General Terms and Conditions
MAIREC Edelmetallgesellschaft mbH, Siemensstraße 20, 63755 Alzenau
Revised May 2020
The following General Terms and Conditions apply to all transactions with MAIREC Edelmetallgesellschaft mbH (hereinafter referred to as ‘MAIREC’). Provisions in the terms and conditions of our business partners (hereinafter referred to as the ‘customer’) that vary from the Terms and Conditions here, as well as such provisions made in ancillary agreements, are not binding for us unless they explicitly form part of the written contract subject matter.
The acceptance and/or delivery of goods, services of any kind or the receipt of payments in no case mean that the terms and conditions of our customer become the subject matter of the contract.
These conditions also apply to all future contracts/deliveries from the customer, even if the validity of the conditions has not been expressly agreed with the customer.
2. QUOTATIONS AND CONTRACTS
Our quotations are always non-binding and obligation-free unless we have entered into a framework agreement with our customer.
We enter into framework agreements only as written contracts, and they therefore only come into existence through our written acceptance.
Amendments, additions or cancellations of a contract shall only become an effective part of the contract if they have been confirmed by us in writing.
The relevant legal provisions, particularly those in European and German circular-economy and waste laws, apply to the materials delivered for processing and purchase. The customer is obliged to follow the relevant regulations. MAIREC will not accept any material for the purpose of waste disposal.
It is prohibited to deliver explosive or radioactive material. The delivery of hazardous material (e.g. toxic, very toxic, highly inflammable) or material with harmful components (e.g. chlorine, bromine, fluorine, mercury, arsenic, selenium, tellurium) is only be permitted after prior written agreement with us. The customer is liable for all consequences if this provision is not observed.
If excluded materials are found during the incoming goods inspection or further processing, the customer shall take back the material at his own expense. Otherwise, MAIREC is entitled to ensure the proper disposal of the material at the customer’s expense within 10 working days after MAIREC has requested the customer to take it back.MAIREC is otherwise entitled to ensure its proper disposal at the customer’s expense no later than ten working days after MAIREC’s request for the customer to collect the material. MAIREC is entitled to have the contracted work performed by third parties. The entitlement to disposal services by MAIREC is transferable, provided the disposal takes place in equipment approved for the purpose.
The material is to be clearly declared by the customer in advance each time an order is placed. This declaration covers, for example, the following areas and matters: the waste code and category name according to the Regulation on the European List of Waste (Abfallverzeichnis-Verordnung, AVV), the Evidence of Waste Regulation (Nachweisverordnung), hazardous goods laws and others, as well as general information about the type and quality of the material, including its precious-metal content. The customer is responsible for the accuracy of the declaration of the waste matter. The customer is required to provide truthful and complete information. The required declaration analyses must be presented if requested.
Notification of incoming deliveries must be provided in good time and no later than two days prior to the receipt of the goods.
The customer bears the costs and risk associated with delivery to our facility in Alzenau.
The material must be properly packed in accordance with any directions that we may have given.
If we have agreed with the customer that MAIREC collects the goods, the customer bears the costs for transporting and insuring them unless otherwise arranged.
For deliveries that arrive at our facilities after 4 p.m. on a working day, the following working day is deemed the date of delivery (excluding Saturdays, Sundays and public holidays). This also applies to deliveries that are carried out by our own logistics division. All order-related deadlines are also counted from the following working day.
Unless otherwise agreed, excess, short or partial deliveries of one lot are not permitted.
The minimum quantities specified in quotations and framework agreements are binding. Shortfalls are only permitted in exceptional situations and only with the prior approval of MAIREC. MAIREC reserves the right to increase all cost items accordingly and to reject the material. Section 7(c) applies to processing charges if there is a shortfall in the minimum precious-metal content.
Should the minimum quantities fail to be met without the explicit approval of MAIREC, MAIREC is further entitled to deny processing the material as a batch or to withhold such service at the customer’s expense until there is a subsequent delivery of the material and until the minimum quantity has been met.
Empty reusable packaging will be returned to the customer at his request.This request is to be communicated to MAIREC in writing no later than the time of delivery.
The costs and risk of transport for the return delivery of empties are borne by the customer unless otherwise agreed.
MAIREC will store reusable packaging for the customer for a maximum of 2 months. If the customer does not collect the empties within this period, and does not wish a return delivery, MAIREC is entitled to dispose of the empties at the customer’s expense, or to recycle them or use them itself free of charge.
MAIREC is not obliged to return empty disposable packaging.
5. WEIGHING, SAMPLING AND DETERMINATION OF SETTLEMENT VALUES
Weighing, sampling and preparation are performed by MAIREC on a binding basis. The procedures and methods for sampling, moisture analysis and weighing are determined by MAIREC. The customer has the right to have itself represented by a neutral expert representative at its own expense or, with the approval of MAIREC, by customer’s member or employee. The representative must be announced in writing prior to arrival of the delivery and the sampling date must be agreedwithusinwriting.If the sampling specialist is notnominated in due time, not present or is delayed at the submitted timeslot, MAIREC has the right to start the sampling procedure promptly. The result of this sampling procedure is solely decisive for the settlement.
If a exchange of analyses has not been agreed with the customer in accordance with section 5(c), the settlement will be done based solely on the weights and contents determinedby MAIREC. If the customer does not agree with the determinedvalues, this must be communicated to us immediately and in any case within three working days after receiving the information. MAIREC will review the customer’s objections on a goodwill basis and discuss with him the possibility of an agreeable solution. If such a solution is not reached within a maximum of 2 weeks, the values determined by MAIREC will stay applicable.
If an exchange of analyses has been agreed with the customer, each party prepare its own analysis of the sample produced by MAIREC. The analyses are performed by the customer and MAIREC independently of each other, and the results of these analyses are simultaneously exchanged via email at a time agreed between the two parties. If the agreed spliting limitsare exceeded or if there is no corresponding agreement, both parties must attempt to define the contents for settlement purposes by way of a friendly agreement within 3 working days after the exchange of analyses. Should an agreement not be reached, MAIREC will, in coordination with the customer, contract a neutral expert laboratory that has not previously been entrusted with sampling to perform an analysis to decide the dispute.Should the results from the umpire laboratory lie somewhere between the relevant results of the customer and MAIREC, the median value between the result of the umpire and the party with the result closest to the umpire’s is binding for both the customer as well as MAIREC.Should the result of the umpire’s analysis be outside of the results of both parties, the analysis of the party with the results closest to the value in the umpire’s analysis is used for settlement purposes.
The umpire analysis costs are borne by the party with the analysis value that deviates most from the analysis value in the umpire’s result. The costs are borne proportionally if there is the same level of deviation. Once the determination of the weight, sampling and, if relevant, extraction of samples for the representative and umpire’s analysis have been completed, MAIREC is entitled to process the material immediately.
6. DUE DATE FOR METALS /BLOCKING AND PROCESSING OF THE MATERIAL
The processing of the material at MAIREC, including the sample preparation, results in the transformation of the original delivered material into another physical form (including crushed, fractionated, remelted or in ash). For this reason, the customer does not have any entitlement to the material being returned in its original form following an approved form of processing by MAIREC.
Should there not be any written direction to block the material by no later than the time the goods are received from the customer, the material is immediately free for processing on receipt at MAIREC. The agreed processing time then begins with the date of receipt of the goods at MAIREC in Alzenau. This also applies if MAIREC collects the material from the customer.
If the customer’s material is initially to remain blocked from (further) processing, the agreed processing time will commence with the day on which MAIREC receives a written instruction from the customer to release the material.
The maximum duration of blocking is 4 weeks counted from delivery to MAIREC. Should MAIREC and the customer not be able to reach an agreement for whatever reason during this window, MAIREC may request that the customer either collect the material at its own expense within a period of 1 week in return for repayment of any advances, prepayments and any processing expenses or release the material for processing. The risk of destruction or accidental deterioration passes to the customer on receipt of the request. In addition, MAIREC is entitled to have the material returned to the customer at its expense and risk if the deadline passes without any result. After this deadline passes without result, MAIREC is entitled to set an additional supplementary deadline of a further 2 weeks, and entitled to process the material and invoice the values determined by MAIREC. The setting of a supplementary deadline may be combined with the request to collect.
7. PROCESSING CHARGES
The prices contained in our quotations are non-binding and exclusive of statutory value added tax.
MAIREC reserves the right to increase the originally offered prices appropriately and to extend agreed deadlines as well as the metal due date appropriately, if the materials possess special properties, which were not known to us at the time of the offer or acceptance of the order, and which cause additional expenditure during processing.
The processing charges of MAIREC apply unless there is a shortfall in the relevant precious-metal content agreed with the customer or, if there is no such agreement, the precious-metal content specified by the customer. If the precious-metal content of one or more metals is short by more than 20 %, MAIREC is entitled to increase the cost items accordingly.
Unless otherwise arranged, the processing charges and all other charges are deducted from the value of the precious metals during the final settlement.
Should the customer not have fixed the precious metals by the time of the metals maturing, the processing charges for the order are invoiced and the precious metals credited to the precious-metal account at MAIREC after deduction of all charges (see section 8 for more about this).
If the agreement is solely for processing, with the customer receiving an entitlement to physical or transferable precious metals, the processing charges and all other charges are invoiced to the customer separately after the metals’ due date . The customer’s entitlements from MAIREC only fall due once this invoice has been paid. Should the customer default on payment, MAIREC may also settle the invoice through a partial sale as governed in section 8(c).
The due date for payment of our invoices is generally the date of receipt of the invoice.
8. METAL WEIGHT ACCOUNTS
In business transactions with precious metals we operate weight accounts. The precious-metal balances held by individual account holders are not stored separately. The individual account holders form a community of owners that is managed by us. Each account holder is co-owner of the total available stock at the rate of the precious-metal weights recorded in that account holder’s account.
The chargeable and unfixed and paid-out precious metals are credited to the customer’s precious-metal weight account at MAIREC for the customer’s further use after the metals’ maturity.
Should a payment owed to MAIREC appear at risk for specific reasons, or should the customer default on the payment by the agreed deadlines, MAIREC is entitled – without requiring further permission from the customer – to retain, offset and sell in its own name the metal volumes resulting from existing orders that have a market value equivalent to the outstanding payment.
MAIREC is entitled to retain the refundable precious metals until final payment of our processing invoice or other legitimate payment demands.
Subsequent purchase, transfer or physical delivery of the precious metals can only be made on request with reasonable notice and based on the market conditions applicable at the corresponding time after assessment of the individual situation. MAIREC is entitled to charge reasonable additional fees for transfers and physical provision.
9. PREPAYMENT/EARLY SETTLEMENT
The customer’s payment entitlements normally become due no earlier than the agreed metals due date, i.e. after expiry of the agreed processing time.
The customer has no legal entitlement to advance payments and early settlements before the metals are due. These are voluntary services which MAIREC can offer or refuse, depending on the current market situation.
10. TRANSFER OF OWNERSHIP
Once sampling is complete, MAIREC is also entitled, unless otherwise arranged, to mix and combine the material created after processing (section 6(a)) with other materials and to send it to service providers contracted by MAIREC. The customer is aware that it will be co-owner of the material that is mixed and combined with other materials. The customer’s right of ownership of the delivered material expires no later than the time of fulfilment of the entitlement to return delivery of the precious metals or to payment for them. Until such time, we are entitled to restore the customer’s sole ownership at any time through extraction of the material.When a partial payment is made, ownership of the material is irreversibly transferred to MAIREC, regardless of the payment amount and notwithstanding the obligation of MAIREC to pay for the full recoverable amount of precious metals.
11. RIGHTS OF OFFSET AND RETENTION, ASSIGNMENT
Offsetting with and against claims of relevant affiliated companies is also permitted.
However, the customer only has a right of offset if the basis and amount of the counterclaims against us are undisputed or upheld by legal proceedings. The customer is eligible to a right of retention to the extent that its counterclaim is based on the same contract.
The customer may only assign payments that are owed to the customer with the written approval of MAIREC.
The customer is liable for violations of the provisions of our Terms and Conditions that govern the delivery of materials. In particular, this applies to the declarations of the potential incurrence of damage or disadvantages due to the material’s hazardous properties or its dangerous or disruptive components.
The customer is liable for all disadvantages and damage that are attributable to the hazardous properties of the material or its damaging or disruptive components. This liability normally expires when the material has been completely processed and disposed of.
Liability claims of any kind that are held by the customer or one of its customers against MAIREC are generally excluded in the event of force majeure (section 15).
MAIREC is not liable in cases of simple carelessness of its governing bodies, legal representatives, employees or other agents, unless this carelessness represents a breach of core contractual obligations. Core contractual obligations are the obligation for timely delivery and installation of the delivery object and its freedom from defects in title and such defects in quality that impact the functionality or serviceability more than just immaterially; core contractual obligations are also obligations for advice, protection and care that are intended to enable the customer’s contractual usage of the delivery object or that serve to protect the life and limb of the customer’s staff or to protect the customer’s property from material damage.
Where MAIREC is in principle liable for compensation, this liability is limited to losses that the vendor foresaw as a possible consequence of a breach of contract at the time of entering into the contract or should have foreseen when applying due diligence. Furthermore, indirect losses and consequential losses that result from defects in our work are only eligible for compensation where such losses can typically be expected with the intended use of our work.
For the material located at the MAIREC premises for processing, MAIREC is only liable to the customer for damage and losses in cases of intentional or grossly negligent improper handling. Customer claims in relation to property or asset damage or other losses (e.g. from pre-contractual liability, contractual liability or torts) that exceed the preceding amount are settled up to the amount of our risk coverage, provided the customer quantifies the loss precisely and provides evidence of the amount of the loss. The amount of the claims is limited to the relevant material value.
The above disclaimers and limitations of liability apply to the same extent for the benefit of governing bodies, legal representatives, employees and other agents of MAIREC.
These limitations do not apply to the liability of MAIREC on account of intentional misconduct, for guaranteed object characteristics, on account of injury to life, limb or health, or under the German Product Liability Act (Produkthaftungsgesetz).
The customer is required to review the accuracy and completeness of invoices, credit notes, fixations, settlement documents and metal account statements immediately after receipt. Objections to them must be made in writing within 14 days of receipt. These documents are considered approved with permanent effect if objections are not raised on time. Justified objections made after expiry of the deadline are exempted from this provision if they concern legal entitlements of the customer.
14. TRANSMISSION ERRORS, ERROR CORRECTION
The losses resulting from errors in transmission, misunderstandings or mistakes during telephone calls with the customer or third parties are the responsibility of the customer unless we are at fault.
Credit notes or invoices that are issued incorrectly as a result of a mistake, clerical error or another reason may be corrected by us through a simple accounting entry.
15. FORCE MAJEURE
In cases of force majeure – such as fire, flooding, operational disturbance, accidents, war, uprising, revolt, government actions, labour disputes, shortages of fuel, power, raw materials or working materials, lack of freight facilities, pandemics or epidemics caused by force majeure, or other factors outside the reasonable control of the customer or MAIREC – the arrangements and obligations under the contracts and agreements are wholly or partially suspended depending on the scale of the impediment for the duration of the force majeure; such suspension takes effect as of the time at which the affected party informs the other party in writing of the existence of force majeure, giving reason for it when doing so.
16. LEVIES, DUTIES
Taxes, duties and other levies that are charged on goods and associated documents for deliveries from abroad, inside or outside the Federal Republic of Germany, are at the customer’s expense unless otherwise arranged.
MAIREC may complete customs formalities for imports in accordance with a separate written agreement. In this case, MAIREC may pay the import value added tax if we are eligible to subtract the import value added tax from our value added tax when importing the goods into Germany.
The customer is responsible for preparing the documents correctly. If customs clearance of the material is delayed for reasons of the customer’s fault, the metals’ maturity is to be adjusted accordingly.The delivery papers, containing the following information at a minimum, must be enclosed with every batch:
▪ Annex VII form
▪ Waste consignment forms
▪ Delivery note
▪ Pro forma invoice
All information and documents, especially the Processing Terms and settlement details (confidential information), must be treated as confidential by the customer, its contractors and other agents. Such confidential information may not be made accessible to third parties and may not be used either for third parties or for purposes other than fulfilling the contract without the prior written approval of MAIREC.
The customer is responsible for ensuring that the material is produced and/or exported in compliance with (i) all laws, regulations, statutes and official rules or requirements of the origin country, (ii) all sanctions and trade restrictions that are imposed by whatever rules, regulations or statutes of, for example, the United States or European Union, and (iii) all applicable human rights, environmental and security conventions/regulations of the United Nations.
In particular, the customer is required to comply with all applicable laws, provisions and directives or other regulations designed to combat bribery and corruption, especially the relevant legislation in the United States and United Kingdom, and must inform MAIREC of any potential breaches of such.
MAIREC must not purchase any material that contains conflict minerals that are defined in relevant legal provisions and directly or indirectly finance armed groups or produce benefit for them. The customer is required to ensure that deliveries to MAIREC do not contain such matter.
MAIREC requires that the customer ensure compliance with applicable national and international legal provisions in relation to fundamental labour rights, remuneration and working hours, occupational safety standards and environmental laws, regulations and standards, including with regard to its own suppliers.
Notwithstanding the other rights of MAIREC, non-compliance with these provisions represents a material breach of this contract and entitles MAIREC to terminate the contract without notice and enforce claims for the losses incurred.
MAIREC is not liable for claims, losses or damage that are incurred in connection with non-compliance with this clause in the customer’s name. The customer indemnifies MAIREC and holds it harmless against any such claims, losses or damage.
19. IDENTIFICATION OBLIGATIONS UNDER THE MONEY LAUNDERING ACT (AMLA)
Insofar as MAIREC is obliged under the MLA to identify its contractual partner, any persons acting on its behalf and beneficial owners, our customers are legally obliged to cooperate as contractual partners of MAIREC. In particular, the customer must provide all information and documents required for identification. If changes occur in the course of the business relationship, the customer must notify MAIREC of these changes immediately.
20. PLACE OF PERFORMANCE AND VENUE, CHOICE OF LAW
The place of performance for all obligations under this contract is our premises in Alzenau, Germany, postcode 63755.
Exclusive venue for all disputes arising out of the contract relationship is Frankfurt am Main. However, MAIREC is also entitled to file a lawsuit at the customer’s registered location.
German laws apply to the contract relationship; application of the United Nations Convention on Contracts for the International Sale of Goods from 11 April 1980 (CISG) is prohibited.
21. CONCLUDING PROVISIONS
Should individual provisions of these Terms and Conditions for customer orders be legally unenforceable, the remaining provisions are not affected by this. In the event of partial invalidity, the parties are bound to find a solution to the affected passage immediately. If this is not successful, the statutory provisions of the Federal Republic of Germany apply.
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