General Conditions of Sale (GCS)

Section 1 Scope, Form

1. These General Conditions of Sale (GCS) apply to all our business relationships with our customers (“Buyer”). The GCS only apply if the Buyer is a trader (Section 14 of the German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
2. The GCS apply in particular to contracts for the sale and/or delivery of movable items (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GCS in the version valid at the time the Buyer places an order or in any case in the version last communicated to him in text form will also apply as a framework agreement for future contracts of the same type, without us having to refer to them again in each individual case.
3. Our GCS apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions (GTC) of the Buyer only become part of the contract if and insofar as we have expressly agreed to these being valid and applicable. This agreement requirement applies in every case, for example even if the Buyer refers to his own GTC in the context of the order and we do not expressly object.
4. Individual agreements (e.g. framework supply contracts, quality assurance agreements) and information in our order confirmation take precedence over the GCS. In cases of ambiguity, commercial trade terms are to be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce (ICC) in Paris in the version valid at the time of conclusion of contract.
5. Legally relevant declarations and notifications from the Buyer that concern the contract (e.g. setting deadlines, notification of defects, withdrawal or price reduction) must be submitted in writing. In writing within the meaning of these GCS includes both written form and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence especially in cases of ambiguity concerning the legitimacy of the declaring party remain unaffected.
6. References to the validity of statutory provisions are for clarification only. Even without such clarification, the statutory provisions therefore apply provided they are not directly altered or expressly excluded in these GCS.

Section 2 Conclusion of Contract

1. Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, costings, references to DIN standards) or other product descriptions or documents – including in electronic form – to which we reserve ownership rights and copyrights.
2. An order for Goods placed by the Buyer is a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 10 days of its receipt by us.
3. Acceptance can be declared either in writing (e.g. by way of order confirmation) or by delivery of the Goods to the Buyer.

Section 3 Delivery Period and Delay in Delivery

1. The delivery period is to be agreed individually or specified by us upon acceptance of the order.
2. If we are unable to adhere to binding delivery periods for reasons for which we are not responsible (non-availability of service), we are to inform the Buyer of this immediately and simultaneously inform the Buyer of the expected new delivery period. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will immediately reimburse any consideration already paid by the Buyer. Non-availability of service is deemed to exist, for example, in the event of late delivery by our suppliers, if we have concluded a congruent hedging transaction, if there are other disruptions in the supply chain (e.g. due to force majeure) or if, in individual cases, we are not obliged to procure.
3. Commencement of our delay in delivery is determined according to the statutory provisions. In any case, however, a reminder from the Buyer is required. Should a delay in our delivery occur, the Buyer may demand lump-sum compensation for damages caused by the delay. The lump-sum compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, up to a maximum of 5% of the delivery value of the Goods delivered late. We reserve the right to produce evidence that the Buyer has suffered no loss at all or only a significantly lower loss than the above-mentioned lump sum.
4. Rights of the Buyer pursuant to Section 8 of these GCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent fulfilment), remain unaffected.

Section 4 Delivery, Transfer of Risk, Acceptance, Default in Acceptance

1. Delivery is to be made ex warehouse, which will also be the place of fulfilment for the delivery and any subsequent fulfilment. At the request and expense of the Buyer, Goods can be dispatched to another destination (sale by delivery to a place other than the place of fulfilment). Unless otherwise agreed, we are entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging).
   It is made clear that:
   Unless agreed otherwise, Goods are to be unloaded by the Buyer in the case of sale by delivery to a place other than the place of fulfilment.
   We are only obliged to carry out an assembly of Goods if this has been expressly agreed.
2. The risk of accidental loss and accidental deterioration of the Goods is transferred to the Buyer at the latest upon handover. In the case of sale by delivery to a place other than the place of fulfilment, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay will already be transferred to the Buyer upon delivery of Goods to the forwarding agent, carrier or other person or institution designated to carry out dispatch. If an acceptance has been agreed, this will be decisive with regard to the transfer of risk. In all other respects, the statutory provisions pursuant to law governing contracts to produce work also apply accordingly to an agreed acceptance. Handover/acceptance is deemed to have taken place even if the Buyer has not expressly accepted.
3. 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 will be entitled to demand compensation for resulting damages including additional expenses (e.g. storage costs). Our other statutory rights (e.g. termination) remain unaffected.
   With reference to the above, the following applies in detail:
   If the Buyer does not fulfil his obligation to unload and we carry out the unloading instead, we will be entitled to charge EUR 60.00/hour plus taxes per employee for this unloading.
   We will also be entitled to charge EUR 60.00/hour plus taxes per employee if delivery of the Goods is delayed and the Buyer is responsible for this delay (e.g. due to access road being blocked, no unloading personnel, customer not being present, excessively long unloading time, preparatory work to be carried out by customer – e.g. laying foundations or cleaning ground sleeves – not being carried out or only being carried out insufficiently, etc.). In such cases, we reserve the right to abort the delivery attempt and retry at a later time. Any additional costs incurred as a result are also to be borne by the Buyer.

Section 5 Prices and Terms of Payment

1. Unless otherwise agreed in individual cases, our current prices at the time of conclusion of contract are to apply on an ex warehouse basis, plus statutory value added tax.
2. In the case of sale by delivery to a place other than the place of fulfilment (Section 4 para. 1), the Buyer is to bear the transport costs ex warehouse as well as the costs of any transport insurance he requests.
3. The purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the Goods. However, we are entitled at any time, even within the scope of an ongoing business relationship, to only make full or partial delivery upon receipt of an advance payment. We will declare a corresponding condition at the latest with the order confirmation.
4. The Buyer will be deemed to be in default upon expiry of the above-mentioned payment period. Whilst in default, the Buyer will be charged interest on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages arising from the default. Our claim against merchants for commercial interest as of the due date (Section 353 of the German Commercial Code (HGB)) remains unaffected.
5. The Buyer is only entitled to set-off or retention rights insofar as his claim has been established as legally enforceable or is undisputed. In the event of defects in the delivery, the reciprocal rights of the Buyer, in particular pursuant to Section 7 para. 6 sentence 2 of these GCS, remain unaffected.
6. If, after conclusion of the contract, it becomes apparent (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 perform, we will be entitled to abstain from fulfilment 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 nonfungible items (one-of-a-kind products), we may declare our withdrawal immediately; the statutory provisions on the superfluousness of setting a deadline remain unaffected.

Section 6 Retention of Title

1. Sold Goods continue to remain our property until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been settled in full.
2. Goods subject to the retention of title may not be pledged to third parties or assigned as security until the secured claims have been settled in full. The Buyer must notify us immediately in writing if an application for the opening insolvency proceedings is submitted or if third parties have access to the Goods belonging to us (e.g. pledges).
3. In the event of conduct of the Buyer which is in breach of the contract, especially non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the Goods on the basis of the retention of title. The demand for the return of Goods does not necessarily constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the Goods and continue to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment to no success or if such a deadline is superfluous according to the statutory provisions.
4. Provided there are no grounds for revocation in accordance with (c) below, the Buyer is 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 apply in addition.
   • (a) The retention of title extends to the full value of the products that ensue from the processing, mixing or combining of our Goods, whereby we will be deemed to be the manufacturer. If, in the event of processing, mixing or combining our Goods with third party goods, the right of ownership of said third party remains, we will acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. In all other respects, the same will 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 our Goods or of the product in total or to the amount corresponding to our potential share as co-owners in accordance with the above paragraph. We accept this assignment. The obligations of the Buyer stated in para. 2 also apply with respect to assigned claims.
   • (c) Authorisation to collect the claim is afforded to the Buyer as well as to us. We undertake not to collect the claim provided that the Buyer fulfils his payment obligations vis à vis us, that there is no deficiency in his ability to pay and that we do not assert the retention of title by exercising a right in accordance with para. 3. If this is the case, however, we may demand that the Buyer informs us of the assigned claims and debtors thereof, provides all information necessary for the collection of these claims, hands over the relevant documents and informs the debtors (third parties) of the assignment. We are furthermore entitled in such cases to revoke the Buyer’s authorisation to resell and process our Goods that are subject to retention of title.
   • (d) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the Buyer.

Section 7 Buyer’s Claims for Defects

1. Unless otherwise stipulated below, the statutory provisions apply to the rights of the Buyer in the event of defects of quality and/or title (including incorrect or short delivery, improper assembly/installation and inadequate instructions). In all cases, the statutory provisions on the purchase of consumer goods (Sections 474 ff. BGB) and the rights of the Buyer from separately issued guarantees, in particular from the manufacturer, remain unaffected.
2. Our liability for defects is above all based on the agreement reached concerning quality and the intended use of the Goods (including accessories and instructions). All product descriptions and manufacturer specifications that are subject matter of the individual contract or were made public by us (especially in catalogues or on our internet homepage) at the time of conclusion of contract are deemed an agreement on quality in this sense. Insofar as the quality has not been agreed, the existence of a defect it is to be determined in accordance with the statutory provisions (Section 434 para. 3 BGB). Public statements made by the manufacturer or on behalf of the manufacturer, especially in advertising or on the labelling of Goods, take precedence over statements made by other third parties.
3. In the case of Goods with digital elements or other digital content, we are obliged to provide and, if necessary, update the digital content only insofar as this is expressly stated in an agreement on quality pursuant to para. 2 above. In this respect, we accept no liability for public statements made by the manufacturer or other third parties.
4. In principle, we are not liable for defects about which the Buyer is aware at the time of conclusion of contract or is not aware of due to gross negligence (Section 442 BGB). Furthermore, claims for defects may be asserted by the Buyer only if he has fulfilled his statutory inspection and notification obligations (Sections 377, 381 HGB). In the case of Goods intended for assembly or other further processing, an inspection must in all cases be performed immediately prior to processing. If a defect is discovered on delivery, during inspection or at any later time, we must be notified immediately in writing. In any case, notification of obvious defects must be submitted in writing within one working day after delivery, and notification of defects not identified during the inspection must be submitted in writing within the same time frame following their discovery. If the Buyer fails to perform a proper inspection and/or to notify us of defects, our liability for the defect about which we were not notified or not notified in a timely manner is excluded in accordance with the statutory provisions. In the case of Goods intended for assembly, mounting or installation, the above also applies if, due to breach of one of these obligations, a defect only becomes apparent after the corresponding processing has been carried out; especially in such cases, the Buyer has no claims for reimbursement of corresponding costs (“dismantling and assembly costs”).
5. If the delivered item is defective, we may initially choose to provide subsequent fulfilment either by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). If the type of subsequent fulfilment chosen by us is unreasonable for the Buyer in the individual case, he is entitled to reject it. Our right to refuse subsequent fulfilment under the statutory provisions remains unaffected.
6. We are entitled to make the owed subsequent fulfilment contingent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a portion of the purchase price in reasonable proportion to the defect.
7. The Buyer must give us the necessary time and opportunity to execute the owed subsequent fulfilment, in particular by handing over the rejected Goods for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item(s) to us at our request in accordance with the statutory provisions; the Buyer has no fundamental right to return the defective item(s), however. Subsequent fulfilment does not include the dismantling, removal or uninstallation of the defective item, nor the assembly, mounting or installation of a defect-free item, provided we were not originally obliged to perform these services; claims of the Buyer for reimbursement of corresponding costs (“dismantling and assembly costs”) remain unaffected.
8. If a defect does exist, the expenses necessary for purposes of inspection and subsequent fulfilment – in particular transport, travel, labour and material costs and, if applicable, dismantling and assembly costs – will be borne by us or reimbursed in accordance with the statutory provisions and these GCS. Otherwise, if no defect exists and the Buyer was aware of or could have recognised this, we may request reimbursement from the Buyer for costs arising from the unjustified request for remedy.
9. In urgent cases, e.g. if operational safety is jeopardised or in order to prevent disproportionate damage, the Buyer has the right to remedy the defect himself and to request compensation from us for the expenses objectively necessary for this remedial action. Any such remedial action must be communicated to us immediately, if possible in advance. The Buyer’s right to take remedial action does not exist in cases where we would be entitled to refuse a corresponding subsequent fulfilment in accordance with the statutory provisions.
10. If a reasonable deadline to be set by the Buyer for subsequent fulfilment expires without success or is superfluous in accordance with the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
11. Claims of the Buyer for reimbursement of expenses in accordance with Section 445a para. 1 BGB are excluded, unless the most recent contract in the supply chain is a purchase of consumer goods (Sections 478, 474 BGB) or a consumer contract on the supply of digital products (Sections 445c p. 2, 327 para. 5, 327u BGB). Claims of the Buyer for damages or reimbursement of futile expenses (Section 284 BGB), even in the case of defective Goods, only exist in accordance with the following Sections 8 and 9.

Section 8 Other Liability

1. Unless otherwise stated in these GCS inclusive of the following provisions, we are liable in the event of a breach of contractual and/or extra-contractual obligations in accordance with the statutory provisions.
2. We are liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of wilful intent and/or gross negligence. In the event of ordinary negligence, subject to statutory liability limitations (e.g. the same level of care as in our own affairs; insignificant breach of duty), we are only liable for
   • (a) damages resulting from injury to life, body or health,
   • (b) damages arising from the breach of an essential contractual duty (obligation, the fulfilment of which fundamentally enables the orderly execution of the contract and in adherence to which the contractual partner regularly places his trust and may rightly do so); in such cases, however, our liability is limited to compensation for foreseeable, typically occurring damages.
3. The liability limitations ensuing from para. 2 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. The limitations do not apply if a defect has been fraudulently concealed or a guarantee for the quality of the Goods has been assumed, nor for claims of the Buyer under the German Product Liability Act (Produkthaftungsgesetz).
4. The Buyer may withdraw from or terminate the contract due to a non-defect-related breach of duty only if we are responsible for this breach of duty. An unrestricted right of termination of the Buyer (in particular according to Sections 650, 648 BGB) is excluded. In all other respects, the statutory provisions and legal consequences apply.

Section 9 Limitation Period

1. Notwithstanding Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from the date of delivery. If an acceptance arrangement has been agreed, the limitation period commences from the time of acceptance.
2. If the Goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period is 5 years from the date of delivery in accordance with the statutory regulation (Section 438 para. 1 no. 2 BGB). Other special statutory regulations concerning the limitation period (especially Section 438 para. 1 no. 1, para. 3, Sections 444, 445b BGB) remain unaffected.
3. The above-mentioned limitation periods as stipulated by commercial law also apply to the contractual and extra-contractual claims of the Buyer for damages based on a defect in the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case. Claims of the Buyer for damages pursuant to Section 8 para. 2 sentence 1 and sentence 2 (a) and pursuant to the German Product Liability Act become time-barred solely in accordance with the statutory limitation periods.

Section 10 Applicable Law and Place of Jurisdiction

1. These GCS and the contractual relationship between us and the Buyer are governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2. If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our place of business in Melle. The same applies if the Buyer is a trader within the meaning of Section 14 BGB. In any case, however, we are also entitled to bring an action at the place of fulfilment of the delivery obligation in accordance with these GCS or an individual agreement that takes precedence or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, especially those regarding exclusive jurisdiction, remain unaffected.