I General points, conclusion of contract
- Our current and future offers and deliveries and/or the provision of services to our commercial customers (i.e. entrepreneurs within the meaning of Art. 14 of the German Civil Code (BGB) which purchase these goods and/or services for commercial and professional use) are subject exclusively to the following terms and conditions. Conditions of the customer which deviate from our terms and conditions will apply only if we expressly confirm them in writing. This confirmation requirement will apply in every case, even, for example, if we execute the delivery without reservation in the full knowledge of the general terms and conditions of the customer. At the point of placing the order or, at the latest, of acceptance of our goods and/or services, the customer expressly acknowledges the exclusive validity of our terms and conditions of sale and delivery. We have the right to withdraw from the contract if the customer contradicts the validity of our terms and conditions.Offers and deliveries to private customers (consumers) via our online shop are subject exclusively to the terms and conditions published there.
- In the absence of any deviating agreement in these terms and conditions, all supply agreements, as well as any changes, amendments, ancillary agreements, declarations concerning termination and other declarations and notifications, require the text form (including forms where a signature is not required, i.e. fax or e-mail). All our offers are subject to confirmation and non-binding unless we explicitly designate them as binding offers. A supply agreement will not be concluded until we confirm the customer’s order in writing or in text form, even in the case of an ongoing business relationship. This confirmation can also be replaced by our delivery, in which case the despatch of the delivery will be authoritative for the conclusion of the contract.
- If a master contract, a written individual contractual agreement (in particular, a master agreement, partnership agreement or a central regulatory agreement with an association to which the purchaser belongs or the like), has been concluded between the customer and us, the provisions of such an agreement will take precedence over these terms and conditions in the event of a conflict between the respective provisions.
II Prices, default of payment, set-off
- The agreed prices and discounts apply plus any value-added tax owed at the statutory rate. In the absence of other agreements in our order confirmation or on an individual basis, our prices are quoted ex works or ex stock on the basis of the list prices which apply in the delivery period confirmed by us, excluding packaging and shipping costs, customs duties and other ancillary charges, plus any VAT which may be incurred. For orders which do not reach the minimum amounts laid down in the price list in force at the time and /or the defined minimum order value, we will levy a surcharge of € 12.
- We will be bound by the prices agreed for an order for one month from the conclusion of the agreement. In the absence of expressly deviating written agreements with the customer and in the event of unforeseeable increases in the factors underlying our pricing calculation for which we are not responsible (in particular, increases due to higher material, wages and raw material costs, changes in currency parities, inflation, etc.), we will be entitled to adjust our prices accordingly.
- In the absence of any express deviating written agreement with the customer, our invoices must be paid without deductions within 20 days of the invoice date. In the event of returns, any discounts previously granted to the customer will be reversed. In the event of part deliveries, we will be entitled to raise the corresponding partial invoices.
- Payments by the customer will be deemed to have been made only when we can freely dispose of the sums in question. Payment instructions, cheques and bills of exchange will be accepted only on account of performance and after the imposition of all collection and discount charges payable by the customer.
- In the event of default of payment, default interest will be charged in the amount of nine percentage points above the base rate of the European Central Bank in force at the time the payment becomes due. We expressly reserve the right to assert further claims for compensation.
- If we should become aware of circumstances which cast doubt on the ability of the customer to pay, we expressly reserve the right to carry out deliveries exclusively in return for payment in advance or the provision of collateral or to suspend such deliveries until such time as all outstanding payments have been made by the customer. We will also be entitled to withdraw, in whole or in part, from previously concluded supply agreements with the customer unless the latter makes payments in advance or provides collateral as required by us.
- The customer will be entitled to offset our claims against counterclaims of its own only if such counterclaims have been legally established by final judgement, are undisputed or have been acknowledged by us in writing. The customer may withhold payments due to defects to parts of our deliveries or services only in the amount that corresponds to the reduced value of the defective delivery or service (see section IV. 6 below). We are entitled to prevent the exercise of rights of retention - including those based on the plea of unperformed contract - by providing security deposits, in particular bank guarantees. Such security will be deemed to have been provided at the latest when the customer defaults on acceptance.
III. Delivery, obstacles to delivery, contract amendments
- Delivery dates or delivery periods are always to be deemed non-binding and approximate except in the case of express written agreements on fixed delivery dates. They will be deemed to have been adhered to at the point of timely despatch of the goods or - in the case of collection by the customer - at the point of timely notification of readiness for despatch. In any case, the delivery period will begin only when all technical and other issues relating to the delivery have been resolved. Additional orders and any changes to the previous order requested by the customer will be deemed to be new orders. In the case of orders which have been blocked for creditworthiness reasons, the confirmed delivery dates will not apply; once the order has been released, new delivery dates, to be confirmed by us in writing, will in each case apply.
- We are entitled to make part deliveries or early deliveries; in these cases, packaging and shipping costs will be charged only once. Partial deliveries are permitted if the partial delivery can be used by the customer in the context of the contractual purpose of the delivery, the delivery of the remainder of the goods ordered is guaranteed and the customer incurs no significant additional expense or extra costs in the process.
- In the absence of any other expressly deviating written agreement, all deliveries will be made ex works on the account and at the risk of the customer. In addition, the lncoterms of the International Chamber of Commerce/Paris apply as amended. The goods will be deemed to have been delivered in accordance with the contract if they correspond with the product descriptions that apply to the end consumer. This will apply also in the case of minor or customary deviations in quality, dimensions, colour, weight and the like, provided that these deviations do not significantly impair the intended use of the goods. We expressly reserve the right to make other changes to the goods supplied by us where these are required on the grounds of technical developments or represent technical improvements.
- Events of force majeure, restrictions under public law and strikes, lockouts and other events which are unrelated to our operational risk will, at our discretion, either extend the agreed delivery dates for the duration of the disruption or, in the case of permanent disruption, entitle us to withdraw from the supply agreement in question. In any case, we will immediately inform the customer in writing of these events. In these cases, the right of the customer to claim compensation for non-performance or default of delivery is excluded. The same applies to any failure of our suppliers to make deliveries to us on time, provided that we are not responsible for this. In the case of agreed fixed delivery dates, the customer will in the aforementioned cases be entitled to withdraw from the agreement only after an appropriate period of grace.
- Should the customer not accept the goods, in whole or in part, even though we have offered them to it in accordance with the contract, or should it fail in its duty of cooperation, or should the delivery be delayed for other reasons for which the customer is responsible, it will be deemed to be in default of acceptance. We will in such cases be entitled to demand appropriate compensation for any costs incurred by us, including additional expenses (e.g. storage costs). These will amount to 2 per cent of the value of the goods to be stored on the basis of a specific order per complete calendar week. We and the customer expressly reserve the right to assert claims for additional storage costs or to demonstrate that such costs are lower than has been stated. Irrespective of the above, however, the statutory duties of transfer of risk will remain in force in the event of such a default of acceptance; in particular, the risk of accidental loss or accidental deterioration of the goods ordered will in these cases pass directly to the customer. This will be without prejudice to any further claims on the grounds of default of acceptance.
- In the absence of any deviating agreement with the customer, we reserve the express right to commission a freight forwarder/parcel delivery service of our choice with the shipment of our goods. The shipment will then take place at our expense but at the risk of the customer. At the request and expense of the customer, deliveries will be insured by us against the usual transport risks. If it has been agreed that the customer is to collect the goods, the risk of accidental loss and accidental deterioration will pass over to the customer at the point of handover of the goods, and, in the case of collection of the goods by third parties commissioned by the customer, at the point of handover of the goods to these third parties. If the customer is in default of acceptance, the risk will pass over to the customer as soon as said default is been substantiated.
- If we default on delivery, the customer must at our request declare within an appropriate period of grace whether it wishes to insist on the delivery or to assert its other statutory rights. In the event of default of delivery, the customer may withdraw from the active order in the context of the statutory provisions only if we are responsible for the default.
- Claims for compensation on the part of the customer on the grounds of default of delivery are governed by the regulation in section VI.2.
IV. Warranty, notification of defects, returns
- In the event of material defects and defects of title (including wrong and short deliveries and improper assembly or defective assembly instructions) and in the absence of any other provision in the following, the rights of the customer are governed by the statutory provisions. If our contractual performance also includes the assembly of the goods delivered, or if the order concerns an independent repair order or some other contractual works, the provisions set out below will also apply to any assembly, repair or other contractual works.
- Any goods delivered by us must be carefully inspected immediately after delivery to the customer or third parties nominated by the same. If, at the point of delivery, external damage to the packaging of the goods or the goods themselves is visible, the delivery in question must be inspected for completeness and damaged goods in the presence of the driver, the forwarder must be notified in writing of the damage on the confirmation of receipt, and the damaged goods photographed and other evidence secured in order to avoid later losses of rights. In the case of obvious defects or other defects which would have been identifiable if an immediate careful inspection had taken place, these will be deemed to have been approved by the customer if we do not receive a written specific notification of defects from the customer within seven working days of delivery. In respect of other defects, these will be deemed to have been approved by the customer if we do not receive its notification of defects within seven working days of the date on which the defect in question first came to light. If, however, the defect was recognisable by the customer at an earlier point, this point will be decisive for the commencement of the period of grace for the notification of defects. If the goods supplied by us to the customer were not manufactured by us but were instead procured from sub-suppliers, we will in the first instance fulfil our warranty obligations by assigning all warranty claims against our sub-suppliers to the customer. The customer will accept this assignment on account of performance. We will in this case perform merely in a subsidiary capacity if the sub-supplier has been unsuccessfully taken to court or the assertion of warranty claims against the sub-supplier has no prospect of success.
- In the case of incorrect or excess deliveries, the customer must immediately return the goods in question to us in their original packaging and without changes to their original condition. We will provide a returns note for this purpose. If the packaging of the returned goods is damaged or no longer sealed, or if the goods are obviously damaged or altered, the amount credited to the customer will be reduced by twenty per cent of the total invoice amount. We will also charge an inspection fee (DGUV inspection) of € 10.00 per part.
- If the item delivered should indeed prove defective, we will in the first instance be entitled at our sole discretion either to rectify the defect or to deliver a non-defective item. This is without prejudice to our right to refuse subsequent performance subject to statutory provisions. If, in the case of a replacement delivery, an item is no longer available, we will replace it with another item which resembles the unavailable item as closely as possible.
- All warranty claims of the customer are excluded if and to the extent that the latter has not observed our assembly, operation and maintenance and/or care instructions and the defect has arisen as a result thereof, or the customer’s failure to observe these instructions has rendered it impossible or unreasonable for us to rectify the defect. The same applies to damage which has arisen on the basis of improper deployment, use, commissioning, alteration or repair, incorrect and/or negligent treatment and/or natural wear and tear.
- We are entitled to make any supplementary performance owed by us contingent on the payment by the customer of the due purchase price. The customer will however be entitled to retain a proportion of the purchase price commensurate to the defect.
- The customer must allow us the time and opportunity we require to carry out the supplementary performance and must in particular hand the item in question over to us for inspection purposes. The item is to be sent back to us free of transport charges; a specific description of the fault and a copy of the invoice/delivery note is to be included. The expenditure required for the purpose of inspection, with particular reference to transport, travel, work and material costs (not including, however, any disassembly and/or assembly costs) will be borne by us if and to the extent that a defect is actually established. Should the request of the customer for the rectification of a defect proved unjustified, we can require the customer to compensate us for any costs which we incur as a result. Should we refuse to carry out supplementary performance or a replacement delivery, or should these fail or prove unreasonable for the customer to accept, the latter may at its discretion and on the basis of the applicable statutory provisions withdraw from the previously concluded supply agreement, reduce the purchase price and/or assert a claim for compensation, taking into account the provisions set forth in section 6.; this does not, however, apply to merely minor defects.
- The mere statement of performance data or other descriptions of content or specifications or provision of images does not represent a guarantee of quality or a manufacturer’s warranty on our part. Technical alterations are expressly reserved. We will accept further warranty and guarantee obligations only if we have expressly consented to them in writing. In any case, the customer’s rights on the grounds of defects will expire after the end of twelve months, starting from the date of receipt of the delivery of the specific goods by the customer. This is without prejudice to the time-barring provisions of Art. 479 BGB and other statutory rights of the customer arising as a result of maliciously concealed or intentionally caused defects.
- Deliveries of spare parts and returns of repaired goods, if not covered by our liability for material defects, will be offered in return for an appropriate flat-rate shipping and packaging charge in addition to the remuneration for the service we provide in this context.
- If the customer has submitted an incorrect order or wishes to send back goods for some other reason, this is possible only if the items in question are standard items and we give our express consent by arrangement in the case in question. We will take goods back only in their original, sealed packaging. In this case, we will charge a fee of € 20 per product for reintegration into our warehouse. The credit note will be reduced accordingly.
- The provisions of this section IV apply mutatis mutandis to defects of title.
V. Retention of title and other security rights
- We expressly reserve proprietary rights to the goods supplied until such time as all payments relating to the specific order and, in the case of an ongoing business relationship, all unpaid accounts receivable have been received. In the case of allocation to a current invoice, the reservation of title will apply to the balance in question.
- The customer is entitled to sell on the supplied goods in the course of ordinary business transactions. This selling on of goods will be deemed not to have taken place in the course of ordinary business transactions if, among other reasons, the customer has agreed an non-assignment clause with its customer; allocation to a current invoice will, on the other hand, be permitted. In the event of the selling on of goods, the customer assigns to us here and now all receivables due from its customers and/or other third parties in the amount of the final invoice sum in question (including VAT plus ancillary costs and any interest due). In the case of a current account, the reserved title will constitute security for our balance claim. The customer will remain entitled and obliged to collect these receivables, including after their assignment, until the entitlement and obligation are revoked by us. Particularly in the event of a deterioration in the asset situation of the customer of which we have become aware, we will be entitled to collect the assigned receivables ourselves. In the absence of any express deviating agreement with us, the customer must disclose existing ownership rights to these goods to third parties for the purpose of safeguarding our rights in the further sale of the goods subject to retention of title or other disposals thereof.
- The customer may not freely dispose of the goods subject to retention of title in a manner which impairs our rights, e.g. by means of pledging, chattel mortgaging or assignments. The customer must inform us in text form as quickly as possible of impending interventions or disposals of third parties so that we can assert our corresponding rights. In the event of legal action pursuant to Article 771 of the German Code of Civil Procedure (ZPO), the customer must compensate us for any judicial or extrajudicial costs which we incur in this context if the third party against whom the claim is being asserted is not in a position to do so.
- The customer gives its express consent to our authorisation in the event of the impending impairment of our security rights to collect or otherwise secure the goods subject to retention of title, where this act of securing does not represent unwarranted interference. We are for this purpose entitled to enter all the storage and business premises of the customer to the extent required for the assertion of our rights. The customer undertakes in this regard to cooperate with us fully and without limitation.
- If required to do so by the customer, we undertake to release existing securities if their value exceeds the claim to be secured by 50%. In the case of an ongoing business relationship, the aforementioned percentage rate will apply to all claims being asserted against the customer.
- The customer undertakes to insure all our goods subject to retention of title against fire, flood, theft and other standard commercial risks and hereby assigns to us the resulting claims against the insurer in relation to these goods.
VI. Restrictions of liability
- We are liable to pay compensation on the grounds of intent and gross negligence. In the event of simple negligence, we will be liable only for damage arising from injury to life, limb and health and for damage arising from the breach of a cardinal contractual obligation (an obligation without whose fulfilment the proper execution of the supply agreement would be impossible and on whose observance the customer may, and does, have confidence in the normal course of events). In these cases, however, our liability will be restricted to compensation for the foreseeable damage which is typical of this kind of situation. We will otherwise be liable to pay compensation for indirect damage and consequential damage as a consequence of defects to the delivered item only if such damage may typically be expected in the course of the proper use of the delivered item.
- The preceding limitations of liability will not apply if we have maliciously concealed a defect for which the customer has a duty to provide evidence or if we have offered an express written guarantee for the quality and function of the specific item in question. The same applies to liability on the grounds of applicable mandatory statutory provisions, such as the German Product Liability Act, and, if a fixed date for the delivery and/or provision of the service has been agreed, in the event of default of delivery.
- The customer may withdraw from the agreement on the grounds of a breach of duty which is unrelated to a defect only if we are responsible for this breach of duty.
- In the case of information and instructions, materials and other elements of the order provided by the customer, we will in the absence of any express agreement to the contrary not be liable, and the customer will completely indemnify us against all and any claims of third parties as soon as the claim is asserted.
- The warranty period is one year from delivery or, where inspection and acceptance are required, from the point of acceptance. This period does not apply for claims for compensation on the part of the customer arising from injury to life, limb or health or from grossly negligent breaches of duty by us or our vicarious agents, each of which will expire in accordance with the statute of limitations contained in the respective statutory provisions.
- Our liability is limited to a maximum amount for each individual claim of € 5 million.
- Any further liability on our part is excluded, regardless of the legal nature of the claim being asserted. This applies in particular to claims for compensation on the basis of culpa in contrahendo, on the grounds of other breaches of duty or on the grounds of tortious claims for compensation for material damage pursuant to Art. 823 BGB. The exclusions or limitations of liability contained in this section apply in the same scope in favour of our organs, our executive and non-executive employees and other vicarious agents, and our subcontractors.
- The exclusions or limitations of liability in the foregoing apply in the same scope in favour of the organs, legal representatives, employees and other vicarious agents of the seller.
- If we offer technical information or are engaged in an advisory capacity and such information or advice does not form part of the contractually agreed scope of services owed by us, these activities will take place free of charge and to the exclusion of all liability.
VII. Intellectual property rights
- The customer expressly acknowledges our sole intellectual property rights and exclusive rights of use of the property rights used by us (including trademark rights, design rights, rights to industrial or utility models, patents, copyrights etc.) and will engage neither directly or indirectly in activities which might have a negative impact on these property rights.
- If the customer is a reseller, we grant it a non-exclusive licence to use our property rights, which may be revoked at any time and is limited to the duration of the business relationship, exclusively for its own marketing purposes in the context and scope of its function in the sale of our products. This relates in particular but not exclusively to the use of our logos, trademarks, images, photographs, texts and the like and of all other property rights to which we are entitled in advertising and sales promotion materials of the customer which have been expressly authorised by us in advance, whether these be in print, point-of-sale or Internet-based media (hereinafter referred to as the “Materials”). The Materials may not be disclosed to third parties without our consent unless this disclosure serves merely the purpose of the creation by agencies commissioned by the customer of advertising and sales promotion materials which make use of the Materials.
- In order to ensure that the Materials used off-line and online by the customer meet our quality requirements and are appropriate and necessary for the continued existence of our intellectual and commercial property rights, the version of the Corporate Design Guide as amended must be consulted prior to every use. Any use of these Materials and depictions of persons and their names, references and the like in connection with our products with which we are connected commercially or in some other way requires, in the case of publication, our prior express written consent and, for the use of images, the conclusion of a written license agreement.
- The customer will regularly keep abreast of new or updated product information and remove outdated product information from its marketing and advertising materials without delay and replace it in each case with the updated information.
- In the event of an infringement of the provisions contained in this section VII, we reserve the right, particularly in the event of repetition and irrespective of other rights to which we are entitled in this case, to suspend deliveries to the customer either temporarily or generally with effect for the future.
- In all cases, at the end of the business relationship, regardless of the legal reason for its termination, the customer will cease without delay to use our intellectual property rights, immediately cease to use any Materials which are still in its possession, either off-line or online, and immediately return to us Materials given to it by us for sales promotion purposes or surrender them to a third party commissioned by us.
VIII. Data protection, confidentiality
IX. Place of fulfilment, legal venue, applicable law
- The place of fulfilment of all obligations from the business relationship with the customer is our registered office in Neuwied, unless the specific nature of the obligation requires another place of fulfilment.
- In the case of business transactions with merchants, legal persons under public law or special funds under public law, and in the absence of reasons for some other legally exclusive legal venue, the exclusive legal venue for all disputes that arise either directly or indirectly from the contractual relationship is Munich. We would point out by way of clarification that the competence provision set out above applies also to all matters between us and the customer which might result in extracontractual claims within the meaning of directive (EU) no. 864/2007. We are, however, entitled to initiate legal action against the customer at the court that is competent for its registered office and at any other legally competent court.
- These terms and conditions of sale and delivery and the entire legal relationship between us and the customer are governed exclusively by the law of the Federal Republic of Germany, under exclusion of conflict-of-laws provisions and the UN Convention on Contracts of the International Sale of Goods (CISG), if the customer has its registered office outside the Federal Republic of Germany. For the sake of clarification, we expressly state that this choice of law is also to be understood as such within the meaning of Article 14 (1) (b) of Directive (EC) No. 864/2007 and should thus apply also to extracontractual claims within the meaning of this directive. If, in an individual case, the application of foreign law is mandatory, our GTC are to be so construed as to ensure that the economic purpose for which they are intended is fulfilled as far as possible.
X. Concluding provisions
- All changes and/or amendments to the contractual agreements concluded with the customer, including these terms and conditions of sale and delivery, require the written form; the same applies also to any change to this written form clause itself.
- Should we refrain in whole or in part from asserting any right or delay in the assertion of any right on our part against the customer, this will not constitute a waiver of this or any other right.
- Our employees, trade representatives or other representatives who are not members of our board of management are not entitled to submit legally binding declarations on our behalf unless we have previously granted our express written consent to such declarations.
- In the absence of deviating provisions in the foregoing conditions or mandatory statutory liability on our part, all claims of the customer against us will expire within 6 months of the point at which the customer becomes, or should have become, aware of the matter in question; irrespective of this awareness, they will in all cases expire within 3 years from the date of the invoice for the delivery in question, regardless of the nature of these claims.
- If any provisions of these terms and conditions of sale and delivery should be or become ineffective or legally unenforceable, this will be without prejudice to the remaining provisions. It will then be incumbent on us to replace the ineffective or unenforceable provisions with those effective or enforceable provisions which most closely correspond to the economic purpose of the ineffective or unenforceable provisions.
- We expressly reserve the right as we see fit to change and/or supplement these general terms and conditions of delivery and sale and will then furnish the customer without delay with the corresponding modified new version in writing, which will then completely replace the existing version. The same applies mutatis mutandis to the previous version of these general terms and conditions. All orders submitted by the customer and confirmed by us prior to the communication of the modified new general terms and conditions of delivery and sale will be carried out on the basis of the applicability of the previous version of these terms and conditions.
Last revised: 30.05.2018