General Terms and Conditions of Delivery and Payment

§ 1 Applicability

  1. The deliveries, services, and offers provided by the Seller (hereinafter referred to as “we”) to entrepreneurs, legal entities under public law, and special funds under public law are based exclusively on these General Terms and Conditions of Delivery. They are a component of all contracts concluded with our contracting parties (hereinafter referred to as “customer”) with regard to deliveries or services. They also apply to future deliveries, services, and offers, even if they are not separately agreed upon again.
  2. The customer’s or third-party business terms and conditions do not apply, even if they are not contradicted in the individual case. Even if we refer to a letter that contains or refers to the business terms and conditions of the customer or a third party, this is not to be construed as agreement with the validity of those business terms and conditions.

§ 2 Offer and Conclusion of Contract, Intellectual Property

  1. Our offers are subject to change and non-binding unless they are expressly designated as binding or contain a specific acceptance period. We accept orders or commissions within 14 days of receipt by sending a written order confirmation or by performing the service.
  2. The legal relationship between us and the customer is governed solely by the written purchase contract, including these General Terms and Conditions. This contract fully reflects all agreements of the contracting parties on the subject matter of the contract. Verbal promises made by us prior to the conclusion of the purchase contract are not legally binding. Verbal agreements between the contracting parties will be replaced by the written contract unless it is expressly stated otherwise between the contracting parties.
  3. Additions and amendments to the agreements made, including these Terms and Conditions, are required in writing to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make any verbal arrangements that deviate from the written agreement.
  4. Telecommunication methods, in particular by fax or email, are sufficient to fulfill the written form requirement.
  5. Drawings, illustrations, dimensions, weights, tolerances, or other performance data are only binding if this has been expressly agreed in writing. Deviations customary in the trade and those due to legal requirements or that represent technical improvements – as well as the replacement of components by equivalent parts – are permissible, provided that these do not impair their use for the contractually intended purpose.
  6. We reserve ownership and intellectual property rights to all submitted quotations and cost estimates submitted by us and to drawings, illustrations, calculations, brochures, catalogues, models, tools, and other documents and aids made available to the customer. Without our express consent, the customer is not permitted to make these items accessible to third parties, disclose them, or to use or reproduce them either directly or through third parties. At our request, the customer must return these items to us in full and destroy any copies made if it no longer requires them in the ordinary course of business or if negotiations do not lead to the conclusion of a contract. An exception to this is the storage of electronically provided data for the purpose of normal data backup.

§ 3 Prices and Payment

  1. Prices are quoted in euros ex-works or ex-central warehouse in Rangsdorf plus packaging, freight, statutory value added tax, customs duties for export deliveries as well as fees and other public charges. Additional or special services are charged separately. Our current list prices at the time the contract is concluded will apply. If delivery is to be made more than 3 months after conclusion of the contract, our list prices valid at the time of delivery will apply.
  2. Invoices are issued on the day of delivery and are due for payment immediately without deduction exclusively to the account specified in the invoice. A 2% discount is granted if payment is received within 10 days of the invoice date. Payment by check is excluded unless agreed separately in individual cases. If the customer fails to pay by the due date, the outstanding amounts will bear interest at 5% p.a. from the due date; the right to claim higher interest and further damages in the event of default shall remain unaffected by this.
  3. Even in an ongoing business relationship, we are entitled at any time to make outstanding deliveries in whole or in part only against advance payment or provision of security if we declare a corresponding reservation at the latest when the order is confirmed or when we become aware of circumstances after conclusion of the contract that can be used to significantly reduce the creditworthiness of the customer and that would jeopardize the payment of our outstanding claims from the respective contractual relationship, including from other individual orders to which the same framework agreement applies.
  4. Offsetting against counterclaims of the customer or the withholding of payments due to such claims is only permissible if the counterclaims are undisputed or are legally established or arise from the same order under which the delivery in question occurred.

§ 4 Delivery and Delivery Time

  1. Deliveries are ex-works or ex-central warehouse in Rangsdorf.
  2. Time limits and dates for deliveries and services promised by us always only apply approximately unless a fixed time limit or date has been expressly promised or agreed. For delivery, unless otherwise expressly specified by us, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier, or other third party commissioned with the transport.
  3. Without prejudice to our rights arising from the customer’s default, we can demand an extension of delivery and performance periods or a postponement of delivery and performance dates by the period of time during which the customer fails to meet their contractual obligations toward us.
  4. We are not liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract (e.g., disruptions of operations of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labor, energy, or raw materials, difficulties in obtaining necessary official permits, pandemics, or epidemics, official measures, or the failure of suppliers to deliver or to deliver correctly or on time despite a congruent covering transaction concluded by us) for which we are not responsible. If such events make delivery or performance significantly more difficult or impossible for us and the hindrance is not only of a temporary nature, we are entitled to withdraw from the contract. In the event of hindrances of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the customer may withdraw from the contract by promptly submitting a written declaration to us.
  5. We are entitled to make partial deliveries if they are usable for the customer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured, and the customer does not incur any significant additional expense or costs as a result – unless we declare our willingness to assume these costs.
  6. If we are in default with a delivery or service or if a delivery or service becomes impossible – for whatever reason – our liability for damages shall be limited in accordance with para 9 of these Terms and Conditions.

§ 5 Place of Fulfilment, Shipment, Packaging, Transfer of Risk, Acceptance

  1. The place of performance for all obligations arising from the contractual relationship is the central warehouse in Rangsdorf unless otherwise specified.
  2. The type of shipment and packaging are subject to our due and proper discretion.
  3. If shipment of the goods has been agreed and we have not assumed responsibility for transport, the risk will pass to the customer at the latest when the delivery item is handed over (decisive is the start of the loading process) to the forwarding agent, carrier, or other third party designated with the task of completing the shipment. If the shipment or handover is delayed due to a circumstance caused by the customer, the risk shall pass to the customer as of the day when the delivery item is ready for shipment and we have notified the customer of this accordingly.
  4. Storage costs after transfer of risk shall be borne by the customer. For storage by us, the storage costs shall be (0.25)% of the invoice amount of the delivery items being stored per full week elapsed. Assertion and verification of additional or lower storage costs is reserved.
  5. We only insure a shipment against theft, breakage, transport, fire and water damage, or other insurable risks at the customer’s express request and at their expense.
  6. If acceptance is to take place, the purchased item shall be deemed to have been accepted if the delivery has been completed and we have notified the customer of this with reference to the fictitious acceptance according to this para 5 (6) and requested the customer to accept it, 10 working days have elapsed since the delivery or the customer has started to use the purchased item and in this case 5 working days have elapsed since delivery or installation, and the customer has forborne acceptance within this period for reasons other than a defect notified to us that makes the use of the purchased item impossible or significantly impairs it.

§ 6 Pallet Exchange

  1. If the goods are shipped on Euro pallets, we will not charge for these separately. On delivery, the customer shall hand over the same number of flawless pallets to the logistics provider and ask for a receipt for the exchange. Alternatively, the customer shall return the pallets to the central warehouse in Rangsdorf / Fiege forwarding company at its own expense.
  2. The customer shall be responsible for returning the pallets to our warehouse. In the case of a separate agreement, the pallets can also be transported back by us for a freight charge.
  3. The return period for pallets not exchanged upon delivery shall be 30 calendar days. If this period is exceeded, we are entitled to demand compensation at the current price and to refuse to accept the pallets offered for return. The parties shall have the right to assert and prove that higher or lower damages have been incurred.
  4. Any damage must be reported and acknowledged immediately upon delivery. Later complaints will not be recognized.

§ 7 Warranty, Material Defects

  1. The warranty period is one year from delivery or, if acceptance is required, from acceptance. This time limit is not applicable to claims for damages by the customer arising from injury to life, limb, or health or from willful or grossly negligent breaches of duty by us or our vicarious agents, which in each case become time-barred in accordance with the statutory provisions.
  2. The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by them. With regard to obvious defects or other defects that would have been recognizable during an immediate, careful inspection, they shall be deemed to have been approved by if we do not receive a written notice of defects within 3 working days of delivery. With regard to other defects, the delivery items are deemed to be approved by the customer if notification of the defect is not received by us within 3 working days of the time at which the defect becomes apparent; however, if the defect is already apparent at an earlier time under normal use, this earlier time is decisive for the start of the notification period. Upon request, a rejected delivery item must be returned to us carriage paid. In the event of a justified notice of defects, we shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.
  3. In the event of material defects, we shall initially be obliged and entitled, at our discretion and within a reasonable period of time, to rectify the defect or supply a replacement. In the event of failure or the impossibility, unreasonableness, refusal, or unreasonable delay of the rectification or replacement delivery, the customer may withdraw from the contract or reduce the purchase price by a reasonable amount.
  4. If a defect is due to our culpability, the customer is entitled to claim damages under the conditions specified in para 9.
  5. In the event of defects in components from other manufacturers that we are unable to rectify for license or factual reasons, we – at our discretion – are entitled to either assert our warranty claims against the manufacturers and suppliers for the customer’s account or assign them to the customer. Warranty claims against us shall only exist for such defects under the other conditions and in accordance with these General Terms and Conditions of Delivery if the judicial enforcement of the customer’s above-mentioned claims against the manufacturers and suppliers has been unsuccessful or is pointless, such as due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the customer against us shall be suspended.
  6. The warranty shall lapse if the customer modifies the delivery item or has it modified by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. The customer shall always bear the additional costs of remedying the defect resulting from the change.
  7. Any delivery of used objects agreed with the customer on a case-by-case basis shall be made under exclusion of any warranty for material defects.
  8. If a claim is made in turn against the customer by their customer or a consumer due to a defect in the delivered goods already present at the time of the transfer of risk, or if a complaint has been made by a consumer as the final purchaser, the statutory rights of recourse according to Sec. 478 Sec. 479 BGB (German Civil Code) shall remain unaffected by this.
  9. Transport damage must be reported to us immediately by submitting a damage report signed by the carrier and the customer.

§ 8 Property Rights

  1. We hereby guarantee that the delivery item is free from third-party industrial property rights or copyrights. Each contracting party must promptly notify the other contracting party in writing if claims are asserted against it for the infringement of such rights.
  2. In the event that the delivery item infringes an industrial property right or copyright of a third party, we, at our option and at our expense, will modify or replace the delivery item in such a way that the rights of third parties are no longer infringed, with the delivery item continuing to fulfill the contractually agreed functions, or we will procure the right of use for the customer by concluding a license agreement with the third party. If we have not succeeded in doing this within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price by a reasonable amount. Any claims for damages are subject to the limitations of para 9 of these General Terms and Conditions of Delivery.
  3. In the event of infringements of rights by products supplied by other manufacturers, we will, at our discretion, assert our claims against the manufacturers and upstream suppliers for the account of the customer or assign them to the customer. In such cases, claims against us shall only exist if the judicial enforcement of said claims against the manufacturers and upstream suppliers was unsuccessful or is futile, such as due to insolvency.

§ 9 Liability for Damages due to Fault

  1. Our liability for damages, irrespective of the legal grounds, in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contractual negotiations, and tort, shall be limited in accordance with the provisions of this para 9, insofar as fault is relevant in each case.
  2. We shall not be liable in the event of simple negligence on the part of our organs, legal representatives, employees, or other vicarious agents, except in the case of a breach of fundamental contractual obligations. Essential to the contract are, in particular, the obligation to deliver on time, the delivery item’s freedom from defects of title and such material defects that impair its functionality or usability more than insignificantly, and obligations to provide advice, protection. and care in order to enable the customer to use the delivery item in accordance with the contract or to protect life and limb of the customer’s personnel or to protect the its property from significant damage.
  3. Insofar as we are liable according to para 9 (2) on the merits for damages, such liability shall be limited to damages that we foresaw as a possible consequence of a breach of contract at the time of the conclusion of the contract or that we should have foreseen when exercising due care. Indirect damage and consequential loss due to defects in the delivery item shall only be compensable if such damages can typically be expected from intended use of the delivery item. The above provisions of this paragraph 3 shall not apply in the event of intentional or grossly negligent behavior by members of our executive bodies or our senior employees.
  4. In the event of liability for simple negligence, our obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 2,000,000 in the event of damage, even if this involves a breach of material contractual obligations.
  5. The above exclusions and limitations of liability apply to the same extent in favor of our corporate bodies, legal representatives, employees, and other vicarious agents.
  6. Insofar as we provide technical information or act in an advisory capacity and this information or advice is not part of the contracted scope of services owed, this is done free of charge and to the exclusion of any liability.
  7. The limitations of this para 9 are not applicable to the our liability for intentional behavior, for guaranteed characteristics, for injury to life, limb, or health, or under the Product Liability Act.

§ 10 Retention of Title

  1. The delivered goods shall remain our property (reserved goods) until final payment of all claims that have arisen or are arising on the basis of the business relationship. For multiple claims or a current account, the retention of title shall serve as security for the balance claim, even if individual deliveries of goods have already been paid for.
  2. In the event of breach of contract by the customer, in particular default of payment, we have the right to take back the reserved goods after setting a reasonable deadline. If we take them back, this shall constitute a withdrawal from the contract. We are entitled to utilize the reserved goods after taking them back. After deducting reasonable realization costs, we will offset the realization proceeds against the amounts owed to us by the customer.
  3. In the event of access by third parties to the reserved goods, in particular seizures, the customer shall notify them of our ownership and inform us immediately so that we can enforce our ownership rights.
  4. The customer shall be entitled to process and to sell the reserved goods in a proper business transaction, provided the customer is not in default. Pledging or assigning the goods as security or collateral shall not be permissible. The customer hereby assigns by way of security any claims arising from resale or any other legal grounds (insurance, unlawful act) concerning the reserved product to us in their entirety with immediate effect. We revocably authorize the customer to collect the claims assigned to us in its own name. The direct debit authorization shall expire as soon as the customer fails to properly meet their payment obligations to us, if they get into payment difficulties, if enforcement measures are taken against them or an application is made to open insolvency proceedings against their assets, or if judicial insolvency proceedings are opened or their opening is rejected due to a lack of assets. Alternatively, we shall also be entitled to notify the purchasers – which the customer shall name to us on request – of the transfer of the claim and to issue payment instructions to them.
  5. Processing or modification of the goods are always carried out for us as the manufacturer, but without any obligations for us. If the delivered items are processed along with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the delivered items to the other processed items at the time of processing. If the delivered items are combined or inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the invoice value of our delivery items to the other combined or mixed items. If the customer’s item is to be regarded as the main item when it is combined or mixed, it is hereby agreed that the customer will transfer co-ownership of the new item to us on a pro rata basis. The customer shall hold the resulting co-ownership for us.
  6. We will release securities to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10 %. We are responsible for selecting which securities to release.

§ 11 Final Provisions

  1. This contract and these Terms and Conditions as well as the entire legal relationship between the parties are governed by the laws of the Federal Republic of Germany to the exclusion of all references to other legal systems and international treaties. The applicability of the CISG is excluded.
  2. The place of jurisdiction for all disputes arising from this contractual relationship shall be the registered office of the our head office in Nörten-Hardenberg. However, we are also entitled to sue the customer at their place of business or at the place of performance of the delivery obligation. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this.
  3. References to statutory provisions are for clarification purposes only. The statutory provisions shall apply to the extent that they are not amended or excluded by these Terms and Conditions.
  4. Insofar as the contract or these Terms and Conditions contain regulatory omissions, those legally effective provisions are deemed to have been agreed to fill these omissions that the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Delivery if they had known about the omission.