Terms and Conditions

General Terms and Conditions of Sale and Delivery

Version: October 2020

Application
These General Terms and Conditions of Sale and Delivery (Terms and Conditions) shall apply to all current and future contracts with commercial buyers, public legal entities, and public trusts regarding deliveries and other services, including contracts for work and services, and contracts for the delivery of fungible and non-fungible goods. In the case of drop shipments, the terms and conditions of the commissioned supplier’s price list shall apply in addition. The buyer’s terms and conditions of purchase shall not be binding even if we do not expressly object to them again after receiving them.
Our offers are non-binding. Verbal agreements, promises, assurances, and guarantees made by our employees in connection with the conclusion of the contract are non-binding and become binding only upon our written confirmation.
In case of doubt, any trade terms shall be interpreted in accordance with the Incoterms, as amended from time to time.
The information, drawings, illustrations, technical data, weight, dimensions, and performance specifications contained in brochures, catalogs, circulars, advertisements, lists, or in documents accompanying offers are non-binding unless they are expressly designated as binding.

Prices
Unless otherwise agreed, prices are quoted ex works or ex warehouse, plus freight, value-added tax, and import duties. The goods shall be invoiced “gross for net”.
If, more than four weeks after the conclusion of the contract, the total of the costs incurred by third parties that are included in the agreed price changes, we shall be entitled to adjust the prices accordingly on the first day of the calendar month in each case.
If the adjusted price exceeds the original price by more than 10%, the buyer shall have the right to rescind the contract with respect to the quantities affected by the price adjustment as soon as the price adjustment takes effect. The right of rescission may only be exercised within one week of becoming aware of or being able to take note of the price adjustment.

III. Payment and Set-Off

Unless otherwise agreed or stated in our invoices, the purchase price is due immediately upon delivery without any discount and must be paid in such a way that we can access the funds on the due date. This also applies if the test certificates in accordance with DIN EN 10204 are not included in the delivery or arrive late. Any bank transfer fees shall be borne by the buyer.
If, by way of exception, a discount has been agreed upon, this always applies only to the invoice amount excluding freight and is contingent upon the buyer having fully settled all outstanding obligations at the time the discount is applied. Unless otherwise agreed, the discount period shall begin on the invoice date.
If, after the conclusion of the contract, it becomes apparent that our claim for payment is at risk due to the buyer’s inability to pay, or if the buyer is in default of payment for a substantial amount, or if other circumstances arise that indicate a significant deterioration in the buyer’s ability to pay after the conclusion of the contract, we shall be entitled to the statutory rights under Section 321 of the German Civil Code (BGB) to refuse performance. We shall then also be entitled to demand payment of all claims arising from the current business relationship with the buyer that are not yet due.
If the payment term is exceeded or in the event of default, we will charge interest at the statutory default interest rate (currently 9 percentage points above the base rate). In addition, we will be entitled to charge a flat-rate late payment fee of EUR 40.00. We reserve the right to claim further damages.
The buyer is entitled to a right of retention and a right of set-off only to the extent that his counterclaims are undisputed or have been legally established, are based on the same contractual relationship with the seller, and/or would entitle the buyer to refuse performance pursuant to Section 320 of the German Civil Code (BGB).

Delivery Times
Our obligation to deliver is contingent upon our own correct, timely, and contractually compliant delivery; in the case of imported materials, it is further contingent upon the receipt of monitoring documents and import licenses, unless we are responsible for the incorrect or delayed delivery. In particular, we are entitled to terminate the contract if we have entered into a valid covering transaction but are not supplied by our supplier for reasons beyond our control, such as the supplier’s insolvency.
Any confirmation of delivery times shall be approximate only. Delivery times shall begin on the date of our order confirmation and are subject to the timely clarification of any order details as well as the fulfillment of any of the buyer’s obligations, such as providing official certifications, letters of credit, and payment guarantees, or paying agreed-upon installments.
Any agreed delivery time shall be deemed to have been met if and to the extent that the goods have left the factory or our warehouse on such time or date. If and to the extent that the goods are not shipped at the agreed time for reasons not attributable to us, the agreed delivery time shall be deemed to have been met on the day on which we are notified that the goods are ready for shipment.
The buyer must ensure that the goods are delivered without hindrance and must promptly notify us of any difficult delivery conditions. The buyer must unload the goods properly and without delay. If we or third parties assist with unloading, this does not create a legal obligation, and the risk remains entirely with the buyer.
Force majeure events entitle us to postpone deliveries for the duration of the delay and a reasonable restart period. This also applies if such events occur during an existing default. Force majeure includes monetary or trade measures or other acts of state authority, strikes, pandemics and their consequences, lockouts, breakdowns not caused by us (e.g. fire, machinery or conveyor breakdowns, shortages of raw materials and energy), obstruction of transport routes, delays in import clearance and customs clearance, insolvency of our supplier, as well as all other circumstances that substantially impede or render deliveries and performance impossible, without being caused by us. In this regard, it is irrelevant whether the circumstances occur on our part or on the part of one of our suppliers. If performance becomes unacceptable for one of the parties due to the aforementioned events, the party shall be entitled to withdraw from the contract by immediate declaration in writing.

Retention of Title
The goods delivered to the buyer shall remain our property until the full purchase price has been paid. The buyer shall take all necessary measures to ensure the retention of title—or an equivalent security in the country where the buyer’s branch is located or in another country of destination—and to provide the corresponding evidence upon our request.
To the extent permitted by the laws of the country where the goods are located, the following additional regulations apply:
All goods delivered to the buyer shall remain our property (reserved property) until all of the buyer’s accounts arising from the business relationship with us, in particular any outstanding balances, have been settled. This condition shall apply to any future as well as any conditional claims, e.g., from accepted bills of exchange, and to cases where the buyer makes payments against specifically designated claims. As soon as the buyer has settled his accounts with us in full, he shall obtain title to those goods that were delivered to him prior to such payment. The current account reservation does not apply in cases of prepayment or delivery against payment.
With regard to the processing or manufacturing of the Reserved Property, we shall be deemed to be the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without this imposing any obligations on us. The processed or manufactured goods shall be regarded as Reserved Property within the meaning of clause 2(a) of these Conditions. If the buyer manufactures, combines, or mixes the Reserved Property with other goods, we shall acquire co-ownership of the new goods in proportion to the invoiced price of the Reserved Property relative to the invoiced price of the other goods. If, as a result of such combining or mixing, our ownership ceases to exist, the buyer hereby assigns to us any rights the buyer may have in the new stock or goods in proportion to the invoiced price of the Reserved Property, and the buyer shall hold them in safe custody free of charge. Our co-ownership rights shall be regarded as Reserved Property within the meaning of clause 2(a) of these Conditions.
The buyer may resell the reserved property only in the ordinary course of business, in accordance with its standard terms and conditions, provided that the buyer is not in default of payment and provided further that any rights arising from such resale are transferred to us in accordance with clauses 2(d) and (e) of these Conditions. The buyer shall not be entitled to dispose of the reserved property in any other manner.
The buyer hereby assigns to us any claims arising from the resale of the Reserved Property. We hereby accept such assignment. Such claims shall serve as security for us to the same extent as the Reserved Property itself. If the Reserved Property is resold by the buyer together with other goods not purchased from us, then any receivables arising from such resale shall be assigned to us in proportion to the invoiced value of the other goods sold by the buyer. In the case of the resale of goods in which we hold co-ownership rights pursuant to clause 2(b), the assignment shall be limited to the portion corresponding to our co-ownership rights.
The buyer shall be entitled to collect any receivables arising from the resale of the Reserved Property. This right shall expire if revoked by us, or at the latest if the buyer defaults on payment, fails to honor a bill of exchange, or files for bankruptcy. We shall exercise our right of revocation only if and to the extent that it becomes evident after the conclusion of the contract that payment resulting from this contract or from other contracts is jeopardized by the buyer’s inability to pay. The buyer shall—upon our request—immediately inform his customers of such assignment and forward to us any information and documents necessary for collection.
The buyer shall immediately notify us of any seizure or other attachment of the Reserved Property by a third party. The buyer shall bear any costs necessary to suspend such seizure or attachment or to remove the Reserved Property, provided that such costs are not borne by a third party.
If the buyer is in default of payment or fails to honor a bill of exchange when due, we shall be entitled to repossess the Reserved Property, to enter the buyer’s premises for this purpose if necessary, and to sell the Reserved Property in the best possible manner, applying the proceeds toward the purchase price. The same shall apply if it becomes apparent after the conclusion of the contract that our claim for payment arising from this contract or from other contracts with the buyer is at risk due to the buyer’s inability to pay. Taking back the goods does not constitute withdrawal from the contract. The provisions of the German Insolvency Code shall remain unaffected.
If the total invoiced value of our collateral exceeds the amount of the secured receivables, including additional claims for interest, costs, etc., by more than 50%, we shall—at the buyer’s request—release collateral pro rata at our discretion.

Grades, Measures, and Weights
The weight of the goods shall be determined by the scales of our company or our suppliers. The weight shall be verified by presenting the relevant weight certificate. To the extent permitted by law, weights may be determined without weighing in accordance with standards. We are entitled to determine the weight without weighing in accordance with the standard (theoretical weight) plus 2.5% (commercial weight). Weight deviations of up to 0.5% do not entitle the buyer to file a complaint.
Any information provided in the delivery notes regarding the number of pieces, bundles, etc., is not binding if and to the extent that the goods are invoiced by weight. Unless individual weighing has been agreed upon, the total weight of the shipment shall prevail. Any discrepancy with respect to the calculated weight of the individual pieces shall be allocated to them proportionally.

VII. Testing and Inspection

The issuance of test certificates (“certificates”) in accordance with EN 10204 requires a written agreement. We are entitled to provide copies of such certificates. In the absence of an express agreement, the fee for test certificates shall be based on our price list or the price list of the respective exhibitor (supplier).
Where testing and inspection of the goods has been agreed upon, or where applicable material standards require such testing and inspection, it may only take place at the supplier’s facility or at our warehouse immediately after notification of readiness. The buyer shall ensure that we may engage the desired inspection company on the buyer’s behalf and at the buyer’s expense, or on behalf of and at the expense of the buyer’s customer. Unless otherwise agreed, this authorization shall be deemed to have been granted if an inspection company is named in the order.
The buyer shall bear the costs of his own inspection, whereas the costs of inspection will be billed to him in accordance with our price list or quotation, or that of our supplier.
If, through no fault of ours, an inspection of the goods fails, is delayed, or is incomplete, we shall be entitled to ship the goods without prior inspection or to store them at the buyer’s expense and risk and to invoice the buyer for the goods.
Any testing or inspection of goods with respect to parameters that exceed the agreed-upon standards is at the buyer’s risk and expense.

VIII. Dispatch, Transfer of Risk, Packaging, Partial Delivery, Callable and Continuous Deliveries

We shall be entitled to choose the route and method of shipment, as well as the freight forwarder and the carrier.
The buyer shall immediately request delivery of any goods that have been notified to him as ready for shipment. Otherwise, we are entitled, upon notification, to ship such goods at the buyer’s expense and risk or to store them at our discretion and to invoice the buyer for them.
If, for reasons beyond our control, the goods cannot be shipped, or if it becomes significantly difficult to ship the goods via the designated route or to the designated location within the specified time, we reserve the right to ship them via a different route or to a different location. Any additional costs will be borne by the buyer. In such cases, we will seek the buyer’s prior approval.
The goods will be delivered unpacked and will not be protected against rust. The goods will be delivered packed only if this has been agreed upon. In addition, any packaging, protective materials, and/or transport equipment will be provided based on our experience and at the buyer’s expense. We will accept the return of such items only at our warehouse. We will not bear any costs associated with their return shipping or disposal.
In the case of call-off orders, the risk shall pass to the buyer at the time the goods are made available for pickup. Otherwise, the risk, including the risk of confiscation of the goods, shall pass to the buyer upon transfer of the goods to a freight forwarder or carrier, but no later than upon leaving the warehouse or the supplier’s facility, in all transactions, including prepaid and free deliveries. We shall only provide insurance at the buyer’s instruction and expense. Unloading and its costs shall be borne by the buyer.
We shall be entitled to make partial deliveries in reasonable quantities. Over- and under-deliveries customary in the industry are permissible up to 10% of the total quantity.
In the case of contracts involving continuous delivery, we must be provided with call-offs and classifications for approximately equal monthly quantities; otherwise, we shall be entitled to make such determinations ourselves at our reasonable discretion.
If the individual call-offs exceed the total contractual quantity, we shall be entitled, but not obligated, to deliver the additional quantity. We may invoice the additional quantity at the prices in effect at the time of the call-off or delivery.
Unless otherwise agreed, call-off orders must be processed within 365 days of the contract’s conclusion. After this period expires, we shall be entitled to store the goods that have not been called off at the buyer’s expense and risk and to charge the buyer for them.

Warranty Provisions
The internal and external characteristics of the goods, particularly their quality, grade, and dimensions, shall be determined by the DIN and DIN EN standards in effect at the time the contract is concluded, unless otherwise agreed; otherwise, they shall be determined by established practice and commercial custom. References to standards and other sets of regulations, to test certificates in accordance with EN 10204 and other attestations, as well as details regarding the quality, grade, dimensions, and intended use of the goods, do not constitute warranties or guarantees, nor do declarations of conformity and corresponding markings such as CE and GS.
No liability is assumed for the suitability of the goods for the purpose intended by the buyer, unless the buyer’s desired use was expressly confirmed as the contractual purpose. In particular, no liability is assumed for the fact that the disposal of the goods and their use are not, or will not be, hindered in any way by government regulations (e.g., embargo regulations or export licenses).
The statutory provisions apply to the inspection of the goods and the reporting of defects, it being understood that the obligation to inspect the delivered goods includes the inspection of any test certificates in accordance with or corresponding to DIN EN 10204, and that any defects in the goods or test certificates must be reported to us in writing no later than seven days after delivery. Defects that cannot be discovered immediately after delivery, even with the most careful inspection, must be reported to us in writing immediately upon discovery.
If the buyer intends to install the goods into another object or attach the goods to another object, the buyer is obligated to inspect the goods, at least on a random basis, prior to installation or attachment, with regard to properties relevant to the intended application, and to notify us of any defects without delay. If, in the event of installing the goods into another object or attaching the goods to another object, the buyer fails to inspect the properties of the goods relevant to the intended end use at least on a random basis prior to installation or attachment, this constitutes a particularly serious breach of the duty of care required in the ordinary course of business (gross negligence) with respect to us. In such a case, the buyer may assert rights in relation to these properties only if the defect was deliberately concealed or in the event of a guarantee for the respective quality of the goods.
If and to the extent that the buyer’s claim for defects is justified and has been made in a timely manner, we may, at our discretion, remedy the defect (rectification) or deliver non-defective goods (subsequent delivery). Should we fail to provide or refuse to provide such supplementary performance, the buyer may exercise his statutory rights. In cases where the defect is only minor or where the goods have already been resold, processed, or transformed, he may only reduce the purchase price.
If the buyer has installed the goods, in accordance with their type and intended use, into another object or attached the goods to another object, the buyer may claim reimbursement of the necessary costs incurred for dismantling the defective goods and installing or attaching goods that are free from defects (“dismantling and installation costs”) only in accordance with the following provisions:

The only necessary dismantling and installation costs are those that result directly from the dismantling or removal of the defective goods and the installation or attachment of identical goods, have been incurred in accordance with competitive market prices, and have been substantiated by the buyer with appropriate documentation in writing.
Additional costs incurred by the buyer for consequential damages, such as loss of profits, downtime costs, or costs for substitute purchases, do not constitute dismantling or installation costs and are therefore not recoverable under Section 439(3) of the German Civil Code (BGB). The same applies to sorting costs and to additional costs resulting from the fact that the goods sold and delivered are located at a place other than the agreed place of delivery.
The buyer is not entitled to request advance payments for dismantling and installation costs or other expenses required to remedy the defective delivery.

We will reimburse the buyer for expenses incurred in connection with the supplementary performance only to the extent that such expenses are reasonable and not disproportionate to the value of the goods. Expenses are considered disproportionate if the expenses requested by the buyer—in particular, dismantling and installation costs—exceed 150% of the purchase price of the goods invoiced by us or 200% of the value of the defective merchandise. If the final contract in the supply chain is a consumer sale, reimbursement of expenses shall be limited to the appropriate amount. Costs incurred by the buyer in connection with self-remedy of defects without the legal requirements being met are excluded; the same applies to costs for disassembly of the defective goods and assembly of replacement goods, if, due to a modification by the buyer prior to assembly, the assembled goods exhibit substantially different characteristics than the original goods delivered by us. Expenses incurred by delivering goods to a location other than the agreed place of performance will not be accepted.
If and to the extent that the goods are subject to contractually agreed testing and inspection by the buyer, such testing and inspection shall preclude any claims for defects that could have been detected through the agreed method of testing and inspection.
If the buyer does not immediately provide us with the opportunity to verify the defect—in particular, if the buyer does not immediately make the rejected goods or samples available for testing upon request—all rights arising from the material defect shall lapse.
No warranty shall be provided for goods sold as declassified material with respect to defects either specified in the contract or those that are normally to be expected. Goods classified as “IIa-Ware” (“second-grade goods”) are not covered by any warranty, subject to Section X, No. 2 of these Terms and Conditions.
Our further liability is subject to Section X of these Terms and Conditions. Any rights of recourse on the part of the buyer under Section 445a of the German Civil Code (BGB) are excluded, unless the final contract in the supply chain is a sale to a consumer. Section 478 of the German Civil Code (BGB) remains unaffected.

General Limitation of Liability and Statutes of Limitations, Import Regulations
Our liability for breach of contractual or non-contractual obligations, in particular for non-performance or delayed delivery, for breach of pre-contractual duties (“Verschulden bei Vertragsanbahnung”), as well as for tortious acts—including our liability for our managerial staff and any other person employed in the performance of our obligations – shall be limited to damages caused by our willful misconduct or gross negligence and, in the event of gross negligence, shall not exceed the foreseeable losses and damages typical for the type of contract in question. In all other respects, our liability, including for damages caused by defects and consequential damages, is excluded.
The foregoing limitation shall not apply in cases where we breach our fundamental contractual obligations and, as a result, the fulfillment of the purpose of the contract is at risk, or where the failure to fulfill the obligations on which the contracting party relies renders the proper performance of the contract impossible. Nor shall it apply to damages to life, limb, or health caused by our fault, or to any cases where we have guaranteed certain characteristics of the goods. Nor shall this clause affect our statutory liability under the Product Liability Act (Produkthaftungsgesetz) of December 15, 1989. Any statutory rules regarding the burden of proof shall remain unaffected by the foregoing.
Unless otherwise agreed, any contractual claims to which the buyer is entitled in connection with the delivery of the goods shall be subject to a statute of limitations of one year following delivery of the goods to the buyer. This limitation shall not apply to our liability or to the limitation of claims arising from the delivery of goods that have been used in a building in accordance with their customary use and have caused the building’s defectiveness, nor to claims resulting from breaches of contract caused by our willful misconduct or gross negligence; nor to injury to life, limb, or health caused by our fault, in cases of mandatory liability under the Product Liability Act, and to the limitation of statutory recourse claims. In these cases, the statutory limitation periods shall apply.
If the goods are imported into third countries outside the EU, the buyer is responsible for complying with official safety regulations and statutory provisions on product liability that go beyond the corresponding European regulations and provisions. If claims are asserted against us for breach of these safety regulations or statutory provisions, the buyer shall be obligated to indemnify us against such claims upon our first request.
Under the terms of its obligation pursuant to clause 4, the buyer is required to reimburse us for any costs and expenses incurred by us as a result of or in connection with the defense against the aforementioned claims, including, but not limited to, the reimbursement of attorneys’ fees and court costs.

Place of Performance, Jurisdiction, and Governing Law
The place of performance for our deliveries shall be, in the case of ex works deliveries, the factory; in all other cases, the place where the goods are located at the time the purchase contract is concluded. The place of performance for payments is our registered office. The exclusive—including international—place of jurisdiction is our registered office. However, we are also entitled to bring an action against the buyer at the location of its registered office.
For all legal relationships between us and the buyer, the law of the Federal Republic of Germany shall apply in addition to these Terms and Conditions, excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).