§ 1 General Provisions / Scope of Application
1. Our Terms and Conditions of Sale apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale, unless we have expressly agreed to their validity in writing. Such deviations
apply exclusively to the transaction/order for which they were agreed upon. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation despite being aware of terms and conditions of the customer that conflict with or deviate 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 forth in writing in the contract/order confirmation, incorporating these General Terms and Conditions.
3. Our Terms and Conditions of Sale apply only to business customers within the meaning of Section 310(1) of the German Civil Code (BGB).
4. Our Terms and Conditions of Sale also apply to all future transactions with the customer.
§ 2 Offer / Offer Documents
1. Our offers are always subject to change.
We expressly reserve the right to prior sale of the varieties and quantities that we indicate as being in stock.
2. Individual agreements made with the buyer on a case-by-case basis (including ancillary agreements, supplements, and amendments) shall in all cases take precedence over these General Terms and Conditions. A written contract or our written confirmation shall be decisive for the content of such agreements.
3. We reserve ownership rights and copyrights to illustrations, drawings, calculations, and other documents; they are to be used exclusively for production based on our delivery. After the order has been fulfilled, they must be returned to us without being asked.
4. We reserve the right to make minor deviations or deviations resulting from technical progress in design, execution, and performance that do not adversely affect the function of the item, as compared to the information in our catalogs, brochures, and/or on our website.
§ 3 Prices / Terms of Payment
1. Unless otherwise stated in the order confirmation, our prices are “ex works” or ex distribution warehouse (EXW Lindlar/Niederhabbach), excluding packaging, shipping, installation, commissioning, and other incidental costs (e.g., customs duties); these will be invoiced separately.
2. Statutory value-added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the date of invoicing.
3. We reserve the right to make delivery only against advance payment or cash on delivery.
4. Unless otherwise specified in the order confirmation, the purchase price is due for payment within fourteen days net (without deduction); after this period expires, the customer is in default of payment. This also applies in the case of separately invoiced partial deliveries. In the event of default, the statutory provisions apply. We reserve the right to claim further damages.
5. Checks are accepted only on account of performance; the costs of discounting and collection shall be borne by the contracting party.
6. The customer is only entitled to set-off rights if their counterclaims have been legally established or acknowledged by us. Furthermore, they are only authorized to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
§ 4 Delivery Time
1. Delivery dates and deadlines are binding only if expressly agreed upon; otherwise, they are non-binding. If a specific delivery deadline has been expressly agreed upon, its commencement is contingent upon the clarification of all technical and commercial issues.
2. Compliance with delivery dates and delivery periods is contingent upon the timely receipt of all documents to be provided by the customer for the execution of the order and the fulfillment of the customer’s contractual obligations, in particular compliance with the agreed payment terms. If these conditions are not met in a timely manner, or if the customer requests changes or deviations to the ordered goods after the contract has been concluded, the delivery dates or delivery periods shall be extended accordingly.
3. If we are unable to meet binding delivery periods for reasons beyond our control (unavailability of the service), we will inform the buyer of this immediately and simultaneously notify them of the expected new delivery period. If the service is still unavailable within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already paid by the buyer. A case of unavailability of the service in this sense includes, in particular, the failure of our supplier to deliver to us on time, provided that we have entered into a corresponding covering transaction, neither we nor our supplier are at fault, or we are not obligated to procure the goods in the specific case.
4. The occurrence of a delay in delivery on our part is determined in accordance with statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the buyer may demand lump-sum compensation for the damages resulting from the delay. The lump-sum compensation amounts to 0.5% of the net price (delivery value) for each full calendar week of delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has incurred no damage at all or only significantly less damage than the above lump sum.
5. Both the buyer’s claims for damages due to delay in performance and claims for damages in lieu of performance that exceed the limits specified in Section 4 are excluded in all cases of delayed delivery after the expiration of any delivery deadline set for us. This does not apply in cases where liability is mandatory due to intent, gross negligence, or injury to life, limb, or health. The buyer may withdraw from the contract within the scope of statutory provisions only to the extent that the delay in delivery is attributable to us.
6. We are entitled to make partial deliveries, provided they are reasonable for the customer. These are generally to be regarded as separate transactions.
§ 5 Transfer of Risk, Acceptance, Default of Acceptance
1. Delivery is ex works, which is also the place of performance. At the buyer’s request and expense, the goods will be shipped to another destination (sale by delivery). Unless otherwise agreed, we are entitled to determine the method of shipment (in particular the carrier, route, and packaging) ourselves.
2. The risk of accidental loss and accidental deterioration of the goods passes to the buyer no later than upon delivery. In the case of a sale by delivery, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the buyer upon delivery of the goods to the forwarding agent, the carrier, or any other person or entity designated to carry out the shipment. The foregoing also applies in the case of partial deliveries. To the extent that acceptance has been agreed upon, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to an agreed acceptance. The handover or acceptance of the goods shall be deemed to have taken place if the buyer is in default of acceptance and/or takes the goods into use without objection.
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 are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this, we charge a flat-rate compensation of 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the goods accepted late, beginning with the acceptance deadline. The right to prove greater damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat-rate fee shall be offset against any further monetary claims. The buyer is entitled to prove that we have incurred no damages at all or only significantly less damage than the aforementioned flat-rate fee.
§ 6 Liability for Defects
1. The buyer’s claims for defects are contingent upon the buyer having fulfilled their statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. Notification is deemed to be immediate if it is made within five business days, whereby timely dispatch of the notification is sufficient to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the buyer must report obvious defects in writing within two business days of delivery, whereby, again, timely dispatch of the notice is sufficient to meet the deadline. If the buyer fails to conduct a proper inspection and/or give notice of defects, our liability for the unreported defect is excluded.
2. If a defect in the purchased item exists, we are entitled, at our discretion, to provide subsequent performance in the form of rectification of the defect or delivery of a new, defect-free item. Our right to refuse subsequent performance under the statutory conditions remains unaffected.
3. We are entitled to make the required subsequent performance contingent upon the buyer paying the purchase price due. However, the buyer is entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.
4. The buyer must provide us with the time and opportunity necessary for the required subsequent performance, in particular to hand over the goods subject to complaint for inspection purposes. In the event of a replacement delivery, the buyer must return the defective item to us in accordance with statutory provisions. Subsequent performance does not include either the removal of the defective item or its reinstallation if we were not originally obligated to install it.
5. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transportation, travel, labor, and material costs (excluding removal and reinstallation costs), if a defect actually exists. Costs incurred in the course of subsequent performance because the purchased item has been moved to a location other than the contractually agreed delivery location shall be borne by the customer. These additional costs must be paid by the customer in advance. However, if a request by the buyer to remedy a defect proves to be unjustified,
we may demand reimbursement from the buyer for the costs incurred as a result.
6. If the subsequent performance has failed twice, or if a reasonable deadline for subsequent performance set by the buyer has expired without success or is dispensable under statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.
7. Claims for damages by the buyer due to a material defect or a defect of title are excluded. This does not apply in cases of fraudulent concealment of the defect, breach of a warranty of quality, injury to life, limb, health, or freedom, or intentional or grossly negligent breach of duty on our part. Any further claims by the buyer for a material defect, or claims other than those regulated in these Terms and Conditions, are excluded.
8. In urgent cases, e.g., where operational safety is at risk or to prevent disproportionate damage, the buyer has the right to remedy the defect themselves and to demand reimbursement from us for the expenses objectively necessary for this purpose. We must be notified of such self-remedy immediately, if possible in advance. The right to remedy the defect oneself does not apply if we would be entitled to refuse corresponding subsequent performance in accordance with statutory provisions.
9. Claims for defects shall become time-barred 12 months after delivery of the goods supplied by us to the buyer. Our consent must be obtained prior to any return. This period does not apply to the extent that the law prescribes longer periods pursuant to Sections 438(1)(2) (structures and items for structures), 479 (right of recourse), and 634a(1)(2) (construction defects) of the German Civil Code (BGB).
10. The buyer’s claims for recourse against us exist only to the extent that the buyer has not entered into any agreements with its customer that go beyond the mandatory statutory claims for defects.
§ 7 Other Claims for Damages, Statute of Limitations
1. Claims for damages by the buyer, regardless of the legal basis, in particular due to breach of obligations arising from the contractual relationship and from tort, are excluded, unless claims for damages by the buyer are expressly regulated in these General Terms and Conditions.
2. The exclusion of the buyer’s claims for damages does not apply in cases of mandatory liability, e.g., under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb, or health, or breach of material contractual obligations. However, the claim for damages for the breach of material contractual obligations is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or liability arises from injury to life, limb, or health.
3. To the extent that the buyer is entitled to claims for damages, these shall become time-barred upon the expiration of the limitation period applicable under § 4 No. 9. The same applies to claims by the buyer in connection with measures to prevent damage (e.g., product recalls). For claims for damages under the Product Liability Act, the statutory limitation provisions apply.
§ 8 Impossibility, Contract Modification
1. If delivery becomes impossible, the buyer is entitled to claim damages unless we are not responsible for the impossibility. However, the buyer’s claim for damages is limited to 5% of the value of that part of the delivery which cannot be put into proper operation due to the impossibility. This limitation does not apply in cases where liability is mandatory due to intent, gross negligence, or injury to life, limb, or health. The buyer’s right to rescind the contract remains unaffected.
2. If unforeseen events (force majeure) or the failure of our suppliers to deliver on time and in proper order significantly alter the economic significance or content of the delivery or have a significant impact on our operations, the contract shall be reasonably adjusted in good faith. If this is not economically justifiable, we shall be entitled to withdraw from the contract. If we wish to exercise this right, we must notify the buyer immediately upon becoming aware of the extent of the situation, even if an extension of the delivery period had initially been agreed upon with the buyer.
§ 9 Retention of Title
1. We reserve title to the goods sold until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.
2. The goods subject to retention of title may neither be pledged to third parties nor transferred as security prior to full payment of the secured claims. The buyer must notify us immediately in writing if and to the extent that third parties seize the goods belonging to us.
3. In the event of a breach of contract by the buyer, in particular failure to pay the purchase price when due, we are entitled to withdraw from the contract in accordance with statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. If the buyer fails to 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 not required under applicable law.
4. The buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions apply in addition.
a) The retention of title extends to the products created through the processing, mixing, or combining of our goods to their full value, whereby we are deemed the manufacturer. If, in the event of processing, mixing, or combining with third-party goods, the third party’s right of ownership remains in effect, 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 product as to the goods delivered under retention of title.
b) The buyer hereby assigns to us, as security, all claims against third parties arising from the resale of the goods or the resulting product, either in full or in the amount of our share of co-ownership pursuant to the preceding paragraph. We accept the assignment. The buyer’s obligations set forth in paragraph 2 also apply with respect to the assigned claims.
c) The buyer remains authorized alongside us to collect the claim. We undertake not to collect the claim as long as the buyer meets his payment obligations to us, is not in default of payment, no application for the opening of insolvency proceedings has been filed, and there is no other defect in his ability to perform. If, however, this is the case, we may demand that the buyer disclose to us the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment.
d) If the realizable value of the collateral exceeds our claims by more than 10%, we shall release collateral of our choice at the buyer’s request.
§ 10 Jurisdiction / Place of Performance
1. The place of jurisdiction shall be, depending on subject-matter jurisdiction, the Local Court of Wipperfürth or the Regional Court of Cologne. However, we are also entitled to sue the customer at its place of business.
2. The law of the Federal Republic of Germany applies; the applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
3. Unless otherwise specified in the order confirmation, Lindlar/Niederhabbach is the place of performance for all mutual rights and obligations.
4. Should any of the above provisions be or become invalid, this shall not affect the validity of the remaining provisions. In place of the invalid clause, the parties undertake to agree on a legally valid provision that most closely approximates the economic purpose pursued by the invalid clause.
