eneral Terms and Conditions

Status 01.01.2023

1. Scope of Application

1.1            The present General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (“Buyer”). The General Terms and Conditions of Sale apply only if the Buyer is an entrepreneur (§ 14 German Civil Code, BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310 (1) BGB.

1.2            Our General Terms and Conditions of Sale apply exclusively. Deviating, conflicting, or supplementary terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their applicability. This requirement for consent also applies if the Buyer refers to their terms and conditions as part of their order and we do not expressly object to them.

1.3            These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods (“Goods”), regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 German Civil Code, BGB). Unless otherwise agreed, these General Terms and Conditions of Sale, in the version valid at the time of the Buyer’s order or last communicated to the Buyer in text form, shall also apply as a framework agreement for similar future contracts without the need for us, as the Seller, to refer to them again in each individual case.

1.4            In the event of individually agreed arrangements with the Buyer (including side agreements, additions, and amendments) and statements in our order confirmation, such agreements shall take precedence over these General Terms and Conditions of Sale. The content of such agreements shall be determined by a written contract or our written confirmation, unless proven otherwise.

1.5            Legally relevant declarations and notifications by the Buyer regarding the contract (e.g., notices of defects, setting of deadlines, withdrawal, or reduction) must be made in writing, i.e., in written or text form (e.g., letter, email, fax). More stringent statutory formal requirements as well as additional evidence (e.g., in case of doubts about the legitimacy of the declarant) remain unaffected.

1.6            Where references are made to the applicability of statutory provisions, it should be noted that these are for clarification purposes only. The statutory provisions apply, even without such clarification, unless they are modified or excluded by these General Terms and Conditions of Sale.

2. Offer and Conclusion of Contract

2.1            Our offers are non-binding and subject to change. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, cost estimates, references to DIN standards), or other product descriptions or documentation (including in electronic form). We retain ownership and copyright over all documents provided to the Buyer in connection with the placement of an order. These documents may not be made accessible to third parties unless we have expressly granted the Buyer our prior written consent.

2.2            The Buyer’s order for Goods constitutes a non-binding contractual offer pursuant to § 145 BGB (German Civil Code). Unless otherwise specified in the order, we are entitled to accept this contractual offer within two weeks of its receipt.

2.3            Acceptance of the Buyer’s contractual offer may be declared either in writing (e.g., by means of an order confirmation) or by delivery of the Goods to the Buyer. If we, as the Seller, do not accept the Buyer’s offer within the period specified in Clause 2.2, any documents provided to the Buyer must be returned to us without delay.

3. Prices and Payment Terms

3.1            Unless otherwise agreed in writing, our prices valid at the time of the conclusion of the contract apply, ex warehouse, plus the statutory VAT. The cost of packaging will be invoiced separately. If no fixed price agreement has been made, reasonable price changes due to changes in labor, material, and distribution costs are reserved for deliveries made 3 months or more after the conclusion of the contract.

3.2            In the case of a shipment purchase, the Buyer is responsible for the transportation costs from the warehouse and the cost of any transport insurance the Buyer may request. If we do not invoice the actual transportation costs incurred, we will charge a flat-rate transportation fee (excluding transport insurance). Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer.

3.3            Payment of the purchase price must be made exclusively to the account specified on the reverse side. A discount for early payment is only permitted if explicitly agreed upon in writing.

3.4            Unless otherwise agreed, the purchase price is due and payable within fourteen days from the date of invoice and delivery or acceptance of the Goods. However, we are entitled, even in the context of an ongoing business relationship, to make a delivery wholly or partially only against prepayment. We will declare such a reservation at the latest with the order confirmation.

3.5            The Buyer is in default if the above payment period expires. During the default period, the purchase price shall accrue interest at the applicable statutory default interest rate according to § 288 (2) BGB, which is eight percentage points above the respective base rate. We reserve the right to claim further damages due to default. In relation to merchants, our claim for commercial default interest according to § 353 HGB remains unaffected.

3.6            If it becomes apparent after the conclusion of the contract that our claim for payment of the purchase price is endangered due to the Buyer’s lack of solvency (e.g., by filing for the initiation of insolvency proceedings), we are entitled, under the statutory provisions, to refuse performance and, if necessary after setting a deadline, to withdraw from the contract (§ 321 BGB). In contracts involving the manufacture of non-replaceable items (custom-made goods), we may immediately declare withdrawal. The statutory provisions regarding the dispensability of setting a deadline remain unaffected in this respect.

4. Right of Retention

The Buyer is only entitled to set-off or retention rights if their claim has been legally established or is undisputed, and their counterclaim is based on the same contractual relationship. In the event of defects arising in the course of delivery, the Buyer’s counter-rights, particularly according to Clause 8.6 Sentence 2 of these General Terms and Conditions of Sale, remain unaffected.

5. Delivery Time and Delay in Delivery

5.1 The delivery time is individually agreed upon or provided by us upon acceptance of the order.

5.2 In the event that we are unable to meet the agreed delivery times for reasons beyond our control, we are required to promptly inform the Buyer of this circumstance and simultaneously provide the expected or new delivery date. If delayed delivery is not possible due to the unavailability of the goods within the newly announced delivery period, we are entitled to withdraw from the contract, either in whole or in part. Any performance already made by the Buyer (in the form of payment) must be refunded immediately. The unavailability of the goods occurs, for example, when there is a delay in the delivery from our supplier, when we have entered into a matching hedging transaction, when there are other disruptions in the supply chain (e.g., due to force majeure), or when we are not obligated to procure the goods in the individual case.

5.3 Whether a delay in delivery occurs on our part as the Seller is determined by the statutory provisions. However, a reminder from the Buyer is required as a prerequisite for a delay in delivery by us. In the event of a delay, the Buyer may claim a lump sum for the delay damage. The lump sum for each completed calendar week of delay is 0.5% of the net price (delivery value), but in total no more than 5% of the delivery value of the delayed goods. We reserve the right to provide evidence that no damage or only a smaller damage than the lump sum has been incurred by the Buyer.

5.4 The Buyer’s rights under Clause 9 of these General Terms and Conditions of Sale and our statutory rights, particularly in the case of the exclusion of the obligation to perform (e.g., due to impossibility or unreasonable performance and/or subsequent performance), remain unaffected.

6. Delivery, Transfer of Risk, Acceptance, Delay in Acceptance

6.1 Delivery is made ex warehouse. The warehouse also serves as the place of performance for delivery and, if applicable, for any subsequent performance. In the event that the Buyer wishes the goods to be shipped to another destination (shipment purchase), the Buyer bears the costs of shipment. If no contractual agreement has been made, we are entitled to determine the method of shipment (packaging, shipping method, carrier) ourselves.

6.2 The risk of accidental loss or accidental deterioration of the goods transfers to the Buyer upon delivery of the goods. In the case of a shipment purchase, the risk of accidental loss or deterioration of the goods, as well as the risk of delay, transfers to the Buyer once the goods are handed over to the carrier or freight forwarder. In the case of a contractual agreement regarding the acceptance of the goods, acceptance is decisive for the transfer of risk. Further statutory provisions of contract law remain unaffected. The handover or acceptance of the goods is deemed to have occurred if the Buyer is in default of acceptance.

6.3 In the event that the Buyer is in default of acceptance or if our delivery is delayed for other reasons attributable to the Buyer, we are entitled to claim compensation for the resulting damage, including additional expenses (e.g., storage costs). If this is the case, we reserve the right to charge the Buyer a flat-rate compensation per calendar day (starting from the delivery deadline or, if no delivery deadline is specified, from the notification of the readiness of the goods for dispatch). Our statutory claims (e.g., reimbursement of additional expenses, reasonable compensation, cancellation) and the proof of higher damage remain unaffected.

6.4 The proof of higher damage and our statutory claims (particularly reimbursement of additional expenses, reasonable compensation, cancellation) remain unaffected; however, the flat-rate compensation will be offset against any further monetary claims. The Buyer retains the right to prove that no damage or only a significantly lower damage than the above-mentioned flat rate has occurred.

7. Retention of Title

7.1 We retain ownership of the delivered goods until all our present and future claims arising from the purchase agreement and an ongoing business relationship (secured claims) have been fully paid.

7.2 Until full payment of the secured claims has been made, the goods subject to retention of title may neither be pledged to third parties nor transferred as security. The Buyer must immediately notify us in writing if an application for the opening of insolvency proceedings is filed or if third parties (e.g., through garnishment) seize goods belonging to us. If the third party is unable to reimburse us for the legal and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the Buyer is liable for the loss incurred by us.

7.3 In the event of a breach of contract by the Buyer, particularly in the case of non-payment of the due purchase price, we are entitled, under the statutory provisions, to withdraw from the contract and/or demand the return of the goods based on the retention of title. A demand for return does not constitute a declaration of withdrawal; rather, we are entitled to demand only the return of the goods while reserving the right to withdraw from the contract. If the Buyer fails to pay the due purchase price, we must have set the Buyer an appropriate deadline for payment before asserting these rights. This applies only if such a deadline is not dispensable under the statutory provisions.

7.4 The Buyer is authorized, until further notice according to Clause 7.4.c, to resell and/or process the goods subject to retention of title in the ordinary course of business. The following provisions apply additionally in this case:

a) The products resulting from the combination, mixing, or processing of our goods are subject to the retention of title for their full value, with us being considered the manufacturer. If, in the case of a combination, mixing, or processing with third-party goods, the ownership rights of the third party remain intact, we acquire co-ownership in proportion to the invoice values of the combined, mixed, or processed goods. In any case, the same applies to the resulting product as to the goods delivered subject to retention of title. The Buyer also assigns to us, as collateral, any claims arising from the connection of the reserved goods with a property against a third party. In this case, we accept the assignment.

b) The Buyer hereby assigns to us, as collateral, all claims arising from the resale of the goods or the resulting product against third parties, in total or to the extent of our co-ownership share according to Clause 7.4.a, in the amount of the invoice final amount agreed with us (including VAT). We accept the assignment. The obligations of the Buyer listed in Clause 7.2 also apply in regard to the assigned claims.

c) The Buyer remains authorized, alongside us, to collect the receivables. As long as the Buyer meets their payment obligations to us, there is no deficiency in the Buyer’s ability to perform, and we do not assert the retention of title by exercising a right according to Clause 7.3, we undertake not to collect the receivables. If we assert the exercise of a right according to Clause 7.3, we may require the Buyer to disclose the assigned receivables and their debtors, as well as to provide all necessary information for collection, hand over the related documents, and notify the debtors (third parties) of the assignment. Furthermore, we are entitled to revoke the Buyer’s authorization to resell the goods subject to retention of title and their right to process these goods.

d) In the event that the realizable value of the collateral exceeds our claims by more than 10%, we will, at the Buyer’s request, release collateral of our choice.

7.5 The Buyer is obligated to treat the purchased goods with care until ownership has been transferred to them. In particular, the Buyer is required to insure the goods at their own expense against theft, fire, and water damage to their replacement value (note: this is only permissible for the sale of high-value goods). If maintenance and inspection work needs to be carried out, the Buyer must perform this at their own expense and in a timely manner.

8. Buyer’s Claims for Defects

8.1 The Buyer’s rights regarding material and legal defects (including incorrect or short delivery, as well as improper assembly/installation or defective instructions) are governed by the statutory provisions, unless otherwise specified below. This does not affect the statutory provisions on consumer goods sales (§§ 474 et seq. BGB) and the Buyer’s rights arising from separately issued warranties, particularly from the manufacturer.

8.2 Agreements regarding the quality and intended use of the goods (including accessories and instructions) made between us and the Buyer typically form the basis of our liability for defects under the warranty. A quality agreement includes all product descriptions and manufacturer’s specifications that are part of the individual contract or were publicly disclosed by us (especially in catalogs or on our website) at the time of contract formation. If no quality agreement was made, it is to be assessed according to § 434 paragraph 3 BGB whether a defect exists. In this context, it should be noted that public statements made by the manufacturer in advertising or on the product label take precedence over statements by other third parties.

8.3 We are not liable for defects that the Buyer knew about or grossly negligently failed to recognize at the time of contract formation, in accordance with § 442 BGB.

8.4 The Buyer’s claims for defects exist only if the Buyer has fulfilled their statutory duties of inspection and notification (§§ 377, 381 HGB). If the goods are building materials or other goods intended for installation or further processing, an inspection must be carried out immediately before processing. A written notification to us must be made without delay if a defect is found during delivery, inspection, or at a later time. Obvious defects must be reported in writing within 3 business days from delivery, and defects that are not visible must be reported within the same period from discovery. If the Buyer fails to fulfill their duty to properly inspect and/or notify us of defects, liability on our part for defects that are not or not timely or properly reported is excluded in accordance with the statutory provisions. If the goods were intended for installation, attachment, or installation, this also applies if the defect only becomes apparent after such processing due to non-compliance with these duties. In this case, the Buyer has no claims for reimbursement of “installation and removal costs.”

8.5 If the delivered goods are defective, we as the seller have the option to either remedy the defect by repair (rectification) or by delivering a non-defective item (replacement delivery). If the type of remedy we choose is unreasonable for the Buyer in the individual case, they can refuse it. However, we reserve the right to refuse the remedy under the statutory conditions. Additionally, we are entitled to make the remedy contingent upon the Buyer paying the due purchase price. However, the Buyer has the right to withhold an amount of the purchase price that is proportionate to the defect.

8.6 The Buyer must provide us with the necessary time and opportunity to perform the remedy. In particular, the Buyer must hand over the item for inspection purposes, which they have made a claim for a defect. If we carry out a replacement delivery of a defect-free item, the Buyer is required to return the defective item in accordance with statutory provisions. However, the Buyer does not have a right to demand a return.

8.7 Unless we have contractually committed to do so, the remedy does not include the removal, disassembly, or deinstallation of the defective item or the installation, attachment, or setup of a non-defective item. However, the Buyer’s claims for reimbursement of “installation and removal costs” remain unaffected.

8.8 We will reimburse the expenses necessary for inspection and remedy (transport, labor, and material costs, and possibly removal and installation costs) in accordance with statutory provisions and these General Terms and Conditions if a defect is present. However, we may demand reimbursement from the Buyer for costs incurred due to an unjustified request for defect rectification if the Buyer knew or should have known that no defect was present.

8.9 The Buyer has the right to remedy the defect themselves and demand reimbursement for the objectively necessary expenses if an urgent situation exists (e.g., danger to operational safety or to prevent disproportionate damage). In the case of self-remedy, the Buyer must notify us immediately. If we are entitled to refuse a remedy under the statutory provisions, the Buyer has no right to carry out the remedy themselves.

8.10 The Buyer may withdraw from the contract or reduce the purchase price in accordance with the statutory provisions if a deadline set for the remedy by the Buyer has passed unsuccessfully or if, under the statutory provisions, the deadline can be waived. However, in the case of a non-significant defect, the Buyer is not entitled to withdraw from the contract.

8.11 Claims by the Buyer for reimbursement of expenses in accordance with Section 445a (1) of the German Civil Code (BGB) are excluded, unless the last contract in the supply chain is a consumer goods purchase (§§ 478, 474 BGB) or a consumer contract for the provision of digital products (§§ 445c sentence 2, 327 (5), 327u BGB).

8.12 Claims for damages or claims for reimbursement of unnecessary expenses by the Buyer (§ 284 BGB) are only possible under the provisions of Section 9 and Section 10, even if a defect is present.

9. Limitation period

9.1 The general statute of limitations for claims resulting from defects in the goods (both material and legal) is one year from delivery, deviating from Section 438 (1) No. 3 BGB. If acceptance was contractually agreed, the statute of limitations begins with acceptance.

9.2 The aforementioned limitation periods under sales law also apply to contractual and non-contractual claims for damages by the Buyer, provided they are based on a defect in the goods, unless the application of the regular statutory limitation periods in accordance with §§ 195, 199 BGB would result in a shorter limitation period in an individual case. Claims for damages by the Buyer according to Section 10.1 and 10.2(a), as well as those under the Product Liability Act, are subject solely to the statutory limitation periods.

10. OTHER LIABILITY

10.1 As the seller, we are liable for violations of contractual and non-contractual obligations according to statutory regulations, unless otherwise specified in these General Terms and Conditions, including the following provisions.

10.2 Within the scope of fault-based liability, we are only liable for damages in the case of intent and gross negligence. In the case of simple negligence, we are only liable, subject to statutory liability restrictions (e.g., care in one’s own affairs; insignificant breach of duty), for:

a) damages resulting from injury to life, body, or health,

b) damages resulting from the breach of an essential contractual obligation (obligations whose fulfillment is necessary for the proper performance of the contract and on whose compliance the contractual partner relies and can rely). In this case, our liability is limited to the foreseeable, typically occurring damage.

10.3 The liability limitations set forth in Section 10.2 also apply to third parties and in cases of breaches of duty by persons for whom we are legally responsible. If a defect has been fraudulently concealed or if a guarantee regarding the quality of the goods has been assumed, the liability limitations do not apply. This also applies to claims of the Buyer under the Product Liability Act.

10.4 The buyer can only withdraw or terminate the contract due to a breach of duty that does not result from a defect if we, as the seller, are responsible for the breach of duty.

10.5 The buyer’s right to terminate (especially in accordance with §§ 650, 648 BGB) is excluded. Otherwise, the statutory conditions and legal consequences apply.

11. Choice of Law and Jurisdiction

11.1 These General Terms and Conditions and the contractual relationship between us as the seller and the buyer are governed by the law of the Federal Republic of Germany, excluding international uniform law, especially the UN Convention on Contracts for the International Sale of Goods (CISG).

11.2 If the buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a public-law special fund, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our business location in Zeulenroda-Triebes, including international disputes. The same applies if the buyer is a business under § 14 BGB.

11.3 Additionally, we are entitled to file a lawsuit at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or any other individual agreement, or at the general place of jurisdiction of the buyer. This is without prejudice to overriding statutory provisions (exclusive places of jurisdiction).