Terms

General Terms and Conditions

1. General

1.1 Unless expressly agreed otherwise, the following General Terms and Conditions of Sale, Delivery and Payment shall apply to all contracts, deliveries and other services - including consultancy services provided in this context which are not the subject of an independent consultancy contract - in business transactions with non-consumers within the meaning of Section 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB).

1.2 Our offers, deliveries and acceptance of orders shall be made exclusively on the basis of the following General Terms and Conditions of Sale, Delivery and Payment.

1.3 Deviating terms and conditions, in particular the purchasing terms and conditions of the customer or buyer, are hereby expressly rejected. They shall not be binding on the Seller even if the Seller does not object to these conflicting terms and conditions of purchase of the Buyer again when concluding the contract.

1.4 The Seller's General Terms and Conditions of Sale, Delivery and Payment shall apply upon acceptance of the Seller's order confirmation without objection if the Buyer or Purchaser is a registered trader or a legal entity under public law and a transaction has already been concluded previously on the basis of these General Terms and Conditions of Sale, Delivery and Payment and the contractual partner is thus aware of the Seller's General Terms and Conditions.

1.5 The offers, insofar as they are made by the Seller's vicarious agents or sales representatives, are subject to change, i.e. they are only to be understood as an invitation to submit an offer. All such declarations shall only become valid once they have been confirmed in writing by the Seller.

1.6 The customer and buyer shall remain bound by his order until such time, unless the seller's confirmation does not take place within a period of four weeks after the buyer has placed the order.

1.7 If two letters of confirmation cross, the agreements contained in the Seller's letter of confirmation and its underlying GTC shall apply.

1.8 Orders shall be deemed to have been confirmed by the Seller in the event of immediate execution after receipt of the order, in which case the invoice shall be deemed to be the order confirmation.

1.9 A reference to DIN regulations is a description of performance and is not a guarantee of properties. No guarantees are given.

2. Prices, packaging

2.1 Unless expressly agreed, the prices are ex works, in the case of delivery ex warehouse, excluding costs for packaging, insurance, etc.

2.2 All duties newly introduced after the conclusion of the business due to legal, official or other provisions as well as any increase in the costs of raw materials and auxiliary materials, wages and salaries, freight duties, by which the goods are directly or indirectly made more expensive, shall be borne by the buyer in the event that the buyer is a registered trader or a legal entity under public law. In this respect, we reserve the right to make a subsequent calculation.

2.3 Additional services compared to the Seller's offer which result from subsequent requests of the Buyer or from changes which become necessary in the execution of the contract shall be additionally remunerated to the Seller.

2.4 To the extent necessary at the Seller's discretion, the Seller shall pack the goods at the Buyer's expense in a manner customary in the trade. At the buyer's request, packaging and loading material shall be returned immediately carriage paid; credit shall be given in accordance with the reuse value. Non-returned pallet cages and Euro flat pallets will be invoiced after a period of grace set by the seller.

2.5 Unless otherwise agreed, the Seller's claims shall be due for payment upon receipt of the notice of completion or the notice of dispatch from the Seller to the Buyer, but no later than upon handover of the delivery item to the Buyer.

2.6 Incoming payments shall always be set off against the oldest debt.

2.7 If, after conclusion of the contract, the Seller becomes aware of facts, in particular default of payment with regard to earlier performances, which, according to due commercial judgement, indicate that the claim to the purchase price is at risk due to the Buyer's lack of ability to pay, the Seller shall be entitled, after setting a reasonable deadline, to demand from the Buyer, at the Buyer's option, payment concurrently or corresponding securities and, in the event of refusal, to withdraw from the contract, in which case the invoices for partial deliveries already made shall become due immediately.

2.8 Any discounts granted as well as sales and freight reimbursements shall be forfeited in the event of judicial or extra-judicial composition proceedings, insolvency or default in payment for more than two months or in the event of judicial recovery.

2.9 All prices are exclusive of value added tax, which will be added to the invoice amount at the respective statutory rate.

3. Data storage

The Buyer is hereby informed that the Seller processes the personal data obtained in the course of the business relationship in accordance with the provisions of the Federal Data Protection Act.

Delivery time, delivery, scope of delivery, transfer of risk, shipping

4.1 If a delivery time is agreed or required, the following shall apply:
The delivery dates stated by the Seller are non-binding unless they have been expressly confirmed in writing by the Seller as binding delivery dates.

4.2 Delivery by the Seller is subject to the Seller's own supply. The Seller shall notify the Buyer without delay if the Seller is unable to obtain delivery itself. If self-delivery does not take place, the purchase contract shall be deemed not to have been concluded. There is no procurement risk assumed by the seller.

4.3 A prerequisite for compliance with the delivery period is the timely fulfilment of the contractual obligations assumed by the Buyer, in particular the making of the agreed payments and, if applicable, the provision of agreed securities.

4.4 Furthermore, in the event of a delay for which the Seller is responsible, the Buyer shall only be entitled to assert further rights if a grace period of at least three weeks set by the Buyer after the occurrence of the delay has expired fruitlessly. If partial deliveries have been made, the buyer may no longer withdraw from the entire contract or claim damages on account of these partial deliveries, unless these partial deliveries are of no interest to him.

4.5 In the event of subsequent changes to the original scope of delivery, the delivery periods shall be extended accordingly, insofar as they have been bindingly promised at all.

4.6 The risk shall pass to the Buyer when the Seller makes the goods available at the agreed place of delivery. The same shall apply insofar as the Seller has delivered the goods to the forwarding agent or to a transport company or to its own vehicles or vehicles belonging to the Buyer for transport.

4.7 Acceptance of the Seller's goods shall take place immediately after the Buyer has been notified that the goods are ready for dispatch at the Seller's works. If the Buyer does not accept the goods, or does not accept them in time or completely, the Seller shall be entitled to dispatch the goods without acceptance or to store them at the Buyer's expense and risk. In this case, the goods shall be deemed to have been accepted within the meaning of the agreements stipulated in the contract.

4.8 The buyer shall be in default of acceptance if he has not collected the goods within one week after notification of completion or readiness for dispatch or provision for dispatch. The goods shall be stored for the account and at the risk of the buyer from the date of delivery or from the date of receipt by the buyer of the notification of readiness or readiness for dispatch.

4.9 The goods shall be stored for the account and at the risk of the buyer from the date of delivery or from the date of receipt by the buyer of the notice of readiness for dispatch. In particular, the seller shall not be liable for loss, depreciation, damage due to fire, theft, weather conditions and the like.

4.10 Partial deliveries are permissible to a reasonable extent.

4.11 The delivery period shall be extended appropriately in the event of force majeure and all unforeseen hindrances occurring after conclusion of the contract for which the seller is not responsible and insofar as such hindrances can be proven to have a significant influence on the delivery of the sold item or goods. This shall also apply if such circumstances occur at the Seller's suppliers and their sub-suppliers.
The seller shall inform the buyer of the beginning and end of such obstacles as soon as possible. The buyer may request the seller to declare whether it intends to withdraw from the contract or to deliver within a reasonable period of time. If the seller does not declare this immediately, the buyer may withdraw.
In these cases, claims for damages are excluded. The above provisions shall apply accordingly to the Buyer if the aforementioned obstacles occur at the Buyer.

4.12 With regard to timely delivery, the Seller shall only be liable for its own fault and that of its vicarious agents. He shall not be liable for the fault of his sub-suppliers because he has not assumed any procurement obligation. These are not vicarious agents of the seller. However, the seller is obliged to assign to the buyer on request any claims to which he may be entitled against his sub-supplier.

4.13 If no binding delivery period has been agreed, the Buyer shall first set the Seller a period of three weeks for delivery. If a binding delivery period has been agreed, the Buyer shall be obliged to set the Seller a grace period of at least two weeks. Only after the expiry of this period shall the Buyer be entitled and obliged, at the Seller's request, to declare within a reasonable period of time whether it still insists on delivery or withdraws from the contract due to the delay and/or demands damages instead of performance. However, the Seller shall be released from its delivery obligation after expiry of the grace period if the Seller requests the Buyer during the grace period to declare whether it insists on performance of the contract or not and the Buyer does not respond to this without delay.

4.14 If this period of grace has expired unsuccessfully, but the Seller has dispatched the goods to the Buyer during this period and proof of dispatch has also been provided by the Seller in this respect, the Buyer shall no longer be entitled to rescind the contract and/or claim damages. If partial deliveries have been made, the buyer may no longer withdraw from the contract or claim damages for non-performance on account of these deliveries, unless the partial performance of the contract is of no interest to the buyer.

5. Excess and short deliveries

The seller has the right to over- or under-deliver up to 5% of the order volume. If this percentage is complied with, the buyer shall not be entitled to reject the goods due to this circumstance. The purchase price shall then be calculated and owed in accordance with the delivery actually made.

6. Force majeure

6.1 Operational disruptions, delays in the delivery, manufacture and loading of goods of all kinds as well as events of force majeure, irrespective of whether they have occurred at the Seller's or the Seller's upstream or downstream supplier's premises, shall entitle the Seller to extend the agreed delivery period for the duration of the impediment and a reasonable start-up time and, if the more detailed circumstances so require, to cancel the delivery obligation in whole or in part.

6.2 War, riots, catastrophes, strikes, lock-outs, insofar as the seller is not responsible for them, traffic blocks or disruptions of traffic routes, export and import bans, which make delivery completely difficult or impossible for the seller, regardless of whether these circumstances occur at the seller's or at the upstream supplier's premises, are equivalent to force majeure.

6.3 In all these cases, claims for damages by the buyer against the seller are excluded.

7. Payment

7.1 Unless otherwise agreed, the purchase price is due immediately upon receipt of the goods without deduction. A cash discount deduction requires prior written agreement.

7.2 Payments by bill of exchange and cheque as well as payment instructions are only permissible by special agreement. Bills of exchange and cheques are always accepted on account of payment only, not in lieu of payment. In the event of a protest of a cheque or bill of exchange, the Seller may demand immediate cash payment concurrently with the return of the cheque or bill of exchange.

7.3 If bills of exchange or cheques are not credited on time by the drawee, all other existing claims of the seller against the buyer shall become due at that time. Any other existing payment terms shall lapse. The same shall apply in the event that a claim is not paid when due.

7.4 All claims of the seller against the customer, irrespective of the legal relationship, are due for payment immediately if a circumstance is realised which, according to legal or contractual provisions, entitles the seller to withdraw from the contract.

7.5 If the payment deadline is exceeded or after a reminder has been issued, interest on arrears amounting to 8% above the respective base interest rate of the European Central Bank shall be payable on the invoice amount. In all other respects, the statutory provisions shall apply.

7.6 If the Buyer is in default of payment, the Seller shall be entitled, after prior reminder, to take back the goods, if necessary to enter the Buyer's premises and to remove the goods. The seller may also prohibit the removal of the delivered goods.

7.7 Refusal of payment or retention is excluded if the buyer was aware of the defect or other complaints at the time of conclusion of the contract. This shall also apply if it remained unknown to him as a result of gross negligence, unless the seller has fraudulently concealed the defect or other cause for complaint or has assumed a guarantee for the quality of the item.

7.8 Withholding payment or offsetting on account of any counterclaims of the Buyer is excluded with the exception of undisputed or legally established claims.

8. Notice of defects, warranty and liability for defects

8.1 The Seller shall only be liable for defects within the meaning of § 434 BGB as follows: The buyer is obliged to inspect the delivered goods for defects and condition immediately after delivery. Existing and obvious defects shall be notified to the Seller in writing without delay. In the case of mutual commercial transactions between merchants, §§ 377, 378 HGB (German Commercial Code) shall remain unaffected.
Defects which have been notified late, i.e. contrary to the above obligation, shall not be taken into account by the Seller and shall be excluded from the warranty. Notices of defects shall only be recognised as such by the Seller if they have been notified in writing. Complaints made to sales representatives, carriers or other third parties do not constitute complaints in due form and time.

8.2 If the buyer discovers defects in the goods, he may not dispose of the goods, i.e. they may not be divided, resold or further processed until an agreement has been reached on the settlement of the complaint.

8.3 In the event of justified complaints, the Seller shall be entitled to determine the type of subsequent performance (replacement delivery, rectification) at its own discretion, taking into account the type of defect and the justified interests of the Buyer.

8.4 The return of the goods to the Seller required in the event of a defect can only be made with the Seller's prior consent. Returns made without the prior consent of the Seller need not be accepted by the Seller. In this case, the Buyer shall bear the costs of the return shipment.

8.5 In the event that a rectification of defects or a replacement delivery is made on the basis of a justified complaint, the provisions on delivery time shall apply accordingly.

8.6 The existence of such a detected defect notified by effective notice of defect shall give rise to the following rights of the buyer:
a) In the event of a defect, the Buyer shall first have the right to demand subsequent performance from the Seller.
The right to choose whether a new delivery of the item or a rectification of the defect takes place is at the discretion of the seller; in this respect, section 8.3 applies.
b) In addition, the seller shall have the right, if an attempt at subsequent performance fails, to carry out a new subsequent performance, again at its own discretion.
Only if the repeated supplementary performance also fails may the buyer withdraw from the contract and/or demand compensation. He must prove the reason for and the amount of the damage incurred. The same applies to futile expenses.

8.7 Claims for material defects shall become statute-barred after 12 months.
In any case, the buyer must prove that the defect already existed at the time of delivery.

9. Liability for breach of duty by the seller in other respects

Without prejudice to the provisions on warranty and other special provisions in these Terms and Conditions, the following shall apply in the event of a breach of duty by the Seller:

9.1 The Buyer shall grant the Seller a reasonable period of grace to remedy the breach of duty, which shall not be less than three weeks.Only after the unsuccessful expiry of the period of grace may the Buyer withdraw from the contract and/or claim damages.

9.2 The Buyer may only claim damages in cases of gross negligence or intentional breach of duty by the Seller. Damages in lieu of performance (in the event of non-performance, section 280(3) in conjunction with section 281 of the German Civil Code) as well as damages for delay (section 280(2) in conjunction with section 286 of the German Civil Code) shall be limited to the negative interest; damages for non-performance or performance not as owed (section 282 of the German Civil Code) shall be limited to the amount of the purchase price. Damages instead of performance after exclusion of the obligation to perform (impossibility) are excluded.

9.3 If the buyer is solely or predominantly responsible for circumstances that would entitle him to withdraw from the contract or if the circumstance entitling him to withdraw from the contract occurred during the buyer's default in acceptance, withdrawal is excluded.

9.4 Other claims for damages and reimbursement of expenses of the buyer (hereinafter referred to as claims for damages), irrespective of their legal basis, in particular due to breach of duties arising from a contractual obligation and from tort, are excluded. This shall not apply in cases of the assumption of a guarantee or a procurement risk.
Furthermore, this shall not apply in cases of mandatory liability, e.g. under the Product Liability Act, in cases of gross negligence due to injury to life, limb or health and in cases of breach of fundamental contractual obligations. The claim for damages shall otherwise be limited to the foreseeable damage typical for the contract due to the breach of essential contractual obligations, unless otherwise provided for in the preceding paragraph, unless there is gross negligence or liability due to injury to life, body or health. This does not imply a change in the burden of proof to the detriment of the buyer.
The same provision shall apply to breaches of duty by the Seller's vicarious agent.

10. Exclusion of procurement risk and guarantees

The seller does not assume any procurement risk or any kind of guarantee unless this has been expressly agreed in writing with the buyer.

11. Retention of title

11.1 The seller retains ownership of the goods until the purchase price has been paid in full. In the case of goods purchased from the Buyer within the framework of an ongoing business relationship, the Seller shall retain title until all its claims against the Buyer arising from the business relationship, including future claims, including those arising from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of the seller have been included in a current invoice and the balance has been struck and accepted.
If, in connection with the payment of the purchase price by the Buyer, a liability of the Buyer under a bill of exchange is established, the retention of title shall not expire by the redemption of the bill of exchange by the Seller as drawee.In the event of default in payment by the Buyer, the Seller shall be entitled to take back the goods after a reminder and the Buyer shall be obliged to surrender the goods.

11.2 If the goods subject to retention of title are processed by the buyer to form a new movable item, the processing shall be carried out on behalf of the seller without the seller being obliged as a result; the new item shall become the property of the seller. In the event of processing together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If the reserved goods are combined, mixed or blended with goods not belonging to the seller in accordance with §§ 947, 948 BGB, the seller shall become co-owner in accordance with the statutory provisions. If the buyer acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to the seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall hold in safe custody, free of charge, the goods owned or co-owned by the Seller, which shall also be deemed to be goods subject to retention of title within the meaning of the aforementioned conditions.

11.3 If goods subject to retention of title are sold alone or together with goods not belonging to the Seller, the Buyer hereby assigns the claims arising from the resale in the amount of the value of the goods subject to retention of title with all rights and priority over the rest; the Seller accepts the assignment. The value of the goods subject to retention of title shall be the invoice amount of the Seller, which shall, however, remain unassessed insofar as it is opposed by the rights of third parties.
If the resold goods subject to retention of title are co-owned by the Seller, the assignment of the claims shall extend to the amount corresponding to the share value of the Seller in the co-ownership.

11.4 If goods subject to retention of title are installed by the Buyer as an essential component in other objects or buildings, etc. of a third party, the Buyer hereby assigns the assignable claims for payment arising against the third party or the party to whom it relates in the amount of the value of the goods subject to retention of title with all ancillary rights, including a right to the granting of a security mortgage with priority over the rest; the Seller accepts the assignment. Paragraph 11.3 sentences 2 and 3 apply accordingly.

11.5 If goods subject to retention of title are installed by the buyer as an essential component in another trade and other property, etc. of the buyer, the buyer hereby assigns the claims arising from a sale of this trade or property, etc. in the amount of the value of the goods subject to retention of title with all ancillary rights and with priority over the rest, the seller accepts the assignment. Paragraph 11.3 sentences 2 and 3 apply accordingly.

11.6 If claims for compensation arise in respect of the item and goods sold to the Buyer (e.g. insurance claims), these claims shall also be assigned to the Seller here and now as security for the Seller's purchase price claim against the Buyer; the Seller hereby accepts the assignment.

11.7 The Buyer shall be entitled and authorised to resell, use or install the goods subject to retention of title only in the ordinary course of business and only subject to the proviso that the claims within the meaning of paragraphs 11.3 to 6 actually pass to the Seller. The Buyer shall not be entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.

11.8 The Seller authorises the Buyer, subject to revocation, to collect the claims assigned pursuant to paras. 3 to 5. The Seller shall not make use of its own collection authority as long as the Buyer meets its payment obligations, including towards third parties. At the Seller's request, the Buyer shall name the debtors of the assigned claims and notify them of the assignment; the Seller shall be authorised to notify the debtors of the assignment itself.

11.9 The Buyer shall inform the Seller without delay of any enforcement measures taken by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.

11.10 The right to resell, use or install the goods subject to retention of title or the authorisation to collect the assigned claims shall expire in the event of suspension of payments and/or filing for insolvency proceedings; the authorisation to collect shall also expire in the event of a protest of a cheque or bill of exchange. This shall not apply to the rights of the insolvency administrator.

11.11 If the value of the securities granted exceeds the claims (reduced by down payments and partial payments, if applicable) by more than 20%, the Seller shall be obliged to retransfer or release them at its discretion.

11.12 The assertion of the Seller's rights under the retention of title shall not release the Buyer from its contractual obligations. The value of the goods at the time of repossession shall only be set off against the Seller's existing claims against the Buyer.

12. Withdrawal of the seller

The seller is entitled to withdraw from the contract for the following reasons:

a) if, contrary to the assumption existing before the conclusion of the contract, it turns out that the buyer is not creditworthy. Credit unworthiness can be assumed without further ado in the case of a bill or cheque protest, suspension of payment by the buyer or an unsuccessful attempt at compulsory enforcement on the buyer. It is not necessary that the relationship be between the seller and the buyer.

b) if it transpires that the buyer has made incorrect statements with regard to his creditworthiness and that these statements are of considerable importance.

c) if the goods subject to the seller's reservation of title are sold other than in the buyer's regular course of business, in particular by way of transfer of ownership by way of security or pledging. Exceptions to this shall only exist if the seller has declared its consent to the sale in writing.

13. Place of performance, place of jurisdiction and applicable law

13.1 The place of performance and jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between the parties shall be the Seller's place of business, provided the Buyer is a merchant or a legal entity under public law. However, the Seller shall also be entitled to sue the Buyer at the Buyer's place of business.

13.2 The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

14. Partial ineffectiveness

Should individual provisions of these Terms and Conditions of Sale, Delivery and Payment be invalid or void in whole or in part, the remaining provisions shall remain in full force and effect. Should individual paragraphs or parts thereof be invalid, they shall be interpreted in such a way that the purpose pursued between the parties is thereby achieved.

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