Terms and Conditions
I. Scope
1. These General Terms and Conditions of Sale (GTCS) apply to all business relationships between us and our customers (“Buyer”). The General Terms and Conditions apply only if the Buyer is an entrepreneur (§ 14 German Civil Code), a legal entity under public law, or a special fund under public law within the meaning of § 310 paragraph 1 German Civil Code.
2. Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting, or supplementary terms and conditions of the Buyer shall only become part of the contract if we have expressly agreed to their validity. This requirement for consent also applies if the Buyer refers to his own terms and conditions in the context of the order and we do not expressly object to them.
3. These General Terms and Conditions of Sale apply 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 German Civil Code). Unless otherwise agreed, the General Terms and Conditions apply in the version valid at the time of the Buyer's order or in the version last communicated to him in text form as a framework agreement also for similar future contracts, without us having to refer to them again in each individual case.
4. Individual agreements made with the Buyer in individual cases (including side agreements, supplements, and amendments) and information in our order confirmation take precedence over these General Terms and Conditions. The content of such agreements shall be determined by a written contract or our written confirmation, subject to proof to the contrary.
5. Legally relevant declarations and notifications by the Buyer regarding the contract (e.g., notices of defects, setting of deadlines, withdrawal or reduction) must be made in writing, i.e., in written and text form (e.g., letter, email, fax). Further statutory formal requirements and further evidence (in case of doubts about the legitimacy of the declarant) remain unaffected.
6. References to the applicability of statutory provisions are for clarification purposes only. The statutory provisions apply - even if no corresponding clarification has been provided - to the extent that they are not modified or excluded by these General Terms and Conditions of Sale.
II. Offer and Conclusion of Contract
1. Our offers are non-binding and without obligation. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g., drawings, plans, calculations, references to DIN standards) or other product descriptions or documents (including in electronic form). We reserve ownership and copyright to all documents provided to the Buyer in connection with the order. These documents may not be made available to third parties unless we have given the Buyer our express written consent.
2. When ordering Goods, the Buyer is making a non-binding offer to enter into a contract pursuant to §145 German Civil Code. Unless otherwise stated in the order, we are entitled to accept this offer within two weeks of receipt.
3. Acceptance of the Buyer's offer may be declared either in writing (e.g., by order confirmation) or by delivery of the Goods to the Buyer. If we do not accept the Buyer's offer within the period specified in Section II.2., any documents provided to the Buyer must be returned to us without delay.
III. Prices and Payment Terms
1. Unless otherwise agreed in writing, our current prices at the time of conclusion of the contract apply ex warehouse plus statutory VAT. In intra-EU trade, VAT is not charged unless required by law. For deliveries to countries outside the European Union, delivery is made without charging German VAT (tax-free export delivery). The customer is obliged to pay all import duties, customs duties, and any country-specific taxes. For export deliveries requiring a customs export declaration, a flat handling fee of EUR 50.00 (plus statutory VAT, if applicable) is charged. The handling fee covers the administrative costs associated with the preparation of the necessary export documents. Unless a fixed price agreement has been made, reasonable price changes due to changes in wage, material, and distribution costs for deliveries made three months or later after contract conclusion are reserved.
2. In the case of a shipment sale, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer.
3. Payment of the purchase price must be made exclusively to the account specified on the reverse side.
4. Unless otherwise agreed, the purchase price is due and payable within thirty days of invoice and delivery or acceptance of the Goods. However, we are entitled at any time, even within an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare such a reservation at the latest in the order confirmation.
5. The Buyer is in default when the above payment period expires. During the default, the purchase price shall bear interest at the statutory default interest rate pursuant to § 288 paragraph 2 German Civil Code, amounting to nine percentage points above the applicable base interest rate (see Annex 1). We reserve the right to claim further damages for default. Our claim for commercial default interest pursuant to § 353 German Commercial Code remains unaffected in relation to merchants.
6. If, after conclusion of the contract, it becomes apparent that our claim to the purchase price is endangered due to lack of performance by the Buyer (e.g., by filing for insolvency proceedings), we are entitled under the statutory provisions to refuse performance and, if necessary after setting a deadline, to withdraw from the contract (§ 321 German Civil Code). In contracts involving the manufacture of non-fungible goods (custom-made products), we may withdraw immediately. Statutory provisions regarding the dispensability of setting a deadline remain unaffected.
IV. Rights of Retention
Rights of set-off or retention are only available to the Buyer if his claim has been legally established or is undisputed, and his counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Buyer's counter-rights, in particular according to Section IX paragraph 6 sentence 2 of these General Terms and Conditions, remain unaffected.
V. Delivery Period and Delay in Delivery
1. The delivery period is individually agreed or specified by us upon acceptance of the order. If this is not the case, the delivery period is approximately 4 weeks from the conclusion of the contract.
2. If we are unable to meet binding delivery deadlines for reasons beyond our control, we shall inform the Buyer of this without delay and at the same time notify the expected or new delivery period. If delivery is still not possible within the new delivery period due to unavailability of the service, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer (in the form of payment) shall be refunded immediately. Unavailability of the service may occur, for example, if our supplier fails to deliver on time, if we have concluded a congruent hedging transaction, if other disruptions occur in the supply chain (such as force majeure), or if we are not obliged to procure in the individual case.
3. The Seller is liable in cases of delay in performance in the event of intent or gross negligence on the part of the Seller or a representative or agent, as well as in the event of culpable injury to life, body, or health, in accordance with the statutory provisions. In cases of gross negligence, liability is limited to the typical, foreseeable damage. Outside the cases of sentences 1 and 2, liability for delay for damages in addition to performance is limited to a total of 5% and for damages in lieu of performance (including reimbursement of futile expenses) to a total of 10% of the net value of the delivery. Further claims of the Buyer are excluded – even after expiry of any deadline set for the Seller to perform. The limitation and exclusion do not apply in the event of culpable breach of essential contractual obligations, i.e., obligations that make the performance of the contract possible in the first place. However, in the event of culpable breach of essential contractual obligations, the claim for damages is limited to the typical foreseeable damage, unless another case under sentence 1 applies at the same time. The Buyer's right to withdraw from the contract remains unaffected. No change in the burden of proof to the detriment of the Buyer is associated with the above provisions.
4. The Buyer’s rights under Section X of these General Terms and Conditions and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g., due to impossibility or unreasonableness of performance and/or supplementary performance), remain unaffected.
VI. Delivery, Transfer of Risk, Acceptance, Default of Acceptance
1. Delivery is made ex warehouse, which is also the place of performance for delivery and any subsequent performance. If the Buyer wishes the Goods to be sent to another destination (shipment sale), he shall bear the costs of shipment. If no contractual arrangement has been made, we may determine the type of shipment (packaging, shipping route, carrier) ourselves.
2. Upon handover of the Goods to the Buyer, the risk of accidental loss and accidental deterioration passes to the Buyer. In the case of shipment sale, the risk of accidental loss, accidental deterioration of the Goods, and the risk of delay passes to the Buyer upon delivery of the Goods to the carrier or freight forwarder. If acceptance of the Goods is contractually agreed, this is decisive for the transfer of risk. Further statutory provisions of contract law remain unaffected. Handover or acceptance of the Goods is deemed to have occurred if the Buyer is in default of acceptance.
3. If the Buyer is in default of acceptance or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to claim compensation for the resulting damage, including additional expenses (e.g., storage costs). In such cases, we charge the Buyer a flat-rate compensation of EUR 10 per calendar day (beginning with the delivery period or, if no delivery period is specified, with notification of readiness for dispatch). Statutory claims (compensation for additional expenses, reasonable compensation, termination) and proof of higher damages remain unaffected.
4. Proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; the flat rate is offset against further monetary claims. However, the Buyer has the right to prove that we have incurred no or only significantly lower damages than the above flat rate.
VII. Retention of Title
1. We retain ownership of the delivered Goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. Until full payment of the secured claims, the Goods subject to retention of title may not be pledged to third parties or transferred by way of security. The Buyer must notify us immediately in writing if an application for insolvency proceedings is filed or if third parties (e.g., seizures) access the Goods belonging to us. If the third party is unable to reimburse us for the court and out-of-court costs of a lawsuit pursuant to § 771 of the German Code of Civil Procedure, the Buyer shall be liable for the loss incurred by us.
3. In the event of breach of contract by the Buyer, in particular non-payment of the due purchase price, we are entitled under the statutory provisions to withdraw from the contract and/or demand the return of the Goods on the basis of retention of title. The demand for return does not at the same time constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the Goods and reserve the right to withdraw. If the Buyer does not pay the due purchase price, we must first set him a reasonable deadline for payment before asserting these rights, unless such a deadline is dispensable under the statutory provisions.
4. The Buyer is, until revoked pursuant to VII.4.c, 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 additionally:
a. Products resulting from the combination, mixing, or processing of our Goods are subject to retention of title at their full value, with us considered the manufacturer. If, in the case of combination, mixing, or processing with third-party Goods, their ownership rights remain, we acquire co-ownership in proportion to the invoice values of the combined, mixed, or processed Goods. Otherwise, the same applies to the resulting product as to the Goods delivered under retention of title. The Buyer also assigns to us for security purposes any claims arising from the combination of the Goods subject to retention of title with a property against a third party. We hereby accept the assignment.
b. The Buyer hereby assigns to us, in total or in the amount of our possible co-ownership share pursuant to VII.4.a, as security, claims against third parties arising from the resale of the Goods or the product in the amount of the final invoice amount agreed with us (including VAT). We accept the assignment. The obligations of the Buyer set out in VII.2 also apply with regard to the assigned claims.
c. The Buyer remains authorized to collect the claim alongside us. As long as the Buyer meets his payment obligations to us, no deficiency in his performance exists, and we do not assert the retention of title by exercising a right under VII.3, we undertake not to collect the claim. If we assert a right under VII.3, we may require the Buyer to disclose the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents, and notify the debtors (third parties) of the assignment. Furthermore, we are entitled to revoke the Buyer's authority to resell 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.
5. The Buyer is obliged, as long as ownership has not yet passed to him, to treat the purchased item with care. In particular, he must adequately insure it at his own expense against theft, fire, and water damage at replacement value (note: only applicable to the sale of high-value goods). If maintenance and inspection work is required, the Buyer must carry this out at his own expense and in good time.
IX. Buyer’s Claims for Defects
1. The statutory provisions apply to the Buyer's rights in case of material and legal defects (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below. The statutory provisions on the sale of consumer goods (§ 474 et seq. German Civil Code) and the rights of the Buyer under separately issued guarantees, in particular by the manufacturer, remain unaffected.
2. Agreements made with the Buyer regarding the condition and intended use of the Goods (including accessories and instructions) regularly form the basis of our liability for defects within the scope of warranty. An agreement on condition includes all product descriptions and manufacturer statements that are part of the individual contract or were publicly announced by us (especially in catalogues or on our internet homepage) at the time of conclusion of the contract. If no condition has been agreed, it is to be determined according to § 434 paragraph 3 German Civil Code whether a defect exists. Public statements made by the manufacturer in advertising or on the label of the Goods take precedence over statements made by other third parties.
3. For Goods with digital elements or other digital content, we are only obliged to provide and update the digital content if this expressly results from an agreement on condition pursuant to IX.2. We accept no liability for public statements made by the manufacturer or other third parties.
4. We are not liable for defects that the Buyer knows or grossly negligently does not know at the time of conclusion of the contract (§ 442 German Civil Code).
5. The Buyer's claims for defects exist only if he has complied with his statutory duties of inspection and notification (§§ 377, 381 German Commercial Code). Notification to us must be made in writing without delay if a defect becomes apparent during delivery, inspection, or at a later time. Obvious defects must be notified in writing within 7 working days of delivery and hidden defects within the same period from discovery of the defect. If the Buyer fails to fulfil his obligation to properly inspect and/or notify defects, our liability for the unreported or not promptly or properly reported defect is excluded under the statutory provisions. If the Goods are intended to be installed, attached, or installed, this also applies if the defect only became apparent after such processing due to non-compliance or breach of one of these obligations. In this case, the Buyer has no claims for compensation for "installation and removal costs".
6. If the delivered Goods are defective, we as Seller have the right to choose whether to remedy the defect (rectification) or deliver a defect-free item (replacement delivery). If the type of supplementary performance we choose is unreasonable for the Buyer in the individual case, he may refuse it. However, we reserve the right to refuse supplementary performance under the statutory requirements. In addition, we are entitled to make supplementary performance conditional on the Buyer paying the due purchase price. However, the Buyer has the right to retain a reasonable part of the purchase price in relation to the defect.
7. The Buyer must give us the necessary time and opportunity to perform supplementary performance. In particular, the Buyer must hand over the item for which he is claiming a defect to us for inspection. If we carry out a replacement delivery of a defect-free item, the Buyer must return the defective item to us in accordance with the statutory provisions. However, the Buyer is not entitled to a right of return.
8. Unless we are contractually obliged, supplementary performance does not include removal, detachment, or deinstallation of the defective item nor installation, attachment, or installation of a defect-free item. Claims of the Buyer for reimbursement of "installation and removal costs" remain unaffected.
9. We reimburse the expenses necessary for inspection and supplementary performance (transport, labour, and material costs as well as, if applicable, removal and installation costs) in accordance with the statutory provisions and these General Terms and Conditions if a defect exists. However, we may demand reimbursement from the Buyer for costs incurred as a result of an unjustified request for defect rectification if the Buyer knew or could have known that in fact no defect existed.
10. The Buyer has the right to remedy the defect himself and demand reimbursement of the objectively necessary expenses if there is an urgent case (e.g., in case of danger to operational safety or to prevent disproportionately high damage). The Buyer must inform us immediately in the event of self-remedy. If we would be entitled to refuse supplementary performance under the statutory provisions, the Buyer has no right to self-remedy.
11. The Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions if a deadline to be set by the Buyer for supplementary performance has expired unsuccessfully or is dispensable under the statutory provisions. In the case of an insignificant defect, the Buyer has no right of withdrawal.
12. The Buyer's claims for reimbursement of expenses pursuant to §445a paragraph 1 German Civil Code are excluded unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 German Civil Code) or a consumer contract for the supply of digital products (§§ 445c sentence 2, 327 paragraph 5, 327u German Civil Code).
13. The Buyer's claims for damages or reimbursement of futile expenses (§ 284 German Civil Code) exist only in accordance with Sections X and XI, even if a defect exists.
X. Limitation Period
1. The general limitation period for claims arising from material or legal defects, deviating from § 438 paragraph 1 no. 3 German Civil Code, is one year from delivery. If acceptance has been contractually agreed, the limitation period begins with acceptance.
2. The limitation period for buildings or items that have been used for a building in accordance with their usual use and have caused its defectiveness (building material), in accordance with statutory provisions, is 5 years from delivery (§ 438 paragraph 1 no. 2 German Civil Code). This is subject to further statutory special provisions on limitation (especially § 438 paragraph 1 no. 1, paragraph 3, §§ 444, 445b German Civil Code).
3. The above limitation periods of the law on sales also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the Goods, unless the application of the regular statutory limitation pursuant to §§ 195, 199 German Civil Code would lead to a shorter limitation period in individual cases. The Buyer's claims for damages under XI.1 and XI.2(a) and under the Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.
XI. Other Liability
1. We as Seller are liable, unless otherwise provided in these General Terms and Conditions including the following provisions, for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
2. Within the scope of fault-based liability, we are liable for damages, regardless of the legal ground, only in cases of intent and gross negligence. In the case of simple negligence, we are liable, subject to statutory limitations of liability (e.g., due care in our own affairs; insignificant breach of duty), only:
a. for damages resulting from injury to life, body, or health;
b. for damages resulting from the breach of an essential contractual obligation (obligations whose fulfilment makes proper performance of the contract possible and on whose fulfilment the contracting party relies and may rely). In this case, our liability is limited to compensation for the foreseeable, typically occurring damage.
3. The limitations of liability resulting from XI.2 also apply to third parties and in case of breaches of duty by persons whose fault we are responsible for under statutory provisions. If a defect has been fraudulently concealed or a guarantee for the condition of the Goods has been assumed, the limitations of liability do not apply. The same applies to the Buyer's claims under the Product Liability Act.
4. The Buyer may only withdraw or terminate due to a breach of duty that does not result from a defect if we as Seller are responsible for the breach of duty.
5. The Buyer's right of termination (especially under §§ 650, 648 German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.
XII. Choice of Law and Place of Jurisdiction
1. For these General Terms and Conditions and the contractual relationship between us as Seller and the Buyer, the law of the Federal Republic of Germany applies, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
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, our registered office in 28832 Achim shall be the exclusive, and also international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. The same applies if the Buyer is an entrepreneur within the meaning of § 14 German Civil Code.
3. We are also entitled to bring an action at the place of performance of the delivery obligation under these General Terms and Conditions or a prior individual agreement or at the general place of jurisdiction of the Buyer. Mandatory statutory provisions (exclusive places of jurisdiction) remain unaffected.
4. These General Terms and Conditions are available in German and English. In case of ambiguities or contradictions, the German version shall prevail.