GT&Cs

(Version as of 1 January 2020)

§ 1 GENERAL INFORMATION, SCOPE OF APPLICATION

(1) These General Terms and Conditions of Sale (GT&Cs) apply to all business relationships with our customers (hereinafter referred to as “Buyer”). The GT&Cs only apply if the Buyer is an entrepreneur (§ 14 of the German Civil Code (“BGB”)), a legal entity under public law or a special fund under public law.

(2) The GT&Cs apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter also referred to as “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). The GT&Cs in their respective version shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods entered into with the same buyer without our having to refer to them again in each individual case.

(3) Our GT&Cs 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 we implicitly carry out the delivery to the Buyer in the knowledge of the Buyer’s GT&Cs.

(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements, and amendments) shall, in any case, take precedence over these GT&Cs. A written contract or our written confirmation shall be authoritative for the content of such agreements.

(5) Legally relevant declarations and notifications to be made to us by the Buyer after conclusion of the contract (e.g. specification of deadlines, notifications of defects or declarations of withdrawal or reduction) must be made in writing in order to become effective.

(6) Any references to the applicability of statutory provisions shall have clarifying significance only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GT&Cs.

§ 2 CONCLUSION OF THE CONTRACT

(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentations (e.g. drawings, plans, evaluations, calculations or references to DIN standards) other product descriptions or documents – also in electronic form – to which we reserve property rights and copyrights.

(2) Any order of Goods placed by the Buyer shall be deemed as a binding offer of contract. Unless otherwise stated in the order, we shall be entitled to accept this offer of contract within 2 weeks of its receipt.

(3) Acceptance may be declared either in writing (e.g. by an order confirmation) or by delivery of the Goods to the Buyer.

§ 3 DELIVERY PERIOD AND DELAY IN DELIVERY

(1) The delivery period shall be agreed individually or stated by us upon acceptance of the order.

(2) If we are unable to meet binding delivery deadlines for reasons outside our reasonable control (non-availability of the service), we shall inform the Buyer without delay and, at the same time, notify them of the expected new delivery deadline. If the service is neither available within the new delivery period, we shall be 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 non-availability of the service in this sense shall be, in particular, any failure on the part of our supplier to deliver on time if we have concluded a congruent hedging transaction. Our statutory rights of rescission and termination as well as the statutory provisions on the performance of the contract in the event of an exclusion of the obligation to perform (e.g. impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected. The Buyer’s rights of rescission and termination pursuant to § 7 AVB (Standard Policy Conditions) shall also remain unaffected.

(3) The occurrence of our default in delivery shall be determined in accordance with the statutory provisions. However, a reminder by the Buyer is required in any case.

§ 4 DELIVERY, TRANSFER OF RISK, ACCEPTANCE, DEFAULT OF ACCEPTANCE

(1) Delivery shall be ex warehouse, 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 to a place other than the place of performance). Unless otherwise agreed, we are entitled to determine the type of shipment (which applies, in particular, to the transport company, shipping route and packaging).

(2) The risk of the Goods’ accidental loss and accidental deterioration shall pass to the Buyer at the latest upon handover of the Goods. In the case of sale by delivery to a place other than the place of performance, however, the risk of the Goods’ accidental loss and accidental deterioration as well as the risk of delay shall be passed as early as upon delivery of the Goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If the Goods are subject to an agreement on their inspection and approval, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for goods and services shall apply accordingly to any inspection and approval agreed upon. The same shall apply to the handover or inspection and approval 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 within the Buyer’s scope of responsibility, we shall be entitled to demand compensation for the damage resulting therefrom including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of 0.25% of the delivery value per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the Goods are ready for shipment.

(4) In the event of non-acceptance or return of the Goods, we shall charge a lump-sum compensation amounting to 20% of the delivery value. The proof of greater damages and our statutory claims (especially our rights to compensation for additional expenses, reasonable compensation and termination) shall remain unaffected. However, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have not incurred any damage at all or that the damage incurred is significantly lower than the aforementioned lump sum.

§ 5 PRICES AND TERMS OF PAYMENT

(1) Unless otherwise agreed upon in individual cases, our prices valid at the time the contract is concluded shall apply ex warehouse, plus statutory VAT and packaging. Assembly, commissioning, adjustment or similar services shall be carried out on request while the costs thereof shall be invoiced separately.

(2) The minimum order value is EUR 100.00. Orders below this amount are subject to a minimum quantity surcharge of EUR 20.00.

(3) In the case of sale by delivery to a place other than the place of performance (§ 4 Section 1 Standard Policy Conditions), 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. As set out in the Packaging Ordinance, we shall not take back any transport packaging or other packaging. With the exception of pallets, the packaging becomes the property of the Buyer.

(4) The purchase price shall be due and payable within 30 days of invoicing and delivery and/or acceptance of the Goods. However, in the case of contracts whose delivery value exceeds EUR 5,000.00, we are entitled to demand a down payment of 20% of the purchase price. This down payment is due and payable within 14 days of the invoice date. We grant a 2% discount on the invoice amount for payments made within 14 days of the invoice date.

(5) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default. With respect to dealers, our entitlement to the commercial interest on arrears (§ 353 of the German Commercial Code (“HGB”)) shall remain unaffected.

(6) The Buyer shall not be granted any set-off rights or rights of retention unless their claim has been legally established or is undisputed. In the event of defects in the delivery, § 7 Section 6 shall remain unaffected.

(7) If, upon conclusion of the contract, it becomes apparent that our entitlement to the purchase price is jeopardised by the Buyer’s lack of ability to pay (e.g. in the event of default in payment in connection with other deliveries or by an application for the opening of insolvency proceedings), 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 specific items (custom-made products), we may withdraw from the contract immediately. The statutory regulations on the dispensability of setting a deadline shall remain unaffected.

§ 6 RETENTION OF TITLE

(1) We shall retain the title to the Goods sold until all our current and future claims arising from the purchase contract and the ongoing business relationship (guaranteed claims) have been settled in full.

(2) The Goods subject to retention of title may neither be pledged to third parties nor assigned as security before the guaranteed claims have been settled in full. The Buyer shall be obliged to inform us immediately in writing if and to the extent that the Goods belonging to us are seized by third parties.

(3) If the Buyer behaves contrary to the contract, especially in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand that the Goods be returned under our retention of title. The demand for return shall not include any 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 fails to pay the due purchase price, we may not assert these rights unless we had previously given the Buyer a reasonable deadline for payment which has expired unsuccessfully or if specifying such a deadline is dispensable according to the statutory provisions.

(4) The Buyer shall be authorised 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, blending or combining of our Goods at their full value, whereby we shall be considered as the manufacturer. If any third-party rights of ownership remain in the event of our Goods’ processing, blending or combining with third-party goods, 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, by way of security and in accordance with the aforementioned paragraph, the total of or the amount of our possible share of co-ownership in the claims against third parties arising from the Goods’ or the products’ resale. We shall accept the assignment. The obligations of the Buyer outlined in Paragraph 2 shall also apply with regard to the assigned claims.

(c) The Buyer shall remain authorised to recover the claim in addition to us. We undertake not to recover the claim as long as the Buyer meets their payment obligations towards us, is not in default of payment, no application for the opening of insolvency proceedings has been filed and there is no other deficiency in their ability to pay. If this is the case, however, we may demand that the Buyer inform us of the assigned claims and their debtors, provide all information necessary for the claims’ recovery, hand over the relevant documents and notify the debtors (third parties) of the assignment.

(d) If the realisable value of the securities exceeds our claims by more than 20%, we shall, at the Buyer’s request, release securities of our choice.

§ 7 CLAIMS FOR DEFECTS ON THE PART OF THE BUYER

(1) Unless otherwise stipulated further below, the statutory provisions shall apply to the rights granted to the Buyer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions). The special statutory provisions shall remain unaffected, in any case, when the Goods are delivered to a consumer (supplier recourse pursuant to §§ 478, 479 BGB).

(2) The basis of our liability for defects is, above all, the agreement reached on the quality of the Goods. All product descriptions which are the subject of the respective contract shall be deemed to be an agreement on the Goods’ quality. It makes no difference whether the product description has been provided by the Buyer, by the manufacturer or by us.

(3) Insofar as no quality has been agreed upon, the statutory regulations shall serve as the basis for assessing whether or not a defect exists (§ 434 Section 1 BGB). However, we shall not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

(4) The Buyer’s claims for defects presuppose that they have fulfilled their statutory obligations to inspect the Goods and to give notice of any defects (§§ 377, 381 HGB). If a defect becomes apparent during the inspection or at a later point in time, we shall be notified in writing without delay. The notification shall be deemed to have been made without delay if it is made within two weeks, whereby the notification’s punctual sending shall suffice to meet the deadline. Irrespective of the obligation to inspect the Goods and to give notice of any defects, the Buyer shall notify us in writing of any obvious defects (including incorrect and short deliveries) within two weeks of delivery, whereby the notification’s punctual sending shall suffice to meet the deadline. If the purchaser fails to duly inspect the Goods and/or to give notice of any defects, we shall not assume any liability for the non-notified defect.

(5) If the delivered item is defective, we may initially choose whether to provide supplementary performance by remedying the defect (rectification of defects) or by delivering an item that is free of any defects (replacement delivery). Our right to refuse the chosen type of supplementary performance in accordance with the statutory requirements shall remain unaffected.

(6) We shall be entitled to predicate the supplementary performance on the condition that the Buyer pays the due purchase price. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.

(7) The Buyer shall give us the time and opportunity required for providing the supplementary performance, in particular for handing over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us in accordance with the statutory provisions.

(8) Provided that the Goods are actually defective, we shall bear the expenses incurred for the Goods’ inspection and the supplementary performance, which applies in particular to transport, travel, labour and material costs. However, if a request by the Buyer to remedy a defect turns out to be unjustified, we shall be entitled to ask the Buyer to reimburse us for the costs resulting therefrom.

(9) In urgent cases, e.g. if operational safety is jeopardised or to prevent any disproportionate damage, the Buyer shall have the right to remedy the defect independently and to ask us to reimburse them for the expenses objectively incurred for this purpose. We are to be notified immediately – if possible in advance – of any remedy performed independently by the Buyer. The right to perform an independent remedy shall not exist if we would be entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions.

(10) If the supplementary performance has failed or a reasonable deadline to be specified by the Buyer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. In the case of insignificant defects, however, no right of withdrawal shall be granted.

(11) Any claims for damages on the part of the Buyer or the reimbursement of expenses incurred in vain exist exclusively in accordance with § 8 and shall otherwise be excluded. Unless otherwise stipulated in these GT&Cs including the following provisions, we shall be liable for a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions. Expenses shall only exist in accordance with § 8 and shall otherwise be excluded.

§ 8 OTHER LIABILITY

(2) Irrespective of the legal grounds, liability for damages shall be assumed in the event of intent and gross negligence. In the event of minor negligence, our liability shall be limited…

a) …to damages resulting from injury to life, body or health;

b) …to damages resulting from the breach of an essential contractual obligation (obligation whose fulfilment makes the proper execution of the contract possible in the first place and whose observance the contractual partner regularly relies and may rely on). In this case, however, our liability shall be limited to the compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from Paragraph 2 shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the quality of the Goods.

(4) As regards any breach of duty that does not consist of a defect, the Buyer may withdraw from or terminate the contract only if we are responsible for the breach of duty. The Buyer shall not be granted any free right of termination (in particular according to §§ 651, 649 BGB). In all other respects, the statutory requirements and legal consequences shall apply.

§ 9 PRESCRIPTION

(1) Notwithstanding § 438 Section 1 No. 3 BGB, the general period of prescription for claims arising from material defects and defects of title shall be one year from the time of delivery. If the Goods are subject to an agreement on their inspection and approval, the period of prescription shall commence with the time of such inspection and approval.

(2) However, if the Goods have been used for their intended purpose in a building or structure and thereby caused the building’s or structure’s defectiveness (building material), the period of prescription shall be 5 years from the time of delivery in accordance with the statutory regulations (§ 438 Section 1 No. 2 BGB). Special statutory regulations for any third-party actio in rem (§ 438 Section 1 No. 1 BGB), in the case of fraudulent intent on the part of the seller (§ 438 Section 3 BGB), and for claims of recourse against the supplier in the case of deliveries to consumers (§ 479 BGB) shall remain unaffected as well.

(3) The aforementioned periods of prescription under the Sales Law shall also apply to defect-based contractual and non-contractual claims for damages on the part of the Buyer, unless the application of the regular statutory period of prescription (§§ 195, 199 BGB) would, in the individual case, lead to a shorter period of prescription. The periods of prescription under the Product Liability Act shall remain unaffected in any case. Otherwise, the statutory periods of prescription shall apply exclusively to the Buyer’s claims for damages pursuant to § 8.

§ 10 CHOICE OF LAW AND PLACE OF JURISDICTION

(1) These GT&Cs and all legal relationships between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems and, in particular, the UN Convention on Contracts for the International Sale of Goods. However, the prerequisites and effects of the retention of title pursuant to § 6 shall be subject to the law applicable at the respective location of the Goods, insofar as the choice of law made in favour of German law is inadmissible or ineffective.

(2) If the Buyer is a dealer within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Speyer. However, we shall also be entitled to take legal action at the Buyer’s general place of jurisdiction.