General Terms and Conditions
Article 1 – General Provisions
(1) All of our deliveries, services and offers shall be based on these General Terms and Conditions of Sale (hereinafter referred to as “Terms”) notwithstanding the fact that they may not have been expressly referred to during negotiations. We will not accept any differing terms and conditions notwithstanding that we may not have expressly rejected them nor by means of our referring to correspondence with the contractual partner in which reference is made to the contractual partner’s terms and conditions. Our Terms shall also apply to any future business relationships with regard to contracts with tradesmen, legal entities under public law and special public law funds notwithstanding their not having been agreed afresh. Our Terms shall be deemed to have been accepted no later than at the time at which the goods are accepted. Our Terms shall also apply to consumers. Special provisions applying to consumers shall be separately set forth in each individual case.
(2) Any of the Customer’s terms and conditions which are contrary to or which deviate from our Terms shall not apply unless we have expressly consented in writing to them being applied.
(3) Consumers as understood in these Terms shall be deemed to include any physical persons who enter into a business relationship with us for purposes not prevailingly attributable to their commercial or professional capacity.
Businesses as understood in these Terms shall be deemed to include any physical person or legal entity or incorporated partnership acting in their commercial or professional capacity whenever entering into a business relationship with us.
Customers as understood in these Terms shall be deemed to include both Consumers and Businesses.
Article 2 – Offer, Conclusion of Contract and Documentation
(1) Our sales assistants are not authorised to make any verbal supplemental agreements or to give any oral assurances whatsoever that go beyond the scope of the written contract. Any and all provisions agreed hereunder shall be recorded in the written contractual documentation. There shall be no verbal side agreements.
(2) Delivery dates shall be estimates only and without engagement unless we have expressly agreed to their being binding. Statements relating to the goods to be supplied (e.g. technical data, tolerances, measurements, weight specifications etc.) and their illustration shall be for descriptive and identification purposes only and shall not be binding unless express confirmation in writing is given by us in this respect.
We reserve the right to make technical changes or changes to the design of the goods to be supplied provided such changes are customary in the trade and provided they do not unreasonably impair the Customer’s business and they do not affect fitness for use of the goods.
(3) Our offers shall be subject to change at any time until the contract is signed.
(4) We reserve any and all ownership and copyrights of design drawings, samples, price quotations and similar business objects, whether tangible or intangible. These must be treated with the utmost confidence at all times. They must not be made available to any third party without our consent. In the event of any breach of these duties, the Customer shall be fully liable to us in accordance with legal provisions. Advertising using our name as a reference and similar promotional activities shall be strictly subject to our prior consent.
Article 3 – Prices
(1) Our prices are quoted ex works including loading and exclusive of packaging. Any transport costs incurred and other services shall be separately charged in our invoice. Unloading and storage of the goods shall be the Customer’s responsibility. Value added tax as chargeable at the date of the invoice shall be added to our prices. Unless otherwise agreed, the cost of any transport or similar insurance that may have been agreed shall be borne by the Customer. Each delivery may be invoiced separately in the event of deliveries being made in parts.
(2) This clause applying only to Businesses, in the event that on any given delivery date which is at least four months after the date on which the contract was signed any changes should have occurred to the basis on which prices were established (e.g. an increase in the price charged for raw materials, materials, wages, transportation or storage), we reserve the right to adjust our prices accordingly after informing the Customer of any such change. We may claim any such price adjustment only within two months of the occurrence of any such price increases. When determining the new price, the individual cost elements and their increase shall be given a fair weighting. In the event that individual cost elements should increase whilst others decrease, this shall also be taken into consideration when determining the new price.
(3) In case no prices were agreed at the time of signing the contract, our prices as applicable as of the date of delivery shall apply.
Article 4 – Terms of Payment
(1) Unless otherwise stated in the order confirmation (or the invoice), prices (without deduction) shall be due for payment immediately as of the invoice date.
(2) We reserve the right to charge interest on late payments at the rate of 5 percentage points above the base lending rate in case of a Consumer being involved, at the rate of 9 percentage points above the base lending rate in case of a Business being involved, if the Customer is in default in respect of payment. We may at all times furnish proof of a higher rate loss due to interest and may charge the Customer accordingly. In the event of any default in payment, we shall be entitled to withdraw any allowances, discounts or other concessions granted. We shall have the right to demand that future deliveries be made on condition that payment is made in advance.
(3) Breach of any of the terms of payment, default or any circumstances apt to undermine the Customer’s creditworthiness shall result in the immediate acceleration of all our claims.
(4) The Customer shall have no rights of set-off unless the Customer’s counterclaims are based on a final court decision or undisputed or admitted by us.
(5) The Customer may exercise a right of retention to the extent to which the Customer’s counterclaim is based on the same contractual relationship, or the counterclaim has been accepted, finally decided by a court of law or is pending judgement.
Article 5 – Delivery Modalities and Hindrance to Delivery
(1) The delivery period shall commence at the time at which the confirmation of order is dispatched.
(2) The delivery period shall be deemed to have been observed if the goods to be delivered have left the factory or the Customer has been notified that the goods are ready to be dispatched before the expiry of the delivery period.
(3) In the event of the occurrence of any unforeseen hindrance which is not of our volition and which we are unable to avert despite reasonable efforts in the circumstances – regardless of whether they shall occur on our part or on the part of any of our suppliers – such as Force Majeure (e.g. war, fire or natural disasters) or delays in the supply of significant raw materials etc. – we shall be entitled to withdraw from all or part of the delivery contract or to extend the delivery period by the period of time the hindrance persists. We shall be entitled to the same rights in the case of any strike or lockout on our part or on the part of any of our suppliers. In any such case, we will notify the Customer without undue delay of any such circumstances and immediately proceed to refund any payments already made by the Customer.
(4) Delivery shall be subject to our receiving the correct and timely supplies ourselves, in case of noncommercial transactions, however, only provided if we have entered into a material cover transaction and have been let down by the partner of any such transaction. The Customer will be notified of any delays. Should our suppliers fail to supply us correctly or should they fail to supply us on time, through no fault of our own, then the delivery period shall be extended by an appropriate period. Alternatively, we may in this instance elect to withdraw from the contract in respect of such goods as have not been delivered. To the extent permitted under competition law, we shall assign to the Customer any claims we may have against
suppliers in respect of any delivery that has not been made as agreed under the contract. The Customer shall have no other claims against us for damages or reimbursement of expenses.
(5) In case of any delay in delivery, the Customer shall have a right to withdraw from the contract provided that a reasonable grace period has expired in which delivery has not occurred; the Customer shall be entitled to exercise this right even without having granted a grace period if it is impossible for us to provide the relevant goods.
Without prejudice to clause 6 hereof and Article 9 hereunder, neither of which are intended to reverse the burden of proof, all claims for damages (including any consequential loss) shall be excluded; the same shall apply in respect of any claim for reimbursement of expenses.
(6) If a fixed deal has been agreed then we shall be liable in accordance with the applicable laws; the same shall apply in the event of a Customer being able to assert that its interest in the execution of the contract has ceased to exist as a result of a delay we are responsible for.
(7) If shipment of goods is delayed at the Customer’s behest, the Customer shall be charged for the cost incurred for storage from a period commencing one month after the date on which the Customer was notified that the goods were ready to be dispatched.
Article 6 – Passing of Risk, Acceptance of Goods and Partial Deliveries
(1) In the event that the Customer is obliged to collect the goods, the risk shall pass to the Customer at the time the goods are singled out and made available as agreed under the contract. The same shall apply if the seller is obliged to use a carrier to convey the goods to the Customer, in which case the risk shall pass when the goods are handed over to the carrier. In the event of a sales shipment to Consumers, Section 446 instead of Section 447 of the German Civil Code [BGB] shall apply. In any case of the seller being obliged to deliver the goods to the Customer, the risk shall pass when the goods leave the seller’s factory premises. The same shall apply in the event of any default in acceptance on the creditor’s part.
(2) Without prejudice to the Customer’s rights as set forth under Article 8 and Article 9 hereunder, any items delivered must be accepted by the Customer notwithstanding any immaterial defects in the goods.
Partial deliveries shall be permissible provided the Customer may be reasonably expected to accept such partial deliveries.
Article 7 – Retention of Title
(1) We reserve title to all goods sold until they are fully paid for. In case of transactions with Businesses, we reserve title to all goods delivered until such time as the Customer has paid all current and future debts resulting from the business relationship. This right of retention of title shall also apply to any spare or replacement parts such as motors, control units etc. even if any such parts may already have been built in, since this does not mean that they have become major components in terms of Section 93 of the German Civil Code [BGB].
(2) If the Customer is in breach of contract, including without being limited to default in payment, we shall have the right to retract the goods after the unsuccessful expiry of a grace period granted. Such retraction of goods shall not constitute a withdrawal from the contract unless we have granted a grace period for performance which has unsuccessfully expired and we have expressly indicated that we intend to withdraw from the contract. Any costs incurred by us in retracting the goods (including without limitation transportation costs) shall be at the Customer’s expense. In addition, we shall have the right to prohibit the Customer to resell, process, combine or merge any goods delivered subject to retention of title and to recall the direct debit mandate (§ 7 V). The Customer may not request the delivery of goods that have been retracted where no express declaration of withdrawal was made until such time as the purchase price and any and all related costs have been paid in full.
(3) The Customer shall be obliged to handle the goods with due care (including the obligation to carry out any required inspection and maintenance).
(4) The Customer may not attach and/or transfer as security or assign any delivery item or any claim related to and replacing such item. In the event of any items being attached or otherwise encroached upon by third parties, the Customer shall immediately notify us thereof so that we may take action in accordance with Section 771 of the German Code of Civil Procedure [ZPO]. Any costs incurred for such legal action under Section 771 of the German Code of Civil Procedure [ZPO] that may remain to be paid despite our winning the case shall be at the Customer’s expense.
(5) Being a Business, the Customer shall have the right to resell, process or merge the purchased goods in the usual course of its business; provided, however, the Customer herewith agrees to assign to us any and all claims resulting from any such resale, processing, merging or existing on any other legal grounds (including without being limited to claims based on insurance or tort) up to the value of the final amount of the invoice (including value-added tax) agreed with us, along with any ancillary rights. In case any delivered goods continue to be part-owned by us by virtue of our having retained title to them, then such assignment of claims shall be in proportion to our share in the ownership of any such goods. In case any delivered goods are sold on jointly with any third party goods that are not owned by the Customer, then the resulting claims shall be assigned to us in such a proportion as equates to the proportion of the final invoice value of our goods to the final invoice amount of the third party goods. In case the assigned claims are to be included in any running invoice account, then the Customer herewith agrees to assign to us an appropriate proportion of the balance (including the final balance) from the open account; in case interim invoices are drawn up and should it have been agreed that the amounts be carried forward, then any claim resulting from the interim invoice to which we may be entitled in accordance with the aforementioned provision shall be treated as having been assigned as per the next balance.
The Customer shall continue to have a right to enforce any such claim notwithstanding any assignment thereof; however this shall not affect our right to enforce a claim ourselves. We agree to refrain from enforcing a claim as long as the Customer may meet its payment obligations out of the proceeds received and provided the Customer is not in default of payment, no application for opening insolvency proceeding has been filed against the Customer and payment has not been suspended. Should any of the above be the case, however, then the Customer shall provide us with details of any assigned claims and of the related debtors, provide all necessary information required for collection along with the corresponding documentation, and inform the (third party) debtor of the assignment.
This shall also apply in case the Customer should resell, process or merge the purchased goods in breach of contract.
(6) Our right of retention of shall also extend to the full value of any and all products resulting from the processing or transformation of our goods, any such operation being deemed to have been carried out on our behalf so that we shall be deemed to be the manufacturer of any such products. In case of any such processing or transforming being carried out together with other goods not owned by us, we shall acquire joint ownership in a proportion equal to the proportion between the material values of any such goods, in which case it is herewith agreed that the Customer shall keep any such goods for us with due care.
If any goods subject to retention of title as set forth hereunder are joined or inextricably merged with other moveable goods to form a new uniform item and if such other movable goods are to be deemed the principal item, the Customer herewith agrees to assign to us its right to joint ownership in proportion to its ownership of the principal goods; the Customer shall keep any such (jointly) owned goods for us. Otherwise, any goods created in this manner shall be subject to the same provisions as shall apply to those delivered subject to retention of title.
(7) As security for our claims against the Customer, the Customer agrees to assign to us also any of its claims against third parties arising from the combination of any delivered items with any real estate property. This assignment shall be made with priority over any other security.
(8) Any securities due to us the estimated value of which exceeds the nominal value of the claims to be secured by 50% shall cease to be securities hereunder; in any such case, we shall be free to decide whichever security is released.
(9) To the extent to which the validity of the retention of title in the country of destination of the goods is subject to special conditions or special formal requirements, the Customer shall ensure compliance with any such conditions or requirements.
Article 8 – Service Description, Liability for Material Defects and Defects of Title
(1) We shall be liable for defects in goods delivered as follows, if the Customer is a trader and provided the Customer has met its obligations to inspect and give notice of defects as provided by Section 377 of the German Commercial Code [HGB] (with the proviso that any notice of defects must be given in writing):
If goods are defective the Customer shall have a right to chose whether we are to rectify the defect or to deliver non-defective goods (subsequent performance). In case of business transactions with other Businesses, the right to choose shall be ours. Any rectification of defects (repair) may only be carried out at our business location. In case of business transactions with other Businesses, a condition precedent for any claims for defects shall be that the defect concerned shall not be merely immaterial. We may refuse to remedy a defect if one or both of these methods of subsequent performance are impossible or disproportionate. In addition, we may refuse subsequent performance if the Customer has not met its payment obligations to an extent corresponding to the non-defective portion of the goods.
(2) If subsequent performance as set forth in clause 1 above is impossible or fails, the Customer shall be entitled to choose whether to reduce the purchase price accordingly or to withdraw from the contract in accordance with the applicable laws; this shall specifically apply in case of culpable delay or refusal to carry out subsequent performance or where subsequent performance fails for the second time.
Any other Customer’s claims based on whatsoever legal grounds shall be excluded or limited as set forth in Article 9 hereunder.
(3) We shall not accept liability for damage on the following grounds: inappropriate or improper use, defective assembly by the Customer or a third party, natural wear and normal tear, defective or negligent handling, excessive use, inappropriate operating equipment, defective construction works, an inappropriate building site, any chemical, electrochemical or electrical influences (unless caused in our responsibility), or improper alterations or repair works carried by the Customer or a third party without our prior consent.
(4) In case of business transactions with Consumers, the limitation period shall be two years; for Businesses, any claims for defects shall become time-barred within one year of delivery of the purchased item, unless we are guilty of wilful intent, gross negligence or injury to life, body or health.
In the case of any goods used for a building in accordance with their usual application and having caused such building to become defective, the limitation period for claims shall expire after five years only.
Claims to a reduction in price and to the exercise of the right of withdrawal shall be excluded if and to the extent to which the claim to subsequent performance has become time-barred.
In the situation set forth in clause (3) hereof, the Customer may nevertheless refuse to pay the purchase price to the extent to which the Customer would be entitled to do so as a result of the price reduction or withdrawal from contract; in the case of an exclusion of withdrawal and a subsequent refusal to pay, we shall be entitled to withdraw from the contract.
None of these clauses is intended to be construed as a reversal of the burden of proof.
(5) Warranties and representations shall not be deemed to have been validly given unless we have expressly given them in writing.
Article 9 – Customer’s Withdrawal and Other Liability on Our Part
(1) The Customer’s statutory right of withdrawal – except in the cases set forth in Article 8 hereunder – shall be neither excluded nor limited. Likewise, it is not intended to exclude or limit any statutory or contractual rights or claims to which we may be entitled.
(2) We shall have unlimited liability only for wilful intent and gross negligence (including the same on the part of our legal representatives or agents) as well as for injury to life, body or health. We shall also have unlimited liability as for any warranties and representations given if a defect that is covered by a warranty or representation triggers liability. There shall also be no limit to our liability in relation to causing hazardous situations, including without being limited to situations covered by the German Product Liability Act. This clause shall not affect liability under the principles of a business’s recourse as provided by Sections 478 et
seq. of the German Civil Code [BGB].
(3) In case of any other culpable breach of material contractual duties (material duties), our remaining liability shall be limited to such foreseeable damage as is usual for this type of contract. Any other liability – based on whatsoever legal grounds (including without being limited to claims for breach of principal and secondary duties of contract, tort as well as any other tortious liability) – shall be excluded.
(4) The same exclusions, limitations and exceptions shall apply in respect of claims based on fault at the time the contract was concluded.
(5) Article 9 hereunder shall apply by analogy in the case of any reimbursement of expenses (except for any reimbursement of expenses in accordance with Sections 439 II or 635 II of the German Civil Code [BGB]).
(6) Any exclusion or limitation of our liability shall also apply to any of our legal representatives and agents.
(7) No reversal of the burden of proof is intended. Material duties are understood include any essential duties of contract, i.e. such duties which characterise the contract and on the fulfilment of which the contractual partner may reasonably rely; these are therefore the essential rights and duties which are material to the execution of the contract and the respect of which is indispensable in order to reach the contractual purpose.
Article 10 – Place of Performance, Place of Jurisdiction, Applicable Law, Contractual Language and distribution of the Burden of Proof
(1) The place of performance shall be the place from which the goods are dispatched (factory or storage location).
(2) The place of jurisdiction shall be the court competent for our business location if the Customer is also a trader, corporate body governed by public law or a special fund under public law. The same shall apply if the Customer has no general place of jurisdiction within Germany. We shall have the right to sue the Customer also at any other permissible place of jurisdiction.
(3) Any and all claims and rights arising from this contract shall be governed by and construed in accordance with the non-harmonised law of the Federal Republic of Germany (BGB, HGB). Any applicability of the United Convention on Contracts for the International Sale of Goods (CISG) as well as of the conflict of laws as provided under Introductory Law to the German Civil Code [EGBGB] shall be expressly excluded. The contractual language shall be German.
(4) None of the provisions agreed in any of these Terms are intended to alter the legal or common law distribution of the burden of proof.
Article 11 – Miscellaneous Provisions
(1) Data Privacy
(2) Legal Notice
All data and illustrations relating to the products described on the website are merely approximate. Our General Terms and Conditions of Sale shall apply exclusively.
(3) Copyright Information
All texts, images, files as well as any other information published on this website shall be subject to copyright held by the operator or a third party as the case may be. We expressly reserve any and all intellectual property rights (including without being limited to copyrights, trademark rights and design rights). Any reproduction of the entire content or any part thereof shall be strictly subject to the respective property right holder’s prior written consent. Any advertising containing reference to our company shall be strictly subject to our prior written consent.