| 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 |
