1 Validity of the General Terms and Conditions
These General Terms and Conditions shall apply exclusively to all - including future - orders/contracts with companies, even if we do not refer to them in every transaction. Conflicting terms and conditions of business/purchase of the buyer shall have no legal effect, even if we do not expressly object to them. By placing an order and/or accepting delivery, the buyer acknowledges our terms and conditions. Amendments, supplements or ancillary agreements are only binding if they are agreed in writing.
§ 2 Conclusion of contract
(1) Orders are only binding for us insofar as we confirm them in writing or comply with them by sending the goods.
(2) Our employees are not authorised to make verbal subsidiary agreements or to give verbal assurances that go beyond the content of the written contract.
§ 3 Prices
(1) Our deliveries are ex works, excluding packaging.
(2) The prices are exclusive of statutory value added tax.
(3) We may take into account any increase in material procurement, raw material, wage, ancillary wage and energy costs in our prices if there is a period of at least 2 months between conclusion of the contract and delivery.
(4) Additional deliveries and services shall be invoiced separately. In the event of agreed freight-free delivery, the prices quoted by us shall be based on the freight and ancillary charges applicable at the time of the offer. They will therefore be adjusted to changed freight and ancillary charge rates without the buyer being entitled to a right of withdrawal.
§ 4 Delivery periods, force ma jeure
(1) Delivery periods and dates shall commence upon receipt of our order confirmation by the buyer, but not before all details of the execution of the order have been clarified, all other requirements to be fulfilled by the buyer have been met and an agreed down payment has been received.
(2) Deliveries before the expiry of the delivery period are permissible. The date of dispatch of the goods shall be deemed to be the date of delivery. We are entitled to make partial deliveries insofar as this is reasonable for the buyer. (3) If we are in default of delivery, the buyer is obliged to set a reasonable grace period of at least 4 weeks. After the unsuccessful expiry of this grace period, he may withdraw from the contract insofar as the goods have not been reported as ready for dispatch by the expiry of the grace period. In the event of delay due to slight negligence on our part, we shall only be liable for damages caused by delay up to a maximum of 5% of the net order value.
(4) We shall not be in default as long as the buyer is in default with the fulfilment of obligations towards us, including those from other contracts.
(5) We are not responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us, not only temporarily - this includes in particular strikes, lockouts, official orders, etc., even if they occur at our suppliers or their sub-suppliers. They entitle us to postpone the delivery for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part because of the part not yet fulfilled. If the hindrance lasts longer than 6 weeks, the buyer is entitled to withdraw from the contract with regard to the part not yet fulfilled after setting a reasonable grace period. If the delivery time is extended or if we are released from our obligation, the buyer cannot derive any claims for damages from this. We may only invoke the aforementioned circumstances if the buyer has been notified immediately.
§ 5 Transfer of risk
(1) Loading and shipment shall take place uninsured at the risk of the buyer. The risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse. This also applies if we have taken over the delivery.
(2) Additional costs caused by the buyer's wishes - even in the case of carriage paid delivery - shall be borne by the buyer. We shall only cover transport insurance in the case of a special order at the expense of the buyer.
§ 6 Incoming Inspection, Notification of Defects, Liability for Defects
(1) The buyer or the recipient designated by him shall inspect the goods immediately upon receipt. After the discovery of defects, the processing of the defective goods shall be stopped immediately. Obvious defects, including the absence of guarantees, must be reported in writing immediately, at the latest 7 days after receipt of the goods, hidden defects immediately, at the latest 7 days after their discovery. If the buyer fails to inspect the goods or to notify us in due form and time, the buyer shall not be entitled to any claims arising from defects. The timeliness of the notification shall be determined by the time of its receipt by us.
(2) If an acceptance test or an initial sample test has been agreed, a complaint about defects which the buyer could have detected during a careful acceptance test or initial sample test shall be excluded.
(3) The buyer must notify us expressly and in writing before conclusion of the contract of any technical requirements placed on the goods by the buyer which deviate from the usual requirements. If he does not do so, there is no defect if such requirements are not met.
(4) In the event of justified notices of defect, we shall be obliged, at our discretion, to provide subsequent performance either by supplying defect-free replacement goods or by rectifying the defect, in which case the parts complained about shall become our property. We are entitled to refuse subsequent performance in accordance with the statutory provisions.
(5) If we fail to meet our obligation to provide subsequent performance, the buyer may, at his discretion, withdraw from the contract or reduce the price after setting us a reasonable period of grace, unless this is dispensable under the statutory provisions. In the event of withdrawal, the purchaser shall be liable for deterioration, destruction and unaccrued benefits not only for the purchaser's own due diligence, but also for any negligence on the part of the purchaser.
(6) Further claims for damages and reimbursement of expenses by the buyer due to or in connection with defects or consequential damages, irrespective of the legal grounds, shall only exist in accordance with § 7. In this case too, however, we shall only be liable for the typical and foreseeable damage.
(7) Warranty claims against us shall become statute-barred 12 months after delivery of the goods, with the exception of the cases regulated in § 7 (6).
(8) Should it transpire that a notice of defect was unjustified, the purchaser shall bear all costs arising from the notice of defect.
7 Exclusion and limitation of liability for damages and reimbursement of expenses
(1) In the event of slight negligence, we shall only be liable for all claims for damages and reimbursement of expenses against us due to a breach of duty for which we are responsible, irrespective of the legal grounds, in the event of a breach of essential obligations that jeopardises the purpose of the contract. Otherwise, our liability for slight negligence is excluded.
(2) In the case of liability according to § 7 (1) and liability without fault, we shall only be liable for the typical and foreseeable damage. The assertion of useless expenses by the buyer is inadmissible.
(3) The buyer decides on his own responsibility about the use of the goods or other services delivered by us. If we have not confirmed specific properties and suitability of the products for a contractually determined purpose in writing, any advice on application shall in any case be non-binding. We shall also only be liable in accordance with § 7 (1) for advice given or not given.
(4) The exclusion of liability according to § 7 (1) - (3) applies to the same extent in favour of our organs,
legal representatives, executive and non-executive employees and other vicarious agents. (5) All claims for damages and reimbursement of expenses against us shall become statute-barred 12 months after delivery of the goods, in the case of tortious liability after knowledge or grossly negligent ignorance of the circumstances giving rise to the claim or the person liable to pay compensation. This does not apply in the case of intent and in the cases mentioned in § 7 (6).
(6) § 7 (1) - (5) as well as § 6 (6) do not apply in the case of strict liability, if there is liability for injury to life, body or health, if a guarantee of quality is given or if a defect is fraudulently concealed.
8 Terms of payment
(1) Our invoices are payable without deduction 5 days after the invoice date. Thereafter, we shall be entitled to charge interest at the statutory rate.
(2) In the event of default in payment and justified doubts about the solvency or creditworthiness of the buyer, we shall be entitled - without prejudice to our other rights - to demand securities or advance payments for outstanding deliveries and to make all claims arising from the business relationship due immediately.
(3) Only undisputed or legally established claims entitle the buyer to set-off or retention; this does not apply to counterclaims from the same contractual relationship.
§ 9 Retention of title
(1) The goods sold shall remain our property until full payment of our claims arising from the business relationship with the buyer. This shall also apply to a balance in our favour if individual or all claims are included by us in a current account and the balance has been struck.
(2) The buyer shall insure the reserved goods sufficiently, in particular against fire and theft.
(3) The buyer is authorised to dispose of the goods in the ordinary course of business. The buyer hereby assigns to us as security all claims against third parties arising from the resale; this shall also apply in the event of a company sale. The buyer is authorised to collect these claims for our account until revocation or cessation of his payments to us. The buyer is also not authorised to assign these claims for the purpose of debt collection by way of factoring, unless the obligation of the factor is simultaneously established to effect the counter-performance in the amount of our share of the claim directly to us for as long as there are still claims on our part against the buyer. (4) In the event of access by third parties to the goods subject to retention of title, in particular seizures, the buyer shall draw attention to our ownership and notify us immediately so that we can enforce our ownership rights. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in this connection, the buyer shall be liable for these. (5) In the event that the buyer acts in breach of contract, in particular in the event of default in payment, we shall be entitled to take back all goods subject to retention of title; the buyer shall then be obliged to surrender them. We may enter the buyer's business premises at any time during normal business hours in order to ascertain the inventory of the goods delivered by us. The taking back of goods subject to retention of title shall only constitute a rescission of the contract if we expressly declare this in writing or if mandatory statutory provisions provide for this.
(6) If the value of the securities exceeds our claims by more than 20%, we shall release securities of our choice at the request of the buyer.
In order to ensure proper handling of returns, they will only be accepted if they have been notified in writing in advance, if they are properly packaged and if a return note stating the receipt number is enclosed.
11 Recall and similar measures
(1) If a party has evidence that a recall of the goods or a similar action is necessary, it must immediately inform the other party of its reasons and provide the documents supporting its view. The other party shall immediately comment on the evidence and possible action. If the parties fail to reach agreement in writing on the need for action, the extent of the action or the bearing of the costs, one of the parties may set a date for an immediate meeting to be attended by persons authorised by each party to make a decision. If either party fails to act in accordance with this schedule, it may not rely on the fact that the action was objectively necessary or unnecessary against the other party unless the other party has failed to do so by gross negligence or wilful misconduct.
(2) We will provide the buyer, if it is exposed to measures of the market surveillance authorities, with all necessary information and render all assistance that the buyer needs in order to avert corresponding measures of the authorities. Any costs or expenses incurred by the buyer shall not be reimbursed.
12 Applicable law, place of performance and jurisdiction, severability clause, interpretation
(1) The law of the Federal Republic of Germany shall apply to all deliveries and services. (2) If the Buyer is domiciled outside Germany, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall apply with the following special provisions: Any amendment or cancellation of the contract must be in writing. This also applies to agreements to abandon this written form requirement. In the event of delivery of goods which are not in conformity with the contract, the buyer shall only have the right to cancel the contract or make a replacement delivery if claims for damages against us are excluded or if it is unreasonable for the buyer to utilise the goods which are not in conformity with the contract and to claim the remaining damage. In these cases, we shall first be entitled to remedy the defect. If the rectification of defects fails and/or leads to an unreasonable delay, the buyer shall be entitled, at his discretion, to declare the contract avoided or to demand a replacement delivery. The buyer shall also be entitled to do so if the rectification of the defect causes an unreasonable inconvenience or there is uncertainty about the reimbursement of any expenses incurred by the buyer.
(3) The place of performance for all contractual obligations is our registered office. The place of jurisdiction is the local or regional court responsible for our registered office. However, we are also entitled to sue the buyer at his general place of jurisdiction.
(4) Should any provision in these GTC be or become invalid, this shall not affect the validity of all other provisions or agreements.
(5) These GTC shall be interpreted in accordance with German law. In the event of any discrepancies between the German version and any translation, the German version shall prevail.
Status: April 2019