delivery and payment terms

§ 1 Validity

The deliveries, services and offers of the seller (hereinafter "we") to entrepreneurs, legal entities under public law and special funds under public law are made exclusively on the basis of these General Terms and Conditions of Delivery. These are an integral part of all contracts that we conclude with our contractual partners (hereinafter "customer") regarding deliveries or services. They also apply to future deliveries, services and offers, even if they are not separately agreed again.
Terms and conditions of the customer or third parties do not apply, even if we do not specifically object to their validity in individual cases. Even if we refer to a letter that contains or refers to terms and conditions of the customer or a third party, this does not constitute consent to the validity of those terms and conditions.

§ 2 Offer and conclusion of contract, intellectual property

Our offers are non-binding and subject to change unless they are expressly designated as binding or contain a specific acceptance period. We accept orders or contracts within 14 days of receipt by sending a written order confirmation or by carrying out the service.
The written purchase contract, including these terms and conditions, is the sole basis for the legal relationship between us and the customer. This fully reflects all agreements between the contracting parties regarding the subject matter of the contract. Verbal promises made by the seller before the conclusion of the purchase contract are not legally binding. Verbal agreements between the contracting parties are replaced by the written contract, unless expressly agreed otherwise between the contracting parties.
Additions and changes to the agreements made, including these terms and conditions, must be made in writing to be effective. With the exception of managing directors or authorized representatives, our employees are not authorized to make oral agreements that deviate from the written agreement.
To comply with the written form, telecommunication transmission, in particular by fax or email, is sufficient.
Drawings, illustrations, dimensions, weights, tolerances or other performance data are only binding if this has been expressly agreed in writing. Customary deviations and those that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair the usability for the contractually intended purpose.
We reserve ownership and intellectual property rights to all offers, cost estimates and drawings, illustrations, calculations, brochures, catalogues, models, samples, tools and other documents and aids made available to the customer. The customer may not make these items accessible to third parties, either as such or in terms of content, without our express consent, disclose them, use them or have them used or reproduced by third parties. The customer must return these items to us in full at our request and destroy any copies made if he no longer needs them in the normal course of business or if negotiations do not lead to the conclusion of a contract. This does not include the storage of data made available electronically for the purpose of normal data backup.

§ 3 Prices and Payment

Value added tax, customs duties for export deliveries, fees and other public charges. Additional or special services are charged separately. Our current list prices at the time of conclusion of the contract apply. If the delivery is to take place more than 3 months after conclusion of the contract, our list prices valid at the time of delivery apply.
Invoices are issued on the day of delivery and are due for immediate payment without deductions exclusively to the account stated on the invoice. If payment is received within 10 days of the invoice date, a 21% discount will be granted. Payment by check is not possible unless specifically agreed in individual cases. If the customer does not pay when the payment is due, the outstanding amounts will be subject to interest at 5% pa from the due date; the right to claim higher interest and further damages in the event of default remains unaffected.
Even in an ongoing business relationship, we are entitled at any time to carry out outstanding deliveries in whole or in part only against advance payment or security if we declare a corresponding reservation at the latest with the order confirmation or if we become aware of circumstances after conclusion of the contract which are likely to significantly reduce the customer's creditworthiness and which endanger the payment of our outstanding claims from the respective contractual relationship, including from other individual orders to which the same framework agreement applies.
Set-off against counterclaims of the customer or withholding payments due to such claims is only permissible if the counterclaims are undisputed or legally established or arise from the same order under which the delivery in question was made.

§ 4 Delivery and delivery time

Deliveries are made ex works or central warehouse in Rangsdorf.
Deadlines and dates for deliveries and services promised by us are only approximate, unless a fixed deadline or date has been expressly promised or agreed. In the case of shipment, delivery periods and dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.
Without prejudice to our rights arising from the customer's default, we may demand an extension of delivery and performance periods or a postponement of delivery and performance dates by the period during which the customer fails to meet its contractual obligations towards us.
We are not liable for the impossibility of delivery or for delays in delivery if these are caused by force majeure or other events that were not foreseeable at the time the contract was concluded (e.g. operational disruptions 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, incorrect or untimely delivery by suppliers despite a congruent hedging 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 or the delivery or performance dates are extended 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 due to the delay, he may withdraw from the contract by immediately notifying us in writing.
We are entitled to make partial deliveries if these can be used by the customer for the contractually intended purpose, the delivery of the remaining ordered goods is guaranteed and the customer does not incur any significant additional expenditure or costs as a result, unless we agree to cover these costs.
If we are late in providing a delivery or service or if a delivery or service becomes impossible for us for whatever reason, our liability for damages is limited in accordance with Section 9 of these Terms and Conditions.

§ 5 Place of performance, shipping, packaging, transfer of risk, acceptance

The place of performance for all obligations arising from the contractual relationship is, unless otherwise specified, the central warehouse in Rangsdorf.
The shipping method and packaging are subject to our reasonable discretion.
If shipping of the goods has been agreed and the seller has not taken over transport, the risk is transferred to the customer at the latest when the delivery item is handed over (the start of the loading process is decisive) to the forwarding agent, freight carrier or other third party appointed to carry out the shipment. If shipping or handover is delayed due to a circumstance for which the customer is responsible, the risk is transferred to the customer from the day on which the delivery item is ready for shipment and the seller has notified the customer of this.
Storage costs after the transfer of risk are borne by the customer. If the goods are stored by the seller, the storage costs amount to (0.25) % of the invoice amount of the goods to be stored per week. The right to assert and provide evidence of additional or lower storage costs remains reserved.
We will only insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks at the customer's express request and at the customer's expense.
To the extent that acceptance is required, the purchased item is deemed to have been accepted if delivery has been completed, we have informed the customer of this, referring to the acceptance fiction in accordance with this Section 5 (6) and have requested acceptance, 10 working days have passed since delivery or the customer has started using the purchased item and in this case 5 working days have passed since delivery or installation and the customer has failed to accept the item within this period for a reason other than a defect reported to the seller which makes the use of the purchased item impossible or significantly impairs it.

§ 6 Pallet exchange

If the goods are shipped on Euro pallets, we will not charge for these separately. Instead, upon delivery, the customer hands over the same number of flawless pallets to the logistics company and has the exchange acknowledged. Alternatively, the customer can send the pallets back to the central warehouse in Rangsdorf/Spedition Fiege at their own expense.
The customer is responsible for returning the pallets to our warehouse. If agreed separately, we can also transport the pallets back for a freight charge.
The return period for pallets not exchanged upon delivery is 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 concerned reserve the right to assert and prove that greater or lesser damage has occurred.
Any damage must be reported and acknowledged immediately upon delivery. Later complaints will not be accepted.

§ 7 Warranty, material defects

The warranty period is one year from delivery or, if acceptance is required, from acceptance. This period does not apply to claims for damages by the customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by the seller or his vicarious agents, which in each case become time-barred according to the statutory provisions.
The delivered items must be carefully inspected immediately after delivery to the customer or to the third party designated by him. They are deemed to have been approved with regard to obvious defects or other defects that would have been apparent during an immediate, careful inspection if we do not receive a written complaint within 3 working days of delivery. With regard to other defects, the delivered items are deemed to have been approved if we do not receive a complaint within 3 working days of the time at which the defect became apparent; if the defect was already apparent at an earlier point in time during normal use, this earlier point in time is decisive for the start of the complaint period. On request, a defective delivery item must be returned to us freight prepaid. If the complaint is justified, we will reimburse the costs of the cheapest shipping method; this does not apply if the costs increase because the delivery item is located at a location other than the place of intended use.
In the event of material defects, we are initially obliged and entitled to repair or replace the goods at our discretion within a reasonable period of time. In the event of failure, impossibility, unreasonableness, refusal or unreasonable delay of repair or replacement, the customer may withdraw from the contract or reduce the purchase price appropriately.
If a defect is due to our fault, the customer can claim damages under the conditions specified in Section 9.
In the case of defects in components from other manufacturers that we cannot remedy for licensing or practical reasons, we will, at our discretion, assert our warranty claims against the manufacturers and suppliers on behalf of the customer or assign them to the customer. Warranty claims against the seller for such defects exist under the other conditions and in accordance with these General Terms and Conditions of Delivery only if the legal enforcement of the customer's claims against the manufacturer and supplier mentioned above was unsuccessful or, for example due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the customer's warranty claims against the seller is suspended.
The warranty is void if the customer modifies the delivery item or has it modified by a third party without our consent and this makes the rectification of the defect impossible or unreasonably difficult. In any case, the customer must bear the additional costs of rectifying the defect resulting from the modification.
The delivery of used items agreed with the customer on a case-by-case basis is subject to the exclusion of any warranty for material defects.
If the customer is sued by his buyer or a consumer due to a defect in the delivered goods which was already present at the time of transfer of risk or was complained about by a consumer as the end user, the statutory recourse claims according to §§ 478, 479 BGB remain unaffected.
Transport damage must be reported to us immediately by sending a damage report signed by the transport company and the customer.

§ 8 Intellectual Property Rights

We guarantee that the delivery item is free from industrial property rights or copyrights of third parties. Each contracting party will immediately notify the other contracting party in writing if claims are made against them due to the infringement of such rights.
In the event that the delivery item infringes a third party's industrial property right or copyright, we will, at our discretion and at our expense, modify or replace the delivery item in such a way that no third party rights are infringed, but the delivery item continues to fulfil the contractually agreed functions, or we will procure the customer the right of use by concluding a license agreement with the third party. If we are unable to do this within a reasonable period of time, the customer is entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages are subject to the restrictions of Section 9 of these General Terms and Conditions of Delivery.
In the event of legal infringements caused by products supplied by other manufacturers, we will, at our discretion, assert our claims against the manufacturers and suppliers on behalf of the customer or assign them to the customer. In these cases, claims against us only exist if the legal enforcement of the above-mentioned claims of the customer against the manufacturers and suppliers was unsuccessful or, e.g. due to insolvency, is futile.

§ 9 Liability for damages due to negligence

Our liability for damages, regardless of the legal basis, in particular for impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and tort, is limited in accordance with this Section 9 to the extent that fault is relevant in each case.
We are not liable in the event of simple negligence on the part of our bodies, legal representatives, employees or other vicarious agents, unless this involves a breach of essential contractual obligations. Essential contractual obligations include in particular the obligation to deliver on time, freedom from legal defects and such material defects of the delivery item that impair its functionality or usability to a greater than insignificant extent, as well as advisory, protective and care obligations that are intended to enable the customer to use the delivery item in accordance with the contract or that are intended to protect the life or limb of the customer's personnel or to protect their property from significant damage.
Insofar as we are liable for damages in accordance with Section 9 (2), this liability is limited to damages that we foresaw as a possible consequence of a breach of contract when the contract was concluded or that we should have foreseen if we had exercised due care. Indirect damages and consequential damages that are the result of defects in the delivery item are only compensable if such damages are typically to be expected when the delivery item is used as intended. The above provisions of this paragraph 3 do not apply in the case of intentional or grossly negligent conduct by members of the Seller's executive bodies or senior employees.
In the event of liability for simple negligence, our liability for property damage and resulting further financial losses is limited to an amount of EUR 2,000,000 per claim, even if it involves a breach of essential contractual obligations.
The above exclusions and limitations of liability apply to the same extent to our bodies, legal representatives, employees and other vicarious agents.
If we provide technical information or advice and this information or advice is not part of the contractually agreed scope of services owed, this is done free of charge and without any liability.
The restrictions of this Section 9 do not apply to our liability for intentional conduct, for guaranteed characteristics, for injury to life, body or health or under the Product Liability Act.

§ 10 Retention of title

The delivered goods remain our property (reserved goods). In the case of multiple claims or current invoices, the retention of title serves as security for the balance claim, even if individual deliveries of goods have already been paid.
In the event of the customer acting in breach of contract, in particular in the event of late payment, we have the right to take back the reserved goods after setting a reasonable deadline. If we take them back, this constitutes a withdrawal from the contract. We are entitled to sell the reserved goods after taking them back. After deducting reasonable disposal costs, we will offset the proceeds from the sale against the amounts owed to us by the customer.
In the event of third parties accessing the reserved goods, in particular in the event of seizure, the customer will point out our ownership and notify us immediately so that we can enforce our ownership rights.
The customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transferring ownership by way of security is not permitted. The customer hereby assigns to us in full any claims arising from the resale or any other legal reason (insurance, tort) relating to the reserved goods. We revocably authorize the customer to collect the claims assigned to us for his own account in his own name. The direct debit authorization expires as soon as the customer does not properly meet his payment obligations to us, gets into payment difficulties, compulsory enforcement measures are taken against him, or an application is made to open insolvency proceedings against his assets, judicial insolvency proceedings are opened or their opening is rejected due to insufficient assets. We are also entitled, at our option, to notify the buyers named to us by the customer upon request of the transfer of the claim and to give them payment instructions.
Processing or transformation of the goods always takes place for us as the manufacturer, but without any obligation for us. If the delivery items are processed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to the value of the delivery items to the other processed items at the time of processing. If the delivery items are combined or inseparably mixed with other items that do not belong to us, we acquire joint ownership of the new item in proportion to 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 in the combination or mixing, it is agreed that the customer transfers proportionate joint ownership of the new item to us. The customer shall safeguard the joint ownership created in this way for us.
We will release securities to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%. The selection of the securities to be released is at our discretion.

§ 11 Final Provisions

This contract and these terms and conditions as well as the entire legal relationship between the customer and us are subject to the law of the Federal Republic of Germany, excluding all references to other legal systems and international treaties. The CISG is excluded.
For all disputes arising from this contractual relationship, the place of jurisdiction is the seller's head office in Nörten-Hardenberg. However, we are entitled to sue the customer at his place of business or at the place of performance of the delivery obligation. Mandatory statutory regulations on exclusive places of jurisdiction remain unaffected.
References to statutory provisions are for clarification purposes only. The statutory provisions apply to the extent that they are not modified or excluded by these conditions.
To the extent that the contract or these terms and conditions contain regulatory gaps, the legally effective provisions that the contracting parties would have agreed upon 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 regulatory gap shall be deemed to have been agreed upon to fill these gaps.