General Conditions of Sale

Sect. 1 General information/Scope of application

((1) Our General Conditions of Sale shall apply to all contracts concluded after October 1st, 2018 which predominantly relate to the delivery of movable goods ("goods") to customers whose relevant business address is in Germany.  Any additional obligations assumed shall not affect the validity of these General Conditions of Sale.

(2) Our General Conditions of Sale apply exclusively; we do not accept conflicting terms and conditions on the part of customer or customer's term and conditions which deviate from our General Conditions of Sale. Similarly, the customer's terms and conditions shall not apply if they differ from the statutory provisions. The customer's terms and conditions shall also not apply even if we do not disagree, implicitly provide services or implicitly accept the customer's services/work.

(3) Our General Conditions of Sale only apply if the customer is an entrepreneur (§ 14 of the German Civil Code, BGB), a legal entity of the public law or a special fund under public law.

(4) References to the validity of statutory provisions shall only have clarifying significance.  Even without such clarification, the statutory provisions shall therefore apply insofar as they are not directly modified or expressly excluded in these General Conditions of Sale.

Sect. 2 Quotation/Quotation documents/Content of the contract

(1) Our offer is non-binding, if it is not expressly identified as binding. The written agreement between us and the customer shall be decisive for the scope of the contractually owed performance - in compliance with the provisions contained in these General Conditions of Sale

(2) We reserve ownership rights and copyright of illustrations, drawings, calculations and other documents. This also applies to written documents which are designated 'confidential'. Before transfer takes place to third parties, the customer requires our express written consent.

(3) The customer shall be obliged to inform us in writing even before conclusion of a contract if (a) the goods to be delivered are not to be exclusively suitable for normal use or if the customer assumes that they are particularly suitable for use, (b) the goods are used under unusual conditions or are subject to special stress, (c) the goods are used under conditions which entail a particular risk for health or safety, or (d) the goods are to be used outside Germany or delivered to buyers of the customer resident outside Germany.

(4) Customary deviations and deviations which occur due to legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts are permissible, provided that they do not impair the usability for the contractually intended purpose.

(5) With the exception of the acceptance of the goods in accordance with § 433 para. 2 German Civil Code BGB, an acceptance of the goods is not agreed.

(6) With the conclusion of the contract we do not assume any procurement risk within the meaning of § 276 German Civil Code BGB. Furthermore, we do not assume any warranty for the goods.

(7) All agreements made between us and the customer for the purpose of executing a contract at the time of conclusion of the contract are set out in writing in the contract and these General Conditions of Sale.

Sect. 3 Prices/Payment conditions

(1) Unless the order confirmation states otherwise, our prices are EXW Incoterms 2010, excluding the cost of packaging. Packaging will be invoiced separately. The deduction of a cash discount requires special written agreement.

(2) The customer is obliged to pay the purchase price by the date indicated in the written order confirmation or, where this is not referred to, to pay the amount when the invoice is issued to the account indicated by us, free of costs and expenses. The receipt of payment on our account is decisive for timely payment. The agreed price covers the performances incumbent upon us, excluding packaging. Statutory VAT will be charged separately and is additionally payable by the customer.

(3) For default in payment the statutory regulations shall apply. Interest is paid on the purchase price during the period of default at the statutory default interest rate applicable.  We reserve the right to assert further claims for damages caused by default.  Our claim against merchants to commercial interest on maturity in accordance with § 353 German Commercial Code HGB remains unaffected.

(4) The customer is only entitled to offset and only has the right of retention if his counterclaims have been legally determined, are undisputed or have been acknowledged by us or based on the same contractual relationship.

Sect. 4 Delivery/Delivery time/Withdrawal in the case of default/ Compensation in the case of default

(1) Delivery takes place EXW Incoterms 2010 at the delivery address designated in our order confirmation. If no delivery address is cited in the order confirmation, the delivery takes place EXW Speckenstraße 6, 33397 Rietberg-Mastholte Incoterms 2010. The risk is transferred upon delivery.

(2) The start of the delivery period stated by us presupposes the clarification of all technical questions. Compliance with our delivery obligation requires the timely and proper fulfillment of all obligations on the part of the customer. The right of defense of non-performance of the contract is reserved.

(3) Agreed delivery periods shall not establish a forward transaction.

(4) We shall be entitled to make partial deliveries and render partial performances within the agreed delivery periods resp. up to the agreed delivery date insofar as this is reasonable for the customer.

(5) If the customer still wants changes to be made to the goods after signing the contract, this leads to an extension of the delivery deadline. Depending on the order situation, the period of extension may lead to a longer period than would be required for just implementing the desired changes.

(6) If the customer is in default of acceptance or culpably violates other cooperation obligations, we shall be entitled to demand compensation for damages incurred by us, including any additional expenses. We reserve the right to make further claims. In the event of disruptions of operation as a result of force majeure (strike, lockout, natural disasters etc.) affecting the customer, the customer is entitled to agree to a new delivery date with us in writing, without any cost implications.

(7) If the conditions of § 4 para. (6) apply, the risk of accidental loss or accidental deterioration of the goods is transferred to the customer at the time at which the customer is in default of acceptance or default of debtor.

(8) The customer shall only be entitled to withdraw from the contract on account of late delivery and/or non-delivery if we are in default in fulfilling our main obligations or if we have materially breached obligations established by the contract in another way and the default or breach of obligations is attributable to us.  Without forgoing other legislation, a written request for us to provide our services/work within a reasonable time is needed in order to bring about default, even if the date of the performance is determined by the calendar.

(9) Should we be in default of delivery in accordance with the statutory requirements and in compliance with the provisions of these General Conditions of Sale and should the customer have claims for damages against us due to default, our liability in the event of default of delivery without waiving the statutory requirements shall be limited for each completed week of default to 0.5% of the agreed net price of the goods not delivered or delivered late, but to a maximum of 5% of the net price of the goods not delivered or delivered late.  Claims due to malicious, intentional and grossly negligent breach of contract as well as claims due to injury to life, body and health and in case of liability under the Product Liability Act shall remain unaffected.

Sect. 5 Liability for defectsgelhaftung

(1) The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title, unless otherwise specified below.  In all cases - even if this is not mentioned separately below - the statutory provisions according to § 439 Para. 2 and Para. 3 German Civil Code BGB (reimbursement of the expenses required for the purpose of subsequent performance) shall remain unaffected insofar as the goods sold by us are newly manufactured, according to § 445a German Civil Code BGB (recourse of the customer against us in the event that he must bear expenses in relation to his customer within the scope of subsequent performance according to § 439 Para. 2 and/or Para. 3 German Civil Code BGB and/or § 475 Para. 4 and/or Para. 6 German Civil Code BGB) and according to § 478 BGB (Special provisions for business recourse in the event of the sale of consumer goods).

(2) Goods are considered defective if they are noticeably different from the contractually agreed specifications at the time risk is transferred. If no specifications have been agreed, the goods are considered defective if they deviate from the qualities which are usual in Germany.

(3) The goods only have legal defects if, at the time risk is transferred, they are not free from rights which are enforceable in Germany. If, however, the goods are not free from rights enforceable in Germany at the time of transfer of risk and this is based on instructions by the customer, no legal defect shall exist deviating from § 5 para. (3) sentence 1.

(4) Warranty claims made by the customer presuppose that the customer has duly fulfilled his inspection and complaint obligations in accordance with § 377 German Commercial Code HGB, taking into account the provisions contained in these General Conditions of Sale. The customer is also obliged to notify defects if the contract concluded between us and the customer is a contract for work and services.

(5) The customer is obliged to report obvious material defects immediately in writing to us after delivery of the goods. Moreover, the customer is obliged to inspect the goods immediately after delivery. The customer shall notify us in writing of material defects which are recognizable by a proper inspection or which are obvious immediately, but at the latest within seven (7) calendar days after delivery of the goods. Hidden defects must be reported immediately after their discovery, at the latest, however, before the expiry of the warranty period.

(6) The notice must be sent to us immediately and in writing. It must be accurately worded in such a way that we will be able to take corrective measures and secure rights of recourse against our suppliers without the need to make further inquiries with the customer. Moreover, the complaint must comply with the statutory provisions. Our staff are not authorized to accept notices of defects outside our premises or make statements concerning the warranty.

(7) In the event of a defect notified within the time limit, we are entitled, at our discretion, to make a supplementary performance by making a repair or delivering a new item which is free of defects. Subsequent performance may be effected at our discretion at our registered office or at the place of installation of the goods. We shall not be liable for expenses incurred as a result of the goods being transported to a location other than the customer's branch office unless the customer has informed us in writing in his order prior to conclusion of the contract that the goods will be transported to a location other than his branch office and we have expressly agreed to this.

(8) Insofar as the goods sold by us are newly manufactured, we shall be obliged - without waiving the statutory provisions and those contained in these General Conditions of Sale, without waiving the objection of disproportion in accordance with § 439 para. 4 German Civil Code BGB - within the framework of subsequent performance to reimburse the customer for the necessary expenses for the removal of the defective goods and the installation or assembly of the repaired or delivered defect-free goods, insofar as the customer has installed the defective goods in accordance with their nature and intended use in another item or fixed to another item in accordance with their other purpose.

(9) If the supplementary performance fails, the customer shall be entitled, after setting a deadline with the threat of rejection and additionally in compliance with the statutory provisions, to demand withdrawal or reduction of the purchase price. Rectification of a defect will only be considered as failed - based on the specific individual defect - after the third unsuccessful attempt, unless there is something particular about the nature of the defect or other circumstances indicate otherwise.

(10) Insofar as the customer has suffered damage or incurred useless expenses due to a defect in goods delivered by us, the provisions of § 6 of these General Terms and Conditions of Sale shall apply in addition.

(11) With the exception of the cases regulated in § 5 para. 12 of these General Conditions of Sale, any claims of the customer due to delivery of defective goods lapse one (1) year after the statutory commencement of the limitation period.

(12) Notwithstanding § 5 para. 11 of these General Conditions of Sale, the statutory warranty periods shall apply

  • if the goods are a newly manufactured item which is a building and/or an item which has been used for a building in accordance with its customary purpose and which has caused its defectiveness;
  • if the customer's claims are based on an intentional and/or grossly negligent breach of contract;
  • if we fraudulently concealed the defect;
  • for claims due to injury to life, body and/or health;
  • for claims according to § 445a German Civil Code BGB (recourse of the customer with us for the case that he must bear expenses in the relationship to his customer within the scope of subsequent performance according to § 439 para. 2 and/or para. 3 German Civil Code BGB and/or § 475 para. 4 and/or para. 6 German Civil Code BGB);
  • for claims according to § 439 para. 2 and para. 3 German Civil Code BGB (reimbursement of expenses necessary for the purpose of supplementary performance), provided that the goods sold by us are newly manufactured, whereby such a claim presupposes that the claim for supplementary performance according to § 439 para. 1 German Civil Code BGB does not lapse in accordance with these General Conditions of Sale; and
  • for claims that fall within the scope of § 478 German Civil Code BGB (special provisions for entrepreneur recourse in the case of the purchase of consumer goods).

(13) replacement or rework does not lead to new limitation periods.

Sect. 6 Liability for damage and expenses

(1) Our liability for damages and expenses shall be governed by the following provisions in addition to the above provisions in § 5 of these General Conditions of Sale.  Subject to a statute of limitations according to § 5 para. 11 in connection with § 5 para. 12 of these General Conditions of Sale, the statutory provisions shall remain unaffected in all cases - even if this is not mentioned separately below

  • according to § 445a German Civil Code BGB (recourse of the customer with us in case that he must bear expenses in relation to his customer within the scope of the subsequent performance according to § 439 para. 2 and/or para. 3 German Civil Code BGB and/or § 475 para. 4 and/or para. 6 BGB),
  • in accordance with § 478 German Civil Code BGB (special provisions for entrepreneur recourse in case of the purchase of consumer goods), and
  • our obligation to bear the expenses required for the purpose of subsequent performance in accordance with § 439 para. 2 and/or para. 3 German Civil Code BGB, insofar as the goods sold by us are a newly manufactured item, whereby such a claim presupposes that the subsequent performance claim in accordance with § 439 para. 1 German Civil Code BGB has not lapsed in accordance with these General Conditions of Sale.

(2) Our liability for damages or expenses incurred in vain by the customers shall only arise if the damage or futile expenses

a) were caused by a culpable breach of an obligation, the fulfillment of which is essential for the proper execution of the contract and on the observance of which the customer may regularly rely (essential contractual obligation), or

b) is due to a grossly negligent or intentional breach of duty.

(3) If we are liable pursuant to § 6 para. 2 a) of these General Conditions of Sale for the breach of an essential contractual obligation, our liability for damages shall be limited to the damage foreseeable and typically occurring at the time of conclusion of the contract; however, if the breach of the essential contractual obligation should occur in connection with the delivery of goods, our liability for damages shall be limited to the net purchase price of the goods concerned, insofar as this is lower than the damage foreseeable and typically occurring at the time of conclusion of the contract.  For damages caused by delay § 4 para. 9 of these General Conditions of Sale applies. 

(4) The aforementioned limitations of liability specified in § 6 Para. 2 to Para. 3 of these General Conditions of Sale shall not apply to liability (a) under the Product Liability Act, (b) for assumption of a warranty for the quality of the goods, (c) for fraudulent concealment of a defect, (d) for damages resulting from culpable injury to life, limb or health and (e) for damages resulting from gross negligence or intentional breach of duty.

(5) With the exception of liability (a) under the Product Liability Act, (b) for assumption of a warranty for the quality of the goods, (c) for fraudulent concealment of a defect, (d) for damages arising from culpable injury to life, limb or health and (e) for damages based on gross negligence or intentional breach of duty, liability for damages arising from the delivery of used goods is excluded.

(6) The obligation of the customer to damage reduction pursuant to § 254 of the German Civil Code BGB shall remain unaffected. Any agreement between the customer and his buyers which aggravates the legal liability of the buyer to his disadvantage constitutes a breach of this duty to mitigate damages and leads - insofar as the legal liability of the buyer has been aggravated to his disadvantage - to the exclusion of a claim for compensation against us.

(7) In the event of a breach of the contractual and/or pre-contractual obligations incumbent upon the customer, we shall be obliged to pay damages exclusively in accordance with the provisions of these General Conditions of Sale. Any recourse to competing claims, e.g. culpa in contrahendo pursuant to § 311 para. 3 German Civil Code BGB, positive breach of contract pursuant to § 280 BGB or tort claims pursuant to § 823 BGB is excluded. Similarly, it is excluded to make personal claims against our organs, employees, workers, representatives and/or vicarious agents due to the violation of the contractual obligations incumbent upon us.

(8) The aforementioned provisions in § 6 of these General Conditions of Sale shall apply subject to

  • according to § 445a German Civil Code BGB (recourse of the customer with us in case that he must bear expenses in relation to his customer within the scope of the subsequent performance according to § 439 para. 2 and/or para. 3 German Civil Code BGB and/or § 475 para. 4 and/or para. 6 BGB),
  • § 478 German Civil Code BGB (special provisions for entrepreneur recourse in the case of the purchase of consumer goods); as well as subject to 
  • the expenses to be borne by us for the purpose of subsequent performance in accordance with § 439 Para. 2 and/or Para. 3, insofar as the goods sold by us are newly manufactured,

also for claims of the customer for reimbursement of expenses.

Sect. 7 Retention of title

(1) We retain title of the goods until receipt of all payments arising from the delivery contract. In the case of non-contractual behavior of the customer, especially payment default, we are entitled to take back the goods.  Taking back the goods on our part constitutes a withdrawal from the contract.  After taking back the goods, we are entitled to recover their value; the proceeds of sale will be credited against the customer's liabilities, less reasonable costs.

(2) The customer is obliged to treat the goods with care; he is especially obliged to insure them at his own expense against fire damage, water damage and theft at replacement value.  If maintenance and inspection work is necessary, the customer must carry these out in good time at his own expense.  In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can bring an action in accordance with sect. 771 German Civil Procedure Code.

(3) The customer is entitled to resell the goods in the ordinary course of business; however, he hereby assigns us all receivables amounting to the final invoice amount (including VAT) of our claim, which he accrues from reselling to his customers or third parties, irrespective of whether the goods have been resold without being processed or after processing.  The customer also remains authorized to collect these receivables following this assignment.  Our authority to collect the receivables ourselves remains unaffected.  However, we shall not collect the receivables as long as the customer meets his payment obligations from the collected proceeds, does not fall into arrears and, in particular, does not apply to open composition or insolvency proceedings or suspends payments.  If this is the case, we can demand that the customer discloses all assigned claims and the respective debtors to us, provides all the information that is necessary for us to make a collection, hands over the relevant documents and informs his debtors (third parties) of the assignment.

(4) The processing or transformation of the goods by the customer is always done for us.  If the goods are processed with other items not belonging to us, we shall acquire joint ownership of the new item in proportion of the value of the goods (final invoice amount, including VAT) to the other processed items at the time of processing.  Moreover, the same applies for the item created through processing as for the goods delivered subject to reservation.

(5)  If the goods are inseparably mixed with other items not belonging to us, we shall acquire joint ownership of the new item in proportion of the value of the goods (final invoice amount including VAT) to the other mixed objects at the time of mixing.  If the mixing is such that the customer's item is regarded as the main item, it shall be agreed that the customer transfers proportional joint ownership to us.  The customer shall retain sole ownership or co-ownership for us.

(6) The customer also assigns claims to us for securing our claims against him, which accrue against a third party by combining the goods with a property.

(7) We shall release the securities owed to us at the customer's request insofar as the realizable value of our securities exceeds the value of the claims to be secured by more than 10%; the selection of securities to be released lies with us.

Sect. 8 Place of jurisdiction / Applicable law / Place of delivery and performance

(1) If the customer is a merchant in the sense of the German Commercial Code, a legal entity of the public law or a special fund under public law, the exclusive place of jurisdiction for any disputes resulting directly or indirectly from the contractual relationship is the location of our registered office in 33397 Rietberg-Mastholte. However, we are also entitled to take legal action against the customer at his general legal venue. Prior statutory provisions, in particular regarding exclusive responsibilities, shall remain unaffected.

(2) The law of the Federal Republic of Germany shall apply; the provisions of the CISG shall not apply.

(3) The place of delivery results from § 4, para. (1). The place of payment and fulfillment for all other obligations arising from the contract is 33397 Rietberg-Mastholte. This also applies if payments have to be returned. 

Sect. 9 Miscellaneous

(1) Should provisions of these General Conditions of Sale be or become invalid in whole or in part, the remaining provisions shall remain valid.

(2) Neither a personal signature nor an electronic signature shall be required to maintain the written form.  Notifications by fax or e-mail shall be deemed to be made in writing.

Version: September 2018