Conditions of Sale and Delivery 

I.    General Provisions

  1. Our deliveries and services ("Services") eare provided exclusively under these Terms and Conditions of Sale and Delivery ("Terms and Conditions"). These Terms and Conditions apply exclusively in dealings with entrepreneurs within the meaning of Sec.14 German Civil Code (Bürgerliches Gesetzbuch - “BGB”), legal entities under public law, and special funds under public law („Partner“). Our Terms and Conditions apply both to future contracts for the supply of goods and services and to all other future business relationships to the extent that we provide Services, even if they are not expressly agreed again.
  2. Conditions deviating from these Terms and Conditions or from applicable law shall only apply if and insofar as their validity is expressly confirmed by us in writing.
  3. Our offers are generally non-binding. The contract is concluded by our written order confirmation or, at the latest, by the unconditional execution of the Services.
  4. All information and illustrations concerning our products contained in brochures, catalogues, other documents and our website are non-binding and only become part of the contract if they have been expressly confirmed by us in writing.
  5. We expressly reserve the right to make minor changes to the design, layout, choice of materials and manufacture even after our order confirmation has been issued, as long as this does not change the price and/or the essential functions, or the delivery time, or this is unreasonable for the customer for other reasons.


II.    Prices and Terms of Payment

  1. Our prices are quoted net, ex works Germany (EXW) plus the applicable value added tax and plus shipping costs, unless otherwise expressly agreed in individual cases.
  2. Unless otherwise agreed, we shall be bound by the prices contained in our offers for thirty (30) days from the date of the offer.
  3. Payment of our invoices shall be made no later than thirty (30) days after receipt of the invoice by the Partner. Should the Partner be entitled to deduct a cash discount in an individual case, this shall only apply subject to the proviso that all other due liabilities of the Partner are fully settled at the time of the cash discount.
  4. Payments shall be made free to our paying agent. The receipt of payment shall be decisive for the timeliness of payments.
  5. If the above-mentioned payment deadline is exceeded, interest will be charged in accordance with Sec. 288 BGB without the need for a reminder. The assertion of further damages caused by default remains reserved.
  6. The Partner shall only be entitled to rights of retention and set-off if its counterclaims are undisputed or have been legally established against us, or if the claim of the Partner with whom set-off is to be made is reciprocal to our claim against which set-off is to be made.
  7. Should it become apparent after the conclusion of a contract that our payment claim is endangered by the Partner's lack of ability to pay, we shall be entitled to the rights arising from Sec. 321 BGB (defence of uncertainty). The defence of uncertainty extends to all outstanding Services arising from the business relationship.

III.    Terms of Delivery, Force Majeure, Delay

  1. Goods shall be delivered EXW Germany from the place of delivery specified in our order confirmation, unless otherwise agreed in individual cases.
  2. At the request of the Partner, we will commission the transport to the desired delivery address within Germany for the Partner in accordance with the following conditions: From an order value of EUR 500.00 net, we order the transport at our expense. For order values below EUR 500.00 net, we charge a flat-rate shipping fee of EUR 7.90 per delivery, whereby we combine all items of an order in one delivery, as far as possible and insofar as not otherwise agreed with the Partner in the individual case.
  3. Shipment outside Germany requires a separate agreement in each individual case.
  4. We shall only take out transport insurance if this has been expressly agreed in the individual case. The Partner shall bear the costs incurred.
  5. Delivery periods and dates are not binding unless we have expressly agreed a binding delivery date in individual cases. In case of doubt, this shall only be assumed if we have expressly defined the delivery date as binding in written form. The Partner may request us in writing to deliver within a reasonable period at the earliest three (3) weeks after a non-binding delivery date has been exceeded.
  6. In any case, our Services shall be deemed to have been rendered on time if the delivery has left our warehouse or factory respectively on the last day of an agreed or set deadline or on the agreed delivery date, respectively.
  7. Our performance obligations are subject to orderly and timely delivery by our suppliers.
  8. Partial, excess or short deliveries shall be permissible insofar as they are reasonable for the Partner considering customary tolerances. The same applies to early deliveries.
  9. Insofar as compliance with delivery periods or dates is temporarily not possible or substantially impeded due to force majeure, our contractual obligations shall be suspended, and the delivery periods or dates shall be extended accordingly. Force majeure includes, in particular, unforeseeable obstacles to performance or disruptions which are beyond our control, which could not have been averted or remedied even if the due care of a prudent businessman had been exercised, and which are not only of short duration. This includes, in particular, but is not limited to, unforeseeable circumstances occurring after conclusion of the contract, such as difficulties in procuring materials, operational disruptions, strikes, lockouts, lack of personnel, lack of availability of necessary means of transport, if and insofar as we are not responsible for these circumstances. Should the delay in delivery or performance due to force majeure exceed two (2) months, the Partner shall be entitled to revoke the contract regarding the part not yet fulfilled. We can only invoke circumstances of force majeure if we have informed the Partner thereof without undue delay.
  10. Insofar as we have not caused the delay in delivery intentionally or by gross negligence, the Partner's claim for damages on grounds of delay in performance shall be limited to a maximum of 0.5% of the net price of the Services affected by the delay for each full week of delay in delivery, in total, however, not to exceed, a maximum of 5% of the net price of the Services affected by the delay.


IV.    Passing of Risk

  1. The risk of accidental loss and deterioration of the goods shall pass to the Partner (1) if the Partner collects the goods as agreed or has them collected, if and to the extent that we have made the goods available for collection at the agreed place of delivery and informed the Partner thereof, or (2) if we have handed the goods over to the transport person. Provided that we transport the goods ourselves in exceptional cases, the risk shall pass to the Partner at the latest when the goods leave our warehouse or our factory premises, even in the case of carriage paid and carriage free deliveries.


V.    Retention of Title

  1. We retain title to the delivered goods until all claims arising from the business relationship (including the balance receivable from the current account) with the Partner have been settled ("Reserved Goods”).
  2. The processing of the Reserved Goods by the Partner shall always be free of charge for us as manufacturer within the meaning of Sec. 950 BGB. If the Reserved Goods are combined with other objects, we shall be entitled to co-ownership of the new object in the ratio of the market value of the Reserved Goods to the market value of the other goods used. Should our retention of title expire due to combination, the Partner hereby transfers to us its ownership rights to the new stock or the new item to the extent of the market value of the Reserved Goods and shall keep them for us free of charge. Our (co-)ownership rights resulting therefrom shall be deemed to be Reserved Goods.
  3. The Partner is only permitted to resell the Reserved Goods in the ordinary course of business and only under the condition that the Partner agrees with its customer to full advance payment or agrees with its customer that ownership shall not pass to the customer until the customer has fulfilled its payment obligations and, accordingly, only disposes of the goods subject to full payment. The Partner is not entitled to dispose of the Reserved Goods in any other way, in particular to pledge them or assign them by way of security.
  4. The Partner's claims arising from the resale of the Reserved Goods are hereby assigned to us; the Partner is authorised to collect receivables arising from the resale on our behalf. Should the Partner dispose of the Reserved Goods together with other goods not sold by us, the assignment of the receivable from such resale shall only apply to the amount of the resale value of the Reserved Goods sold in each case. If the receivable arising from the resale by the Partner is placed in a current account relationship with its customer, the recognised or causal balance shall take its place after the current account receivable has been netted, which shall be assigned to us in the amount of the resale value of the Reserved Goods sold in each case. In the event of the sale of goods in which we are entitled to co-ownership shares, the assignment of the receivables shall apply to the amount of the corresponding resale value of these co-ownership shares.
  5. We are entitled to revoke the authorisation granted to the Partner to resell and collect the receivables if the Partner is in default with payments from the business relationship or has disposed of the Reserved Goods outside the normal course of business. The same shall apply in the event of a significant deterioration in the financial situation of the Partner occurring after conclusion of the contract or in the event of an application to open insolvency proceedings against the Partner's assets.
  6. The Partner is obliged to maintain the Reserved Goods at its own expense and to insure them in our favour against burglary, breakage, fire, water, and other risks at replacement value. The Partner hereby authorises us to pursue all claims for compensation under such insurance policies.
  7. The Partner is obliged to cooperate in measures which are necessary to protect our retention of title. The Partner must inform us immediately of any enforcement measures taken by third parties against the Reserved Goods, the receivables assigned to us or other securities, handing over the documents required for an intervention. This also applies to impairment of any other kind.
  8. Should the realisable value of our existing securities against the Partner exceed our claims to be secured by more than 10 %, we shall be obliged to release such securities at the Partner's request.


VI.    Quality Defects

  1. Insofar as our Services show a defect in quality (Sachmangel) upon transfer of risk, we shall – subject to Section VII. – be liable to the Partner within the limitation period set forth in this Section VI.
  2. Unless expressly agreed otherwise, the Services must exclusively comply with the regulations applicable at our registered office.
  3. The Partner shall be obliged to carefully examine the Services immediately after their delivery and, if a defect  in quality becomes apparent, shall notify us immediately in writing; if the Partner does not carry out a sufficient examination or does not notify us of a recognized defect immediately, the Services shall be deemed to have been approved.
  4. We shall not be liable for defects which only insignificantly impair the usability of the Services concerned, for only insignificant deviations from the agreed quality, for natural wear and tear, and for damage which occurs after the transfer of risk as a result of excessive strain, unsuitable operating resources, defective assembly or erection not carried out by us, or which arises as a result of special external influences on the Services which we did not have to expect. We are also not liable for defects caused by improper modifications or repairs made by the Partner or third parties.
  5. In the event of a defect in quality, we are obliged, at the written request of the Partner, to either repair or replace the Services within a reasonable period of grace ( “Supplementary Performance"). We make the decision as to the type of Supplementary Performance in our own discretion. If the defect in quality is limited to a delimitable part of the Service, Supplementary Performance shall be effected by subsequent delivery of a defect-free part. Insofar as we replace a defective Service by subsequent delivery of a defect-free part, the replaced parts shall become our property unless we expressly waive this right.
  6. Without limiting our statutory rights, we shall be entitled to refuse Supplementary Performance in its entirety within the meaning of Sec. 439 (4) BGB if the costs of Supplementary Performance (Sec. 439 (2) and (3) BGB) exceed 120 % of the agreed net price of the Services.
  7. We shall be given a reasonable time and opportunity for Supplementary Performance. If the Supplementary Performance does not take place within a reasonable grace period set by the Partner or if the Supplementary Performance fails, the Partner may, in accordance with the statutory provisions, at its discretion,
    a)    reduce the price, or
    b)    rescind the contract.
  8. We are entitled to make Supplementary Performance dependent on the Partner’s payment of the due price for the Service less an appropriate amount taking into account the defect in quality.
  9. Even in the event of recourse against the seller (Verkäuferregress), the Partner shall, by derogation from Sec. 445a (2) BGB, be obliged to provide us with the opportunity for Supplementary Performance within the period set by the Partner’s customer to the Partner. The setting of a period of notice is only dispensable if such period of notice is already dispensable in the relationship between the Partner and its customer according to Sec. 445a (2) BGB, and for that reason the Partner cannot give us the opportunity for Supplementary Performance.
  10. The place of performance for Supplementary Performance is always our factory named in the order confirmation. 
  11. We shall not be obliged to reimburse transport costs incurred by the Partner as expenses for the purpose of Supplementary Performance if such expenses increase because the goods were subsequently taken to a location other than the place of receipt or the specified or agreed place of installation.
  12. Claims for damages and reimbursement of expenses shall be governed by the statutory provisions in accordance with the limitations set forth in Section VII.
  13. Any further claims or rights of the Partner against us due to a defect in quality other than those stipulated in Sections VI. and VII. are excluded. The statutory special provisions concerning the case of a sale of consumer goods (Sec. 478 BGB) at the end of a supply chain remain unaffected.

VII.    Damages and Reimbursement of Expenses

  1. Claims for damages and reimbursement of expenses by the Partner ("Claims for Damages"), irrespective of the legal basis, are excluded. The provision in Section III. No. 10 concerning damages caused by delay shall remain unaffected.
  2. The foregoing limitation of liability set forth in Section VII. No. 1 shall not apply:
    a)    for claims for reimbursement of expenses pursuant to Sec. 439 (3) 1st sentence and Sec. 445a (1) BGB;
    b)    insofar as we are liable under the German Product Liability Act [Produkthaftungsgesetz];
    c)    insofar as we are liable due to intent or gross negligence;
    d)   for Claims for Damages due to culpable injury to life, limb or health;
    e)    insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods (Sec. 444 BGB);
    f)    in the event of a culpable breach of material contractual obligations, i.e. obligations whose fulfilment is essential for the proper performance of the contract and on whose observance the Partner regularly relies on and may rely on. However, our liability for breach of a material contractual obligations shall be limited to compensation for foreseeable damage typical for this type of contract, except in cases of intent or gross negligence, liability for injury to life, limb or health, or a liability under the Product Liability Act.
  3. Insofar as our liability is limited pursuant to this Section VII, this shall also apply to the personal liability of our employees, auxiliary persons, and legal representatives.
  4. The foregoing provisions do not imply a change in the burden of proof to the detriment of the Partner.

VIII.    Limitation Period

  1. Claims of the Partner due to a defect in quality or defect of title shall become time-barred 12 months after the start of the statutory limitation period. This shall not apply,
    a)    in the cases of Sec. 438 (1) No. 1 BGB (rights in rem (dingliche Rechte) of third parties), Sec. 438 (1) No. 2 or Sec. 634a (1) No. 2 (building, object used for a building, planning and monitoring services for a building), Sec. 445b (1) (recourse claims in the event of recourse against the entrepreneur), a condition guarantee (Beschaffenheitsgarantie) and fraudulent intent (Arglist) (Sec. 444 BGB);
    b)   for Claims for Damages due to intent or gross negligence, due to injury to life, limb or health or liability under the German Product Liability Act. 
    In these cases, the statutory limitation period shall apply.
  2. We will carry out Supplementary Performance as a gesture of goodwill and without recognition of a legal obligation. Except for an expressly declared acknowledgement, no new warranty period begins with the performance of Supplementary Performance.
  3. The regular limitation period for claims of the Partner shall be shortened to 24 months from the beginning of the statutory limitation period. This shall not apply to Claims for Damages pursuant to Section VII.; they shall be subject to the statutory limitation period.

IX.    Confidentiality

  1. The Partner is obliged to treat all information, in particular know-how and trade secrets, which it obtains from us ( “Information") as confidential vis-à-vis third parties. In particular, the Partner is not authorised to disclose or make available the Information to third parties without our prior consent. The Information is to be used only for the purposes of the contract. Furthermore, the Partner undertakes not to examine, analyse, disassemble, decompile or otherwise reverse engineer any of our products which have not been made publicly available. Sec. 69e German Copyright Act (Urheberrechtsgesetz) remains unaffected by this. This prohibition of reverse engineering applies regardless of whether the Partner uses Information or not. The Partner shall oblige its employees and other persons who gain access to the Information in connection with the execution of the contract to maintain confidentiality accordingly.
  2. The obligation set forth in No. 1 shall not apply to Information if (a) it was demonstrably already known to the Partner at the time of conclusion of the contract or becomes known thereafter through the disclosure by a third party without violation of a confidentiality agreement, statutory regulations or official orders, (b) it is already generally known at the time of conclusion of the contract or becomes generally known later on, unless this is not based on a violation of this contract, (c) it has been independently developed by the Partner without access to our Information, or (d) it must be disclosed due to statutory obligations or by order of a court or an authority.
  3. These obligations pursuant to this Section IX. shall remain in force beyond the end of the contract and the business relationship, irrespective of the manner the contract or the business relationship is terminated.


X.    Selling Aids

  1. Sales or presentation stands and/or other presentation aids which are made available to the Partner free of charge remain our property and can be reclaimed at any time. The Partner undertakes to equip these only with our goods and to use and store them with the care of a prudent businessman.


XI.    Place of Performance, Place of Jurisdiction, Applicable Law

  1. The place of performance of our Services is our factory in Herzebrock-Clarholz, Germany.
  2. The Incoterms 2010 shall apply to the interpretation of the commercial terms.
  3. Any amendments or supplements to a contract, including subsidiary agreements, shall be made in writing for documentation purposes. Individual contractual agreements shall in any case take precedence over these Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written agreement or our written confirmation of such an agreement.
  4. The exclusive place of jurisdiction for all legal disputes arising from or in connection with this contractual relationship shall be our registered office in Herzebrock-Clarholz, Germany. However, we shall also be entitled to take legal action at the registered office of the Partner.
  5. The contractual relationship between us and the Partner shall be governed by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  6. In the event of the invalidity of individual provisions of the contract, the remaining provisions shall remain effective. The invalid provision shall be replaced by a legally valid provision which comes as close as possible to the economic purpose of the invalid provision. The same shall apply to loopholes and omissions.