(1) These General Terms and Conditions (hereinafter referred to as GTC) apply to all our business relationships and form an integral part of all of our quotations and each contract with our customers.
(2) The GTC apply in particular to contracts which are concluded for the sale and/or delivery of movable goods (hereinafter referred to as goods), regardless of whether we have manufactured the goods ourselves, or have purchased them from suppliers (Articles 433, 650 BGB (German Civil Code)). Unless otherwise agreed, the version of the GTC valid at the time of the customer’s order or, in any case the version most recently disclosed to them in text form, is also applicable as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.
(3) Our GTC apply exclusively. Any deviating, contradictory or supplementary general terms and conditions of the customer are expressly rejected and will only become an integral part of the contract insofar as, and to the extent that, we have expressly agreed to their validity in writing. This requirement for consent applies in all cases, for example even when we deliver to the customer without reservation and are aware of their general terms and conditions.
(4) Any individual agreements, which are concluded with the customer in individual cases (including ancillary agreements, additions and amendments), take precedence over these GTC in all cases. Subject to proof to the contrary, a written contract and/or our written confirmation is authoritative for the content of such agreements.
(5) Legally relevant declarations and notices from the vendor with regard to the contract (e.g. setting deadlines, notices of defects, withdrawal or reduction) must be provided in writing i.e. in written or text form (e.g. letter, email, fax). Legal formal requirements and additional evidence, in particular if there are doubts about the legitimacy of the declarant, remain unaffected.
(6) Any references to the applicability of statutory provisions will only have a clarifying significance. Even without such a clarification, the statutory provisions are applicable unless they are directly amended or expressly excluded in these GTC.
(1) Our quotations are subject to amendment at any time and are non-binding. This also applies when we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documentation – also in electronic format – to which we therefore reserve property rights and copyrights.
(2) The customer must always order the goods in writing or textform (e.g.letter,email,fax) and the order is considered a binding contract offer when received by us. Unless otherwise stated in the order, we are entitled to accept this contract offer within 21 days of it being received by us.
(3) Acceptance can be declared either in writing or text form (e.g. with an order confirmation) or by delivery of the goods to the customer.
(1) The delivery deadline will be agreed individually and/or stated by us upon acceptance of the order.
(2) If we are unable to meet the binding delivery deadlines, for reasons for which we are not responsible (non-availability of the service, force majeure, pandemic, strike, war), then we will inform the customer of this without delay and at the same time provide the anticipated new delivery deadline. If the service is also not available within the new delivery deadline, then we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already paid by the customer. A case of non- availability of the service in this sense is considered, in particular, the failure of our supplier to deliver on time when 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 concerned.
(3) The rights of the customer in accordance with Article 8 of these GTC and our statutory rights, in particular in the event of an exclusion of the obligation to provide a service (e.g. due to impossibility or unreasonableness of the service and/or supplementary performance), remain unaffected.
(1) Delivery takes place from the business address of our company at Lemwerder, Hansering 5. This is also the place of fulfilment for the delivery and any supplementary performance. At the customer’s request and own expense, the goods will be shipped to another destination (sale to destination). Insofar as not otherwise agreed, we are entitled to determine the type of shipment (in particular the transport company, shipping route, packaging) ourselves.
(2) The risk of accidental loss and accidental deterioration of the goods is transferred to the customer at the latest upon handover of the goods. In the case of sale to destination, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is, however, transferred to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or entity designated to carry out the shipment. If acceptance has been agreed, then this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for providing work and services also apply accordingly to an agreed acceptance. Handover or acceptance is the same if the customer is in default of acceptance.
(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, then we are entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). In this instance, we will calculate a lump-sum compensation of EUR 250 per calendar day, commencing with the delivery deadline and/or, in the absence of a delivery deadline, with the notice that the goods are ready for dispatch.
The proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum must be offset against any additional monetary claims. The customer is at liberty to prove that we have incurred no damage at all, or only significantly less damage than the aforementioned lump sum.
(1) Unless otherwise agreed in individual cases, our prices, which are current at the time of conclusion of the contract, are applicable and are ex warehouse, plus statutory value added tax.
(2) In the case of sale to destination (Clause 4 Paragraph 1), the customer bears the transport costs ex warehouse and the costs of any transport insurance chosen by the customer. If we do not invoice the transport costs which are actually incurred in the individual case, then a lump sum rate for transport costs (excluding transport insurance) of EUR 2,500 will be considered agreed. Any customs duties, fees, taxes and other public charges or levies are borne by the customer.
(3) The purchase price is due and payable within 14 days from the date of invoice. We are, however, entitled at any time, even as part of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We will declare a corresponding reservation at the latest with the order confirmation. If no individual payment plan has been agreed, then we can demand part payments for partial services for the value of the services rendered.
(4) The customer is in default, without the need for any separate reminder, upon expiry of the aforementioned payment period. Interest will be charged on the purchase price during the period of default at the statutory default interest rate which is applicable at the time. We reserve the right to assert additional claims for damages which are caused by default. With respect to merchants, our claim to the commercial default interest (Article 353 HGB (German Commercial Code)) remains unaffected.
(5) The customer is only entitled to rights of set-off or retention insofar as their claim is legally binding or undisputed. The customer’s counter rights remain unaffected if there are defects in the delivery, in particular according to Clause 7 Paragraph 6 Sentence 2 of these GTC.
(6) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the customer’s inability to pay, then we are entitled in accordance with the statutory provisions to refuse to provide the service and, if necessary after setting a deadline, to withdraw from the contract (Article 321 BGB). In the case of contracts for the manufacture of specific items (manufacture to specification), we may declare withdrawal immediately; the statutory regulations regarding the dispensability of setting a deadline remain unaffected.
(1) We retain title to the goods which have been sold until all our present and future claims, which arise from the contract and an ongoing business relationship (secured claims), have been paid in full.
(2) The goods, which are subject to retention of title, may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The customer must inform us immediately in writing when an application is submitted to open insolvency proceedings or if third parties access the goods belonging to us (e.g. seizures).
(3) In the event of any conduct by the customer in breach of contract, in particular in the event of 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 reservation of title. The demand for the return of the goods does not also imply the declaration of withdrawal; instead, we are entitled to only demand the return of the goods and to reserve the right of withdrawal. If the customer does not pay the purchase price which is due, then we may only assert these rights when we have previously set the customer a reasonable deadline for payment to no avail or when setting such a deadline is unnecessary according to the statutory provisions.
(4) The customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business up until revocation in accordance with (c) below. The following provisions additionally apply in this case.
(a) The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are considered the manufacturer. If third parties continue to have a right of ownership when their goods are processed, mixed or combined with ours, we will acquire co- ownership as a proportion of the invoice values of the processed, mixed or combined goods. In all other respects, the same also applies to the resulting product as to the goods delivered under retention of title.
(b) The customer assigns to us, by way of security,the claims against third parties arising from the resale of the goods, or of the product in total or in the amount of our co-ownership share in accordance with the above paragraph. We shall accept the assignment. The obligations of the customer stated in Paragraph 2 also apply in respect of the assigned claims.
(c) The customer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the customer fulfils their payment obligations to us, there is no deficiency in their financial capacity and we do not assert the retention of title by exercising a right pursuant to Paragraph 3. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the customer’s authorisation to resell and process the goods which are subject to retention of title.
(d) If the realisable value of the securities exceeds our claims by more than 10%, then we shall release securities of our choice at the customer’s request.
(1) The statutory provisions apply to the customer’s rights in the event of material defects and defects of title (including false delivery and shortfall in delivery as well as improper assembly or defective assembly instructions), unless otherwise stipulated below. In all cases, the special statutory provisions remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even when the consumer has processed them further (supplier recourse according to Article 478 BGB). Claims from supplier recourse are excluded when the defective goods have been further processed by the customer or another company e.g. by installing into another product.
(2) The basis of our liability for defects is primarily the agreement reached regarding the characteristics, properties and quality of the goods.
(3) Insofar as the characteristics, properties and quality of the goods has not been agreed, then it must be determined according to the statutory regulation whether or not there is a defect (Article 434 Paragraph 1 Sentence 2 and 3 BGB). However, we do not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) to which the customer has not drawn our attention as being decisive for their purchase.
(4) As a matter of principle, we shall not be liable for defects of which the customer is aware at the time of conclusion of the contract, or is not aware of due to gross negligence. Furthermore, the customer’s claims for defects presuppose that they have fulfilled their statutory obligations to inspect and give notice of defects (Articles 377, 381 HGB). In the case of building materials and other goods which are intended for installation or further processing, they must, in any case, be inspected immediately before processing. If a defect becomes apparent during delivery, inspection or at any subsequent time, then we must be notified of this in writing without delay. In any case, obvious defects must be notified to us in writing within 3 working days of delivery and defects, which are not recognisable during the inspection, must be notified to us within the same period of time after they are identified. If the customer fails to carry out the proper inspection and/or submit notice of defects, our liability for the defect, which was not notified or not notified in time or not notified properly, will be excluded in accordance with the statutory provisions.
(5) If the delivered item is defective, we can first choose whether to provide supplementary performance by remedying the defect (repair) or by delivering an item free of defects (replacement). Our right to refuse supplementary performance under the statutory conditions remains unaffected.
(6) We are entitled to make the supplementary performance owed dependent upon the customer paying the purchase price that is due. The customer is, however, entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.
(7) The customer must give us the time and opportunity required for the supplementary performance owed, in particular hand over the rejected goods for inspection purposes. In the event of a replacement, the customer must return the defective item to us in accordance with the statutory provisions. Supplementary performance does not include the removal of the defective item or its re-installation when we were not originally obliged to install it.
(8) We shall bear or reimburse the expenses which are necessary for the purpose of inspection and supplementary performance, in particular transport, travel, labour and material costs as well as, if applicable, removal and installation costs, in accordance with the statutory provisions when there is actually a defect. In all other cases, we can demand reimbursement from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs); this expressly also applies to inspection and transport costs as well as travel and accommodation costs abroad, unless the lack of defectiveness could not be identified by the customer.
(9) If the supplementary performance fails, or a reasonable deadline, which was set by the customer for the supplementary performance, has expired to no avail, or it is unnecessary according to the statutory provisions, the customer can withdraw from the purchase contract or reduce the purchase price. There is, however, no right of withdrawal in the event of an insignificant defect.
(11) The customer’s claims for damages or reimbursement of unnecessary expenses in the case of defects only exist in accordance with Clause 8 and they are otherwise excluded.
(1) Insofar as nothing to the contrary arises from these GTC, including the following provisions, we are liable in accordance with the statutory provisions for a breach of contractual and non-contractual obligations.
(2) We are liable for damages, irrespective of the legal grounds, within the scope of culpability for intent and gross negligence. In the event of simple negligence, we are liable, subject to statutory limitations of liability (e.g. care for our own affairs; insignificant breach of duty), only
a) for damages resulting from injury to life, body or health,
b) for damages arising from the breach of an essential contractual obligation (an obligation, the fulfilment of which is a prerequisite for the proper performance 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, which result from Paragraph 2, also apply to third parties as well as to breaches of duty by people (also in their favour) whose fault we are responsible for according to statutory provisions. They do not apply if a defect has been fraudulently concealed, or a guarantee for the characteristics, properties or quality of the goods has been assumed, and for customer claims according to the Product Liability Act.
(4) The customer can only withdraw from, or terminate the contract, due to a breach of duty which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination for the customer (in particular according to Article 648 BGB) is excluded. Otherwise, the statutory prerequisites and legal consequences apply.
(1) In deviation from Article 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from the delivery date. If acceptance has been agreed, the limitation period commences with the acceptance.
(2) If the goods are a structure or an object, which has been used for a structure in accordance with its customary use and has caused its defectiveness (building material), the limitation period is 5 years from delivery in accordance with the statutory provision (Article 438 Paragraph 1 No. 2 BGB). Any other special statutory provisions relating to the limitation period (in particular Article 438 Paragraph 1 No. 1, Paragraph 3, Articles 444, 445b BGB) also remain unaffected.
(3) The above limitation periods of the law on sales also apply to contractual claims and non-contractual claims for damages of the customer based on a defect of the goods, unless applying the regular statutory limitation period (Articles 195, 199 BGB) would lead to a shorter limitation period in individual cases. Customer claims for damages in accordance with Article 8 Paragraph 2 Sentence 1 and Sentence 2(a) as well as pursuant to the Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.
(1) These GTC and the contractual relationship between us and the customer are governed by the laws of the Federal Republic of Germany, excluding the international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
(2) If the customer is considered to be exclusively a merchant within the meaning of the German Commercial Code or a special fund under public law, then the exclusive, and international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Lemwerder, Stedinger Straße 32. The same also applies when the customer is a company within the meaning of Article 14 BGB. However, we are also entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC and/or a prior individual agreement or at the general place of jurisdiction of the customer. Any overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.
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