General Terms and Conditions of Sale
I. Scope of Application
1. These General Terms and Conditions of Sale shall apply to all business relations with our customers if the customer is a company, a legal entity under public law or a special fund under public law in the terms of § 310(1) of the Civil Code. They shall apply in particular to contracts for the sale and/or delivery of movable goods, irrespective of whether we manufacture them ourselves or purchase them from third parties.
2. Solely our General Terms and Conditions of Sale shall apply, i.e. even if we accept orders or perform services without reservation with knowledge of the customer's terms and conditions or make direct or indirect reference to letters, etc. containing the customer’s or third parties' general terms and conditions of business. We shall only recognise conflicting, variant or supplementary terms and conditions of business of the customer if we expressly approve their validity in writing.
3. Our General Terms and Conditions of Sale shall apply in their respective current version as a framework agreement also to future contracts for the sale of goods with the same customer without us having to refer to them again in each specific case.
4. Individual agreements made with the customer in specific cases (including collateral arrangements, supplements and modifications) shall take precedence over these General Terms and Conditions of Sale.
II. Conclusion of Contract / Written form
1. Our offers shall be subject to change, i.e. they entitle us to revoke the offer until it has been accepted, unless they are expressly marked as binding or contain a specific acceptance period.
2. A customer's order shall be deemed a legally binding offer to conclude a contract. Our acceptance shall be affected by declaration in text form (e.g. by our order confirmation or our notification of readiness for dispatch/collection) or by delivery of the goods to the customer.
3. Legally relevant declarations made by the customer to us after conclusion of the contract (e.g. setting of deadlines, payment reminders, defect protests) must be in writing to be effective.
4. The transmission of an unsigned electronic document, an unsigned e-mail or a fax shall also be sufficient to comply with the written form in the terms of these General Terms and Conditions of Sale.
III. Reservation of Rights to Documents / Samples
1. If the customer is provided documents - also in electronic form - such as drawings, illustrations, product descriptions or samples etc., we reserve the title and all other rights thereto. Unless this is contrary to mandatory law, the customer shall not be entitled to make documents/objects made available to it accessible to third parties or to communicate them to third parties, to exploit, reproduce or modify them, either as such or according to their content, without our prior written approval, unless we agree to this in writing. Documents/samples are to be used by the customer exclusively for the contractual purposes.
2. This obligation shall not apply to information which was already known to the customer upon receipt in an authorised fashion without an obligation to maintain secrecy or which subsequently becomes known in an authorised fashion without an obligation to maintain secrecy or which - without a breach of contract by one of the parties - is or becomes generally known or for which the supplier has been granted permission in writing to use it for other purposes.
IV. Prices / Delivery Modalities
1. Unless agreed otherwise in writing, our prices shall apply ex our company's registered office and shall not include packaging or the applicable value added tax.
2. Subject to any variant agreement, all our deliveries shall be "ex works - EXW (Incoterms 2020)".
3. If the customer wishes us to send the goods to a destination specified by it (sale by delivery to a place other than the place of performance), a corresponding agreement must be made with the customer. The shipment shall be carried out - also with regard to the packaging - at the customer’s cost. We shall be entitled to determine the type of shipping (in particular the transport company and the shipping route) and the packaging (material and type) at our due discretion.
The risk of accidental loss or deterioration of the goods shall pass to the customer in the cases of sentence 1 of this paragraph upon receipt by the customer of our notice of readiness for shipment or - if the latter is not provided for in the contract - at the latest upon handover of the goods to the forwarding agent, carrier or other transport person. This shall also apply if partial deliveries are made or if we have assumed responsibility for other performances (e.g. the aforementioned shipment or transport or assembly).
4. If the customer is in default of acceptance of the goods, the risk of accidental loss and deterioration of the goods shall pass to the customer.
V. Delivery periods / Default / Partial Deliveries / Limitation of Claims
1. The delivery times/dates for deliveries and services (delivery periods) specified by us in the order shall be decisive, unless a different delivery period has been expressly promised or agreed.
2. We accept no liability for the impossibility or delay of our performances insofar as the impossibility or delay is due to force majeure or other events unforeseeable at the time of conclusion of the contract for which we are not responsible (e.g. disruptions of operations of any kind, fire, natural disasters, floods, war, insurrection, terrorism, transport delays, strikes, lockouts or curfews, shortages of labour, energy or raw materials, epidemics, pandemics, delays in obtaining any necessary administrative permits, administrative/sovereign measures or prohibitions (e.g. sanctions, embargoes or other export control regulations).
Our not being able to deliver or not do so on time due to one of our preliminary suppliers shall constitute such an event, provided we are not responsible for this and at the time of the conclusion of the contract with the customer we had concluded a congruent hedge with the respective preliminary supplier. In such events, the delivery periods shall be automatically extended by the duration of the event plus a reasonable start-up period.
3. If we are unable to deliver within three (3) months of the relevant delivery date, the customer and we ourselves shall be entitled to rescind the contract in whole or in part to the extent of the performance affected by the delay; we shall immediately refund any consideration already rendered by the customer.
4. The occurrence of our delay in delivery shall be determined in accordance with the provisions of law.
5. We shall be entitled to make partial deliveries if:
- (a) the partial delivery can be used by the customer within the framework of the contractual purpose;
- (b) the delivery of the remaining performances is assured; and
- (c) the customer does not incur any significant additional expense as a result of the partial performance.
6. The occurrence of customer’s default in acceptance shall be determined in accordance with the provisions of law.
We shall be entitled to claim compensation for default if we have suffered damage as a result of the customer's default in acceptance. The default compensation shall amount for each full week of delay to 0.5% of the net price up to a maximum total of 5% of the value of that part of the overall delivery that cannot be delivered or delivered in due time as a result of the default. If we intend to claim compensation for delay, we shall notify you in writing. In such case, our claim to compensation for the damage actually incurred by us as a result of the delay in acceptance shall lapse. The customer shall retain the right to furnish proof that the we have not incurred any damage or have only incurred lesser damage than the above lump sum.
Instead of the compensation for the delay, we shall be entitled to claim the actual damage caused by the delay in acceptance.
VI. Payments
1. Unless agreed otherwise in writing, the net purchase price (excluding VAT) shall be due for payment upon receipt of the invoice by the customer.
The customer shall be entitled to pay within 10 days after delivery and receipt of the invoice with a 2% cash discount on the net amount of the invoice, provided all invoices relating to the customer, the invoice date of which is more than 45 days before, have been paid or within thirty (30) days in the net amount.
2. As soon as the payment deadline is exceeded, the customer shall automatically be in default, unless payment is not made due to a circumstance for which the customer is not responsible. The purchase price shall bear interest at the applicable statutory default interest rate during the period of default. We reserve the right to assert further default damages. In all cases, our legal claim to the commercial interest from the due date (§§ 352 and 353 of the Commercial Code) shall not be prejudiced vis-à-vis merchants from the due date.
3. The customer shall only be entitled to set off claims insofar as the counterclaim it uses for this purpose:
(a) is either undisputed or has been declared by non-appealable judgement; or
(b) in the case of a procedural claim, is ready for decision at the time of the last hearing; or
(c) is in a reciprocal relationship (synallagmatic contract) to the main claim.
4. The customer shall only have a right of retention to the extent that its counterclaim is based on the same contractual relationship.
VII. Retention of Title
1. Goods paid for in advance shall not be subject to title retentions. Otherwise, we shall retain title to all goods supplied by us until payment has been rendered in full (reserved goods).
In the event of processing or transformation of reserved goods by the customer (§ 950 of the Civil Code), this processing shall always be carried out for us as manufacturer in our name and for our account, and we shall directly acquire title or - if the processing or transformation is carried out from materials of several owners, or if the value of the newly created item is higher than the value of the reserved goods - co-title (fractional ownership) to the newly created item in the ratio of the value of the reserved goods (gross invoice value) to the value of this newly created item. In the event that no such acquisition of title or co-title should occur on our part - however justified - the customer hereby assigns to us its future title or (in the aforementioned ratio) co-title to the newly created item as security; we hereby accept this assignment.
If the reserved goods are combined with other items not belonging to us in the terms of § 947 of the Civil Code or mixed or blended in the terms of § 948 of the Civil Code, we shall acquire co-title to the newly created item in the ratio of the value of the reserved goods (gross invoice value) to the value of the other combined, mixed or blended items at the time of combination, mixing or blending; if the reserved goods are to be regarded as the main item, we shall acquire sole title (§ 947(2) of the Civil Code). If one of the other items is to be regarded as the main item, the customer hereby assigns to us, insofar as the main item belongs to it, the prorated co-title to the uniform item in the aforementioned ratio. We hereby accept such transfer.
The customer shall hold our sole title or co-title to an item created in accordance with the above provisions in safe custody for us free of charge.
2. The Customer shall be entitled to use, process/remodel, combine, mix and sell the reserved goods until the occurrence of a realisation event in the course of ordinary business.
The customer hereby assigns to us in advance by way of security - in the event of co-ownership by us of the reserved goods on a prorated basis in accordance with our co-ownership share - the customer's claims to compensation against its buyers arising from a resale of the reserved goods as well as those claims of the customer regarding the reserved goods which arise based on any other legal ground against its buyers or third parties (e.g. claims arising from tort and claims to insurance benefits), including all balance claims from a current account. We hereby accept these assignments.
3. We hereby revocably authorise the customer to collect the claims assigned to us in its own name on our behalf. Our right to collect these claims ourselves shall not be affected hereby. However, we shall not collect these claims ourselves and shall not revoke the collection authorisation as long as
a) the customer duly fulfils its payment obligations towards us (in particular does not fall into arrears);
b) no petition has been filed for the initiation of insolvency proceedings concerning the customer's assets; and
c) there is no lack of capacity on the part of the customer.
If one of the aforementioned cases occurs, we shall be entitled to request the customer to informs us of the assigned claims and the respective debtors, to notify the respective debtors of the assignment (which we may also do ourselves at our discretion) and to hand over to us all documents and provide all information which we require in order to assert the claims.
4. At the customer's request, we shall release the reserved goods and the items and claims replacing them to the extent that the purpose of the security no longer requires security. We shall make the selection of the objects to be released.
5. The customer shall not be entitled to pledge reserved goods or to assign them as security.
In the event of a seizure of reserved goods by third parties or other access to them by third parties, the customer shall be responsible for
a) clearly indicating our ownership and
b) notifying us immediately in writing so that we can pursue our ownership rights.
Insofar as third parties are unable to reimburse us for the court or out-of-court costs incurred by us in this connection, the customer shall be liable to us for such costs.
6. The customer shall be obliged to cooperate in all measures to which we are entitled for the protection of our right to title or any other right in lieu thereof to the reserved goods.
VIII. Warranty
1. In the event of material defects and defects in title, the provisions of law shall apply to the customer, unless stipulated otherwise or supplemented in these General Terms and Conditions of Sale.
2. Subject to a variant agreement:
(a) our goods and services shall comply exclusively with the legal requirements applicable in the Federal Republic of Germany; and
(b) the customer alone shall be responsible for the integration of the goods into the technical, structural and organisational conditions provided for this purpose (system integration responsibility of the customer).
3. The customer is obliged to inspect delivered goods immediately after delivery to it or to the third party designated by it and to report any defects without delay (§ 377(1) of the Commercial Code).
Notice of defects shall be deemed to have been given without delay if the notice of defects is sent no later than 7 (seven) working days after delivery or - in the case of a defect which was not apparent on inspection - no later than three (3) working days after discovery of the defect. If, however, the defect which was not recognisable upon inspection would already have been recognisable to the customer during normal use of the goods at an earlier point in time than the point in time of discovery, this earlier point in time shall be decisive for the commencement of the aforementioned notification period.
If the customer fails to make a proper and timely inspection and/or notification of defects, our warranty obligation and other liability for the defect concerned shall be excluded, unless we have fraudulently concealed the defect.
4. Goods notified as defective are to be returned to us immediately at our request, initially at the customer's cost. If the complaint proves to be justified, we shall reimburse the customer for the costs of the most favourable means of shipping; this shall not apply if the costs increase because the goods are located at a place other than the place of intended use.
5. Should the customer have claims against us due to defective goods, we shall, at our choice, which shall be determined at our fair discretion, either remedy the defects free of charge or deliver defect-free goods free of charge (subsequent performance). The customer must give us reasonable time and opportunity to carry out the subsequent performance which we deem necessary at our fair discretion. Our right to refuse the subsequent performance under the prerequisites prescribed by law shall not be prejudiced hereby.
6. In the event the subsequent performance fails or a reasonable period to be established by the customer for the subsequent performance has expired unsuccessfully or can be dispensed with in accordance with the provisions of law, the customer shall be entitled to rescind the contract or reduce the purchase price. No rescission right shall exist, however, in the case of minor defects. The rights of the customer to request damage compensation and reimbursement of futile expenses due to the defectiveness of the goods shall not be prejudiced hereby.
7. Warranty claims shall lapse one year after delivery of the goods. The limitation period in the case of a delivery recourse (§§ 478 and 479 of the Civil Code) shall not be prejudiced hereby.
IX. Liability for Damage Compensation
1. Unless stipulated otherwise in these General Terms and Conditions of Sale, we shall be liable for any breach of contractual and non-contractual duties pursuant to the provisions of law.
2. We shall be liable - for whatever legal reason - without limitation for damage compensation and the reimbursement of futile expenses which are based on an intentional or grossly negligent breach of duty by us or by one of our legal representatives or vicarious agents.
3. In the event of a merely simple or slightly negligent breach of duty by us or one of our legal representatives or vicarious agents, we shall be liable, subject to a milder standard of liability in accordance with the provisions of law (e.g. for diligence in our own affairs), only
a) but without limitation - for damages based thereon/compensation of futile expenses arising from injury to life, limb or health;
b) for damages/compensation of futile expenses resulting from the breach of material contractual duties. “Material contractual duties” shall mean duties whose fulfilment is essential for the proper performance of the contract and on whose compliance the customer does and may normally rely. In this case, however, our liability shall be limited to the amount of damage typical to contracts of this type and foreseeable at the time of conclusion of the contract.
c) The limitations of liability resulting from b) shall not apply insofar as we have fraudulently concealed a defect, have given a guarantee for the quality of the goods or have assumed a procurement risk. In addition, any mandatory statutory liability, in particular under the Product Liability Act, shall not be prejudiced hereby.
d) If the customer owes a third party the payment of a contractual penalty or lump-sum damage compensation, the customer may - subject to all other prerequisites - only claim as damage compensation the payments made thereafter if this has been expressly agreed with us or the customer informed us in writing of this risk prior to the conclusion of the contract with it.
e) Damage and losses for which we are liable must be reported by the customer in writing without delay.
4. Damage compensation claims by the customer in accordance with the Product Liability Act, in the cases of Paragraphs 2 and 3.a) and if we have fraudulently concealed the defect, shall lapse exclusively upon expiry of the limitation periods prescribed by law.
5. We shall not be liable for damage caused by unsuitable or improper use, faulty assembly or commissioning by the customer or third parties, or changes in substance, in particular drilling or by welding.
6. Insofar as our liability is excluded or limited pursuant to the above provisions, this shall also apply to the liability of our executive officers, legal representatives, employees, staff and vicarious agents.
X. Guarantee / Procurement Risk
We shall only be deemed to have assumed a guarantee or a procurement risk if this has been expressly agreed.
XI. Miscellaneous
1. The place of performance for deliveries to the customer shall be the place from which we deliver.
2. Cologne shall be the exclusive - also international - place of jurisdiction for all disputes arising from or in connection with the business relation between us and the customer. However, we shall also be entitled to sue the customer at its registered office or at the place of performance. Compulsory provisions of law concerning exclusive places of jurisdiction shall not be prejudiced hereby.
3. The contractual relation shall be subject to the law of the Federal Republic of Germany with the exception of conflict of law rules. The applicability of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly excluded.
4. Should any provisions of these General Terms and Conditions of Sale be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. If provisions have not become an integral component of the contract or are invalid, they shall be replaced by valid ones which most closely approximate that desired by the parties in financial terms.
5. We would like to point out that we store personal data exclusively in compliance with the provisions of law and process them in connection with business transactions. The customer hereby agrees to this.
Version: February 2021