1.1 Our Terms and Conditions of Sale and Delivery shall apply exclusively to all our deliveries and services, including those arising from future business transactions. Supplementary or deviating conditions of the customer shall only apply if they have been expressly accepted by us in writing. Unless otherwise agreed, these Terms and Conditions of Sale and Delivery shall apply in the version valid at the time of the customer’s order or, in any case, in the version last notified to the customer in text form as a framework agreement also for similar future contracts without our having to refer to them again in each individual case.
1.2 These Terms and Conditions of Sale and Delivery shall be deemed accepted at the latest upon acceptance of our deliveries and services.
1.3 Our terms and conditions of sale and delivery shall only apply to entrepreneurs, legal entities under public law and public-law entities.
Special assets within the meaning of § 310 para. 1 BGB.
1.4 Legally relevant declarations and notifications by the customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these Terms and Conditions of Sale and Delivery includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
- Offer, conclusion of contract, quality of our goods
2.1 Our offers are subject to change without notice. All contracts are concluded upon receipt of our written order confirmation, at the latest upon delivery of the goods or performance of the service. Our offer, our order confirmation and these terms and conditions of sale and delivery shall be decisive for the content of the contract. In cases of doubt, the offer shall be decisive first, followed by the order confirmation and finally these Terms and Conditions of Sale and Delivery. Agreements deviating from this always require our express written confirmation. A delayed acceptance by the customer is considered a new offer and requires acceptance by us.
2.2 The agreed quality of our goods shall be exclusively those properties and characteristics which are stated on the product packaging and in our order confirmation. Other or more extensive properties and characteristics shall only be deemed to be agreed properties and characteristics if they are expressly confirmed by us in writing.
2.3 Declarations on our part regarding the quality of the goods shall only constitute a guarantee of quality if we have expressly designated them in writing as a guarantee of quality.
- Delivery, delivery time, force majeure
3.1 Unless otherwise agreed, deliveries shall be made ex works (EXW according to Incoterms 2020). If the goods are ready for shipment and the shipment or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notice of readiness for shipment.
3.2 Delivery and performance dates shall only be binding if we have expressly confirmed them as such. Delivery dates refer to the date of departure from the factory, in the case of free deliveries to the date of receipt of goods by the customer. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon handover. However, in the case of sale by delivery to a place other than the place of performance, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass already upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.
3.3 Cases of force majeure shall interrupt our delivery obligation for the duration and to the extent of their effect, even if we are already in default of delivery. Cases of force majeure shall be deemed to be unforeseen circumstances and occurrences for which we are not responsible and which could not have been avoided with the due diligence of a prudent businessman (e.g. labor disputes, war, fire, transport obstacles, shortage of raw materials, official measures, epidemics, pandemics).
3.4 Insofar as we have concluded a congruent covering transaction with our upstream supplier in good time, the delivery and performance dates stated by us shall be subject to timely and proper delivery by our own suppliers. If we are not supplied on time and in the proper manner and if we have informed the customer of this without delay, we shall be entitled to withdraw from the contract after two weeks, calculated from the delivery or performance date specified to the customer, provided that we immediately reimburse the customer for any consideration paid.
3.5 In the case of deliveries on call, the goods shall be accepted in quantities distributed as evenly as possible over the term, unless otherwise agreed. Upon expiry of the agreed call-off period, we shall be entitled to deliver the entire remaining quantity immediately. In case of later acceptance, we reserve the right to charge at the daily price.
3.6 We are entitled to make partial deliveries if these are reasonable for the customer.
3.7 The limitations of liability in Clause 6 shall also apply to any claims of the customer arising from delay in delivery.
- Prices and payments
4.1 Unless otherwise expressly agreed, the prices shall apply ex works including packaging with the exception of loan and exchange packaging and excluding value added tax. Additional costs for requested express delivery or transport insurance shall be borne by the customer.
4.2 All invoices are due for payment within 14 days of receipt without any deductions to an account designated by us. Unless otherwise agreed, all payments shall be made in EURO. However, we shall be entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
4.3 A payment shall only be deemed to have been made when we can finally dispose of the amount. Bills of exchange and checks are only accepted on account of performance.
By accepting bills of exchange or checks, we do not assume any obligation with respect to protest and timely presentation. All expenses or other costs arising from the collection of bills of exchange or checks shall be borne by the customer.
4.4 If a threat to our payment claims becomes apparent due to the customer’s inability to pay (e.g. due to an application for the opening of insolvency proceedings), we shall be entitled to declare all claims not yet due from the entire business relationship with the customer immediately due and payable, provided that we have already performed our deliveries and services. This also applies if we have already accepted bills of exchange or checks. A risk also exists if information from a bank or credit agency suggests that the customer is not creditworthy. The same shall apply if the customer is in default of payment of at least two invoices without being entitled to retention or set-off. In this case, we shall also be entitled to set the customer a reasonable period of time in which the customer must, at its discretion, either effect counter-performance or provide security concurrently with the provision of the outstanding deliveries and services. After unsuccessful expiry of this period, we may withdraw from the contract. In the event of cessation of payments or over-indebtedness of the customer, the setting of a grace period shall be dispensable.
4.5 In the event of default in payment, we shall be entitled to charge interest at a rate of 9 percentage points above the respective base interest rate, subject to the assertion of a higher claim for damages caused by default (Section 288 (2) BGB).
4.6 Offsetting by the customer is only permitted with an undisputed or legally established claim. Insofar as offsetting is not permitted, the customer shall also not be entitled to a right of retention, otherwise only with regard to claims arising from the same contract.
4.7 The assignment of claims against us shall expressly require our prior consent.
4.8 All mutual claims arising from the business relationship shall be placed in a current account to which the provisions of §§ 355 ff. HGB shall apply. Interest shall be charged on the individual debt balances in the current account within the scope of Section 315 of the German Civil Code at an interest rate to be determined by us.
- Notice of defects/warranty
5.1 Notice of recognizable defects, incorrect deliveries and deviations in quantity must be given in writing immediately after delivery. This also applies to incorrect bar coding on the goods. Hidden defects must be reported in writing immediately after their discovery, but at the latest within 5 working days after the defect became apparent. Claims for defects on the part of the customer presuppose that he has fulfilled his statutory obligations to inspect and notify (§§ 377, 381 HGB).
5.2 A deviation from the quality owed shall not be deemed a material defect if it is insignificant. The same shall apply in the event of quantitative deviations from binding quantities, unless we are entitled to make partial deliveries.
5.3 In the event that the goods are defective, claims for damages by the customer shall be excluded, unless the defect is based on intentional or grossly negligent conduct by us, our legal representatives or vicarious agents, was fraudulently concealed or is covered by a quality guarantee assumed by us, which also grants the customer claims for damages in the event of a guarantee as evidenced by the guarantee document.
5.4 In the event of justified and timely notices of defects by the customer, we shall be entitled, at our discretion, to rectify the defect or to make a subsequent delivery against return of the goods. The customer may only assert his other statutory warranty rights if he has unsuccessfully set us a reasonable deadline for subsequent performance, we refuse subsequent performance, it fails or is unreasonable for the customer. In the event of a reduction in price, withdrawal from the contract or a claim for reimbursement of expenses, it shall not be necessary to set a deadline if the customer had to take back our goods from a consumer as a result of their defectiveness or if a consumer has reduced the purchase price vis-à-vis him.
5.5 In the event of quality complaints, only the relevant statutory provisions applicable in the Federal Republic of Germany shall apply. An examination of the goods is usually carried out according to the procedures specified in § 64 LFGB or the VDLUFA method book or according to other scientifically recognized procedures/methods.
5.6 Before further processing or resale of goods subject to complaint, we shall be given the opportunity to examine the complaint. We must be given the opportunity to inspect the notified defects on site in an unaltered condition.
5.7 We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
5.8 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these Terms and Conditions of Sale and Delivery if a defect is actually present. Otherwise, we may demand reimbursement from the customer of the costs incurred as a result of the unjustified request to remedy the defect if the customer knew or was negligent in not knowing that there was actually no defect.
- Limitation of liability
6.1 We shall be liable in any case for damage to life, body and health as well as under the Product Liability Act.
6.2 In the event of a breach of material contractual obligations (so-called cardinal obligations), we shall be liable for damages in the event of intent or gross negligence without limitation, in the event of simple negligence limited to compensation for the foreseeable damage typical for the contract.
6.3 In all other cases, claims for damages on any legal grounds whatsoever (including claims in tort) against us shall be excluded unless there has been an intentional or grossly negligent breach of duty by us, our legal representatives or our vicarious agents. In the event of gross negligence, our liability shall be limited to the foreseeable damage typical for the contract.
6.4 Insofar as our liability is excluded or limited in accordance with the above paragraphs, this shall also apply to the liability of our vicarious agents and assistants as well as our legal representatives and executive employees.
6.5 If we have granted the customer certain rights within the scope of a quality guarantee in the event of a defect, such rights shall remain unaffected by the above limitations of liability.
- Retention of title
7.1 The goods shall remain our sole property until all claims (including all current account balance claims) to which we are entitled against the customer for any legal reason now or in the future have been satisfied. The processing or transformation of our goods by the customer shall always be carried out for us as manufacturer. If our goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our goods to the value of the other processed item at the time of processing. Incidentally, the same shall apply to the product resulting from processing as to our goods delivered under reservation.
7.2 If our goods are inseparably mixed or combined with other goods not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of our goods to the value of the other mixed or combined item at the time of mixing or combining. If the other item of the customer is to be regarded as the main item, it is already agreed now that the customer transfers co-ownership to us on a pro rata basis. We accept the share transfer. The customer shall hold our (co-) ownership in safe custody for us free of charge.
7.3 The customer shall be entitled to process and sell the goods subject to retention of title in the ordinary course of business as long as he is not in default with his payment obligations towards us. Pledges or transfers of ownership by way of security are not permitted. Claims from the resale of the goods (including all balance claims from the current account), insurance claims as well as claims against third parties due to damage, destruction, theft or loss of the goods are already assigned to us by the customer by way of security. We accept this assignment. If we are only entitled to co-ownership of the reserved goods, the advance assignment shall be limited to that part of the claim which corresponds to the share of our co-ownership (based on the invoice value). In the event of resale of the goods, the customer shall retain title to the reserved goods vis-à-vis its buyers until the purchase price has been paid in full. The customer is not entitled to resell the goods to third parties if the purchase price claim from the resale is subject to a prohibition of assignment.
7.4 We revocably authorize the customer to collect the claims assigned to us for its own account in its own name. This authorization to collect may be revoked if the customer does not properly meet its payment obligations to us or if our claims appear to be at risk due to the customer’s inability to pay. Upon request, the customer shall inform us of the debtors of the assigned claims.
7.5 In the event of access by third parties to the reserved goods, the customer shall point out our ownership and notify us immediately. Our intervention costs shall be borne by the customer.
7.6 The customer shall be entitled to demand that we release claims to the extent that the realizable value of our securities exceeds our claims to be secured by more than 10%. We select any receivables to be released.
7.7 In the event of default in payment by the customer, we shall be entitled, even without setting a grace period, to demand the temporary surrender of our reserved goods at the customer’s expense – by handing them over or returning them to us – or, if applicable, to demand the assignment of the customer’s claims for surrender against third parties. Our taking back or seizure of the goods subject to retention of title shall not constitute a withdrawal from the contract. We shall be prepared at any time to return the goods taken back to the customer concurrently with payment of the purchase price.
7.8 If, in the case of deliveries abroad, the retention of title agreed under clause 7 does not fit into the foreign law, the provisions on the retention of title shall be reinterpreted in such a way that it fits into the foreign law and that it comes close to the provisions agreed under clause 7.
Unless otherwise agreed, the return of delivered goods is excluded. If goods are nevertheless returned, the return of the goods shall not be deemed to be an acknowledgement of the cancellation of the order, the defectiveness and the issuance of a credit note, even if the receipt of the goods has been acknowledged.
- Empties and packaging
The loaned items (e.g. transport containers, cans, barrels, crates, pallets, etc.) provided to the customer shall remain our sole and unrestricted property even if a deposit is made. They are to be returned to us by the customer immediately after intended use in perfect condition (cleaned), carriage paid; otherwise we are entitled to charge the customer the replacement costs. The loan packaging may not be filled with other goods or used in any other way.
10 Data protection
We are entitled to store data of goods and payment transactions as well as personal data and to process them for our own evaluations.
(1) Notwithstanding Section 438 ( 1 ) No. 3 of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case. Claims for damages of the customer according to. Item 6 para. 1 and para. 2 1st half-sentence of these Terms and Conditions of Sale and Delivery as well as under the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
12 Applicable law, place of performance, partial invalidity
12.1 The contract shall be governed exclusively by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and German private international law (IPR).
12.2 The sole place of performance for our deliveries and services shall be the respective production site of the ordered goods, as notified to the customer prior to delivery. The place of payment for the customer is the registered office of our company.
12.3 Should any provision in these Terms and Conditions of Sale and Delivery or in the context of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements. The same applies in the event of a regulatory gap.
12.4 All our previous terms and conditions of sale and delivery shall hereby lose their validity.
If the customer 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 place of jurisdiction for both parties for all disputes arising directly or indirectly from the contractual relationship shall be the registered office of our company. However, we also have the right to sue the customer at his general place of jurisdiction or before another competent court. This also applies to cross-border deliveries.
Status: June 2022