§ 1 Scope of Application, Form

1. These General Terms and Conditions of Sale (“GTC”) apply to all our business relations with our customers (“Buyer”). The GTC shall apply only if the Buyer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB), a legal entity under public law, or a special fund under public law.
2. The GTC apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTC in the version valid at the time of the Buyer’s order or, in any event, in the version most recently provided to the Buyer in text form shall also apply as a framework agreement to similar future contracts, without the need for express reference on each occasion.
3. These GTC apply exclusively. Deviating, conflicting, or supplementary general terms and conditions of the Buyer shall become part of the contract only if and to the extent that we have expressly agreed to their validity. This requirement of consent applies in any case, for example even if the Buyer refers to its own general terms and conditions in the order and we do not expressly object thereto.
4. Individual agreements (e.g. framework supply agreements, quality assurance agreements) and statements in our order confirmation shall take precedence over these GTC. Commercial clauses shall, in case of doubt, 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 contract conclusion.
5. Legally relevant declarations and notifications by the Buyer in relation to the contract (e.g. setting of deadlines, notice of defects, withdrawal, or reduction of price) must be made in writing. Written form within the meaning of these GTC includes both written and text form (e.g. letter, email, telefax). Statutory form requirements and further evidence requirements, in particular in cases of doubt regarding the authority of the declarant, remain unaffected.
6. References to statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall apply unless they are directly modified or expressly excluded in these GTC.

§ 2 Conclusion of Contract

1. Our offers are non-binding and subject to change. This also applies if we provide the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – including in electronic form – over which we reserve title and copyright.
2. The Buyer’s order of the Goods constitutes a binding offer to conclude a contract. Unless otherwise stated in the order, we are entitled to accept this offer within fourteen (14) days of its receipt by us.
3. Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer.

§ 3 Delivery Period and Delay in Delivery

1. The delivery period shall be agreed individually or specified by us upon acceptance of the order.
2. If we are unable to meet binding delivery deadlines for reasons beyond our control (non-availability of performance), we shall inform the Buyer without undue delay and at the same time indicate the expected new delivery period. If performance is also unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; any consideration already paid by the Buyer shall be refunded without undue delay. Non-availability of performance within this meaning shall in particular include the failure of timely self-supply by our supplier, provided that we have concluded a congruent hedging transaction, neither we nor our supplier are at fault, or we are not obliged to procure the Goods in the individual case.
3. Our default in delivery shall be determined in accordance with statutory provisions. In any event, a reminder from the Buyer is required. If we are in default, the Buyer may demand lump-sum compensation for delay damages. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) per completed calendar week of delay, but not more than a total of 5% of the delivery value of the delayed Goods. We reserve the right to prove that the Buyer has incurred no damage or substantially less damage than the lump sum stated above.
4. The Buyer’s rights pursuant to § 8 of these GTC 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 performance), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

1. Delivery shall be made ex works, which shall also be the place of performance for delivery and any subsequent performance. At the Buyer’s request and expense, the Goods shall be dispatched to another destination (sale by dispatch). Unless otherwise agreed, we are entitled to determine the method of dispatch (in particular the carrier, shipping route, and packaging).
2. The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer no later than upon handover. In the case of sale by dispatch, however, the risk of accidental loss, accidental deterioration, and delay shall pass upon delivery of the Goods to the forwarding agent, carrier, or other person or institution designated to carry out the shipment. If acceptance is agreed, such acceptance shall be decisive for the transfer of risk. In all other respects, the statutory provisions of German contract for work and services law shall apply mutatis mutandis. Handover or acceptance shall be deemed to have occurred if the Buyer is in default of acceptance.
3. If the Buyer is in default of acceptance, fails to cooperate, or if our delivery is delayed for other reasons attributable to the Buyer, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation of EUR 2,500.00 per calendar day, commencing with the delivery deadline or – in the absence of a delivery deadline – with notification of readiness for dispatch.

The right to prove higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer may prove that no damage or substantially less damage has been incurred.

§ 5 Prices and Payment Terms

1. Unless otherwise agreed in individual cases, our prices valid at the time of contract conclusion shall apply, ex works, plus statutory value-added tax.
2. In the case of sale by dispatch (§ 4 para. 1), the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.
3. The purchase price shall be due and payable within fourteen (14) days from invoicing and delivery or acceptance of the Goods. However, we are entitled at any time, even within an ongoing business relationship, to perform deliveries in whole or in part only against advance payment. We shall declare such reservation at the latest upon order confirmation.
4. Upon expiry of the above payment period, the Buyer shall be in default. During default, the purchase price shall bear interest at the applicable statutory default interest rate. We reserve the right to claim further damages for default. Our claim to commercial maturity interest pursuant to Section 353 of the German Commercial Code (HGB) remains unaffected vis-à-vis merchants.
5. The Buyer shall be entitled to set-off or retention rights only if the counterclaim has been finally adjudicated or is undisputed. In the event of defects, the Buyer’s counter-rights pursuant in particular to § 7 para. 6 sentence 2 of these GTC remain unaffected.
6. If, after conclusion of the contract, it becomes apparent (e.g. through the filing of an application for insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s lack of ability to perform, we shall be entitled, in accordance with statutory provisions, to refuse performance and – if necessary after setting a deadline – to withdraw from the contract (Section 321 BGB). In contracts for the manufacture of non-fungible goods (custom-made products), we may declare withdrawal immediately; statutory provisions regarding the dispensability of setting a deadline remain unaffected.

§ 6 Retention of Title

1. We retain title to the sold Goods until full payment of all present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. The Goods subject to retention of title may neither be pledged nor transferred by way of security to third parties before full payment of the secured claims. The Buyer shall notify us in writing without undue delay if an application for the opening of insolvency proceedings is filed or if third parties attempt to access the Goods belonging to us (e.g. seizure).
3. In the event of contractual breach by the Buyer, in particular non-payment of the due purchase price, we shall be entitled in accordance with statutory provisions to withdraw from the contract and/or reclaim the Goods based on the retention of title. The demand for surrender does not simultaneously constitute a declaration of withdrawal; rather, we are entitled merely to reclaim the Goods and reserve the right to withdraw. We may exercise these rights only if we have previously set an appropriate deadline for payment without success, unless such a deadline is dispensable under statutory provisions.
4. Subject to revocation pursuant to subsection (c) below, the Buyer is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

a) The retention of title extends to the full value of the products resulting from processing, mixing, or combining our Goods, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing, or combining with third-party Goods, their ownership rights remain, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined Goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered subject to retention of title.

b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the Goods or the resulting product, in full or in the amount of our respective co-ownership share pursuant to the above provision. We hereby accept the assignment. The obligations of the Buyer set forth in paragraph 2 shall also apply with regard to the assigned claims.

c) The Buyer shall remain authorized to collect the claims alongside us. We undertake not to collect the claims as long as the Buyer meets its payment obligations towards us, there is no deficiency in its ability to perform, 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 require the Buyer to disclose the assigned claims and their debtors, provide all information required for collection, hand over related documents, and notify the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the Buyer’s authorization to further resell and process the Goods subject to retention of title.

d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.

§ 7 Buyer’s Claims for Defects

1. The Buyer’s rights in the event of material and legal defects (including incorrect and short delivery, as well as improper assembly/installation or defective instructions) shall be governed by statutory provisions unless otherwise specified below. Statutory special provisions on reimbursement of expenses upon final delivery of newly manufactured Goods to a consumer (supplier recourse pursuant to Sections 478, 445a, 445b or Sections 445c, 327 para. 5, 327u BGB) remain unaffected, unless an equivalent compensation has been agreed, for example within the scope of a quality assurance agreement.
2. The basis of our liability for defects is primarily the agreement made regarding the quality and intended use of the Goods (including accessories and instructions). All product descriptions and manufacturer’s specifications that are the subject of the individual contract or were publicly disclosed by us (in particular in catalogues or on our website) at the time of contract conclusion shall be deemed to constitute an agreement on quality within this meaning. If no quality has been agreed, the determination of whether a defect exists shall be made in accordance with statutory provisions (Section 434 para. 3 BGB). Public statements by the manufacturer or on its behalf, in particular in advertising or on the label of the Goods, shall take precedence over statements by other third parties.
3. In the case of Goods with digital elements or other digital content, we shall owe provision and, if applicable, updating of the digital content only insofar as this is expressly stipulated in an agreement on quality pursuant to paragraph 2. We assume no liability for public statements made by the manufacturer or other third parties in this respect.
4. We shall generally not be liable for defects known to the Buyer at the time of contract conclusion or defects which the Buyer was grossly negligent in not knowing (Section 442 BGB). Furthermore, the Buyer’s defect claims presuppose that it has complied with its statutory duties of inspection and notification of defects (Sections 377, 381 HGB). In the case of Goods intended for installation or other further processing, inspection shall in any case be carried out immediately prior to processing. If a defect becomes apparent upon delivery, inspection, or at any later point in time, we must be notified thereof in writing without undue delay. In any event, obvious defects must be reported in writing within five (5) working days from delivery, and defects not recognizable during inspection within the same period from discovery. If the Buyer fails to properly inspect and/or notify defects, our liability for defects not, not timely, or not properly notified shall be excluded in accordance with statutory provisions. In the case of Goods intended for installation, attachment, or installation, this shall also apply if the defect becomes apparent only after such processing due to a breach of one of these obligations; in such case, in particular, no claims shall exist for reimbursement of corresponding costs (“removal and installation costs”).
5. If the delivered item is defective, we shall initially be entitled to choose whether to provide subsequent performance by remedying the defect (repair) or by delivering a defect-free item (replacement delivery). If the form of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, the Buyer may refuse it. Our right to refuse subsequent performance under statutory provisions remains unaffected.
6. We are entitled to make subsequent performance conditional upon the Buyer having paid the due purchase price. However, the Buyer is entitled to withhold a reasonable portion of the purchase price proportionate to the defect.
7. The Buyer shall grant us the time and opportunity required for subsequent performance, in particular to hand over the object complained of for inspection purposes. In the event of replacement delivery, the Buyer shall return the defective item to us upon request in accordance with statutory provisions; however, the Buyer shall not have a right of return. Subsequent performance does not include the removal, dismantling, or deinstallation of the defective item nor the installation, attachment, or installation of a defect-free item if we were not originally obliged to perform such services; claims of the Buyer for reimbursement of corresponding costs (“removal and installation costs”) remain unaffected.
8. The expenses necessary for inspection and subsequent performance, in particular transport, travel, labor, and material costs as well as, if applicable, removal and installation costs, shall be borne or reimbursed by us in accordance with statutory provisions and these GTC if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer for the costs incurred due to an unjustified request for defect remedy if the Buyer knew or negligently did not know that no defect existed.
9. In urgent cases, e.g. where operational safety is at risk or to avert disproportionate damage, the Buyer has the right to remedy the defect itself and to demand reimbursement from us for the objectively necessary expenses incurred. We must be notified without undue delay, if possible in advance, of such self-remedy. The right to self-remedy shall not apply if we would have been entitled to refuse corresponding subsequent performance under statutory provisions.
10. If an appropriate deadline set by the Buyer for subsequent performance has expired without success, or is dispensable under statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with statutory provisions. In the case of a minor defect, however, there shall be no right of withdrawal.
11. Claims of the Buyer for damages or reimbursement of futile expenses shall exist only in accordance with § 8 and shall otherwise be excluded.

§ 8 Other Liability

1. Unless otherwise provided in these GTC including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.
2. We shall be liable for damages – irrespective of the legal basis – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, subject to statutory limitations of liability (e.g. care in one’s own affairs; insignificant breach of duty), we shall be liable only

a) for damages resulting from injury to life, body, or health;

b) for damages resulting from a breach of a material contractual obligation (an obligation whose fulfilment is essential for the proper performance of the contract and upon whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for foreseeable damage typical of the contract.

3. The liability limitations resulting from paragraph 2 shall also apply in favor of third parties and in cases of breaches of duty by persons (also in their favor) whose fault we are responsible for under statutory provisions. They shall not apply if a defect has been fraudulently concealed, a guarantee for the quality of the Goods has been assumed, or for claims under the Product Liability Act.

In the event of a breach of duty that does not consist of a defect, the Buyer may withdraw from or terminate the contract only if we are responsible for the breach of duty. A free right of termination by the Buyer (in particular pursuant to Sections 650, 648 BGB) is excluded. Otherwise, statutory conditions and legal consequences shall apply.

§ 9 Limitation Period

1. Deviating from Section 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material and legal defects shall be one (1) year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.
2. Statutory special provisions on limitation (in particular Section 438 para. 1 no. 1, para. 3, Sections 444, 445b BGB) remain unaffected.

The above limitation periods under sales law shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect of the Goods, unless application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages by the Buyer pursuant to § 8 para. 2 sentence 1 and sentence 2(a) as well as claims under the Product Liability Act shall be subject exclusively to the statutory limitation periods.

§ 10 Choice of Law and Jurisdiction

1. These GTC and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
2. If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), 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 shall be our place of business in 55270 Klein‑Winternheim. The same shall apply if the Buyer is an entrepreneur within the meaning of Section 14 BGB. In all cases, however, we are also entitled to bring legal action at the place of performance of the delivery obligation pursuant to these GTC or a prevailing individual agreement, or at the Buyer’s general place of jurisdiction. Mandatory statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.