Section 1: General information – Scope
1. Our terms and conditions of sale apply exclusively. We do not accept any terms and conditions of the customer that are contrary to or differ from our terms and conditions of sale, unless we have explicitly agreed to their validity in writing. Our terms and conditions of sale apply even if we send a delivery to the customer without reservation, despite being aware of terms and conditions of the customer that are contrary to or differ from our terms and conditions of sale.
2. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
3. Our terms and conditions of sale apply only to entrepreneurs within the meaning of Section 310(1) of the German Civil Code (BGB).
Section 2: Offer – Entry into a contract – Offer documents
1. Our offers are subject to change and non-binding, unless they are explicitly marked as binding or contain a specific time limit for acceptance. We are entitled to accept purchase orders or contracts within two weeks.
2. Information on the object of the delivery or service (e.g. weights, dimensions, utility values, load-bearing capacities, tolerances and technical data), as well as our representations of the same (e.g. drawings and illustrations) are only approximations, unless exact conformity is required for use in accordance with the contractually intended purpose. They are not guaranteed characteristics but rather descriptions or portrayals of the delivery or service. Typical variations and those that occur due to legal requirements or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible, provided that they do not adversely affect use in accordance with the contractually intended purpose.
3. We reserve all rights of ownership and copyright on illustrations, drawings, calculations, and any other documentation. In particular, this applies to any written documents marked as confidential. The customer must obtain our explicit written approval prior to the disclosure thereof to any third party.
Section 3: Prices – Terms of payment – Right to demand advance payment
1. Unless otherwise stated in the order confirmation, our prices are ex works.
2. Our prices do not include value added tax, which shall be shown separately at the statutory rate on the invoice date.
3. Unless otherwise stated in the order confirmation, the amount invoiced shall be due for payment net (without deduction) within 30 days of the invoice date. Defaults on payment shall be addressed in accordance with statutory provisions.
4. Customers shall only be entitled to rights of set-off if their counterclaim is legally established, undisputed or recognised by us. Furthermore, they are authorised to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
5. In the case of an order from a customer whose place of residence or registered office is abroad or if there is evidence to suggest a risk of non-payment, we reserve the right to deliver only after receipt of the purchase price plus shipping costs. We will inform the customer without undue delay if we exercise this right to demand advance payment. In this case, the delivery period shall begin upon payment of the purchase price plus shipping costs.
6. If we become aware of any circumstances that are likely to substantially reduce the customer’s creditworthiness or jeopardise payment of our outstanding claims from the respective contractual relationship after entering into the contract, then we shall be entitled to complete outstanding deliveries or services only against advance payment or provision of collateral.
Section 4: Delivery period
1. Any deadline or date indicated for deliveries and services are only an approximation, unless we have guaranteed or agreed upon a fixed deadline or date explicitly. If shipping has been agreed upon, then delivery periods and delivery dates shall be based upon the time of handover to the forwarding agent/carrier or any other third party designated to handle the shipment.
2. The start of the delivery period indicated by us is subject to clarification of all technical questions.
3. Compliance with our delivery obligation is subject to timely and proper fulfilment of the customer’s obligations. The plea of non-performance remains reserved.
4. If the customer defaults on acceptance or wilfully infringes other obligations to cooperate, then we shall be entitled to demand compensation for the damage we incur and any additional expenses. All other claims remain reserved.
5. If the conditions of point 4 are met, then the risk of accidental loss or deterioration of the item shall pass to the customer from the moment at which it defaults.
6. We accept liability in accordance with statutory provisions to the extent that the underlying contract concerns a transaction for delivery by a fixed date within the meaning of the fourth point of Section 286(2) BGB or Section 376 of the German Commercial Code (HGB). We also accept liability in accordance with statutory provisions if the customer is entitled to claim that it has no further interest in the performance of the contract due to a delayed delivery for which we are responsible.
7. Furthermore, we shall also accept liability in accordance with statutory provisions if a delayed delivery is due to a wilful or grossly negligent breach of contract for which we, our representatives or our vicarious agents are responsible. If a delayed delivery does not arise from a wilful breach of contract for which we are responsible, then our liability shall be limited to the foreseeable, typically occurring losses.
8. We also accept liability in accordance with statutory provisions to the extent that a delayed delivery for which we are responsible is based upon the culpable breach of a material contractual obligation. In such cases, liability for damages shall be limited to the foreseeable, typically occurring losses, however.
9. In the event of a delayed delivery, we shall be liable for each full week of delay in the form of a lump-sum compensation of 0.5% of the delivery value. However, said compensation shall not exceed 5% of the delivery value.
10. We shall not be liable if delivery becomes impossible or is delayed due to force majeure or other events for which we are not responsible that were unforeseeable when the contract was entered into (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, manpower, energy or raw material shortages, difficulty in obtaining the necessary official permits, official measures or the failure of suppliers to deliver at all, correctly, or on time). If such events make the delivery or service significantly more difficult or impossible for us and the obstacle is not merely of a temporary nature, then we shall be entitled to withdraw from the contract. In the event of obstacles of a temporary nature, delivery or service periods shall be extended or delivery or service dates postponed by the duration of the obstacle, plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service following the delay, then it may send us an immediate written notice of withdrawal from the contract.
11. All other claims and rights of the customer remain reserved.
Section 5: Passing of risk – Packaging
1. Unless otherwise stated in the order confirmation, delivery ex works is agreed upon.
2. Packaging shall be subject to our duty-bound discretion.
3. We shall arrange transport insurance cover for the delivery at the request and expense of the customer.
Section 6: Liability for defects
1. Defect claims of the customer are subject to it complying with its statutory obligations to inspect and give notice, as defined in Section 377 HGB.
2. If the item purchased is defective, then we are, at our discretion, obliged to provide subsequent performance in the form of remedial action or delivery of a new non-defective item. In the event of subsequent performance, we shall bear the necessary costs only up to the amount of the purchase price and only to the extent that such costs are not increased by the fact that the item has been taken to a place other than that of performance.
3. The customer is entitled, at its discretion, to withdraw or demand a reduction if the subsequent performance fails.
4. We accept liability in accordance with statutory provisions if the customer claims for damages based upon intent or gross negligence by us, our representatives or our vicarious agents. Unless it is alleged that we are in wilful breach of contract, liability for damages shall be limited to the foreseeable, typically occurring losses.
5. We accept liability in accordance with statutory provisions to the extent that we are in culpable breach of a material contractual obligation. In such cases, too, liability for damages shall be limited to the foreseeable, typically occurring losses.
6. If the customer is otherwise entitled to claim for compensation for damages in lieu of performance due to a negligent breach of duty, then our liability shall be limited to compensation for the foreseeable, typically occurring losses.
7. Liability for culpable injury to life, limb or health remains unaffected. This also applies for mandatory liability under Germany’s Product Liability Act.
8. Unless otherwise stipulated above, liability is excluded.
9. The period of limitation for defect claims is 12 months from the passing of risk. This does not apply if the item purchased is normally used for a building and has caused the defect.
10. The period of limitation in the event of recourse according to Sections 478 and 479 BGB shall not be affected by this and is five years from delivery of the defective item.
11. The warranty shall not apply if the customer modifies the item purchased or has it modified by a third party without our consent and so doing makes remedying the defect impossible or unreasonably difficult. In any case, the customer shall bear additional costs of remedying the defect, which are caused by the modification.
Section 7: Overall liability
1. Any further liability for damages than that provided for in Section 6 is excluded, regardless of the legal nature of the claim asserted. In particular, this applies to claims for damages arising from fault in conclusion of a contract [culpa in contrahendo], from other breaches of duty or from tort claims for compensation of property damage pursuant to Section 823 BGB.
2. The limitation under point 1 shall also apply to the extent that the customer claims compensation for futile expenses instead of compensation for damages in lieu of performance.
3. Insofar as our liability for damages is excluded or limited, this shall also apply to the personal liability of our staff, representatives and vicarious agents.
Section 8: Retention of title
1. We retain ownership of the item purchased until receipt of all payments arising from the supply contract. We are entitled to repossess the item purchased if the customer acts in breach of contract (in the event of a default on payment, in particular). Repossession of the item purchased constitutes our withdrawal from the contract. After having repossessed the item purchased, we shall be entitled to dispose of it as we see fit, where ensuing proceeds, less the cost of disposal, shall be set off against the customer’s payables.
2. The customer is obliged to treat the items with due care and, in particular, to sufficiently insure them at original value against damages arising from fire, water and theft at its own expense.
3. The customer must notify us immediately in writing in the event of attachments or other third-party encroachments so as to enable us to take legal action in accordance with Section 771 of Germany’s Code of Civil Procedure (ZPO). Unless the third party is in a position to reimburse us for the judicial and extrajudicial costs of a claim under Section 771 ZPO, the customer shall be liable for any loss we incur.
4. The customer is entitled to resell items in the ordinary course of business but hereby assigns to us all our claims in the amount of the final invoice (including value added tax) arising from disposal to its customers or a third party, irrespective of whether the items have been resold without or after being processed. The customer remains entitled to collect such claims even after an assignment. This shall not prejudice our entitlement to collect the claim independently. Nevertheless, we undertake not to collect the claim as long as the customer meets its payment obligations arising from the proceeds collected, does not default on payment and, in particular, no application for the opening of composition or insolvency proceedings has been filed or payments suspended. If this is the case, then we may demand that the customer disclose to us the assigned claims and associated debtors, provides all information necessary for collection, surrenders the relevant documents and notifies the debtors (third parties) of the assignment.
5. The processing or transformation of the item purchased by the customer shall always be carried out on our behalf. If the items are processed with other objects not belonging to us, then we shall acquire co-ownership of the new item in the ratio of the value of the item purchased (total amount invoiced including VAT) to the other processed objects at the time processing occurred. The same applies to the item resulting from processing as to the item delivered under reservation of title.
6. If the item purchased is inseparably mixed with other objects not belonging to us, then we shall acquire co-ownership of the new item in the ratio of the value of the item (total amount invoiced including VAT) to the other mixed items at the time mixing occurred. If the mixing is carried out such that the customer’s item is to be regarded as the main item, then it is deemed as agreed upon that the customer shall transfer to us co-ownership on a pro rata basis. The customer shall hold in custody for us the ensuing sole ownership or co-ownership.
7. The customer shall also assign to us the claims for securing our claims against the customer which arise against a third party through the connection of the items with real property.
8. We undertake to release the collateral to which we are entitled at the request of the customer to the extent that the realisable value of our collateral exceeds the claims to be secured by more than 10%. The decision as to which collateral will be released shall be made by us.
Section 9: Place of jurisdiction – Applicable law – Place of performance
1. If the customer is a merchant, then our place of business shall be the exclusive place of jurisdiction. However, we are also entitled to bring an action against the customer at its place of business.
2. The law of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
3. Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
Note: The customer acknowledges that we store data from the contractual relationship in accordance with Section 28 of Germany’s Federal Data Protection Act for the purpose of data processing and that we reserve the right to transmit such data to third parties (e.g. insurance companies) to the extent necessary for performance of the contract.