General Terms and Conditions

1. General Information
1.1 The latest version of the following General Terms and Conditions (hereinafter: GTC) shall apply exclusively to all current and future business relationships with the exception of our business relationships with contractors and suppliers. This shall also apply if we render our services without reservation in the knowledge of conflicting terms and conditions. We hereby expressly object the conflicting terms and conditions of the GTC of the contractual partner. Other terms and conditions shall only become an integral part of the contract if we have expressly agreed to them in writing. The General Terms and Conditions shall not apply to consumers in the sense of Section 13 of the German Civil Code (BGB).
1.2 All agreements shall be made in writing. All supplements, amendments, and ancillary agreements to orders already placed as well as any assurances provided by our employees shall only take effect after our written confirmation.
2. Conclusion of Contract
2.1 Our offers are non-binding unless they have been expressly designated as binding. Specifications such as dimensions, weights, and other technical data are approximate values typical for the company and the industry insofar as their suitability for the agreed purpose of the contract does not require them to match the specifications exactly. We reserve the right to make changes, e.g. due to advancements in technology, provided that they do not impair the suitability for the agreed purpose of the contract. The offer documents we provide shall be regarded as recommendations that we have prepared with the necessary due diligence based on the actual circumstances of which we have become aware.
2.2 By placing an order, the customer bindingly declares its intent to close a contract. The contract shall only be considered concluded – even if we have previously submitted an offer – upon receipt of our order confirmation, but no later than at the time our services are rendered. The customer shall remain bound to his order for a period of at least 10 days. In the event of immediate delivery, the contract shall be considered closed upon acceptance of the delivery.
2.3 In general, our prices are ex works excluding packaging, shipping, loading, assembly costs, other incidental costs, and value added tax.
2.4 We reserve the right to change our prices appropriately if costs change after the contract has been concluded, in particular in the event of changes to collective bargaining agreements, changes to the prices of materials, unforeseeable public charges, fees, or similar changes. If the originally agreed price increases by more than 10%, then the customer can withdraw from the contract with 10 days notice after receiving notification of the price increase.
2.5 We reserve the right to use subcontractors to fulfil an order.
2.6 We reserve all property rights and copyrights to all samples, models, offer documents, and contract documents. They may not be made available to third parties without our express consent. This applies to all commercial and technical details of which the customer becomes aware. If we produce samples on the basis of an agreement with the customer but a contract for the delivery of products is not concluded, then the customer shall bear the costs incurred for the production of samples, models, printing plates, and tools. The customer does not acquire a right to delivery and transfer of ownership of the samples, models, printing plates, or tools with its payment. If the customer wishes to acquire ownership of the samples, models, printing plates, or tools in order to use them for another purpose, then a separate price must be agreed for this purpose. No. 7 of the GTC shall apply accordingly in this case.
2.7 Contractual penalty For each case of culpable breach of the duties described in 2.6, including after conclusion of the contract, the customer shall pay a contractual penalty in an amount equal to 50% of the net value of the offer or the contractual payment obligation, subject to proof of higher or lower damage.
3. Duty to cooperate of the customer
3.1 When rendering our services, the customer shall cooperate free of charge and in a timely manner, and in particular shall provide us with all data, documents, and information required for performance of the contract.
3.2 The customer shall inform us immediately of any irregularities and cases of damage incurred in connection with our products and services.
3.3 The customer shall assist us in every reasonable way in the defence against claims relating to product liability.
4. Delivery, delivery dates, delays
4.1 Delivery times and completion dates are specified according to the best of our knowledge, but are only binding if they are designated by us as binding in written, text, or electronic form.
4.2 All delivery periods shall commence on the date of our order confirmation, but not before full clarification of all details of the order. This includes, in particular, fulfilment of the customer’s duties to cooperate as stated in No. 3.1.
4.3 All delivery periods shall become invalid if significant changes are subsequently made to the contract. In such a case, we are entitled to set a new reasonable delivery date.
4.4 We shall not be responsible for delays in delivery and performance due to force majeure and due to events that make delivery significantly more difficult or impossible for us – this includes, in particular, untimely deliveries from suppliers for which we are not responsible, strikes, lockouts, official orders, etc. – even in the case of bindingly agreed dates and deadlines. They entitle us to postpone the delivery or performance for the duration of the impediment plus an appropriate lead time. We shall inform the customer without delay of the impediment. We are furthermore entitled to withdraw from the contract in whole or in part promptly after refunding any payments made by the customer.
4.5 If an agreed delivery deadline is exceeded or another contractual obligation is not fulfilled by us in due time, then the customer shall grant us a reasonable grace period in writing of at least 3 weeks for fulfilment of the contractual obligation.
4.6 We shall be entitled to make partial deliveries if the partial delivery is suitable for use by the customer within the scope of the contractual purpose, the delivery of the remaining goods ordered is ensured, and the customer does not incur unreasonable additional expenses or disproportionately high additional costs as a result.
5. Shipment, Transfer of Risk
5.1 Unless expressly agreed otherwise, the place of performance shall be the location of our works or our warehouse.
5.2 If the goods are shipped, we shall ship the goods at the customer’s risk. The risk shall transfer to the client when the goods are handed over to the transport party, but no later than when the goods leave our premises. This shall also apply if we provide additional services such as dispatch or transport or if the delivery is made free destination. Freight carriers, freight forwarders, etc., are not our vicarious agents.
5.3 Goods that have been declared ready for delivery must be called up within one week. Otherwise the customer shall bear the per diem storage costs incurred. If the goods are to be shipped at the customer’s expense, then the customer must inform us of this.
5.4 The customer shall be charged separately for special means of transport, means of protection, and insurance.
5.5 Returnable pallets shall remain our property in any case and must be returned to us carriage paid within four weeks at the latest – calculated starting on the day the customer receives the goods. The customer is liable for damage of any kind. In the event of loss, we shall charge € 12.00 net per pallet. If the return period is exceeded, we shall charge € 2.00 net per pallet and week or part thereof up to a maximum of € 12.00 net per pallet.
6. Terms of payment
6.1 All prices are net cash amounts payable immediately upon receipt of the invoice using legal means of payment. An invoice paid by cheque shall only be deemed to have been paid after the amount has been unconditionally credited to our account. We only grant discounts in special cases. In this respect, the content of the contract or the imprint on the invoice are authoritative.
6.2 Unless otherwise agreed, our prices do not include value added tax. The VAT shall be calculated at the rate applicable at the time of delivery.
6.3 If, after conclusion of the contract, circumstances become known which are likely to substantially reduce the creditworthiness of the customer (in particular the filing of an application for insolvency or the submission of a statutory declaration of insolvency), we shall be entitled to perform or render outstanding deliveries or services only against advance payment or collateral security. If this advance payment or collateral security is not provided within a period of 14 days, then we shall be entitled to withdraw from all contracts not yet completely fulfilled. All outstanding claims arising from the business relationship shall become due immediately without prejudice to the assertion of further claims. The same shall apply if legal assertion becomes necessary due to non-payment of an invoice. Irrespective of withdrawal from the contract, we shall also be entitled in the above cases to prohibit the customer from reselling the object of the contract until payment of the purchase price if the retention of title was agreed. The provision of Section 325 of the German Civil Code (BGB) shall apply so that the right to claim damages shall not be excluded by withdrawal from the contract.
6.4 A right of retention on the part of the customer is excluded unless the customer’s claim is accepted by us or has been legally established. The above shall apply mutatis mutandis to a set-off.
6.5 Irrespective of the assertion of further claims for damages, we shall be entitled to demand default interest in the amount of 8 percentage points above the base interest rate. Reminders (except for reminders for payment defaults) shall be charged at a flat rate of € 5 each unless we have incurred higher or lower expenses.
7. Retention of title
7.1 The retention of title agreed in the following is intended to secure all existing current and future claims of the Seller against the Buyer arising from the delivery relationship existing between the contracting parties (including outstanding balance claims from a current account relationship that is restricted to this delivery relationship).
7.2 The goods delivered by the Seller to the Buyer remain the property of the Seller until full payment of all secured claims has been received. The goods as well as the goods covered by the retention of title in their place pursuant to the following provisions will be called “goods subject to retention of title” in the following. The Buyer must handle all goods subject to retention of title with care. The Buyer must adequately insure them against fire, water, and theft for their full replacement value at his own expense.
7.3 The Buyer shall store the goods subject to retention of title for the Seller free of charge. The Buyer may use the goods subject to retention of title and resell them in the ordinary course of business as long as he is not in default of payment. The right to resell shall expire without prejudice to the rights resulting from Section 6.3 and without the need for explicit revocation if restrictions on disposal are ordered by the court in the course of opening insolvency proceedings. However, the Buyer may not pledge the goods subject to retention of title or transfer the title of the goods as a precaution. The Buyer’s claims for payment against its customers resulting from a resale of the goods subject to retention of title as well as those claims of the Buyer relating to the goods subject to retention of title based on any other legal reason against its customers or third parties (in particular claims based on wrongful acts and claims for insurance benefits), including all balance claims from the current account, are hereby assigned to us and we accept this assignment of claims immediately. The Buyer is authorised to collect the claims assigned to us at its own expense and in its own name for us as long as we do not revoke this authorisation. This shall not affect our right to collect these claims ourselves; however, we shall not assert the claims ourselves and shall not revoke the authorisation to collect as long as the Buyer duly fulfils its payment obligations. Authorisation to collect the claim shall expire insofar as the conditions for expiration of the authorisation to sell the goods subject to retention of title are met. However, if the Buyer acts in breach of contract, in particular insofar as it is in arrears of a claim for payment, then we can demand that the Buyer notify us of the assigned claims and the respective debtors, inform the respective debtors of the assigned claims, and hand over all documents and information to us that we need to assert the claim. Furthermore, the Buyer is not permitted to assign these claims in order to have them collected through debt factoring unless it irrevocably obliges the factor to render counter-performance directly to us for as long as our claims against the Buyer exist.
7.4 We shall be entitled to resell the goods subject to retention of title we have taken back. The proceeds of the resale shall be offset against the amounts owed to us by the Buyer after we have deducted a reasonable amount for the costs of resale.
7.5 The processing or transformation of the goods subject to retention of title by the Buyer shall always be performed on our behalf. If the goods subject to retention of title are processed together with other goods not owned by us, then we shall acquire co-ownership of the new item in the ratio of the value at the time of processing of the goods subject to retention of title (invoiced amount including value added tax) to the other goods processed. In all other respects, the same shall apply to the new item created through processing as to the goods subject to retention of title. If the goods subject to retention of title are inseparably combined or mixed with other goods not owned by us, then we shall acquire co-ownership of the new item in the ratio of the value at the time of combining or mixing of the goods subject to retention of title (invoiced amount including value added tax) to the other goods combined or mixed. If the goods subject to retention of title are combined or mixed in such a way that the Buyer’s item is to be regarded as the primary item, then we and the Buyer agree that the Buyer shall transfer co-ownership of this item to us on a pro rata basis. We accept this transfer. The Buyer shall preserve the sole or co-ownership of the item arising in this manner for us.
7.6 In the event of seizure of the goods subject to retention of title by third parties or other actions by third parties, the Buyer must refer to our ownership and must notify us immediately in writing so that we can assert our property rights.
7.7 If the Buyer demands, we are obligated to release any securities to which we are entitled insofar as their realisable value exceeds the value of our outstanding claims against the Buyer by more than 10%. However, we shall be entitled to select the securities to be released.
8. Claims for Defects
8.1 The client shall inspect the goods immediately upon receipt. We must be notified in writing of obvious defects within one week after receipt of the goods and of hidden defects within one week after their discovery. Otherwise the assertion of claims for defects is excluded. Timely dispatch shall be sufficient to meet the deadline. After acceptance of the goods by the client, claims for defects that were obvious at the time of acceptance are excluded.
8.2 Our liability shall extend to the goods being free of defects according to the current state of the art.
8.3 We shall provide warranty for defects at our discretion through rectification (elimination of the defect, remanufacture, or delivery of a replacement). Rectification shall be deemed to have failed at the earliest when we have unsuccessfully attempted to rectify the defect three times.
8.4 If we seriously and finally refuse rectification without reason, refuse to eliminate the defect and rectification due to manifestly disproportionate costs, rectification fails or is unreasonable for the client, then the client may, at its own discretion, only demand a reduction in the remuneration (price reduction) or rescind the contract (withdrawal) and demand compensation for damages within the scope of the limitation of liability (Section 8) instead of performance. However, in the event of only a minor breach of contract, in particular in the event of only minor defects, the client shall not be entitled to withdraw from the contract.
8.5 If we are not responsible for the breach of duty arising from a defect, then the client shall not be entitled to withdraw from the contract.
8.6 If the client chooses compensation for damages after rectification has failed, then the goods shall remain with the client if this is reasonable for the client. Compensation for damages shall then be limited to the difference between the price and the value of the defective item.
8.7 If the client stipulates which goods from third parties we are to use, then we shall not be liable for defects in these goods. Our incoming goods inspection is limited to the visual inspection of the goods; a function test will not be conducted. The foregoing applies accordingly to goods provided by the client.
8.8 The statute of limitations for the Buyer’s claims arising from defects is one year after receiving the item.
9. Limitation of Liability
9.1 We are liable - without fault in the case of claims based on the Product Liability Act and in the case of fraudulent misrepresentation, - in the event of intent and gross negligence, - in the event of simple negligence for physical injury or damage to health, and - in the event of minor negligence for breach of material contractual obligations. The aforementioned liability also applies to our legal representatives and vicarious agents in the event of fault.
9.2 If we are liable due to a minor negligent breach of material contractual obligations, then the obligation to compensate shall be limited to the foreseeable, typically occurring damage.
9.3 In all other cases our liability is excluded. This also applies to liability for our employees, representatives, and vicarious agents.
10. Lump Sum Compensation for Damages
10.1 If we are entitled to demand compensation for damages in lieu of (complete) performance (Section 281 ff. of the German Civil Code), then this shall amount to 15% of the counter-performance. The compensation for damages shall be higher or lower if we prove higher damage or the client proves lower damage.
11. Property Rights
11.1 If claims arising from the infringement of German industrial property rights are asserted against the client due to items delivered or licensed in accordance with these GTC, then we shall reimburse the client for all legally imposed costs and indemnities if we are notified of such claims immediately and in writing, receive all necessary information from the client, the client complies with its general obligations to cooperate, we are able to make the final decision as to whether the claim is to be defended or settled, and we are at fault with regard to the violation of the property rights. If it is legally established that further use of the object of the contract violates the property rights of third parties or if, in our opinion, there is a risk of a property rights lawsuit, we may, insofar as liability does not expire, at our own expense and at our own discretion, either acquire for the client the right to continue to use the object of the contract or replace it or modify it in such a way that there is no longer any violation, or reimburse the client for the value of the object of the contract by taking it back and deducting compensation for use for the benefits derived from its use up to that time. Compensation for use is calculated based on an assumed depreciation period of three years, which means 1/36 of the contractual fee shall be paid for each month of use.
12. Applicable Law, Place of Performance, Place of Jurisdiction, Severability Clause
12.1 These Terms and Conditions and the entire legal relationship between us and the client shall be governed exclusively by the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
12.2 The place of performance and place of jurisdiction for all obligations arising from this contract is our registered office.
12.3 The invalidity of any provision of this contract shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by the statutory provision.
Solingen, Germany, January 2023