General Terms and Conditions.
I. General provisions
- Validity, conclusion of contract
These Terms and Conditions of Sale, Delivery and Payment (hereinafter referred to as "Terms and Conditions") apply to all our deliveries and services to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). Our deliveries are made exclusively on the basis of the following terms and conditions and intended for business customers only. We do not recognise any general terms and conditions of the customer that conflict with or deviate from our terms and conditions of sale, delivery and payment unless we have expressly agreed to their validity. We shall not be bound by them even if we do not object to them again when the contract is concluded.
These GTC shall also apply in their respective valid version to future follow-up transactions, even if they are not expressly included again.
All our offers are subject to change and non-binding. They, as well as orders, price agreements and other agreements - in particular insofar as they amend these Terms and Conditions of Sale - shall only become binding for us upon our express confirmation.
The sales documents enclosed with the offer (e.g. drawings, illustrations) as well as technical data contained therein or otherwise communicated, references to standards, as well as statements in advertising material are not warranties or guarantees, unless they are expressly designated as such by us.
- Prices, terms of payment
The expressly agreed prices shall apply; in the absence of an express agreement, the prices stated in our price list valid at the time of conclusion of the contract shall apply plus statutory VAT. Unless otherwise expressly agreed, the prices for delivery ex works Dortmund (Incoterms® in the current version) plus packaging and ancillary costs shall apply. In the case of carriage forward delivery, we shall only bear the most favourable freight costs, unless we have specified a special type of shipment. Within the framework of the statutory regulations, we will take back packaging supplied by us if it is returned to us by the customer within a reasonable period of time. We shall not bear the customer's costs for the return transport or for the customer's own disposal of the packaging. If the costs for materials, wages, auxiliary materials or statutory levies increase significantly for reasons for which we are not responsible in the period between conclusion of the contract and delivery, insofar as this is longer than 6 weeks, we shall be entitled to increase the agreed price by disclosing the original calculation and specifically explaining the increase in the cost factors in accordance with the extent of the cost increase in order to compensate for it.
Unless otherwise agreed, all payments must be made in cash without deduction within 14 days of receipt of the invoice. After expiry of this payment term, default shall occur, unless otherwise expressly agreed. We also point this out again to consumers in the invoices. In the event of default, we shall be entitled to demand default interest in accordance with §§ 247, 288 BGB. This does not exclude the assertion of further damages.
If the customer is in default of payment, we are entitled to charge interest at the statutory rate. We reserve the right to claim higher interest damages. In addition, we shall charge a lump-sum default fee of EUR 40.00. The customer is entitled to prove that we have incurred no or only minor damages. We reserve the right to claim further damages caused by delay.
Cash discount deductions are only permitted if expressly agreed and only apply to the invoice value excluding freight. Discount periods shall commence from the invoice date. In any case, the deduction of a discount requires the complete settlement of all due liabilities of the customer. We shall only accept promissory notes and discountable bills of exchange on account of payment by express agreement. Credit notes for cheques and bills of exchange shall be issued subject to receipt, less discounting costs, any bank and collection charges, with value date of the day on which we can dispose of the equivalent value.
If, after conclusion of the contract, we become aware of facts that indicate a significant deterioration in the customer's financial situation and thus give rise to justified doubts as to the customer's ability to pay, we shall be entitled to demand full payment or the provision of corresponding security before delivery or to withdraw from the contract after setting a deadline to no avail. In addition to a delay in payment of a significant amount (from 10 % of the receivables due) for at least three weeks, evidence of a significant deterioration in assets shall be deemed to be, in particular, information from a bank, credit agency or a company in a business relationship with the customer with corresponding negative content in accordance with the diligence of a prudent businessman. If the delivery has already been made, all claims relating to this shall become due for payment immediately, irrespective of the agreed terms of payment, if necessary with the return of the acceptances. Likewise, we shall be entitled to declare all other claims from the current business relationship with the customer due immediately and to revoke the authorisation to collect in accordance with Clause I No. 3 (retention of title).
Counterclaims disputed by us or not legally established shall not entitle the customer to withhold or offset payment. This shall not apply if the customer's counterclaims result from the same contractual relationship and/or they would entitle the customer to refuse performance in accordance with § 320 BGB.
For orders that do not reach a net value of EUR 150, the amount will be increased to EUR 150. The customer shall bear the difference between his order value and the minimum order value of EUR 150. A reduced minimum order value of EUR 100 applies to orders placed via our webshop. If the order value is less than EUR 100, the amount is also increased to EUR 100 and the customer bears the corresponding difference. This regulation does not apply to individual special agreements or separately advertised promotions.
- Reservation of title
We reserve title to all delivered items (hereinafter: reserved goods) until fulfilment of all claims, regardless of the legal grounds, including future or conditional claims arising from contracts concluded at the same time or later. This shall also apply if payments are made on specially designated claims.
Processing and treatment of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB, without any obligation on our part. The processed goods shall be deemed to be reserved goods within the meaning of paragraph 1 of this clause. If the customer processes, combines or mixes the goods subject to retention of title with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires as a result of combining or mixing, the customer hereby assigns to us the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall store them for us free of charge. The resulting co-ownership rights shall be deemed to be reserved goods within the meaning of paragraph 1 of this clause.
The customer is only authorised to resell, process or combine with other items or otherwise install the goods subject to retention of title in the ordinary course of business and as long as he is not in arrears with payment of the purchase price. Any other disposal of the reserved goods is not permitted. We must be notified immediately of any seizures or other access to the reserved goods by third parties. All intervention costs shall be borne by the customer insofar as they cannot be collected by the third party and the third-party action against the goods has been legitimately filed. If the customer defers the purchase price to his customer, he shall reserve title to the reserved goods vis-à-vis the latter under the same conditions under which we have reserved title to the delivery of the reserved goods. However, the customer shall not be obliged to reserve title with regard to the claims against his customer arising in the future. Otherwise, the customer is not authorised to resell the goods.
The customer's claims from the resale of the goods subject to retention of title are hereby assigned to us. They shall serve as security to the same extent as the reserved goods.
The customer shall only be entitled and authorised to resell the goods if it is ensured that the claims to which he is entitled as a result are transferred to us.
If the goods subject to retention of title are sold by the customer together with other goods not supplied by us at a total price, the assignment of the claim arising from the sale shall be in the amount of the invoice value of the goods subject to retention of title sold in each case.
If the assigned claim is included in a current invoice, the customer hereby assigns to us a part of the balance corresponding to the amount of this claim, including the final balance from the current account.
The customer is authorised to collect the assigned claim until revocation by us. We are entitled to revoke the authorisation if the customer does not properly meet his payment obligations arising from the business relationship or if circumstances become known which are likely to significantly reduce the customer's creditworthiness. If the conditions for exercising the right of cancellation are met, the customer shall, at our request, immediately disclose the assigned claims and their debtors, provide all information necessary for the collection of the claims, hand over to us the relevant documents and notify the debtor of the assignment. We are also authorised to notify the debtor of the assignment ourselves. The customer is not otherwise authorised to assign the claims, not even on the basis of our collection authorisation.
If the nominal value (invoice amount of the goods or nominal amount of the claim rights) of the securities existing for us exceeds the secured claims by more than 50 % in total, we shall be obliged to release securities of our choice at the customer's request.
If we assert the retention of title, this shall only be deemed a cancellation of the contract if this is expressly declared by us. The customer's right to possess the reserved goods shall expire if he fails to fulfil his obligations under this or any other contract.
- Liability
We shall only be liable without limitation for claims for damages by the customer - irrespective of the legal grounds - in the following cases:
- in the event of fraudulent concealment of a defect,
- in the event of non-compliance with a quality guarantee,
- in the event of injury to life, limb or health,
- in the event of a wilful breach of duty,
- in the event of a grossly negligent breach of an obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely (so-called essential contractual obligation / cardinal obligation).
In the event of a grossly negligent breach of an obligation that is not a cardinal obligation, we shall only be liable for damages foreseeable at the time of conclusion of the contract and typical for this type of contract.
In the event of a slightly negligent breach of a cardinal obligation, we shall also only be liable for damages foreseeable at the time the contract was concluded and typical for this type of contract.
Claims under the Product Liability Act are also not affected by the above limitations of liability.
Any further liability is excluded.
The above limitations of liability apply equally to breaches of duty by our executive bodies and vicarious agents.
A change in the burden of proof to the detriment of the customer is not associated with the above provisions.
- Place of fulfilment and jurisdiction
The place of fulfilment for all rights and obligations of both parties to the contract - including the customer's obligation to pay - is Dortmund. The exclusive place of jurisdiction for all legal disputes arising from the contractual relationship is Dortmund.
6 Applicable law, partial invalidity, data protection
German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The invalidity of individual provisions of these terms and conditions shall not affect the validity of the remaining provisions.
We store and process our customers' data in accordance with the provisions of the GDPR.
II Execution of the delivery
- Delivery time
Delivery periods shall commence on the date of the order confirmation, but not before the timely and proper fulfilment of the customer's obligations, in particular not before the provision of the documents, approvals and releases to be procured by the customer and not before receipt of an agreed down payment.
The delivery dates specified by us are non-binding unless expressly agreed otherwise. If a delivery date has been expressly agreed as binding, it shall be deemed to have been met if and insofar as we have dispatched the goods in good time or have notified readiness for dispatch. This shall not apply if acceptance is expressly stipulated in the contract or if an assembly obligation has been expressly agreed.
Our delivery obligation is subject to correct and timely delivery to us, unless we are responsible for the incorrect or delayed delivery to us.
Delivery dates and deadlines shall be extended in the event of force majeure, industrial action, in particular strikes and lockouts, as well as in the event of unforeseeable, extraordinary events for which we are not responsible, official interventions, energy supply difficulties, pandemics and epidemics, etc., which are beyond our control, by the duration of the hindrance and a reasonable start-up period, insofar as such events and circumstances affect the production or delivery of the goods. The same applies if such circumstances and events occur at our suppliers. We shall inform the customer of such circumstances without delay. If the fulfilment of the contract becomes unreasonable for one of the contracting parties due to such events or circumstances, it may withdraw from the contract in this respect. In all such cases, claims for damages shall be excluded.
- Partial delivery, call-off orders
We are authorised to provide partial services to an extent that is reasonable for the customer.
In the case of call-off orders, we are authorised to manufacture the entire order quantity or have it manufactured. Any change requests can therefore no longer be taken into account after conclusion of the contract, unless this has been expressly agreed.
We can only honour call-off dates or quantities not expressly agreed in the contract within the scope of our delivery or production possibilities.
If the goods are not called off in accordance with the contract, we shall be entitled to invoice them as delivered after a reasonable period of grace has elapsed.
- Acceptance
If the customer does not accept the goods, does not accept them on time or does not accept them in full after notification of readiness for dispatch, we shall be entitled to store the goods and to charge our own or third-party storage costs incurred as a result or to dispatch the goods to the customer at the customer's expense after setting a reasonable grace period.
The commercial inspection and complaint obligations shall apply without restriction. The customer must report externally recognisable faults and defects in writing within 8 days of receipt of the goods. Defects that are not recognisable within this period must be reported in writing immediately after their discovery, with any processing and handling being stopped immediately. If the customer fails to inspect the goods immediately or to report a defect immediately, the goods shall be deemed to have been approved and the customer can no longer assert any rights due to the defect or short delivery. If we negotiate with the customer about a complaint raised by the customer, this shall not constitute a tacit waiver of the defence of delay in the inspection of the goods or notification of the defect without express notification. The same applies to any willingness to rectify the defect declared by us (or in the case of a rectification actually carried out).
- Dispatch and transfer of risk
Material notified as ready for dispatch must be called off for dispatch immediately in accordance with the delivery instructions, otherwise we shall be entitled without further ado to store it at the customer's expense at our discretion and to invoice it as delivered ex works immediately after notification of readiness for dispatch. If lorry collection is planned and the material is not collected within 5 days of our notification of readiness for dispatch corresponding to the agreed delivery date, we shall be entitled to dispatch the goods ourselves at our discretion. The statutory provisions on default of acceptance shall remain unaffected.
The risk - including the risk of confiscation - shall pass to the customer when the goods are handed over to the forwarding agent, carrier or shipper, but at the latest when they leave the factory. This shall also apply if carriage paid delivery has been expressly agreed. In this case, we reserve the right to choose the dispatch routes, means of transport and means of protection. Means of protection, covered and special trolleys will be charged separately. Dispatch is carried out on behalf of the customer. If dispatch is delayed as a result of circumstances for which the customer is responsible, the risk shall pass to the customer from the date of our declaration of readiness for dispatch. At the customer's request and expense, we will insure the goods against theft, breakage, transport, fire and water damage and other risks.
- Material defects and defects of title
The goods are free of material defects if they fulfil the subjective requirements, the objective requirements and the assembly requirements according to § 434 BGB (German Civil Code) at the time of transfer of risk.
Contractual use is only assumed if we have been informed of this use in text form by the customer at the latest when the purchase contract is concluded and we have expressly agreed to this use in text form.
We shall provide the promised services in accordance with the state of the art applicable at the time of commissioning and the relevant legal provisions in Germany and in compliance with the care customary in the industry. The prerequisite for our liability for material defects or defects of title (hereinafter: "defect") is that these are not due to improper use, incorrect assembly or commissioning, negligent handling or use of unsuitable operating materials or replacement materials by the customer or third parties, natural wear and tear, defective construction work, chemical, electrochemical or electrical influences - insofar as these circumstances are not attributable to our fault - and that the customer has fulfilled his obligations in accordance with Section II No. 3.
In the event of complaints about defects, payments by the customer may only be withheld to an extent that is in reasonable proportion to the defects that have occurred if the customer's claims are undisputed or have been recognised by declaratory judgement.
If the customer has installed the defective goods in another item or attached them to another item in accordance with their type and intended use, he may only demand compensation for the necessary expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered defect-free goods ("removal and installation costs") in accordance with the following provisions:
Only those removal and installation costs are required which directly relate to the removal or dismantling of the defective goods and the installation or attachment of identical goods, which have been incurred on the basis of standard market conditions and which are proven to us by the customer by submitting suitable receipts at least in text form.
Any additional costs incurred by the customer for consequential damage caused by defects, such as loss of profit, operating downtime costs or additional costs for replacement purchases, are not direct dismantling and installation costs and are therefore not eligible for compensation as reimbursement of expenses in accordance with Section 439 (3) BGB. The same applies to sorting costs and additional expenses arising from the fact that the sold and delivered goods are located at a place other than the agreed place of fulfilment.
The general liability for damages arising from warranty claims is governed by Section I. 4.
If the customer's notification of defects is unjustified, we shall be entitled to demand compensation from the customer for the expenses incurred by us.
The customer is not entitled to demand advance payment for dismantling and installation costs and other costs of subsequent fulfilment.
Replaced parts shall become our property and shall be returned to us. If the subsequent fulfilment fails, the customer shall be entitled at his discretion - without prejudice to any claims for damages and reimbursement of expenses in accordance with Clause I No. 4 - to reduce the remuneration or - if our breach of duty is significant - to withdraw from the contract.
The customer shall only have a right of recourse against us in accordance with § 478 BGB insofar as the customer has not made any agreements with his buyer that go beyond the statutory claims for defects or the provisions contained in this section. If a claim is made against the customer due to a defect in the newly manufactured goods, the customer is obliged to inform us of this immediately. He must oblige his customers accordingly if they are entrepreneurs. We reserve the right to fulfil the claims asserted by the purchaser against the customer by way of self-assertion. In this case, the fulfilment of the customer's claims shall be deemed to be the fulfilment of any claims of the customer.
Claims for defects shall lapse after one year. This shall not apply insofar as these are based on wilful conduct attributable to us or insofar as longer periods are prescribed by law in accordance with § 438 para. 1 no. 2 (buildings, items for buildings), § 479 para. 1 (recourse claims), 634 a para. 1 no. 2 (construction defects) BGB and not in the case of fraudulent intent. In the event of subsequent fulfilment, the limitation period shall not begin to run anew, but shall be suspended until three months after the subsequent fulfilment has been carried out.
- Return
Properly delivered and defect-free products will only be taken back by us in exceptional cases and within the scope of possibilities after prior express agreement if they are in perfect condition and do not originate from a contract production. Unless otherwise expressly agreed, we will charge 25% of the value of the goods, but at least 50 euros.
- Dimensions, weight, quality
Deviations in dimensions, weight and quality are permissible within the customary limits or within the framework of DIN regulations. The weights are determined by the weighing masters on our calibrated scales, which are under constant control, and are decisive for the calculation. In the case of delivery in wagonloads, the total weight of the load shall be decisive for the calculation. Differences compared to the calculated individual weights are to be distributed proportionally among these. Proof of weight shall be provided by submitting the weighing record.
III Copyrights
We reserve the unrestricted property and copyright utilisation rights to cost estimates, drawings, drafts and other documents. These documents may only be made accessible to third parties with our consent. Drawings and other documents belonging to offers must be returned to us on request.
If we have supplied goods in accordance with drawings, models, samples or other documents provided by the customer, the customer shall assume liability for ensuring that the industrial property rights of third parties are not infringed. If third parties prohibit us in particular from manufacturing and delivering such items with reference to industrial property rights, we shall be entitled - without being obliged to check the legal situation - to cease all further activities in this respect and, in the event of fault, to demand the return of the goods.
of the customer to claim damages. The customer also undertakes to indemnify us immediately against all related third-party claims.
IV. Suitability and quality, compliance with regulations, industrial property rights, third-party rights, test parts, moulds, tools
All details and information provided by us regarding the quality, suitability and applicability of the goods shall not release the customer from carrying out his own tests and trials.
The customer is responsible for observing any statutory, official and other regulations when using the goods purchased from us in the area of destination and utilisation.
We do not warrant that the products supplied outside Germany do not infringe the (in particular industrial property) rights of third parties. This must be checked by the customer himself in each case. For deliveries within Germany, we warrant that we are not aware of any third-party rights that would prevent the use of the items.
If the customer's samples, drawings or other information are used by us for production on behalf of the customer, the customer hereby assures us that no third-party rights are infringed as a result. The customer shall indemnify us against all claims of third parties due to any infringements of rights resulting from the use of the samples, drawings or other information.
If the customer has to provide parts for the fulfilment of the order, they must be delivered free to the production site with the agreed quantity, otherwise with a reasonable excess quantity for any rejects, in good time, free of charge and free of defects. If this is not done, any costs and other consequences caused by this shall be borne by the customer.
The production of test parts, including the costs of moulds and tools, shall be borne by the customer.
Our liability for tools, moulds and other production equipment provided by the customer shall be limited to the same care as for our own products. The customer shall bear the costs of maintenance and care. Our obligation to store the goods shall expire - irrespective of the customer's ownership rights - no later than two years after the last production from the mould or tool.
V. Additional conditions for export transactions
Unless these Terms and Conditions of Sale or special agreements expressly provide otherwise, the international trade terms set out in the Incoterms shall apply to our sales obligations in the form valid on the date of the order confirmation.
Our prices are based on normal, unhindered transport conditions, e.g. unhindered shipping in the case of transport by water. The customer shall bear any additional costs incurred due to incomplete loads or obstructed transport conditions. Customs duties, consular costs, freight charges, insurance premiums and other ancillary costs shall be borne by the customer, unless expressly agreed otherwise. These costs shall be borne by the customer if they are included in the agreed price and increase after conclusion of the contract or if they are newly incurred. The same applies to any additional costs incurred as a result of the need to ship the goods by a route other than the intended one. Unless otherwise agreed, payment is due immediately upon receipt of the invoice without deduction.
In the event of transport damage, the customer must immediately arrange for a report of the facts to be made to the competent authorities, as otherwise claims against the carriers and insurers shall lapse. These conditions apply to FOB sales and, mutatis mutandis, to other sales, in particular for franco ship or CIF port of destination.
These GTC are available in a German and an English version. In the event of contradictions or in cases of doubt, the German version of the GTC shall take precedence.
Dortmund: March 2024