General sales, delivery and payment conditions

§ 1 General – Scope

(1) All offers, sales, deliveries and services from us (hereinafter also referred to as “manufacturer”) are carried out exclusively on the basis of these General Terms and Conditions. They are part of all contracts that the manufacturer concludes with its contractual partners (hereinafter also referred to as “purchaser”) regarding the sales, deliveries and services it offers. They also apply to all future offers, sales, deliveries and services to the purchaser, even if they are not separately agreed again.

(2) Terms and conditions of the purchaser or third parties do not apply, even if they have been expressly communicated as their terms and conditions and even if the manufacturer does not specifically object to their validity in individual cases. Even if the manufacturer refers to a letter that contains or refers to the terms and conditions of the purchaser or a third party, this does not constitute agreement with regard to their validity.

(3) Our General Terms and Conditions only apply to entrepreneurs within the meaning of § 14 German Civil Code (BGB).

§ 2 Offer and conclusion of contract

(1) All offers [and list prices] from the manufacturer are subject to change and are non-binding unless they are expressly marked as binding.

(2) The only decisive factor for the legal relationship between the manufacturer and the purchaser is the concluded contract or the order confirmations created by the manufacturer on the basis of the mutual declarations (offer and acceptance) as well as these General Terms and Conditions. These fully reflect all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the manufacturer before the conclusion of the contract are legally non-binding; verbal agreements between the contracting parties are replaced by the contract/order confirmation unless it expressly states that they continue to be binding.

(3) Additions and changes to the agreements made, including these General Terms and Conditions, must be in text form to be effective.

(4) The nature of the subject matter of the contract (e.g. weights, dimensions, usage values, load capacity, tolerances, technical data) is described exclusively in our offers, order confirmations and associated documents. Corresponding information on the subject matter of the contract as well as our representations of the same are only approximately relevant, unless the usability for the contractually intended purpose requires exact agreement. They are not guaranteed characteristics, but rather descriptions or labels of the delivery or service. Customary deviations and deviations that occur due to legal regulations or represent technical improvements, as well as replacement of components with equivalent parts, are permitted as long as they do not impair the usability for the contractually intended purpose.

(5) The manufacturer reserves the ownership/copyright of all offers and cost estimates submitted by it as well as sections/drawings, illustrations, calculations, brochures, catalogues, models, tools and other documents and aids made available to the purchaser. The purchaser may not make the contents of these items available to third parties as such, disclose them, use them or reproduce them itself or through third parties without the express consent of the manufacturer. At the request of the manufacturer, it must return these items in full to the manufacturer and destroy any copies that may have been made if they are no longer required by it in the normal course of business or if negotiations do not lead to the conclusion of a contract. Excluded from this is the storage of electronically provided data for the purpose of standard data backup.

§ 3 Order changes

If production is carried out according to the specifications specified by the purchaser (e.g. dimensions, colours, etc.), changes are only possible if the purchaser requests them in a timely manner so that the changes can still be taken into account in production. The prerequisite for a binding change is that it is expressly confirmed by the manufacturer upon receipt of the change request of the purchaser. In such cases, delivery delays must be expected.

§ 4 Prices

The prices apply to the scope of services and deliveries listed in the order confirmations. Additional or special services will be charged separately. The prices are in Euro plus the statutory rate applicable at the time of delivery. Value added tax.

§ 5 Delivery and delivery time

(1) Unless otherwise agreed, delivery is agreed “ex works”.

(2) Deadlines and dates for deliveries and services announced by the manufacturer are always only approximate, unless a fixed deadline or date has been expressly promised or agreed. If delivery is made by the manufacturer, delivery times and delivery dates refer to the time of handover to the freight forwarder, freight carrier or other third party commissioned with the transport.

(3) The manufacturer can, without prejudice to its rights arising from default of the purchaser, demand from the purchaser an extension of delivery and service deadlines or a postponement of delivery and service dates by the period in which the purchaser does not fulfil its contractual obligations to the manufacturer. Compliance with our delivery obligation requires the timely and proper fulfilment of the obligations of the purchaser. The objection of the non-performance of the contract remains reserved.

(4) The manufacturer shall not be liable for impossibility of delivery or for delays in delivery if these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational and delivery disruptions of all kinds, strikes, labour, energy or raw material shortages, missing, incorrect or untimely delivery by suppliers) for which the manufacturer is not responsible. If such events make delivery or service significantly more difficult or impossible for the manufacturer and the hindrance is not only temporary, the manufacturer is entitled to withdraw from the contract. In the event of temporary hindrances, the delivery or service deadlines/dates will be extended/postponed by the period of the hindrance plus a reasonable start-up period. If the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, it can withdraw from the contract by immediately notifying the manufacturer in writing.

(5) The manufacturer is entitled to make partial deliveries.

(6) If the manufacturer defaults on the delivery or service or if a delivery or service becomes impossible for it, regardless of the reason, the manufacturer’s liability is limited to compensation in accordance with Section 9 of these General Terms and Conditions.

§ 6 Place of performance, shipping, packaging, transfer of risk, storage costs

(1) The place of fulfilment for all obligations arising from the contractual relationship is Delbrück, unless otherwise specified.

(2) The method of shipping and packaging are subject to the manufacturer’s discretion, unless otherwise agreed at the request of the purchaser.

(3) The risk is transferred to the purchaser at the latest when the delivery item is handed over (the start of the loading process being decisive) to the freight forwarder, freight carrier or other third party designated to carry out the shipment. If shipping or handover is delayed due to a circumstance caused by the purchaser, the risk passes to the purchaser immediately (from the day on which the delivery item is ready for dispatch and the manufacturer has informed the purchaser of this).

(4) The shipment will only be insured separately against insurable risks (e.g. theft, breakage, fire) by the manufacturer at the express request of the purchaser and at its own expense.

(5) In the event that the manufacturer, in agreement with the purchaser, initially stores the contractual item for the latter due to non-acceptance at the agreed time or if the purchaser’s delay in acceptance leads to a delay in delivery, which requires storage by the manufacturer, the purchaser shall pay the manufacturer a storage fee. In the absence of a corresponding agreement, the manufacturer can charge the usual storage costs (at a shipping company) for the duration of storage. Alternatively, the manufacturer is also entitled to store the goods with a shipping company and to charge the purchaser for the actual expenses incurred.

§ 7 Payment conditions

(1) Unless otherwise agreed, invoice amounts for delivered goods are due for payment immediately without any deductions. Payment by cheque is generally excluded; if cheques are accepted, this is only on account of performance, so that payment can still be claimed in the event of non-satisfaction.

(2) Offsetting against the purchaser’s counterclaims or withholding payments due to such claims is only permitted if the counterclaims are undisputed or legally established or arise from the same order under which the relevant service was provided.

(3) The manufacturer shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, it becomes aware of circumstances which are likely to reduce the creditworthiness of the purchaser significantly and which jeopardise the payment of the manufacturer’s outstanding claims by the purchaser from the respective contractual relationship (including from other individual orders to which the same framework agreement applies).

(4) Irrespective of any stipulation to the contrary by the purchaser, incoming payments repay costs, then interest and finally the principal claim; in the case of multiple claims, the older one first.

§ 8 Warranty, material defects

(1) The warranty period is based on the legal regulations.

(2) The delivered items must be carefully examined immediately after delivery to the purchaser or to a third party designated by it. They are deemed to have been accepted if the manufacturer does not receive a written notice of defects regarding obvious defects or other defects that were apparent during an immediate, careful inspection within seven working days of delivery of the delivery item. With regard to other defects, the delivery items are deemed to have been accepted by the purchaser if the complaint is not received by the manufacturer within seven working days of the time at which the defect became apparent/became known; if the defect was already obvious at an earlier point in time during normal use, this earlier point in time is decisive for the start of the complaint period. At the manufacturer’s request, the delivery item in question must be returned to the manufacturer freight paid. If the complaint is justified, the manufacturer shall reimburse the costs of the cheapest shipping route; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.

(3) In the event of material defects in the delivered items, the manufacturer is initially obliged and entitled to choose between repair or replacement delivery within a reasonable period of time. In the event of failure (i.e. impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement delivery), the purchaser may withdraw from the contract or reduce the purchase price appropriately.

(4) If a defect is due to the fault of the manufacturer, the purchaser can demand compensation under the conditions specified in § 9.

(5) The warranty is void if the purchaser changes the delivery item or has it changed by a third party without the consent of the manufacturer and this makes rectification of the defect impossible or unreasonably difficult. In any case, the purchaser must bear the additional costs of correcting the defect resulting from the change.

§ 9 Liability for damages due to negligence

(1) The liability of the manufacturer for damages based on fault, regardless of the legal grounds (e.g. impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorised action), is limited in accordance with this paragraph.

(2) The manufacturer is not liable in the event of simple negligence on the part of its bodies, legal representatives, employees or other vicarious agents, unless this involves a violation of essential contractual obligations. Essential to the contract are the obligation to deliver the delivery item free of material defects (those that impair the functionality or usability more than just insignificantly) on time as well as obligations to provide advice, protection and care that are intended to enable the purchaser to use the delivery item in accordance with the contract or to protect the life and limb of the purchaser’s personnel or to protect the purchaser’s property from significant damage.

(3) To the extent that the manufacturer is fundamentally liable for damages, this liability is limited to damages that the manufacturer foresaw as a possible consequence of a breach of contract when concluding the contract or that it should have foreseen if it had exercised normal care. Indirect damage and consequential damage resulting from defects in the delivery item are also only eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.

(4) In the event of liability for simple negligence, the manufacturer’s obligation to pay compensation for property damage and resulting further financial losses is limited to an amount corresponding to the current coverage amount of its product liability insurance or liability insurance (including in the event of a breach of essential contractual obligations). This limitation requires adequate insurance against the typical risks of damage.

(5) The above liability regulations apply to the same extent in favour of the manufacturer’s bodies, legal representatives, employees and other vicarious agents.

(6) If the manufacturer provides technical information or provides advice and this information or advice is not part of the contractually agreed scope of services owed by it, this is done free of charge and to the exclusion of any liability.

(7) The restrictions in this paragraph do not apply to the manufacturer’s liability for intentional behaviour, for guaranteed quality features, for injury to life, body or health or under the Product Liability Act.

§10 Retention of title

(1) All existing current and future claims of the manufacturer against the purchaser from the existing delivery relationship, including balance claims from a current account relationship limited to this delivery relationship, are secured by this retention of title.

(2) The goods delivered by the manufacturer to the purchaser (goods subject to retention of title) remain the property of the manufacturer until all secured claims (paragraph 1) have been paid in full.

(3) The purchaser stores the goods subject to retention of title for the manufacturer free of charge. The purchaser is obliged to treat the goods subject to retention of title with care and to carry out any necessary repair and maintenance work at its own expense.

(4) The purchaser is entitled to process and sell the goods subject to retention of title in the normal course of business until the event of exploitation occurs (paragraph 9). Pledges and assignments as security are not permitted.

(5) If the goods subject to retention of title are processed by the purchaser, it is agreed that the processing shall be carried out in the name and for the account of the manufacturer as manufacturer within the meaning of the provisions of property law, cf. § 950 German Civil Code (BGB), and the manufacturer shall acquire direct ownership or, if the processing is carried out using materials from several owners or the value of the processed item is higher than the value of the goods subject to retention of title, co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that no such acquisition of ownership occurs with the manufacturer, the purchaser transfers its future ownership or, in the above-mentioned ratio, co-ownership of the newly created item to the manufacturer as security. If the goods subject to retention of title are combined or inseparably mixed with other items to form a single item and if one of the other items is to be regarded as the main item, the manufacturer shall transfer co-ownership of the single item to the purchaser on a pro rata basis in the ratio specified in sentence 1, provided that the main item belongs to the manufacturer.

(6) In the event of resale of the goods subject to retention of title, the purchaser hereby assigns to the manufacturer by way of security the resulting claim against the purchaser, in the case of co-ownership of the reserved goods by the manufacturer in proportion to the co-ownership share. The same shall apply to any other claims that take the place of goods subject to retention of title or otherwise accrue with respect to goods subject to retention of title, e.g., insurance claims or tort claims resulting from loss or destruction of reserved goods. The manufacturer revocably authorises the purchaser to collect the claims assigned to the manufacturer in its own name. The manufacturer may only revoke this direct debit authorisation in the event of exploitation.

(7) If third parties access the goods subject to retention of title, in particular through seizure, the purchaser shall immediately point out that they are the property of the manufacturer and inform the manufacturer of this in order to enable it to enforce its property rights. If the third party is not in a position to reimburse the manufacturer for the judicial or extrajudicial costs incurred in this connection, the purchaser shall be liable to the manufacturer.

(8) The manufacturer shall release the goods subject to retention of title and the items or claims replacing them upon request at its discretion, provided their value exceeds the amount of the secured claims by more than 50%.

(9) If the manufacturer withdraws from the contract in the event of behaviour contrary to the contract on the part of the purchaser, in particular default of payment (enforcement event), it may demand the return of the goods subject to retention of title.

§ 11 Final provisions

(1) The place of jurisdiction for any disputes arising from the business relationship between the manufacturer and the purchaser shall be Delbrück or the registered office of the purchaser, at the discretion of the manufacturer. Delbrück is the exclusive place of jurisdiction for lawsuits against the manufacturer. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relationships between the manufacturer and the purchaser are subject exclusively to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.

(3) If the contract or these General Terms and Conditions contain gaps in the regulations, the legally effective regulations that the contractual partners would have agreed on in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions are deemed to be agreed to fill these gaps if they had known about the gap in the regulations.