General Terms and Conditions

§ 1 Validity

(1) These General Terms and Conditions (T&Cs) shall apply to all our business relationships with our customers (“Buyer”). These T&Cs shall only apply, though, if the Buyer acts as an entrepreneur (§ 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law within the meaning of § 310 para. 1 BGB.
(2) These T&Cs are exclusively applicable. Any deviating, conflicting or supplementary T&Cs of the Buyer shall not be accepted by us provided we have not explicitly agreed to them. This consent requirement applies in any case, for example also when the Buyer refers to T&Cs within the context of the order and we do not explicitly object to them.
(3) In the absence of any agreement to the contrary, the T&Cs in the version applicable at the time of the Buyer’s order or in any case in the version most recently notified to the Buyer in text form shall also serve as a framework agreement for similar future contracts without the need for us to refer to them again in each individual case.
(4) Any amendment of individual conditions shall not affect the remaining conditions.
(5) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and specifications in our order confirmation will have priority over the T&Cs. Individual agreements require that they be recorded in writing or text form. It is only possible to deviate from this written form requirement by means of a written declaration.
(5) Any references to the validity of statutory provisions only serve the purpose of clarification. Even without such clarification, the statutory provisions will therefore continue to apply unless they have been directly amended or explicitly excluded in these T&Cs.

§ 2 Form of explanations and notes

(1) Declarations and notifications of legal relevance by the Buyer in relation to the contract (e.g. fixing a deadline, notification of defects, cancellation or reduction) must be submitted in writing.
(2) The written nature within the meaning of these T&Cs includes written and text form (e.g. letter, e-mail, fax).
(3) Statutory formal requirements and further verification, especially in the event of any doubts as to the legitimacy of the declarant, shall remain unaffected.

§ 3 Offer, acceptance

(1) Our offers are non-binding and without obligation. This is also applicable in cases where we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, cost estimates, references to DIN standards), other product descriptions or documentation – including in electronic form – in respect of which we retain ownership rights and copyrights.
(2) When the Buyer orders the goods, this shall be deemed a binding contractual offer within the meaning of § 145 BGB. The offer is accepted by written order confirmation or at the latest by delivery of the goods.
(3) If nothing to the contrary is stated in the order, we have the right to accept the contractual offer within four weeks of receiving it.

§ 4 Prices

(1) If nothing to the contrary has been agreed in individual cases, the prices valid at the time the contract is concluded shall be the prices applicable. Our prices are ex works/warehouse (for drop shipments ex works/warehouse of the contractually appointed intermediary), plus the respective statutory value added tax and excluding the costs for packaging, except where explicitly agreed otherwise.
(2) In the case of sales shipment (see § 8 para. 1), the Buyer is responsible for the transport costs ex works/warehouse and the costs of any transport insurance that the Buyer may request.
(3) The Buyer shall be liable for any customs duties, fees, taxes and other official charges. Should such charges be introduced or increased following conclusion of the contract, then we shall be entitled to add these to the agreed purchase price retroactively.

§ 5 Payment terms

(1) The purchase price shall be payable in full within 14 days of invoicing. We are, however, entitled at any time, even within the framework of an ongoing business relationship, to effect a delivery in whole or in part only against advance payment. A corresponding reservation shall be declared at the latest upon order confirmation. As long as no objection is lodged within three working days following receipt of the request for advance payment, this reservation of the right to advance payment shall be deemed to have been accepted.
(2) The Buyer shall be in default once the above payment period has expired. The purchase price shall accrue interest during the default period at the applicable statutory default interest rate (default interest in the amount of 9% above the respective base interest rate p.a.). The right to assert further damages caused by default is hereby reserved. In relation to merchants, our claim to commercial maturity interest (§ 353 of the German Commercial Code (HGB)) shall remain unaffected.
(3) Any deduction of a cash discount is only permissible subject to special written agreement.
(4) Should it become evident following conclusion of the contract (e.g. through an application for insolvency proceedings) that our claim to the purchase price is at risk due to the Buyer’s inability to pay, then we shall be authorised in accordance with the statutory provisions to refuse performance and – where applicable after setting a deadline – to withdraw from the contract (§ 321 BGB). Where contracts for the production of items of individual custom manufacture are concerned, we are entitled to immediately withdraw from the contract; this shall not affect the legal provisions concerning the dispensability of fixing a time limit.

§ 6 Offsetting, retention

(1) The Buyer shall only be entitled to offset insofar as their counterclaims are undisputed or have been recognised by final legal judgement.
(2) The Buyer shall only be entitled to assert rights of retention on account of counterclaims deriving from the same contractual relationship. The exclusion of the right of retention of the customer shall not be applicable to undisputed or legally established claims.
(3) Should there be defects in the delivery, the Buyer’s counter-rights shall remain hereby unaffected, especially pursuant to § 11 para. 4 sentence 2 of these T&Cs.

§ 7 Delivery period and delay in delivery

(1) The delivery period shall be individually agreed or specified by us when the order is accepted.
(2) If we cannot meet binding delivery deadlines due to reasons outside our control (non-availability of the service), we shall immediately inform the Buyer of this while simultaneously communicating the expected new delivery deadline. In the event that the service is also not available within the new delivery period, this shall entitle us to withdraw from the contract in whole or in part; any counter-performance already rendered by the Buyer shall be reimbursed by us without delay. Non-availability of the service is deemed to exist, for example, in the case of late delivery by our suppliers, if we have concluded a congruent covering transaction, in the case of other disruptions in the supply chain not attributable to us, for example due to force majeure or if we are under no obligation to procure in individual cases.
(3) The right of the Buyer to set a reasonable grace period following non-compliance with the original delivery date and to withdraw from the contract upon unsuccessful expiry of this period shall remain unaffected by the above provision. Should the service not be available as a result of force majeure, the right of the Buyer to withdraw from the contract shall be suspended for a period of four weeks following the original delivery date. The declaration of withdrawal on the part of the Buyer shall have no effect prior to the expiry of this period.
(4) The commencement on our part of a delay in delivery shall be governed by the statutory provisions. By way of derogation, however, the Buyer shall in any case be required to send a reminder. In the event that we are in default of delivery, our liability for damages shall be limited pursuant to § 13 of these General Terms and Conditions. A maximum limit of 5% of the delivery value of the goods that are delivered late shall be applicable for damages caused by delay – limited to cases of slight negligence. In such cases, we reserve the right to prove that the Buyer has suffered no loss at all or only a significantly lower loss.
(5) The rights of the Buyer in accordance with § 13 of these T&Cs and our statutory rights, especially in the event of an exclusion of the duty to fulfil services (e.g. due to the impossibility or unreasonableness of the service and/or subsequent fulfilment), remain hereby unaffected.

§ 8 Delivery, packaging, default of acceptance

(1) Delivery is made ex works/warehouse, which is fundamentally the place of fulfilment for the delivery and any subsequent fulfilment. The goods shall be dispatched to another destination (sales shipment) at the request and expense (see § 4 para. 2) of the Buyer. In the absence of any agreement to the contrary, we shall be entitled to stipulate the type of shipment (in particular transport company, dispatch route, packaging) ourselves.
(2) To the extent that we distribute packaging within the meaning of the German Packaging Act (VerpackG), we fulfil our relevant obligations under the VerpackG, including our obligation to provide information in accordance with § 15 para. 1 VerpackG; in this context, we point out that packaging can be returned or an optional special agreement can be made with the Buyer. The sense and purpose of the measures mentioned above contribute to the extended environmental and product responsibility, the endeavour to reduce waste and the realisation of the highest possible material cycles, to which we comply as part of our environmental policy.
(3) We are entitled to make partial deliveries.
(4) Commencement of the delivery period and delivery are subject to the timely and proper fulfilment of the customer’s obligations and duties. The defence based on non-performance of the contract (§ 320 BGB) remains reserved.
(5) In the event that the Buyer is in default of acceptance, fails to co-operate or if our delivery is delayed due to other reasons for which the Buyer is responsible, then we shall be entitled to demand compensation for any resulting damages including additional expenses (e.g. storage costs). We shall charge a lump-sum compensation amounting to 0.5% of the contract volume per calendar week in this respect, commencing with the delivery deadline or – in the absence of a delivery deadline – upon notification that the goods are ready for dispatch. The right to prove higher damages and our statutory claims (especially compensation for additional expenses, reasonable compensation, cancellation) shall remain hereby unaffected; however, the lump sum is to be offset against further monetary claims. The customer has the right to prove that we have incurred no loss at all or only a significantly lower loss than the above lump sum.

§ 9 Transfer of risk

(1) The risk associated with accidental loss or accidental deterioration of the goods shall be transferred to the Buyer upon handover. Where acceptance has been agreed, such acceptance shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance procedure.
(2) If the goods are shipped at the Buyer’s request, then the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall be transferred at the time of handover of the goods to the forwarding agent, the carrier or the person otherwise designated to execute the shipment.
(3) It shall be deemed equivalent to the handover of the goods to the customer if the customer is in default of acceptance or in arrears with payment or has breached their duty to co-operate.

§ 10 Retention of title

(1) We shall retain title to the goods sold until full payment of all our current and future claims arising from the purchase contract and any existing business relationship (secured claim).
(2) The Buyer is obliged to handle the goods with care, to provide adequate insurance and, where necessary, to undertake maintenance or inspection work.
(3) The goods subject to retention of title are not permitted to be pledged to third parties or assigned as security until the full payment of the secured claims. The Buyer undertakes to immediately inform us in writing if an application is filed for the opening of insolvency proceedings or if the goods belonging to us are seized by third parties (e.g. seizures). To the extent that the third party is not in a position to reimburse us for the judicial and extrajudicial expenses of proceedings pursuant to § 771 of the German Code of Civil Procedure (ZPO), the Buyer shall be liable for the loss we suffer.
(4) Should the Buyer be in breach of contract, especially if they fail to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand that the goods be returned on the grounds of retention of title. The claim for return does not simultaneously include the declaration of cancellation; rather, we have the right to merely demand the return of the goods and reserve the right of cancellation. In the event that the Buyer fails to pay the purchase price due, then we may only assert such rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is unnecessary pursuant to the statutory provisions.
(5) The Buyer has the right to sell the goods subject to retention of title during the ordinary course of business, providing we have not revoked this authorisation (c). The following provisions shall apply in this respect, however:
(a) Retention of title shall extend to the full value of the products resulting from the processing, mixing or combination of our goods (anticipated transfer of security). In the event that the ownership rights of third parties are retained in the event of processing, mixing or combination with their goods, then we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting products as to the goods delivered subject to retention of title.
(b) Claims against third parties arising from the resale of the goods or the products are hereby assigned to us by the Buyer as security in full or in the amount of any joint ownership share in accordance with the above paragraph. By way of security for our claims against the Buyer, the Buyer also assigns any claims to us which arise against a third party through the combination of the reserved goods with a property. We accept the assignment. The Buyer’s obligations specified in paragraph 3 shall also apply in consideration of the assigned claims.
(c) Without prejudice to our authority to collect the claim ourselves, the Buyer shall continue to be authorised to collect the claim even after the assignment. In this regard, we agree not to collect the claim provided that and to the extent that the Buyer fulfils their payment obligations, no application has been made to open insolvency or similar proceedings and payments have not been suspended. In the event that one of the foregoing cases occurs, however, we can demand that the Buyer discloses to us the assigned claims and the debtors, provides all information necessary for collection, hands over the relevant documentation and informs the debtors (third parties) of the assignment. We shall also be entitled in this case to rescind the Buyer’s authorisation to resell and process the goods subject to retention of title.
(6) Should the securities mentioned above exceed the claims to be secured by more than 10%, then we are under obligation to release the securities of our choice at the request of the Buyer.

§ 11 Notification of defects, warranty

(1) The prerequisite pertaining to any warranty rights of the merchant customer shall be the proper fulfilment of all inspection and notification obligations incumbent upon the customer pursuant to § 377 HGB. In any case, obvious defects must be reported in writing within five working days of delivery and defects that were not apparent during the inspection must be reported in writing within the same period from discovery. Should the customer fail to perform a proper inspection and/or report a defect, we shall not be liable for the defect not reported or not reported on time or not reported in a manner appropriate to the statutory provisions.
(2) If the delivered item proves to be defective, then we shall be entitled to choose between subsequent fulfilment by rectifying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). Should the type of subsequent fulfilment we select be unreasonable for the customer in individual cases, then the customer is entitled to reject it. This does not affect our right to refuse subsequent fulfilment under the statutory conditions.
(3) We have the right to render the subsequent fulfilment that is owed dependent on the Buyer paying the purchase price owed. The Buyer shall, however, be entitled to retain a reasonable part of the purchase price in proportion to the defect.
(4) The Buyer shall afford us the time and opportunity required for the subsequent fulfilment owed, especially to hand over the objected goods for inspection purposes. Subsequent fulfilment does not involve the dismantling, removal or uninstallation of the defective item, nor the assembly, fitting or installation of an item free of defects. It is at our discretion to provide all services ourselves within the scope of subsequent fulfilment. Claims on the part of the Buyer for reimbursement of corresponding costs (installation and removal costs) if we do not carry out the installation and removal work shall remain unaffected.
(5) The expenses necessary for the purpose of inspection and subsequent fulfilment, especially the costs of transport, travel, labour and materials as well as any dismantling and installation costs, shall only be borne or reimbursed by us in accordance with the statutory provisions in the event of an actual defect. Should the costs of subsequent fulfilment be disproportionate, then we may exercise our statutory right of total refusal in accordance with § 439 para. 4 sentence 3 BGB.
(6) The Buyer shall have the right to rectify the defect themselves in urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, and to demand that we compensate them for the expenses that are objectively necessary for this. The Buyer must notify us immediately, if possible in advance, of any rectification performed by themselves. The right to this rectification themselves shall not be applicable if we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.

§ 12 Recourse against suppliers

(1) Claims on the part of the customer in respect of reimbursement of expenses in accordance with § 445a para. 1 BGB are excluded, except where the last contract in the supply chain constitutes a sale of consumer goods (§§ 478, 474 BGB) or a consumer contract governing the provision of digital products (§§ 445c sentence 2, 327 para. 5, 327u BGB).
(2) We hereby restrict the assumption of transport costs within the framework of subsequent fulfilment on the part of the Seller to the costs incurred for a distance of 200 km from the customer’s registered office. As we are unable to influence the geographical distance of the end customer, this restriction is intended as a means of calculating costs and limiting risk for factors that are beyond our control.
(3) We reserve the right to refuse payment within the framework of recourse to the extent that expenses or damages incurred by the customer arise solely from goodwill measures towards the end customer. This also applies if the customer has not pleaded disproportionately high costs in accordance with § 439 para. 4 BGB against their end customer in spite of absolute disproportionality. We shall only pay the hypothetical costs incurred for the appropriate type of subsequent fulfilment if the type of subsequent fulfilment chosen by the end customer was only to be refused due to disproportionately high costs and the other type was to be undertaken (relative disproportionality).

§ 13 General liability

(1) To the extent that nothing to the contrary ensues from these T&Cs including the following conditions, we shall bear liability in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
(2) As a matter of principle, we shall only assume liability for damages – on whatever legal grounds – within the framework of fault-based liability in cases of wilful intent and gross negligence. Subject to statutory limitations of liability (e.g. diligence in our own affairs, negligible breach of duty), we shall only be liable for simple negligence in the following cases
(a) for damages resulting from injury to life, limb, health, freedom or sexual self-determination.
(b) for damages resulting from the breach of a fundamental contractual obligation (obligation, the fulfilment of which is crucial to the proper performance of the contract and on the fulfilment of which the contractual partner regularly relies or may rely); however, in this case our liability is limited to compensation for foreseeable, typically occurring damages.
Our liability is excluded in other cases of simple negligence.
(3) The limitations of liability resulting from para. 1 shall also be applicable to third parties as well as to breaches of duty by individuals (also for their benefit) whose culpability we are responsible for in accordance with statutory provisions. The limitations of liability are not applicable to the extent that a defect has been deceitfully concealed or a guarantee for the quality of the goods has been assumed and for the claims of the Buyer under the Product Liability Act.
(4) The Buyer is only entitled to withdraw from or cancel the contract due to a breach of duty after the transfer of risk within the meaning of § 9 of these T&Cs, which does not consist of a defect, if we are responsible for the breach of duty. Any free right of cancellation on the part of the Buyer (especially in accordance with §§ 650, 648 BGB) is excluded. The statutory requirements and legal consequences shall otherwise apply.

§ 14 Liability for specific types of damage

(1) We shall not be liable for damages due to loss of profit.
(2) We shall only be liable to a limited extent for consequential damages as well as indirect damages. In this respect, our liability is limited to the maximum compensation of the damage in the amount of 50 % of the sales price of the defective goods.

§ 15 Statute of limitations

(1) By way of derogation from § 438 para. 1 No. 3 BGB, the general statute of limitations for claims arising from material defects and defects of title shall be one year from delivery. Where acceptance has been agreed, the statute of limitations shall apply from the date of acceptance.
(2) Statutory special regulations on the statute of limitations remain unaffected by the shortening of the statute of limitations, especially § 438 para. 1 no. 1 (right in rem), para. 1 no. 2 (buildings and items for buildings), para. 3, §§ 444, 445b (right of recourse), § 634a para. 1 BGB (building defects).

§ 16 Applicable law, place of jurisdiction, concluding provisions

(1) This contract is subject to the law of the Federal Republic of Germany with the exception of conflict laws and UN Purchase Law.
(2) The sole place of jurisdiction for all disputes arising from or in connection with this contract shall be our registered office in Ennepetal. We are, however, also entitled to file proceedings at the place of fulfilment of performance of the delivery obligation (in the event that this differs from the place of business) or at the customer’s general place of jurisdiction. Any overriding statutory provisions, especially relating to exclusive jurisdiction, shall remain unaffected.
(3) To the extent that the contract or these T&Cs contain any loopholes, the legally effective provisions that the contracting parties would have agreed in line with the economic objectives of the contract and the purpose of these T&Cs had they been aware of the loophole shall be deemed to have been agreed to fill these loopholes.