I. Scope of Application
1. These general terms and conditions of sale (GTCS) apply to all of our business relationships with our customers (“buyers”). The General Terms and Conditions only apply if the buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
2. The GTCS apply exclusively. Deviating, conflicting or supplementary general terms and condi-tions of the buyer shall only become part of the contract if and to the extent that the seller has expressly agreed to their validity. This requirement of consent applies in any case, for example even if the seller carries out the delivery to him without reservation, knowing the buyer’s terms and conditions.
3. The General Terms and Conditions apply in particular to contracts for the sale and / or delivery of movable objects (“goods”), regardless of whether the seller produces the goods himself or buys them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the General Terms and Conditions apply in the version valid at the time of the buyer’s order or at least in the version last communicated to him in text form as a framework agreement for similar future contracts without the seller having to refer to them again in each individual case should point out.
4. Individual agreements made with the buyer on a case-by-case basis (including side agree-ments, additions and changes) always take precedence over these GTCS. A written contractor written confirmation from the seller is decisive for the content of such agreements, subject to evidence to the contrary.
5. Legally relevant declarations and notifications by the buyer in relation to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be submitted in writ-ing, i.e. in writing or text form (e.g. letter, email, fax). Statutory formal requirements and fur-ther evidence, particularly in the event of doubts about the legitimacy of the declaring party, remain unaffected.
6. References to the validity of legal regulations are only used for clarification purposes. The statutory provisions therefore apply even without such a clarification, unless they are directly amended or expressly excluded in these GTCS.
7. In the case of documents with a translation in a foreign language attached and which relate to a contract for which the German language is the language of negotiation, the translation is only considered information. Only the German wording is authoritative for the content of the contract.
II. Conclusion of Contract
1. The seller’s offers are non-binding and subject to change. This also applies if the seller has provided the buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – for which he reserves ownership and copyrights.
2. The order of the goods by the buyer is considered a binding contract offer. Unless otherwise stated in the order, the seller is entitled to accept this contract offer within 14 days of receipt.
3. The acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods / provision of the service to the buyer.
III. Delivery Time and Delay in Delivery
1. The delivery period is agreed individually or specified by us when we accept the order.
2. The seller can – without prejudice to his rights from default of the buyer – demand from the buyer an extension or postponement of delivery and service deadlines by the period in which the client does not meet his contractual obligations towards the seller. The contractual obli-gations of the seller include, for example, the timely submission of all documents, products, permits and releases required for processing the order.
3. The delivery and performance deadlines are also appropriately postponed if the buyer changes the object of purchase or related services of the seller after the conclusion of the contract.
4. The seller is not liable for the impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time the con-tract was concluded (in particular operational disruptions of all kinds, difficulties in material or energy procurement, transport delays, strikes, lawful lockouts, lack of manpower, energy or raw materials, difficulties in obtaining the necessary official permits, official measures or the lack of, incorrect or late delivery by suppliers) for which the seller is not responsible. If such events make the delivery or service significantly more difficult or impossible for the seller and the hindrance is not only of temporary duration, the seller is entitled to withdraw from the contract. In the event of temporary obstacles, the delivery or service deadlines are ex-tended or the delivery or service dates are postponed by the period of the hindrance plus a reasonable start-up period. If the buyer cannot be expected to accept the delivery or service as a result of the delay, he can withdraw from the contract by means of an immediate written declaration to the seller.
5. The occurrence of the delay in delivery is determined by the statutory provisions. In any case, a reminder from the buyer is required. If the seller is in default of delivery, the buyer can demand lump-sum compensation for damage caused by the delay. The lump sum for damages is 0.5% of the net price (delivery value) for each completed calendar week of delay, but no more than 5% of the delivery value of the delayed goods. The seller reserves the right to prove that the buyer incurred no damage or only significantly less damage than the above flat rate.
6. If a shipment has been agreed, the time of handover to the transport company is decisive for compliance with the delivery period. The seller is not responsible for delays caused by the transport company. A shipping time specified by the seller is therefore non-binding. If a hand-over cannot take place on time for reasons for which the seller is not responsible, notification of readiness for dispatch is sufficient.
7. The rights of the buyer according to § 8 of these GTCS and the legal rights of the seller, in particular in the case of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of the performance and / or subsequent performance), remain unaffected.
IV. Delivery, Transfer of Risk, Default in Acceptance
1. Delivery takes place ex works (EXW) Siemensstrasse 34, 59199 Bönen, Federal Republic of Germany (Incoterms® 2020), which is also the place of performance for delivery and any sub-sequent performance. At the request and expense of the buyer, the goods will be sent to a different destination (sale by dispatch). The seller is entitled to determine the type of ship-ment (especially the transport company, shipping route, packaging) himself.
2. The seller is entitled to make partial deliveries if
a. the partial delivery can be used by the buyer within the scope of the contractual in-tended purpose,
b. the delivery of the remaining goods ordered is ensured and
c. this does not result in any significant additional work or additional costs for the buyer (unless the seller declares that he is willing to assume these costs).
3. The seller’s delivery obligation is always subject to timely and proper delivery.
4. The risk of accidental loss and accidental deterioration of the goods is transferred to the buyer at the latest upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay are transferred to the transport company when the goods are delivered. If an acceptance has to take place, this is decisive for the transfer of risk. In addition, the statutory provisions of the law on contracts for work and services apply accordingly for an acceptance, unless IX. These AVB result in some-thing different. The handover or acceptance is the same if the buyer is in default of ac-ceptance.
5. If the buyer is in default of acceptance, if he fails to cooperate or if the delivery is delayed for other reasons for which the buyer is responsible, the seller is entitled to demand compensa-tion for the resulting damage including additional expenses (e.g. storage costs). For this, a flat rate compensation of 0.5% of the gross invoice amount will be charged for each calendar week that has elapsed, starting with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for dispatch.
The proof of a higher damage and legal claims of the seller (in particular reimbursement of additional expenses, appropriate compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The buyer is allowed to prove that the seller suffered no damage at all or only significantly less damage than the above flat rate.
V. Prices and Terms of Payment
1. Unless otherwise agreed, the current prices of the seller at the time of the conclusion of the contract apply. The prices are in EUR ex works (EXW – Incoterms ® 2020) plus packaging and assembly, recommissioning, the statutory sales tax and, for export deliveries, customs as well as fees and other public levies.
2. In the case of sales by mail (§ 4 Paragraph 1), the buyer bears the transport costs ex works and the costs of any transport insurance requested by the buyer.
3. Unless otherwise agreed, the purchase price is due and payable within 14 days of invoicing and delivery or acceptance of the goods. However, even in the context of an ongoing business relationship, we are entitled at any time to carry out a delivery in whole or in part only against prepayment. We declare a corresponding reservation at the latest with the order confirmation.
4. When the above payment period expires, the buyer is in default. The purchase price is subject to interest during the delay at the applicable statutory default interest rate. The seller reserves the right to claim further damages caused by default. The seller’s claim to commercial maturity interest (§ 355 HGB) against merchants remains unaffected.
5. Offsetting against counterclaims by the buyer or withholding payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established or result from the same contractual relationship under which the service in question was performed. In the event of defects in the delivery, the buyer’s counter-rights, in particular in accordance with Section 7 (6) sentence 2 of these General Terms and Conditions, remain unaffected.
6. If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that the seller’s claim to the purchase price is jeopardized by the buy-er’s inefficiency, the seller is, according to the statutory provisions, to refuse performance and, if necessary entitled to withdraw from the contract after setting a deadline (§ 321 BGB). In the case of contracts for the production of unreasonable items (custom-made items), the seller can declare his withdrawal immediately; the statutory provisions on the dispensability of set-ting a deadline remain unaffected.
7. The seller reserves the right, after notifying the buyer in good time and prior to delivery of the purchase item, to increase the purchase price to the extent that it is due to external increases in costs that are beyond his control and area of responsibility (e.g. change in customs prices, significant increase in material – and production costs, exchange rate fluctuations) is necessary or is necessary due to changes from suppliers of the seller. The seller guarantees the lowering of the purchase price to the extent that the external costs are reduced or even completely eliminated.
8. The seller also reserves the right to adjust the price in the event that additional equipment, devices, tools or similar are required to maintain the functionality of the purchased item, which were not foreseeable at the time the contract was concluded or which are required due to changes requested by the buyer after the contract was concluded were.
VI. Retention of Title
1. Until full payment of all current and future claims of the seller from the purchase contract and an ongoing business relationship (secured claims), the seller retains ownership of the goods sold.
2. The goods that are subject to retention of title may not be pledged to third parties or assigned as security before the secured claims have been paid in full. The buyer must notify the seller immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the goods belonging to the seller.
3. If the buyer acts contrary to the contract, in particular if the purchase price is not paid, the seller is entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title. The request for surrender based on the retention of title does not constitute a declaration of withdrawal from the contract.
4. The buyer is authorized to resell and / or process the goods subject to retention of title in the ordinary course of business until further notice in accordance with (c) below. In this case, the following provisions also apply.
a. The retention of title extends to the full value of the products resulting from processing, mix-ing or combining our goods, whereby the seller is considered the manufacturer. If, in the event of processing, mixing or combining with third party goods, their right of ownership remains, the seller shall acquire co-ownership in proportion to the invoice value of the processed, mixed or combined goods. For the rest, the same applies to the resulting product as to the goods delivered under retention of title.
b. The buyer hereby assigns the claims against third parties arising from the resale of the goods or the product to the seller as security in full or in the amount of the possible co-ownership share of the seller in accordance with the preceding paragraph. The seller accepts the assign-ment. The obligations of the buyer named in Paragraph 2 also apply with regard to the as-signed claims.
c. In addition to the seller, the buyer remains authorized to collect the claim. The seller under-takes not to collect the claim as long as the buyer fulfills his payment obligations to the seller, there is no lack of performance and the seller does not assert the retention of title by exercis-ing a right according to paragraph 3. If this is the case, however, the seller can demand that the buyer notify the seller of the assigned claims and their debtors, provide all information required for collection, hand over the associated documents and notify the debtors (third par-ties) of the assignment. In this case, the seller is also entitled to revoke the buyer’s authoriza-tion to resell and process the goods subject to retention of title.
d. If the realizable value of the securities exceeds the seller’s claims by more than 10%, the seller will release securities of the seller’s choice at the buyer’s request.
VII. Warranty Rights
1. The statutory provisions apply to the buyer’s rights in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly or inadequate assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions remain unaffected for the final delivery of the unprocessed goods to a consumer, even if he has further processed them (supplier recourse according to § 478 BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. through installation in another product.
2. The basis of the seller’s liability for defects is primarily the agreement made on the quality of the goods. All product descriptions and manufacturer information that are the subject of the individual contract or were made public by the seller (in particular in catalogs or on the seller’s internet homepage) at the time the contract was concluded shall apply as an agreement on the quality of the goods. The seller is not liable for services and deliveries from third compa-nies that have been used in coordination with the buyer for the provision of the goods and services of the seller.
3. If the quality has not been agreed upon, it must be judged in accordance with the statutory provisions whether or not there is a defect (Section 434, Paragraph 1, Clauses 2 and 3 BGB). However, the seller assumes no liability for public statements by the manufacturer or other third parties (e.g. advertising statements) that the buyer has not pointed out to the seller as being decisive for him.
4. The seller is not liable for defects that the buyer was aware of when the contract was con-cluded or that was not known due to gross negligence (§ 442 BGB). Furthermore, the purchas-er’s claims for defects presuppose that he has complied with his statutory inspection and no-tification obligations (§§ 377, 381 HGB). In the case of goods intended for installation or other processing, an examination must always be carried out immediately before processing. If a defect becomes apparent during the delivery, the inspection or at any later point in time, the seller must be notified immediately in writing. In any case, obvious defects are to be reported in writing within five working days of delivery and defects not recognizable during the inspec-tion within the same period of time from their discovery. If the buyer fails to properly examine and / or report defects, our liability for defects that are not reported or not reported in good time or not properly is excluded in accordance with the statutory provisions. The seller is not liable for defects in the goods and services if the buyer has processed or changed the goods.
5. If the delivered item is defective, the seller can first choose whether to provide supplementary performance by eliminating the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). The right to refuse subsequent performance under the stat-utory requirements remains unaffected.
6. The seller is entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold part of the purchase price that is reasonable in relation to the defect.
7. The buyer must give the seller the time and opportunity required for the subsequent perfor-mance owed, in particular to hand over the goods complained of for inspection purposes. In the case of a replacement delivery, the buyer must return the defective item to the seller in accordance with the statutory provisions. The supplementary performance does not include the removal of the defective item or the reinstallation if the seller was not originally obliged to install it.
8. We shall bear or reimburse the expenses required for the purpose of testing and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, re-moval and installation costs in accordance with the statutory provisions if there is actually a defect. Otherwise we can demand reimbursement of the costs incurred from the unjustified request for the removal of defects (in particular testing and transport costs) from the buyer, unless the missing defect was not recognizable to the buyer.
9. If the supplementary performance has failed or a reasonable deadline to be set by the buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
VIII. Industrial Property Rights and Copyrights; Defects of Title
1. The commercial property rights including the copyright (short: property rights) pertaining to the goods and services of the seller belong to the seller.
2. The seller is not responsible for any violations of property rights outside the Federal Republic of Germany.
3. If a third party legitimately asserts claims against the seller’s customer due to the seller’s vio-lation of property rights, the seller is liable as follows:
a) The contracting parties must immediately notify the other contracting party in the event that claims are made against them due to the infringement of property rights;
b) In the event that the object of purchase violates a third party industrial property right, the seller will either acquire a right of use for the delivery and service in question at his own expense or change or replace the object of purchase in such a way that an infringement of property rights is ruled out. If this is not possible with reasonable effort, the buyer has the right to withdraw from the contract or to reduce the price.
4. Any further claims arising from any infringement of property rights, in particular aimed at compensation, are excluded.
IX. Other Liability
1. Unless otherwise stated in these GTCS including the following provisions, the seller is liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
2. The seller is liable for damages – regardless of the legal reason – within the scope of fault lia-bility in the event of willful intent and gross negligence. In the event of simple negligence, the seller is only liable, subject to statutory liability restrictions (e.g. diligence in own matters; in-significant breach of duty)
a. for damage resulting from injury to life, limb or health,
b. for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and com-pliance with which the contractual partner regularly relies and may trust) in this case, how-ever, liability is limited to compensation for the foreseeable, typically occurring damage.
3. The limitations of liability resulting from paragraph 2 also apply to third parties as well as to breaches of duty by persons (also in their favor) for whose fault the seller is responsible ac-cording to legal regulations. They do not apply if a defect has been fraudulently concealed or a guarantee has been given for the quality of the goods and for claims of the buyer under the Product Liability Act.
4. Due to a breach of duty that does not consist of a defect, the buyer can only withdraw or terminate if the seller is responsible for the breach of duty. A free right of termination of the buyer (in particular according to §§ 650, 648 BGB) is excluded. In addition, the legal require-ments and legal consequences apply.
X. Special Conditions for Assembly Services
1. If the seller has taken on the obligation to assemble in addition to the delivery, the following special conditions for assembly services apply in addition to the other provisions of these GTCS.
2. At the time of the agreed delivery of the purchased item, the installation site must be pre-pared. The buyer must ensure that the installation locations for the purchased item are freely accessible and suitable for the transfer of necessary equipment.
3. The customer must support the assembly staff in carrying out the assembly at his own ex-pense. He must take the special measures necessary to protect people and property at the assembly site. He has to instruct the seller’s assembly manager about existing special safety regulations insofar as these are important for the assembly personnel. If violations of these safety regulations are found by the seller’s assembly staff, the buyer must inform the seller immediately.
4. If the installation is delayed due to circumstances for which the seller is not responsible, the seller is entitled to a reasonable extension of the execution time agreed for the installation, taking into account the duration of the delay. Otherwise, the statutory rights apply in the event of default.
5. If the seller requests acceptance of the assembly work after completion, the buyer must ac-cept the assembly work within two weeks after the request for acceptance. If the buyer does not accept the assembly service within this period, the assembly service is deemed to have been accepted upon expiry of the period, unless the buyer refuses acceptance due to a defect communicated to the seller within this period that makes it impossible or significantly more difficult to use the object of purchase. The installation service is also deemed to have been accepted if the buyer uses the installed object of purchase or parts thereof prior to ac-ceptance.
XI. Statute of Limitations
1. In deviation from § 438 Paragraph 1 No. 3 BGB, the general limitation period for claims arising from material and legal defects is one year from delivery. If an acceptance has been agreed, the limitation period begins with the acceptance.
3. The above limitation periods of the sales law also apply to contractual and non-contractual claims for damages by the buyer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would be shorter in individual cases Lead to statute of limitations. Claims for damages by the buyer in accordance with VIII Paragraph 2 Clause 1 and 2 lit. a of these General Terms and Conditions as well as under the Product Lia-bility Act shall only expire in accordance with the statutory limitation periods.
XII. Final Provisions
1. The law of the Federal Republic of Germany shall apply to these GTCS and the contractual relationship between the Seller and the Buyer.
2. If the buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international place of jurisdiction for all disputes arising directly or indirectly from the contractual relation-ship – is the seller’s place of business in Hamm. The same applies if the buyer is an entrepre-neur within the meaning of § 14 BGB. In all cases, however, the seller is also entitled to take legal action at the place of fulfillment of the delivery obligation in accordance with these GTCS or a priority individual agreement or at the general place of jurisdiction of the buyer. Priority legal regulations, in particular those relating to exclusive responsibilities, remain unaffected.
3. Contract language is German.
4. Should individual conditions of these GTCS be ineffective, the effectiveness of the remaining provisions is not affected. The contractual partners endeavor to replace the ineffective clause with a clause that comes closest to the economic purpose and legal meaning of the original wording and is in accordance with the relevant statutory regulation.
Status as of: 27.01.2021