General Terms and Conditions of Delivery for Use with Entrepreneurs

Status: 16.02.2021

§ 1 Validity

(1) These General Terms and Conditions of Delivery shall apply to all our business relations with our customers (“Buyer”). They shall only apply if the Buyer is an entrepreneur (§ 14 of the German Civil Code, BGB), a legal entity under public law or a special fund under public law.

(2) The General Terms and Conditions of Delivery shall especially apply to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions of Delivery in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to the Buyer in text form shall also apply as a framework agreement for similar future contracts without our having to refer to them again in each individual case.

(3) Our General Terms and Conditions of Delivery shall apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.

(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements, and amendments) shall in any case take precedence over these General Terms and Conditions of Delivery. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.

(5) Legally relevant declarations and notifications of the Buyer with regards to the contract (for example, setting of deadlines, notification of defects, withdrawal, or reduction) shall be made in writing, that is, in written or text form (for example, letter, e-mail, fax). Legal formal requirements and further proof, especially in case of doubt about the legitimacy of the declarant, shall remain unaffected.

(6) References to the applicability of statutory provisions shall only be for clarification. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these General Terms and Conditions of Delivery.

§ 2 Offer and Conclusion of Contract

(1) All offers made by the Seller are subject to change without notice and are non-binding unless they are expressly marked as binding or contain a specific acceptance period. This shall also apply if we have provided the Buyer with catalogs, technical documentation (fro example, drawings, plans, calculations, references to DIN standards), other product descriptions or documents – even in electronic form – to which we reserve ownership rights and copyrights.

(2) The order of the goods by the Buyer shall be deemed to be a binding offer of contract. Unless otherwise stated in the order, the Seller may accept this contractual offer within 14 days of receipt.

(3) Acceptance may be declared either in writing (e.g., by order confirmation), by telecommunication (e-mail or fax) or by delivery of the goods to the Buyer.

(4) Supplements and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be in writing, for it to be effective. Except for the managing directors or authorized signatories, the Seller’s employees are not entitled to make verbal agreements deviating from the written agreement. Telecommunication, especially by fax or e-mail, shall be sufficient to comply with the written form.

(5) Information provided by the Seller on the issue of the delivery or service (e.g., weights, dimensions, utility values, load capacity, tolerances, and technical data) as well as our representations of the same (e.g., drawings and illustrations) shall only be approximate unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but descriptions or identifications of the delivery or service. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, shall be permissible insofar as they do not impair the usability for the contractually intended purpose.

§ 3 Prices and payment

(1) The prices shall apply to the scope of services and deliveries specified in the order confirmations. Additional or special services shall be charged separately. Prices shall be quoted in EUR from Seller’s warehouse plus packaging, statutory value-added tax, customs duties, in the case of export deliveries, as well as fees and other public charges.

(2) In this respect, the Buyer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Buyer.

(3) Insofar as the agreed prices are based on the Seller’s list prices and the delivery is to take place more than four months after conclusion of the contract, the Seller’s list prices valid at the time of delivery shall apply (in each case less an agreed percentage or fixed discount).

(4) Invoice amounts shall be paid within 10 days of invoicing and the delivery or acceptance of the Goods shall be without any deduction, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive for the date of payment. Payment by check is excluded unless it is agreed separately in individual cases. If the Buyer fails to make payment when due, the outstanding amounts shall bear interest from the due date at the applicable statutory default interest rate; the right to claim further damages in the event of default shall remain unaffected. With respect to merchants, the claim to the commercial maturity interest rate (§ 353 HGB) shall remain unaffected.

(5) Contrary to § 3 para. 3 of these Terms and Conditions, the Seller shall, however, be entitled at any time, also within the scope of an ongoing business relationship, to issue a delivery in whole or in part only against advance payment. The Seller shall declare a corresponding reservation at the latest with the order confirmation.

(6) Offsetting against counterclaims of the Buyer or the retention of payments due to such claims shall only be permissible if the counterclaims are undisputed or have been legally established or arise from the same order under which the relevant delivery was made.

(7) If, after the conclusion of the contract, it becomes apparent (e.g., by filing for insolvency proceedings) that the claim to the purchase price is jeopardized by the Buyer’s inability to pay, the Seller shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary, after setting a deadline – to rescind the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), the Seller may declare rescission immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

§ 4 Delivery and Delivery Period

(1) Deliveries shall be made from the Seller’s warehouse. At the Buyer’s request and expense, the goods shall be shipped to another destination (sales shipment).

(2) Deadlines and dates for deliveries and services promised by the Seller shall only always be approximative unless a fixed deadline or date has been expressly promised or agreed. If shipment has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarder, carrier or other third party entrusted with the transport.

(3) The Seller may – without prejudice to its rights arising from default on the part of the Buyer – demand from the Buyer an extension of delivery and execution periods or a postponement of delivery and execution dates by the period during which the Buyer fails to meet its contractual obligations towards the Seller.

(4.1) In legal transactions between companies, delivery shall be subject to timely self-delivery.

(4.2) The Seller shall not be liable for impossibility of delivery or for delays in delivery if such impossibility or delays are caused by force majeure or other events not foreseeable at the time of the conclusion of the contract (e.g., operational disruptions of any kind; difficulties in procuring materials or energy; transport delays; strikes; lawful lockouts; shortage of labor, energy or raw materials; difficulties in procuring necessary official permits, official measures, epidemics/pandemics) for which the Seller is not responsible. If such events make it substantially more difficult or impossible for the Seller to provide the delivery or service and the hindrance is not only of temporary duration, then the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended, or the delivery or service deadlines shall be postponed by the period of the hindrance plus a reasonable start-up period. If the Buyer cannot reasonably be expected to accept the delivery or service due to the delay, he may withdraw from the contract by immediately notifying the Seller in writing.

(4.3) Supply difficulties and other performance disruptions on the part of our upstream suppliers as well as the lack of-, incorrect or untimely delivery by third parties shall only be deemed a case of force majeure if the upstream supplier/third party is in turn prevented by force majeure from providing the service incumbent upon it.

(5) The Seller shall only be entitled to make partial deliveries if

the partial delivery is usable for the Buyer within the scope of the contractual purpose,
the delivery of the remaining ordered goods is ensured and
the Buyer does not incur any significant additional expenses or costs as a result (unless the Seller agrees to bear such costs).

(6) If the Seller defaults on a delivery or service or if a delivery or service becomes impossible for the Seller, for whatever reason, the Seller’s liability for damages shall be limited in accordance with § 8 of these General Terms and Conditions of Delivery.

§ 5 Place of Performance, Dispatch, Packaging, Transfer of Risk, Acceptance

(1) The place of execution for all obligations arising from the contractual relationship – including any subsequent performance – shall be the location of the Seller’s warehouse, unless otherwise specified.

(2) The mode of dispatch (especially in the selection of the transport company and the dispatch route) and the packaging shall be subject to the dutiful discretion of the Seller, unless expressly agreed otherwise.

(3) The risk of accidental loss and accidental deterioration of the delivery item shall be transferred to the Buyer at the latest upon handover of the delivery item (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or the Seller has assumed other services (e.g., shipping or installation). If the shipment or the handover is delayed due to a circumstance the cause of which lies with the Buyer, the risk shall be transferred to the Buyer from the day on which the delivery item is ready for shipment and the Seller has notified the Buyer of this.

(4) Storage costs after transfer of risk shall be borne by the Buyer. In the event of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored per expired week. The proof of a higher damage and the assertion of legal claims (especially compensation for additional expenses, reasonable compensation, termination) by the seller remain unaffected; the lump sum is to be credited against further monetary claims. The Buyer shall be entitled to prove that we (Seller) have not suffered any damage at all or that the damage is significantly less than the above-mentioned lump sum.

(5) The Seller shall insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks only at the express request of the Buyer and at the Buyer’s expense.

(6) Insofar as acceptance is to take place, the object of sale shall be deemed to have been accepted when

the delivery and, – if the Seller also owes the installation – the installation, have been completed,
the Seller has notified the Buyer thereof with reference to the deemed acceptance pursuant to this § 5 (6) and has requested the Buyer to accept the goods,
since delivery or installation [twelve] working days have elapsed since delivery or installation, or the Buyer has started using the purchased item (e.g., has put the delivered system into operation), and in this case (six) working days have elapsed since delivery or installation, and
the Buyer has failed to accept the delivery within this period for a reason other than a defect notified to the Seller which makes the use of the purchased item impossible or significantly impaired.

§ 6 Warranty, Defects in Quality and Title, Compensation for Damages

(1) The warranty period for material defects is 12 months. This shall not apply insofar as longer periods are prescribed by law in accordance with §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 right of recourse and 634a para. 1 no. 2 (construction defects) BGB. This period shall likewise not apply to claims for damages by the Buyer arising from injury to life, limb, or health or from intentional or grossly negligent breaches of duty by the Seller or its vicarious agents or in the case of claims under the Product Liability Act, each of which shall be time-barred in accordance with the statutory provisions.

(2) The right to assert a right of retention, a claim for damages in lieu of performance and a claim to rescind the contract shall be excluded in the case of insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability. Claims for defects shall not exist in the event of natural wear and tear or damage occurring after the transfer of risk, resulting from incorrect or negligent handling, excessive stress, unsuitable operating materials, defective construction work or due to special external influences which are not assumed under the contract.

Complaints about partial deliveries do not release the Buyer from the obligation to accept the remaining quantity of the ordered goods.

(3) If improper modifications or repair work are carried out by Buyer or third parties, no claims for defects shall exist for these and the resulting consequences either.

(4) The products are manufactured using natural raw materials and may therefore be subject to certain variations in terms of their properties, such as efflorescence, color variations, burrs, pores, shrinkage cavities or surface cracks. No liability for material defects is assumed for this. Likewise, no liability is assumed for the absence of substances of organic origin.

(5) Deviations, changes, or tolerances within the scope of DIN standards shall not constitute a deviation from the agreed quality. Quantity deviations can only be objected to if the determined shortfalls exceed 3%. The information contained in the catalogs, brochures, circulars, advertisements, illustrations, and price lists concerning weights, dimensions, capacity, colors, prices, services, and the like are non-binding and do not constitute a statement of quality within the meaning of the statutory provisions. They shall only be binding if expressly confirmed in writing.

(6) Samples or specimens shall only be considered as non-binding samples in accordance with the above clauses. Deviations from samples and specimens due to production technology, especially in the case of different production batches, shall not constitute a material defect.

(7) The Seller shall not be liable for deviations in color and quality (especially not for the absence of substances of organic origin) of preliminary products used for the manufacture of the products sold.

(8) The assertion of claims for defects shall furthermore require that the Buyer has fulfilled his/her statutory obligations to examine the Goods and to notify any defects therein (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must be carried out in any case before processing, combining, or mixing.

If upon delivery, inspection or at any later point in time, a defect, an incorrect delivery, or a delivery lacking in quantity becomes apparent, we must be notified of this in writing without delay. In any case, obvious defects must be notified in writing within 7 working days of delivery and defects that are not apparent upon inspection must be notified, after discovery, within the same period. If the Buyer fails to make the proper inspection and/or notification of defects, our liability for the defect not reported or notified in time, as well as for defects not properly notified shall be excluded in accordance with the statutory provisions.

(9) The Seller shall be given the opportunity to inspect the defect him-/herself and/or have it inspected by experts commissioned by him/her. This shall only not apply if immediate measures need to be taken due to imminent danger.

At the Seller’s request, a delivery item which is the subject of a complaint shall be returned to the Seller carriage paid. In the event of a justified complaint, the Seller shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the delivery item is located at a place other than the place of intended use.

(10) If reference areas are created by the Seller or under the Seller’s supervision by employees of the Buyer, the assumption shall apply that defects found in other areas are due to processing errors, if the reference area is free of defects – this presumption shall not apply vice versa.

(11) The Seller shall first be given the opportunity to remedy the defect within a reasonable period. The Buyer shall primarily be entitled to supplementary performance in the form of a replacement delivery. If the supplementary performance fails, the Buyer may – without prejudice to any claims for damages pursuant to paragraphs 13 and 14 below – withdraw from the contract or reduce the remuneration. The same shall apply after the unsuccessful expiry of a reasonable grace period set by the Buyer or in the cases otherwise provided for by law. The period of grace must be set in writing. The period of grace shall only be reasonable if it is at least 10 working days from receipt of the notice of grace. If, for special reasons, only an even longer period of grace is appropriate, the Seller shall inform the Buyer accordingly if the period of grace set by him/her is too short.

(12) Claims of the Buyer for expenses incurred for the purpose of supplementary performance, especially relating to transport, travel, labor, and material costs, shall be excluded if such expenses are increased because the object of the delivery has subsequently been taken to a location other than the Buyer’s place of business or the agreed place of delivery, unless such transfer would be in accordance with its intended use.

(13) Claims for damages and reimbursement of expenses by the Buyer (hereinafter referred to as claims for damages), irrespective of the legal grounds, especially due to breach of duties arising from the contractual obligation and from tort, shall be excluded. This shall not apply in cases of mandatory liability, e.g., under the Product Liability Act, in cases of intent, gross negligence, injury to life, body or health and breach of a condition which goes to the root of the contract. Essential contractual obligations are the obligation to deliver the delivery item on time, its freedom from defects of title as well as those material defects that impair its functionality or usability more than just insignificantly, as well as consulting, protection and care obligations that are intended to enable the purchaser to use the delivery item in accordance with the contract or are intended to protect the body or life of the Buyer’s personnel or to protect the Buyer’s property from significant damage. However, the claim for damages for breach of material contractual obligations shall be limited to the foreseeable damage typical for the contract, unless caused by intent or gross negligence or based on liability for injury to life, body, or health. A change in the burden of proof to the detriment of the Buyer is not associated with the above provisions.

(14) If damages are to be paid in accordance with the above paragraph 13, the claim shall in any case be limited to damages which the Seller foresaw as a possible consequence of a breach of contract at the time of conclusion of the contract or which it should have foreseen by exercising due care. Indirect damage and consequential damage resulting from defects in the delivery item shall also only be eligible for compensation insofar as such damage is typically to be expected when the delivery item is used as intended.

(15) The above provisions (paragraphs 13. and 14.) shall also apply to claims for damages based on material defects and in favor of the organs, legal representatives, employees, and other vicarious agents of the Seller.

(16) Further or other claims by the Buyer based on a material defect against the Seller, the organs, legal representatives, employees and other vicarious agents of the Seller and his/her vicarious agents shall be excluded.

(17) The above provisions of § 6 of these General Terms and Conditions of Delivery shall apply mutatis mutandis to defects of title.

§ 7 Industrial Property Rights

(1) In accordance with the provisions of this § 7, the Seller shall be responsible for ensuring that the delivery item is free of industrial property rights or third-party copyrights or that the industrial property rights or copyrights at least permit the sale and processing of the delivery item. Each contracting party shall notify the other contracting party in writing without undue delay if claims are asserted against it due to the infringement of such rights.

(2) In the event that the delivery item infringes an industrial property right or a third-party copyright, the Seller shall, at its option and at its expense, modify or replace the delivery item in such a way that no third-party rights are infringed any longer, but the delivery item continues to fulfill the contractually agreed functions, or procure the right of use for the Buyer by concluding a license agreement with the third party. If the Seller fails in doing so within a reasonable period, the Buyer shall be entitled to rescind the contract or to reduce the purchase price appropriately. Any claims for damages by the Buyer shall be subject to the limitations of § 6 of these General Terms and Conditions of Delivery.

(3) In the event of infringements of rights by products of other manufacturers delivered by the Seller, the Seller shall, at its option, assert its claims against the manufacturers and upstream suppliers for the account of the Buyer or assign them to the Buyer. In such cases, claims against the Seller shall only exist in accordance with this § 7 if the judicial enforcement of the above-mentioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g., due to insolvency.

§ 8 Advice, service provision, technical knowledge of the customer

(1) Unless otherwise expressly agreed in writing, technical advice is not part of the delivery contract. The handing over of leaflets or technical instructions shall also not constitute a consulting relationship. Insofar as the Seller provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by the Seller, this shall be done free of charge and with the exclusion of any liability.

(2) If, by way of exception, advice is provided, the Seller shall assume that the Buyer has the necessary basic knowledge of construction technology, as well as general construction knowledge for the processing of the delivery items on buildings. This knowledge is also assumed in principle for the sale of the products.

(3) Consultations shall be exclusively based on the information provided by the Buyer. The Seller shall not be obliged to verify this information (or to carry out its own investigations).

(4) The Seller shall only be liable from advice given if such advice is contractually owed, the advice has been given in writing and the Seller’s own products have subsequently been used.

(5) Insofar as Seller’s employees or agents provide instruction in the processing of the Product or assistance in the event of malfunctions through the course of processing, this activity shall – unless otherwise agreed – relate solely to the general processing of the Products and the inspection of the Products sold by the Seller. This shall not constitute a liability for the processing and the proper production of the work by the Buyer. The provisions of these General Terms and Conditions of Delivery shall apply mutatis mutandis to the scope of liability and the statute of limitations.

§ 9 Retention of title

(1) We reserve title to the goods sold until all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full. In the case of a current account, the retained title shall be deemed to be security for the balance of the account.

(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer shall notify us in writing without delay if an application is made to open insolvency proceedings or if third parties have accessed the goods belonging to us (e.g., seizures).

(3) In the event of any breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the goods based on the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to only demand the return of the goods and to reserve the right to withdrawal. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.

(4) Until revoked in accordance with (c) below, the Buyer shall be entitled to resell, combine and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of title shall extend to the full value of the products resulting from the processing, mixing, or combining of our goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing, or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.

(b) The Buyer hereby assigns to us by way of security the claims against third parties arising from the resale of the goods or the product, including all ancillary rights, in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph, with priority over the remainder. If a current account has been agreed, the same shall apply to the balance claim. We accept the assignment. The obligations of the Buyer set forth in paragraph 2 shall also apply in respect of the assigned claims.

(c) The Buyer shall remain authorized to collect the claim, in addition to us. We undertake not to collect the claim provided the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to subsection 3. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide us with all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Buyer’s authorization to further sell and process the goods subject to retention of title.

(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.

(5) The above-mentioned Seller’s security rights shall not be affected by partial payments made by third parties to the Buyer on the assigned claims, including payments on partial invoices. The security rights shall continue to the full amount of the respective remaining claim from the Buyer in accordance with the above provisions.

§ 10 Final Provisions

(1) If the Buyer is a merchant, a legal entity under public law or a special fund under public law or if he/she has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for any disputes arising from the business relationship between the Seller and the Buyer shall be Freigericht or the Buyer’s registered office, at the Seller’s discretion. However, Freigericht shall be the exclusive place of jurisdiction for actions against the Seller in such cases. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.

(2) The relations between the Seller and the Buyer shall be exclusively governed by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) shall not apply.

(3) Should one or more provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected thereby.