of the main item. The respective co-ownership share shall be deemed to be reserved goods within the meaning of these General Terms and Conditions of Contract.

(9) The customer may sell goods subject to retention of title in the ordinary course of business under the usual terms and conditions, provided that he is not in default of payment. The same applies to the use of reserved goods in fulfilment of a contract for work and services. Resale is not permitted if the purchaser agrees a prohibition of assignment with his customer. In the event of resale, the customer must make the transfer of ownership dependent on full payment of the purchase price or wages. The purchaser is not authorised to pledge, assign as security or otherwise encumber the reserved goods.

(10) The Customer assigns to CUTMETALL all claims arising from a resale within the meaning of the above clause to secure CUTMETALL's claim to the purchase price. Likewise assigned are all claims which arise for the customer against the respective damaging parties from damage to or loss of the reserved goods. As long as the customer fulfils his contractual obligations towards CUTMETALL and the fulfilment of these obligations is not at risk, the customer can collect the assigned claims himself.

§ 10 Industrial property rights and copyrights

(1) If the intended use of the delivered goods leads to an infringement of industrial property rights or copyrights in Germany, CUTMETALL shall, at its discretion, either procure the right for the customer to continue using the goods or modify the delivery item in a manner reasonable for the customer in such a way that the infringement of property rights no longer exists (subsequent fulfilment). The customer is obliged

• to inform CUTMETALL immediately of the assertion of possible property right or copyright infringements against the customer and/or his customers,
• to support CUTMETALL in the defence of the asserted claims and to enable the implementation of the subsequent performance measures, and - to take legal defence measures in accordance with CUTMETALL's instructions and only to recognise such third-party claims or to conclude judicial or extrajudicial settlements in this respect with CUTMETALL's prior consent.

(2) The right of CUTMETALL to refuse subsequent fulfilment in accordance with § 439 Para. 2 BGB remains unaffected.

(3) CUTMETALL shall indemnify the customer against claims of the relevant property right holders that are undisputed by CUTMETALL or have been recognised by declaratory judgement.

(4) CUTMETALL shall not be liable for the infringement of property rights if at least one property right from the property right family from which claims are derived has not been published either by the European Patent Office or in one of the states of the Federal Republic of Germany, France, Great Britain, Austria or the USA. Furthermore, CUTMETALL is not liable

• if the infringement of the property right was caused by the fact that the customer modified the delivery item without authorisation or used it in a manner not in accordance with the contract;
• the infringement of property rights is based on an instruction of the customer implemented by CUTMETALL in the delivered goods.

The aforementioned claims of the customer shall become time-barred one year after the transfer of risk. The relevant time for the start of the limitation period is the time of the transfer of risk. Mandatory statutory limitation provisions remain unaffected, in particular for intentional or grossly negligent fault, for personal injury, for breach of material contractual obligations, for claims under the Product Liability Act or under a guarantee assumed.

§ 11 Secrecy

(1) All business or technical information originating from CUTMETALL (including features that can be taken from any objects or software handed over) must be kept secret from third parties as long as and insofar as it was not demonstrably already known to the customer publicly or without breach of confidentiality obligations of a third party or is known after disclosure by CUTMETALL or was intended by CUTMETALL for resale by the customer, must be kept secret from third parties and may only be made available in the customer's own company or a subcontractor of the customer to those persons who are also obliged to maintain confidentiality and who are dependent on knowledge of this information for the fulfilment of their respective operational tasks; they remain the exclusive property of CUTMETALL. Such information may not be reproduced or used commercially without the consent of CUTMETALL. Upon request, all information originating from CUTMETALL, including copies and records made and items provided on loan, must be returned to CUTMETALL immediately and in full or destroyed in consultation with CUTMETALL.

(2) CUTMETALL reserves all rights to the information specified in §11 Para. 1 (including copyrights and the right to register industrial property rights, such as patents, utility models, semiconductor protection, etc.).

§ 12 EU sales tax identification number

If the customer has its registered office outside Germany, it is obliged to comply with the relevant VAT regulations of the member states of the European Union (EU). This includes in particular the disclosure of the VAT identification number to CUTMETALL without separate request. The customer is obliged to provide CUTMETALL on request with the necessary information regarding his status as an entrepreneur, regarding the use and transport of the delivered goods as well as for the fulfilment of the statistical reporting obligation. The customer is obliged to reimburse any expenses, in particular processing fees, which CUTMETALL incurs as a result of incorrect information provided by the customer regarding value added tax.

§ 13 Advertising Marketplace (Customer Classifieds)

(1) Under the Classifieds section, the seller offers his customers a notice board. This is where customers can independently offer used goods, spare parts or surplus parts for sale to other customers.

(2) The Classifieds section is a free service offered by the seller for his customers. The seller is entitled to restrict, change or completely discontinue this functionality at any time. There is no claim to functionalities of this section.

(3) The seller shall participate only in the mediation of contracts between customers and shall not become a contractual partner in contracts concluded via offers in the Classifieds section. The seller shall also not act as a representative of the respective provider or customer. The contracts shall be concluded exclusively between the provider named in the respective advertisement and the customer. All claims resulting from the sales contracts shall be exclusively between the provider and the customer. The parties to the contract can accordingly agree their own terms and conditions of business.

(4) Customers who wish to post an offer can send this to the seller by e-mail to sales@cutmetall.com. The text of the offer must contain the information from the imprint of the seller, in particular the company name and the complete address and contact details of the seller. Furthermore, the text of the offer must contain all essential characteristics of the goods and must meet all labelling requirements. Text of offers may not contain any advertising beyond the specific offer. Customers who submit the text of an offer shall indemnify the seller from all claims of third parties based on a violation of the aforementioned obligations or other violations of rights arising from a text of an offer.

(5) There is no right to the publication of the text of an offer. The seller shall only publish offers if they complement the seller's range of goods in a meaningful way. He reserves the right to reject offers in whole or in part.

§ 14 General provisions, place of jurisdiction and place of fulfilment, data processing

(1) Amendments, supplements and other ancillary agreements to these GTC or to concluded contracts must be made in writing. The same applies to the amendment or cancellation of the written form requirement.

(2) Should individual clauses of these General Terms and Conditions be invalid in whole or in part, this shall not affect the validity of the remaining clauses or the remaining parts of the invalid clause. The parties shall replace an invalid provision with a valid provision that comes closest to the economic purpose of the invalid provision. The same applies to a loophole.

(3) The customer shall only have rights of set-off or retention with regard to legally established or undisputed claims.

(4) The buyer may only use or register trademarks, trade names and other signs and industrial property rights of CUTMETALL after prior written authorisation and only in the interest of CUTMETALL.

(5) The respective location in accordance with § 4 No. 1 is the place of fulfilment for the delivery and any subsequent fulfilment, as well as the place of payment.

(6) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.

(7) The place of jurisdiction for all disputes arising from or in connection with contractual relationships to which these General Terms and Conditions apply shall be the registered office of CUTMETALL in 96149 Breitengüßbach, Germany. However, CUTMETALL is entitled, at its discretion, to sue the Customer at the court of its registered office, its branch or the place of fulfilment.

(8) The customer acknowledges that CUTMETALL processes in particular personal master data on the basis of Art. 6 para. 1 sentence 1 lit. b) GDPR § for the purpose of executing a contract concluded with CUTMETALL. For further details, please refer to CUTMETALL's privacy policy pursuant to Art. 13 GDPR.