General terms and conditions
1. These terms and conditions of sale apply vis-à-vis entrepreneurs, legal entities under public law, and public-law special funds. Our goods and services are provided exclusively based on the terms set forth below. Terms and conditions of business of the other party to the contract that are not expressly acknowledged by us do not apply.
2. The parties to the contract must confirm oral agreements in writing in detail without delay.
3. Orders are not binding until confirmed by us.
4. The information and visualizations contained in brochures and catalogs are approximate values customary within the industry unless we expressly designate them as binding.
5. If, in the case of long-term contracts (contracts with a term of more than 12 months and unlimited-term contracts), a significant change in wage, material, or energy costs occurs, either party is entitled to demand that the price be adjusted appropriately to reflect these factors.
6. In the case of supply agreements for delivery on demand, binding quantities must be communicated to us at least two months before the delivery date by way of a call-up notice unless otherwise agreed. Additional costs arising as a result of late call-up notice or subsequent changes in the call-up notice with regard to time or quantity by our partner shall be at the partner’s expense, with our calculation being the operative factor.
7. Each party shall use all documents (including samples, models, and data) and knowledge that it gains as a result of the business relationship only for the parties’ joint aims and shall keep these confidential toward third parties with the same care it exercises in dealing with its own documents and knowledge if the other party has designated them as confidential or has an obvious interest in the secrecy thereof. This obligation commences upon initial receipt of the documents or knowledge and shall terminate 36 months after the end of the business relationship.
8. The obligation does not apply to documents or knowledge that are public knowledge or were already known to the party upon receipt thereof without that party having been under an obligation of confidentiality or to documents or knowledge that are transmitted thereafter by a third party entitled to disclose them or are developed by the receiving party without utilizing confidential documents or knowledge of the other party.
9. If one party provides the other with drawings or technical documents concerning the goods to be delivered or the production thereof, these drawings or documents remain the property of the disclosing party.
10. Unless otherwise agreed, the costs of producing samples and production materials (tools, molds, templates, etc.) shall be billed separately from the goods to be supplied. This also applies to production materials that require replacement due to wear.
11. We will bear the costs of maintenance and of proper storage and the risk of damage or destruction of the production materials.
12. If the partner suspends or terminates the cooperative relationship during the period when the samples or production materials are being made, all production costs that have arisen up until then shall be at the partner’s expense.
13. The production materials shall remain in our possession at least until the supply agreement has been performed and settled in full, even if the partner has paid for them. After that, the partner is entitled to demand that the production materials be surrendered if a mutual agreement has been reached regarding the time thereof and the partner has complied in full with its contractual obligations.
14. We will store the production materials at no charge for three years after the final delivery to our partner. After that, we will issue a written request to our partner to make a statement regarding further use within six weeks. Our obligation to store these materials will end if no statement is made or no new order placed within these six weeks.
15. We are not permitted to use customer-related production materials for deliveries to third parties except with our partner’s prior written consent.
16. Our prices are to be understood as being in euros, exclusive of value-added tax, packaging, freight, shipping, and insurance.
17. The manner in which repairs are performed is based on detailed professional examination and inspection by the supplier; this inspection and examination is the operative factor in terms of billing, even without written approval from the buyer.
18. All invoices are due for payment net as agreed.
19. If we have undisputedly delivered goods that are defective in part, our partner is nonetheless obligated to remit payment for the non-faulty portion unless the partner has no interest in the partial delivery. The partner cannot offset counterclaims of its own against our claims except where the partner’s counterclaims have been established with final, binding legal force or are undisputed.
20. If the payment terms are exceeded, we are entitled to charge default interest at the rate charged to us by the bank for a current account credit that is used, and in any event no less than nine percentage points above the then-applicable basic rate of interest determined by the European Central Bank.
21. In the event of default in payment on our partner’s part, we are permitted to withhold performance of our obligations until such time as payment is received after notifying our partner thereof in writing.
22. Bills of exchange and checks are accepted only by agreement and only as conditional payment and on the precondition that they are eligible for discounting. Discount charges will be assessed starting on the day when the invoiced sum is due. No guarantee of timely presentation of the bill of exchange or check is given, nor is any guarantee that a protest will be made.
23. If it becomes apparent, after the contract has been entered into, that our claim to payment is jeopardized by lack of solvency on the partner’s part, we are permitted to refuse to perform and set a reasonable time limit for the partner to remit payment or furnish security against simultaneous and commensurate delivery. If the partner refuses or the time limit expires without producing the desired result, we are entitled to rescind the contract and demand damages.
24. We are entitled to assign our claims against the partner to third parties.
25. If the partner falls into default of payment with regard to a claim arising from a transaction, all other claims arising from other transactions against that customer can also be rendered due and payable.
26. The partner is obligated to bear all fees, costs, and expenses incurred in connection with any and all assertion of rights against the partner, including outside Germany.
27. Unless otherwise agreed, we deliver “ex works, exclusive of packaging.” The time determining whether the delivery deadline or delivery time limit has been observed is the time at which we provide notice that the goods are ready to ship or pick up or our delivery slip, as the case may be.
28. The delivery time limit commences upon sending of our order confirmation and shall be extended by a reasonable amount if the prerequisites of Sec. 58 are met.
29. Partial deliveries are permissible within a reasonable scope. Each partial delivery will be billed separately.
30. Delivery of quantities above or below the ordered quantity for reasons relating to production is permissible within a tolerance of ten percent of the total order volume. The total price shall be adjusted in accordance with the scope of these changes.
31. The partner is obligated to take delivery of goods that have been reported as ready to ship without delay. Otherwise, we are entitled to ship them or to place them in storage at the partner’s expense and risk, at our own discretion.
32. Unless there is a specific agreement, we will choose the means and mode of transportation where shipping has been agreed.
33. The risk passes to the partner upon transfer to the railway, shipping company, or freight forwarder or upon commencement of storage, as the case may be, but in any event no later than upon leaving the plant or warehouse, including if we have assumed responsibility for delivery.
34. If it becomes apparent to us that the goods cannot be delivered within the delivery time limit, we will advise the partner thereof without delay, notify the partner of the reasons, and designate the estimated time of delivery if at all possible.
35. If the delivery is delayed as a result of a circumstance mentioned in Sec. 58 or of an action or omission on the partner’s part, the delivery time limit shall be extended by an amount reasonable under the circumstances.
36. The partner is not entitled to rescind the contract unless we are responsible for failure to comply with the delivery date and the partner has set a reasonable cure period for us to comply, which has elapsed without producing the desired result.
37. We retain title to the goods delivered until such time as all claims arising out of the business relationship with the partner have been fulfilled.
38. The partner is entitled to sell these goods in the ordinary course of business as long as the partner complies with its obligations arising out of the business relationship with us on time. However, the partner is not permitted to pledge the goods subject to retention of title or to transfer title thereto by way of security. The partner is obligated to safeguard our rights in the case of a credited resale of the goods subject to retention of title.
39. In the case of violations of obligations on the partner’s part, especially in the case of default of payment, we are entitled to rescind the agreement and take back the goods after a reasonable period that has been set for the partner to perform has expired without producing the desired result; nothing herein shall affect the statutory provisions on the lack of need to set a time limit. The partner is obligated to surrender the goods. We are entitled to rescind the contract if an application for opening of insolvency proceedings concerning the partner’s assets is filed.
40. The partner hereby assigns to us by way of security the full amount – meaning including the profit earned – of any and all claims and rights arising from the sale of goods to which we have ownership rights or any leasing thereof for which the partner may be granted permission. We hereby accept this assignment. The partner is permitted to collect on these claims assigned to us for the partner’s account and in the partner’s own name on our behalf unless and until we revoke this authorization. Nothing herein shall affect our right to collect on these claims ourselves; however, we will refrain from asserting these claims ourselves and from revoking the authorization to collect on them as long as the buyer is properly complying with its payment obligations.
41. If and insofar as the partner is in breach of contract or discontinues payment, however – particularly if and insofar as the partner has fallen into default of payment of a claim for compensation – we are permitted to revoke the authorization for collection and demand of the buyer that it notify us of the claims assigned and the debtor or debtors in each case, notify the respective debtors of the assignment, and turn over to us all documents and provide all information as necessary to collect on such claims. The authorization to collect on claims shall lapse in all cases upon the ordering of restrictions on disposal in the course of insolvency application proceedings, without any notice of revocation being necessary.
42. Any modification or processing of the goods subject to retention of title is always performed by the partner on our behalf. If the goods subject to retention of title are processed, inseparably mixed, or combined into a single unitary item with other objects that do not belong to us, we acquire co-ownership of the new item according to the ratio of the invoiced value of the goods subject to retention of title to that of the other objects processed or mixed at the time of processing or mixing. If our goods are combined with other movable items into a single unitary item or are inseparably mixed with such items
and the other item is to be viewed as the main item, the partner assigns proportional co-ownership to us to the extent that the main item belongs to the partner. The partner shall keep our sole or shared property on our behalf. In all other respects, the same applies to the item created through processing or combination or mixing as applies to the goods subject to retention of title. Sec. 41 hereof applies mutatis mutandis to the authorization for further processing.
43. The partner must notify us without delay of any compulsory enforcement measures by third parties concerning the goods subject to retention of title, the claims assigned to us, or other items of security, providing the documents necessary for intervention. This also applies to adverse effects of other kinds.
44. If the realizable value of the existing items of security exceeds the claims secured by more than 20 percent in total, we are obligated, at the partner’s request, to release items of security of our choice to this extent.
45. The quality of the goods is geared exclusively toward the agreed technical provisions on delivery. If we are required to deliver according to drawings, specifications, samples, etc., from our partner, the partner assumes the risk associated with fitness for the intended purpose. Whether the condition of the goods is as agreed is determined as of the time of passage of risk pursuant to Sec. 31–33.
46. We assume no responsibility for material defects that arise from unsuitable or improper use, faulty assembly, installation, or commissioning by the partner or third parties, customary wear, or faulty or negligent handling or for the consequences of changes or repair work performed improperly and without our consent by the partner or third parties. The same applies to defects that reduce the value or fitness of the goods to a merely trivial degree.
47. Unless otherwise agreed, the limitation period for claims concerning material defects is 12 months.
48. If formal acceptance of the goods or initial sample inspection or testing has been agreed, complaints regarding defects are ruled out if the partner could have detected them when performing a careful formal acceptance or initial sample inspection or testing procedure.
49. We must be given the opportunity to determine the defect that is the subject of the complaint. Goods regarding which a complaint has been made must be returned to us without delay upon request; we will assume the costs of transportation if the complaint regarding the defect is justified. If the partner does not comply with these obligations or makes changes to the goods regarding which a complaint has already been made without our consent, the partner will lose any claims concerning material defects.
50. In the case of justified, timely complaints concerning defects, we will either fix the goods regarding which a complaint has been made or supply a flawless replacement, at our discretion.
51. If we do not comply with these obligations or do not do so as agreed within a reasonable period, the partner is permitted to set a final time limit for us in writing within which we are obliged to comply with our obligations. If this time limit elapses without producing the desired result, the partner is permitted to demand a reduction in the price, rescind the contract, or effect the necessary cure itself, or have it effected by a third party, at our expense and our risk. Reimbursement of costs is ruled out to the extent that the expenditures increase because the goods have been taken to another location after delivery by us, except where this is in keeping with the intended use of the goods.
52. Statutory claims for recovery by the partner against us exist only to the extent that the partner has not reached any agreements with its own customer that go beyond the statutory claims regarding defects. The scope of claims for recovery is moreover subject to Sec. 51???, final sentence, which applies mutatis mutandis.
53. Unless otherwise provided hereinafter, any other and/or further claims of the partner against us are ruled out. This applies in particular to claims for damages due to violation of obligations arising from the relationship of obligation and from tort. We are therefore not liable for damage and/or losses sustained by anything other than the goods supplied
themselves. Above all, we are not liable for lost profit or other financial losses on the partner’s part.
54. The foregoing limitations of liability do not apply in cases of intent, gross negligence on the part of our statutory representatives or executive staff, or culpable violation of essential contractual duties. In the case of culpable violation of essential contractual duties, we are liable – except in cases of intent or gross negligence on the part of our statutory representatives or executive staff – only for the damage and/or losses that are typical of the contract and are reasonably foreseeable.
55. The limitation of liability moreover does not apply in cases in which liability exists under the German Product Liability Act (ProdHaftG) for personal injury or property damage involving privately used items in case of any fault in the goods supplied. Nor does it apply in cases of loss of life, bodily injury, or impairment of health or in the absence of warranted characteristics, if and insofar as the warranty was specifically intended to safeguard the partner against damage and/or losses suffered by other than the goods supplied themselves.
56. To the extent that our liability is ruled out or limited, this also applies to the personal liability of our employees, workers, statutory representatives, and vicarious agents.
57. The statutory provisions on the burden of proof are unaffected hereby.
58. Force majeure, labor disputes, unrest, governmental measures, lack of delivery by our suppliers, and other unforeseeable, unavoidable, and serious events shall release the parties from their obligations of performance for the duration of the disruption and within the scope of the effects thereof. This also applies if these events occur at a point in time when the affected party is in default, unless the party in question has caused the default through intent or gross negligence. The parties are obligated to provide the necessary information without delay within the scope of what is reasonable and to adjust their obligations to reflect the changed circumstances in good faith.
59. Unless otherwise stated in the order confirmation, the location of our registered office is the place of performance.
60. The location of our registered office is the place of jurisdiction for all legal disputes, including those arising within the scope of a bill of exchange and check process. We are also entitled to bring legal action in the place of the partner’s registered office.
61. Exclusively the laws of the Federal Republic of Germany apply to the contractual relationship. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980, is ruled out.
Remscheid, September 2020