GENERAL TERMS AND CONDITIONS FOR BUSINESS RELATIONS
IMPORTANT DISCLAIMER: This English translation is NOT legally binding for all parties and only an indication of our Terms of Service (in German “Allgemeine Geschäftsbedingungen”, AGBs). Only the German original form is accepted as a legal binding document. German law applies.
§ 1 Scope, Form
1) These General Terms and Conditions (GTC) shall apply to all our business relations with our customers (""Buyer""). The GTC shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (""Goods""), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer's order or, in any case, in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.
(3) Our General Terms and Conditions shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Buyer refers to its General Terms and Conditions within the scope of the order and we do not expressly object thereto.
4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and specifications in our order confirmation shall take precedence over the GTC. In addition, the Incoterms® 2020 including the supplements valid at the time of conclusion of the contract shall apply. In the absence of any agreement to the contrary, our deliveries shall always be EXW Wallenhorst.
(5) Legally relevant declarations and notifications of the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing. Written form in the sense of these GTC includes written and text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
§ 2 Offer and conclusion of contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve property rights and copyrights.
(2) The Buyer shall be bound by its orders for 2 weeks from receipt by us. The contract shall be concluded by our order confirmation within 2 weeks from receipt of the order or alternatively by execution of the order within the same period.
(3) Our offers shall apply to deliveries to the country in which the Buyer has its registered office according to the information in its order (hereinafter ""export country""). The Buyer shall be liable to us for all disadvantages and liabilities arising from the use of the goods outside the export country.
§ 3 Delivery period and delay in delivery
(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order. The delivery periods shall commence on the date of order confirmation or order execution. They shall only be binding if the delivery date has been expressly confirmed in text form.
(2) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer. A case of non-availability of the performance in this sense shall be deemed to be in particular the failure of our supplier to deliver on time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
(3) In the event of a delay in delivery for which we are responsible, the Buyer must, after having sent us a reminder in text form, set us a reasonable further deadline with the indication that he will refuse to take delivery of the subject matter of the contract after expiry of the deadline. Only after the unsuccessful expiration of the further deadline, the buyer is entitled to withdraw from the contract by declaration in text form, but only insofar as we are responsible for the breach of duty, which can only be assumed in the case of intentional or grossly negligent breach of contract and the buyer proves that his interest in the delivery / service has ceased. In the event of withdrawal from the contract, the purchaser shall not be entitled to claim damages or reimbursement of expenses. In any case, our liability for damages shall be limited to the foreseeable damage typically occurring. We expressly object to a lump sum or penalty for damages in the event of a delay in delivery.
(4) We shall be entitled to make partial deliveries and render partial services at any time without this constituting a new offer. In the event of non-delivery of the remaining part, the Buyer shall be entitled to withdraw from the contract without compensation. Additional costs due to partial deliveries shall be borne by us, unless the partial performance is at the request of the buyer and we are responsible for it. The Buyer shall not be obliged to pay the full purchase price until we have performed the contract or service in accordance with the contract, unless different terms of payment (e.g. advance payment) have been agreed.
(5) The rights of the Buyer pursuant to § 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Delivery shall be made ex warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the goods shall be shipped to another destination (sale by delivery to a place other than the place of performance). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover at the latest. In the case of sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the Buyer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply mutatis mutandis to an agreed acceptance. The handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.
(3) If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs)
The proof of a higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be credited against further monetary claims. The purchaser shall be entitled to prove that we have not incurred any damage at all or that the damage is significantly less than the aforementioned lump sum."
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our prices current at the time of conclusion of the contract shall apply, ex warehouse, plus statutory value added tax.
(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) The purchase price shall be due immediately upon invoicing and delivery or acceptance of the goods and shall be payable without deduction. We shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.
(4) The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected, in particular pursuant to § 7 para. 6 sentence 2 of these GTC.
(5) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected."
§ 6 Retention of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must notify us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to us.
(3) In the event of any breach of contract by the buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If the buyer does not pay the purchase price due, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
(4) Until revoked in accordance with (c) below, the buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition."
(a) The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
(b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment. The obligations of the purchaser stated in para. 2 shall also apply in respect of the assigned claims.
(c) The buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the reservation of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. In addition, in this case we shall be entitled to revoke the buyer's authorization to further sell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the buyer's request.
§ 7 Claims for defects of the purchaser
(1) The statutory provisions shall apply to the Buyer's rights in the event of material defects and defects of title (including wrong and short delivery as well as improper assembly/installation or defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions on the reimbursement of expenses in the case of final delivery of newly manufactured goods to a consumer (supplier's recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u German Civil Code) shall remain unaffected, unless an equivalent compensation has been agreed, e.g. within the framework of a quality assurance agreement.
(2) The basis of our liability for defects shall be, above all, the agreement reached on the quality and the presumed use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are subject of the individual contract or which were publicly announced by us (in particular in catalogs or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not (§ 434 para. 3 BGB). Public statements made by the manufacturer or on his behalf, in particular in advertising or on the label of the goods, shall take precedence over statements made by other third parties.
(3) In the case of goods with digital elements or other digital content, we shall only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement pursuant to para. 2. In this respect, we shall not be liable for public statements made by the manufacturer and other third parties.
(4) As a matter of principle, we shall not be liable for defects of which the buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB). Furthermore, the buyer's claims for defects shall be subject to the condition that he has complied with his statutory duties of examination and notification (§§ 377, 381 HGB). In the case of goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. If the purchaser fails to carry out the proper inspection and/or to give notice of defects, our liability for the defect not reported or not reported in time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for incorporation, attachment or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, the buyer shall in particular have no claims for reimbursement of corresponding costs (""removal and installation costs"").
(5) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, the Buyer may reject it. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
(6) We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
(7) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the buyer shall not have a claim for return. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, fitting or assembly of a defect-free item if we were not originally obliged to perform these services; claims of the buyer for reimbursement of corresponding costs (""dismantling and assembly costs"") shall remain unaffected.
(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTC if a defect is actually present. Otherwise, we may demand reimbursement from the buyer of the costs incurred as a result of the unjustified request to remedy the defect if the buyer knew or was negligent in not knowing that there was actually no defect.
(9) In urgent cases, e.g. if operational safety is at risk or to prevent disproportionate damage, the buyer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be informed immediately of such a self-remedy, if possible in advance. The right of self-execution shall not apply if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.
(10) If a reasonable period to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable under the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there shall be no right of rescission.
(11) Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 8 and shall otherwise be excluded.,
§ 8 Other liability
(1) Insofar as nothing to the contrary arises from these General Terms and Conditions including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of a material contractual obligation (obligation the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
(3) The limitations of liability resulting from para. 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Buyer under the Product Liability Act.
(4) The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination on the part of the Buyer (in particular pursuant to §§ 650, 648 BGB) shall be excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation
(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) If the goods are used for a building in accordance with their customary use and have caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Further special statutory provisions on the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB) shall remain unaffected.
(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods."
§ 10 Reservation of performance/embargo clause/force majeure
(1) Our performance of the contract shall be subject to the proviso that performance is not impeded by obstacles arising from national or international regulations under foreign trade law or by embargoes and/or other sanctions. The Buyer is in particular obliged to refrain from all transactions (a) with persons, organizations or institutions which are on a sanctions list according to EC regulations or US export regulations, (b) with embargoed states, (c) for which the required approval is not available or no longer applicable, (d) which may occur in connection with ABC weapons, military misappropriation.
(2) The Buyer undertakes to inform us immediately and without being requested to do so in text form if he intends to deliver or use products or services purchased from us in areas which are subject to such provisions. He shall indemnify us against all legal consequences arising from the infringement of such provisions and shall pay compensation to the extent necessary if we thereby causally suffer damage.
(3) We expressly object to all provisions on the cancellation of purchase obligations due to events of force majeure, such as natural disasters, earthquakes, floods, storms, volcanic eruptions, acts of God, riots, blockades, fires, civil war, embargoes, hostage-taking, war, revolution, sabotage, strikes by third parties, terrorism, traffic accidents, pandemics and epidemics as well as production disruptions. In this context, we also object to any release from liability in the event of non-acceptance.
(4) Force majeure, labor disputes, riots, pandemics, such as Covid-19, public law / official measures as well as other unforeseeable, unavoidable and serious events shall release us from our performance obligations for the duration of the disruption (plus a reasonable extension of the performance period) and to the extent of their effect, without compensation or penalty, insofar as we could neither foresee the consequences, but in any case could not avoid them. We shall be obliged, within the scope of what is reasonable, to provide the contracting party with the necessary information without delay, at least in text form, and to adapt its obligations to the changed circumstances in good faith and in this respect to exercise transparency the other party.
(5) If an economically reasonable resumption of our services is neither foreseeable nor reasonable, e.g. due to the considerable duration of the disruption, even by adjusting the contract, we shall have the right to terminate the contract without notice. In this case, we shall have to prove in advance that they have complied with all their objectively realistically possible damage reduction obligations. Instead of a termination, we may also demand the cancellation of the contractual relationship due to disturbance of the basis of the business or give extraordinary notice of termination, as described above. In all these cases, we are released from the obligation to pay damages or penalties due to any delays or non-performance or defects in performance. There is consensus between the parties that for the duration of the disruption existing claims are inhibited according to § 206 BGB."
§ 11 Choice of law and place of jurisdiction
(1) These General Terms and Conditions and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Wallenhorst. The same shall apply if the buyer is an entrepreneur as defined by § 14 BGB (German Civil Code). However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement or at the Buyer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.