Terms and Conditions

1. Scope of Application

1.1 The following General Terms and Conditions apply exclusively to businesses, legal entities under public law or special funds under public law (hereinafter referred to as ‘the Buyer’) within the meaning of Section 310(1) of the German Civil Code (BGB). These General Terms and Conditions do not apply to consumers (Section 13 of the German Civil Code (BGB)).

1.2 Any general terms and conditions of the Buyer that deviate from these terms and conditions shall not apply, unless we have expressly agreed to their validity; our unconditional performance of the transaction does not constitute consent to the validity of the Buyer’s General Terms and Conditions.

1.3 Our General Terms and Conditions shall also apply to all future transactions with the Buyer, insofar as these relate to legal transactions of a similar nature.

2. Quotations and Prices

2.1 Unless otherwise stated in the quotation, our quotations are valid for a period of 14 days from the date of the quotation; they may be withdrawn at any time, informally and without giving reasons, until we receive the buyer’s declaration of acceptance. An order placed by the buyer after the expiry of the validity period of our quotation shall be deemed a contractual offer to us.

2.2 Notwithstanding the foregoing, the buyer is obliged to check our quotation immediately for any obvious errors, ambiguities (in particular with regard to the specifications), incompleteness and the unsuitability of the specifications for the intended use under the contract, and to inform us immediately of any necessary amendments or clarifications to the offer, so that we may resubmit a revised offer that takes account of the buyer’s specific requirements, whilst remaining non-binding.

2.3 If the Buyer’s orders are not based on our specific quotation, the Buyer’s order constitutes a legally binding offer, which is always binding unless otherwise stated in the quotation. We may accept the offer (= conclusion of the contract) within 30 days of receiving it in any form, e.g. by sending an order confirmation or by dispatching the goods ordered.

2.4 We are not obliged to check the buyer’s offer for obvious errors, ambiguities, omissions or unsuitability for the intended use as specified in the contract. Nevertheless, should we identify any errors, ambiguities, omissions or unsuitability for the intended use as specified in the contract, we shall inform the buyer thereof and seek to clarify the matter.

2.5 For small orders in accordance with our current price list, we shall charge the handling fee stated in our current price list.

2.6 The prices quoted by us in a quotation or order confirmation are net prices and are subject to statutory VAT and any applicable packaging and delivery costs.

2.7 Unless otherwise agreed in the sales documents, our general price list valid at the time of the quotation shall apply; the prices stated therein are on an EXW basis (INCOTERMS 2020). Any changes to the price list made after the conclusion of the contract shall have no effect on contracts already concluded between us and the buyer; in particular, the buyer may not claim a subsequent credit note from us in respect of price reductions made after the conclusion of the contract.

3. Delivery, transfer of risk

3.1 Unless otherwise agreed, we shall deliver the goods EXW Düsseldorfer Str. 4, 52525 Heinsberg, Germany (INCOTERMS 2020). If the buyer requests a different method of dispatch, the buyer shall bear the associated costs.

3.2 If no delivery deadlines have been agreed, we are obliged to deliver the goods within 120 days of the conclusion of the sales contract. The delivery period commences upon conclusion of the contract, but not before receipt of any advance payment (prepayment) agreed upon in an individual contract and clarification of all details necessary for the execution of the order.

3.3 Delivery periods shall in all cases be extended by the period during which the buyer fails to fulfil its obligation to us, and we shall be entitled to a right of retention against the buyer in this respect and shall exercise this right accordingly.

3.4 If we are unable to meet bindingly agreed delivery periods for reasons beyond our control (unavailability of the service), we shall inform the buyer of this without delay and, at the same time, notify them of the expected new delivery period. If the goods are still unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the buyer. In this context, a case of unavailability of the goods shall be deemed to include, in particular, a failure by the supplier to deliver to us on time, provided that we have entered into a corresponding covering transaction, neither we nor our supplier are at fault, or we are not obliged to procure the goods in the specific case.

3.5 The occurrence of a delay in delivery shall be determined in accordance with the statutory provisions. In any event, however, the buyer must issue a formal notice of default before withdrawing from the contract (Section 376(1) of the German Commercial Code (HGB) is hereby excluded in this respect), unless the contract is an absolute fixed-date transaction. In the event of a delay in delivery, we shall not be obliged to pay a contractual penalty and/or lump-sum compensation.

3.6 We are entitled to make partial deliveries, provided this does not entail additional costs for the buyer.

3.7 If the buyer fails to accept the goods at the agreed time, or if acceptance is not possible at the agreed time due to the buyer’s fault, the buyer shall be in default of acceptance. In the event of default of acceptance, we are entitled to claim from the buyer a contractual penalty of 0.1 per cent per day, commencing on the second day of the default, up to a maximum of 5 per cent of the respective net order value. Any claims for damages in excess of this amount remain unaffected. We reserve the right to set a grace period of 10 working days for acceptance. Should the second attempt at acceptance also fail, we are entitled to withdraw from the contract; the provisions of Section 323 of the German Civil Code (BGB) remain unaffected by this.

4. Notices of Defects and Warranty

4.1 The goods delivered by us are free from defects if, at the time of the passing of risk, they meet the subjective requirements (Section 434(2) of the German Civil Code (BGB)). However, it is not a prerequisite for the goods to be free from defects that they meet the objective requirements of Section 434(3) of the German Civil Code (BGB), provided that the buyer and we have reached an agreement regarding the subjective requirements of the goods. Deviations in quality, colour, dimensions, weight, finish or design that are customary in the trade or are minor and technically unavoidable do not constitute a defect and cannot be the subject of a complaint.

4.2 We are not obliged to carry out outgoing goods inspections beyond the statutory requirements.

4.3 The buyer’s warranty rights are subject to the buyer having duly fulfilled their obligations to inspect the goods and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).

4.4 The buyer must inspect the delivered goods immediately upon delivery in accordance with the provisions of Section 377 of the German Commercial Code (HGB). Obvious defects must be reported without delay. The date on which we receive such a report shall be decisive. Defects which cannot be detected within this period even upon the most careful inspection must be reported without delay upon discovery. If a complaint is not made in good time, the buyer shall be precluded from asserting warranty claims, unless the defect in question was fraudulently concealed by us. The burden of proof for all prerequisites of a claim lies with the buyer, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the notice of defect. If we enter into negotiations regarding a complaint, this shall in no way constitute a waiver of the right to object to a late, insufficient or unfounded notice of defect.

4.5 Rectification shall be effected, at our discretion, by repair or replacement. We must always be given the opportunity to remedy the defect within a reasonable period.

4.6 If the remedy fails, the buyer may – without prejudice to any claims for damages – withdraw from the contract or reduce the price. However, in the event of only a minor breach of contract, in particular where the defects are only minor, the buyer shall not be entitled to withdraw from the contract.

4.7 The buyer shall have no claim for the costs incurred in connection with the rectification, in particular transport, travel, labour and material costs, insofar as such costs are increased because the goods delivered by us have subsequently been moved to a location other than the place of delivery, unless such removal is in accordance with the goods’ intended use.

4.8 All claims for defects by the buyer shall become time-barred one year after delivery of the goods, unless we have granted a longer limitation period in individual cases. The first sentence above shall not apply to claims for reimbursement of expenses (Section 445a of the German Civil Code (BGB)) and other warranty claims of the buyer pursuant to Section 437 BGB in the event of so-called supplier recourse (Section 478 BGB), in which case Section 445b BGB applies.

5. Additional obligations of the buyer

5.1 The buyer warrants to us that, following delivery by us, the goods will not be delivered to a country against which the European Union has imposed a trade embargo or in respect of which the European Union has prohibited the export of the goods in question.

5.2 The buyer also warrants to us that, following delivery by us, the goods will not be supplied to any natural person, company, organisation or institution subject to European Union sanctions which prohibit the supply of the goods to such parties.

5.3 In particular, the Buyer is obliged not to sell, supply, transfer or export the delivered goods, either directly or indirectly, to natural or legal persons, organisations or institutions in Russia or Belarus, or for use in Russia or Belarus, provided that Regulation (EU) No 833/2014 or Regulation (EC) No 765/2006 contains a corresponding prohibition in respect of the goods delivered. If the buyer culpably breaches the above obligation, they shall be liable to us for all losses we suffer as a result.

5.4 The buyer is prohibited from reselling the delivered goods to a third party or otherwise transferring them, unless the third party has undertaken in writing to the buyer not to sell, supply, transport or export the goods in question, either directly or indirectly, to natural or legal persons, organisations or institutions in Russia or Belarus, or for use in Russia or Belarus, and Regulation (EU) No 833/2014 or Regulation (EC) No 765/2006 contains a corresponding prohibition in respect of the goods delivered. Should the buyer culpably breach the above obligation, they shall be liable to us for all losses we suffer as a result. The buyer must also contractually oblige the third party to impose the above prohibition and the obligation to pay damages on its customers to the same extent.

5.5 The buyer is furthermore specifically obliged not to supply the goods to the natural and legal persons, organisations and bodies listed in Annex I to Regulation (EC) No 765/2006, or to the natural or legal persons, bodies or organisations listed in Annex I to Regulation (EU) No 269/2014 or those associated with them as listed therein, either directly or indirectly, or to allow them to benefit from them.

5.6 The buyer is prohibited from reselling the delivered goods to a third party or transferring them in any other way, unless the third party has undertaken in writing to the buyer not to make the goods in question available, either directly or indirectly, to the natural and legal persons, 765/2006, or to the natural and legal persons, organisations and entities listed in Annex I to Regulation (EU) No 269/2014, or to the natural or legal persons, entities or organisations associated with them as listed therein, either directly or indirectly. If the buyer culpably breaches the above obligation, they shall be liable to us for all losses we suffer as a result. The buyer must also contractually oblige the third party to impose the above prohibition and the obligation to pay damages on its customers to the same extent.

6. Limitation of Liability

6.1 We shall be fully liable for damages insofar as we are at fault due to wilful misconduct or gross negligence.

6.2 In the case of simple negligence, we shall only be liable for damages caused by

a) injury to life, limb or health,

b) defects in the goods, insofar as liability for personal injury and damage to property applies under the provisions of the Product Liability Act,

c) defects which we have fraudulently concealed, or where we have given a guarantee as to the quality of the goods, or

d) a breach of a contractual obligation, the fulfilment of which is essential for the proper performance of the contract and on the observance of which the buyer may reasonably rely (fundamental obligation).

Otherwise, liability in cases of simple negligence is excluded.

6.3 Insofar as we are liable for simple negligence in accordance with clause 6.2, such liability shall be limited to the damage which we foresaw as a possible consequence of a breach of contract at the time the contract was concluded, or which we ought to have foreseen had we exercised the care customary in the trade. Indirect and consequential damages resulting from defects in the goods are, furthermore, only recoverable to the extent that such damages are typically to be expected when the goods are used for their intended purpose.

6.4 Insofar as our liability is excluded or limited, this shall also apply in favour of our legal representatives, employees, subcontractors and vicarious agents in the event of a direct claim being made against them by the buyer.

6.5 If the buyer claims legal costs incurred as damages against us, we are only obliged to reimburse the lawyer’s fees and expenses calculated in accordance with the RVG as damages.

7. Force majeure

7.1 Delays in performance due to force majeure (e.g. operational disruptions of any kind, transport delays, shortages of energy or raw materials, pandemics or epidemics, war, strikes, lockouts, official orders, general telecommunications disruptions, etc.) and circumstances within the buyer’s sphere of responsibility (e.g. failure to provide necessary cooperation in a timely manner, delays caused by third parties for which the buyer is responsible, etc.) are beyond our control. In such cases, we shall be entitled either to make up for the affected services for the duration of the hindrance plus a reasonable start-up period, or, if the hindrance persists for longer than 60 days, to withdraw from the contract. We shall notify the purchaser without delay of any delays in performance due to force majeure.

7.2 Insofar as the purchaser cannot reasonably be expected to accept the delivery or service as a result of the delay, they may withdraw from the contract by giving us immediate written notice.

8. Terms of Payment

8.1 Our payment claims are due for payment no later than 30 days after the service is to be provided by us. The buyer shall receive a corresponding invoice from us; however, receipt of this invoice is not a prerequisite for our payment claim becoming due.

8.2 We do not grant any discount on our invoices.

8.3 If the buyer defaults on payment, interest on arrears at a rate of 9 percentage points per annum above the relevant base rate shall be payable. Furthermore, we are entitled to claim from the buyer the statutory flat-rate compensation for damages as well as any additional damages arising from the delay.

8.4 The buyer is only entitled to set off against our claim if the buyer’s claim has either been established by a final and binding court decision, has been acknowledged by us, or is undisputed.

8.5 The buyer is only entitled to exercise a right of retention under the conditions set out in clause 8.4 and only insofar as it relates to the same contractual relationship.

9. Retention of Title

9.1 All goods remain our property (retention of title) until all claims to which we are entitled against the buyer have been settled, including claims that have arisen but are due at a later date. This also applies where payments are made against specifically designated claims. In the case of an open account, the retention of title shall serve as security for our claim for the outstanding balance.

9.2 The buyer is obliged to treat the goods with due care for as long as ownership has not yet passed to them. Should the goods be attached, seized or otherwise claimed by third parties (e.g. as a result of enforcement proceedings) prior to the transfer of ownership, the buyer is obliged to immediately draw attention to our rights of ownership, to notify us without delay and to send us copies of the seizure records. Furthermore, the buyer must provide all information necessary to safeguard our security interests.

9.3 The buyer is entitled to process or sell the goods subject to retention of title in the ordinary course of business.

To this end, upon conclusion of the contract, the buyer assigns to us, by way of security, all claims arising from the resale (including all balance claims arising from current accounts) or from any other legal basis relating to the goods subject to retention of title (insurance, tort). If the goods subject to retention of title are sold by the buyer – following processing or combination – together with goods not belonging to us, the buyer hereby assigns to us the claims arising from the resale in an amount equal to the value of the goods subject to retention of title, together with all ancillary rights and priority over other claims. We hereby accept the above assignments. We revocably authorise the buyer to collect the claim assigned to us in their own name and for their own account. Our right to collect the claim ourselves remains unaffected by this; however, we undertake not to collect the claims as long as the buyer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made for the opening of insolvency proceedings or suspension of payments has occurred. The buyer is obliged to notify us of the assigned claims and their debtors, to provide all information necessary for collection, to hand over the relevant documents and to notify the debtors of the assignment.

9.4 Any processing, treatment or transformation of the purchased goods by the buyer shall always be carried out in our name and on our behalf as the manufacturer within the meaning of Section 950 of the German Civil Code (BGB), without imposing any obligation on us. The processed item shall be deemed to be goods subject to retention of title within the meaning of this Clause 0. In this case, the buyer’s right to the purchased goods shall continue to apply to the transformed item. If the goods are processed together with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our goods to that of the other processed items at the time of processing. The same applies in the event of mixing. If the mixing takes place in such a way that the buyer’s item is to be regarded as the principal item, it is deemed agreed that the buyer shall transfer proportionate co-ownership to us and shall hold the resulting sole ownership or co-ownership in safekeeping for us free of charge.

9.5 We undertake to release the security to which we are entitled at the buyer’s request, insofar as its value exceeds the claims to be secured by more than 10 per cent; the choice of which security is to be released shall be at our discretion.

10. Copyright and Confidentiality

10.1 We reserve the right of ownership and copyright in our cost estimates, drafts, drawings and other documents. They may only be made available to third parties with our consent. Drawings and other documents forming part of quotations must be returned to us upon request.

10.2 The buyer is obliged to treat all documents and information received in connection with the contract concluded with the buyer and which are not generally accessible (hereinafter referred to as ‘confidential information’) and to store all physical and electronic documents and materials containing confidential information separately from other documents, materials and records, as well as to protect them against unauthorised access. The Buyer is not authorised to disclose the confidential information to third parties without our prior written consent.

10.3 The Buyer is obliged to notify us immediately of any actual or threatened unauthorised use of confidential information and to take all reasonable measures to prevent or put an end to such use.

10.4 Upon our reasonably justified request, the Buyer shall, in compliance with data protection regulations, provide a list of those persons to whom the confidential information has been disclosed in breach of the contract.

10.5 Should the Buyer be or become obliged, as a result of a statutory obligation or an order by a public authority or court, disclose confidential information, the Buyer shall notify us of this immediately upon becoming aware of the disclosure obligation and shall determine, in consultation with us, whether and, if so, how the disclosure obligation can be avoided. Any disclosure must be limited to the minimum necessary and agreed with us in good time.

10.6 We shall retain ownership of all rights to the confidential information. The disclosure of confidential information does not constitute the granting of any licences or other rights of use in respect thereof, regardless of its content or scope.

10.7 In the event that the Buyer culpably breaches its obligation under Clause 10.2, the Buyer undertakes to pay us, in each individual case and waiving the defence of continuing offence, a contractual penalty, the amount of which may be determined by us at our reasonable discretion. The Buyer may apply to a court to have the reasonableness of the amount of the contractual penalty reviewed.

10.8 In the event of the continued unauthorised use of the Confidential Information, the contractual penalty under clause 10.7 shall be forfeited for each week or part thereof during which the breach continues.

10.9 The provisions of this Clause 10 shall not affect our right to assert additional claims for damages against the Buyer. The contractual penalty shall not be set off against any claim for damages.

11. Jurisdiction and Applicable Law

11.1 The exclusive place of jurisdiction for all disputes arising out of or in connection with the contract concluded between us and the Buyer shall be at our registered office.

11.2 These General Terms and Conditions and the contractual relationship with the buyer shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

12. Final provisions

12.1 Should any provision of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions; Section 139 of the German Civil Code (BGB) is hereby excluded. The invalid provision shall be deemed to be replaced by a provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply to any unintended omission in the contract concluded with the buyer.

12.2 Any amendments or additions to these General Terms and Conditions must be made in writing. Individual agreements made with the buyer on a case-by-case basis (including ancillary agreements, additions and amendments) shall in all cases take precedence over these General Terms and Conditions. Subject to evidence to the contrary, a written contract or our written confirmation shall be decisive as to the content of such agreements.