1 The following terms and conditions (hereinafter referred to as "Terms and Conditions of Sale") apply to all our business relationships with our customers (hereinafter referred to as "Buyer"). The Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur (§ 14 BGB), is a legal entity under public law or a special fund under public law.
2. the Terms and Conditions of Sale shall apply in particular to contracts for the sale and/or delivery of movable goods, including contract manufacturing or third-party manufacturing, irrespective of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 650 BGB).
3. unless otherwise agreed, the Terms and Conditions of Sale in the version last communicated to the Buyer in text form shall also apply as a framework agreement for similar future contracts, without the need to refer to them again with each order.
4. our terms and conditions of sale 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 expressly agree to their validity. This requirement of consent shall apply in any case, in particular even if we make delivery to the Buyer without reservation in the knowledge of the Buyer's General Terms and Conditions.
5. individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall always take precedence in relation to these Terms and Conditions of Sale. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such individual agreements.
6 References to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these Terms and Conditions of Sale.
Legally relevant declarations and notifications by the buyer in relation to the contract (such as setting a deadline, notification of defects, cancellation or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
1 Our offers are - after expiry of any binding offer period - subject to change and non-binding.
2. the order of the goods by the buyer is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this offer within 14 days of its receipt by us. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the goods to the buyer.
1. unless otherwise agreed, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT. If the goods are dispatched, 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.
2 The purchase price shall be due and payable within 30 days of invoicing and delivery or acceptance of the goods, unless otherwise agreed individually. However, we are authorised at any time - even in current terms and conditions - to make a delivery in whole or in part only against advance payment; such a reservation is declared at the latest with the order confirmation.
3. upon expiry of this payment period, the buyer shall be in default without a separate reminder. 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 claims for damages caused by default. Our claim to commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
4. the Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed by us. In the event of defects in the delivery, however, the Buyer's counter-rights - in particular pursuant to § 7 para. 6 sentence 2 of these Terms and Conditions of Sale - shall remain unaffected.
5. if it becomes apparent after conclusion of the contract (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer's inability to pay, 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 (Section 321 BGB). In the case of contracts for the manufacture of customised products, we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.
1. delivery is ex warehouse; this is also the place of fulfilment for the delivery and any subsequent fulfilment. At the request and expense of the Buyer, we shall dispatch the goods to another destination (sale to destination). Unless otherwise agreed with the Buyer, we shall be entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) ourselves.
2. the risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. In the case of dispatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the dispatch. This shall also apply if, by way of exception, carriage paid delivery, delivery free construction site or free warehouse has been agreed.
3. if acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work and labour shall also apply accordingly to an agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
4. if the buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the buyer is responsible, we may demand compensation for the resulting damage including additional expenses, in particular storage costs, beginning with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch. For this purpose, we shall charge a lump-sum compensation amounting to 0.2 % of the invoice amount for each month or part thereof of the delay, up to a maximum of 5 % of the invoice amount, beginning with the delivery period or - in the absence of a delivery period - with the notification that the goods are ready for dispatch. Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no loss at all or only a significantly lower loss than the aforementioned lump sum.
1. the delivery period shall be agreed individually or specified by us upon acceptance of the order.
2. if we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we will inform the buyer of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already paid by the Buyer. A case of non-availability of the service in this sense shall be deemed to be in particular the failure of our supplier to deliver to us in good time if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in the individual case.
3. the occurrence of our default in delivery shall be governed by the statutory provisions, but shall in any case require a reminder from the buyer.
4. if we are in default of delivery, the buyer shall be entitled to demand lump-sum compensation for the damage caused by the delay. The liquidated damages shall amount to 0.2% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the goods delivered late. However, we reserve the right to prove that the Buyer has not incurred any damage or only significantly less damage than the above lump sum.
5. the rights of the Buyer pursuant to § 8 of these Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform, for example due to impossibility or unreasonableness of performance and/or subsequent fulfilment, shall remain unaffected.
1. we reserve title to the goods sold until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. the goods subject to retention of title may not be pledged to third parties or assigned as security before full settlement of the secured claims. The buyer is obliged to inform us immediately in writing as soon as an application for the opening of insolvency proceedings is filed or third parties have access to the goods belonging to us (e.g. seizures).
3. the buyer is authorised - until revoked in accordance with the following clause (c) - to resell and/or process the goods subject to retention of title in the ordinary course of business. The following applies in this case:
a. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our goods; we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b. The Buyer hereby assigns to us as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership share in accordance with the above paragraph. We accept this assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
c. The Buyer shall remain authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, we shall be entitled to demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. In this case, we are also authorised to revoke the buyer's authorisation to resell and process the goods subject to retention of title.
d. At the buyer's request, we shall release securities of our choice if the realisable value of the securities exceeds our claims by more than 10%.
1 Unless otherwise specified below, the statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title. In any case, the special statutory provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has further processed them (supplier recourse pursuant to Sections 478 et seq. of the German Civil Code). If the defective goods have been further processed by the buyer or another entrepreneur, for example by installation in another product, claims arising from supplier recourse are excluded.
2 The agreement on the quality of the goods is the basis of our liability for defects. All product descriptions and manufacturer's specifications which are the subject of the individual contract or which were made public at the time the contract was concluded shall be deemed to be an agreement on the quality of the goods.
3 Insofar as a quality has not been agreed, the existence of a defect shall be determined in accordance with the statutory provisions of Section 434 (1) sentences 2 and 3 BGB. However, we accept no liability for public statements made by the manufacturer or other third parties (such as advertising statements) which the buyer has not pointed out to us as being decisive for his purchase.
4. we shall not be liable for defects which the buyer is aware of or is grossly negligent in not being aware of when the contract is concluded. Claims for defects on the part of the Buyer shall only exist if the Buyer has complied with his statutory obligations to inspect and give notice of defects (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must always be carried out immediately prior to processing. If a defect is discovered during delivery, inspection or at any later point in time, the buyer must notify us immediately in writing. Obvious defects must be reported in writing within 5 working days of delivery and defects not recognisable during the inspection within the same period from discovery. If the Buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions.
5. in the event that the delivered item is defective, we may initially choose whether to provide subsequent fulfilment by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). This shall not affect our right to refuse subsequent fulfilment under the statutory conditions.
6. we are entitled to make the subsequent fulfilment owed dependent on the buyer paying the purchase price due. However, the Buyer may retain a reasonable portion of the purchase price in proportion to the defect.
7. the buyer must give us the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions.
8. subsequent fulfilment shall neither include the removal of the defective item nor the installation of the replacement delivery if we were not originally obliged to install it. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions, provided that a defect actually exists. Otherwise, we shall be entitled to demand compensation from the Buyer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs). The latter shall not apply if the lack of defectiveness was not recognisable to the Buyer.
9. if the subsequent fulfilment has failed or a reasonable deadline to be set by the buyer for the subsequent fulfilment has expired unsuccessfully or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of cancellation in the case of an insignificant defect.
10. claims of the buyer for damages or reimbursement of futile expenses shall only exist in accordance with § 8 even in the case of defects and are otherwise excluded.
1. unless otherwise provided for in these Terms and Conditions of Sale, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
2. we shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs or insignificant breach of duty), for
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
3. the limitations of liability set out in paragraph 2 shall also apply to third parties and in the event of breaches of duty by persons (including in their favour) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Buyer under the Product Liability Act.
4. the Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of cancellation of the buyer (in particular in accordance with §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
1. notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. if the goods are a building or an item that has been used for a building in accordance with its customary use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provision (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 445b BGB) remain unaffected.
3. the aforementioned limitation periods of sales law shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. The Buyer's claims for damages pursuant to § 8 para. 2 sentence 1 and sentence 2(a) and pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
1. the law of the Federal Republic of Germany shall apply to these Terms and Conditions of Sale and the contractual relationship between us and the Buyer.
2. if the Buyer is a merchant, entrepreneur, legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hattingen. However, we are also always entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these Terms and Conditions of Sale or an overriding individual agreement or at the Buyer's general place of jurisdiction. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
Version 11.2021