Terms and Conditions of Sale and Delivery

Our offers, deliveries and services are subject exclusively to these Terms and Conditions. Deviating terms and conditions of the Customer shall not become part of the contract, even if we do not separately object to their application in an individual case. Even if we refer to a letter that contains or refers to terms and conditions of the Customer or of a third party, this shall not constitute our consent to the application of those terms and conditions.

Unless otherwise stated in the respective offer, our offers are valid for thirty days. We may accept purchase orders or other orders placed by the Customer within 2 working days of receipt. Contracts are concluded by our written order confirmation or by execution of the order within the aforementioned period.

Our particulars regarding the subject matter of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) as well as representations thereof (e.g. drawings and illustrations) are only approximately authoritative, unless usability for the contractually intended purpose requires exact conformity. They are not guaranteed quality characteristics, but descriptions or identifications of the delivery or service. Deviations customary in the trade and deviations that result from legal regulations or constitute technical improvements, as well as the replacement of components with equivalent parts, are permissible provided that they do not impair usability for the contractually intended purpose.

We reserve title and copyright to samples, drawings, cost estimates and the like – including those in electronic form. They may not be made accessible to third parties, or used or reproduced by the Customer itself or through third parties, without our authorisation, and must be returned without undue delay upon request.

In the absence of a specific agreement, prices are ex works. Value added tax at the applicable statutory rate shall be added to the prices.

If the applicable prices of our suppliers or other costs attaching to our performance increase significantly between conclusion of the contract with the Customer and completion of delivery, the parties shall – following corresponding notification of these circumstances by us – be obliged to negotiate an adjustment of the agreed prices. This shall also apply if the Customer has already made a down payment.

In the case of a sale involving shipment (Clause IV para. 2), the Customer shall bear the transport costs from the warehouse and the costs of any transport insurance requested by the Customer.

In the absence of a specific agreement, the following instalment payments shall become due – without deduction:

• 50 % upon conclusion of the contract;
• 50 % prior to delivery or installation;

Rights of set-off and retention of the Customer are excluded, unless the counterclaim is undisputed or has been established by a final and binding court decision. In the event of defects in the delivery, the Customer’s counter-rights, in particular pursuant to Clause VII para. 5 sentence 2 of these Terms and Conditions, shall remain unaffected.

Agreements on a binding delivery time (time of performance) must be made in writing or in text form (e.g. email). Timely performance on our part presupposes that all commercial and technical questions between the Customer and us have been clarified and that the Customer has fulfilled all obligations incumbent upon it, such as providing any required official permits or meeting (advance) payment obligations. Where shipment has been agreed, delivery periods and delivery dates refer, unless expressly stated otherwise by us, to the time of handover to the freight forwarder, carrier or other third party commissioned with the transport. If we are unable to perform on time, we shall inform the Customer promptly.

Delivery shall be made ex works, which is also the place of performance for the delivery and for any subsequent performance (Nacherfüllung). At the Customer’s request and expense, the goods will be shipped to another destination (sale involving shipment – Versendungskauf). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular the transport company, shipping route and packaging) ourselves.

We shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure or other events not foreseeable at the time the contract was concluded (e.g. operational disruptions of any kind, difficulties in procuring materials or energy, transport delays, strikes, lawful lockouts, shortages of labour, energy or raw materials, difficulties in obtaining necessary official permits, pandemics or epidemics, measures taken by public authorities, or the failure of suppliers to deliver, to deliver correctly or to deliver on time despite a congruent covering transaction (kongruentes Deckungsgeschäft) concluded by us) for which we are not responsible. If such events make delivery or performance substantially more difficult or impossible for us and the impediment is not merely temporary, we shall be entitled to withdraw from the contract. In the case of impediments of a temporary nature, the delivery or performance periods shall be extended, or the delivery or performance dates postponed, by the period of the impediment plus a reasonable start-up period. If, as a result of the delay, the Customer cannot reasonably be expected to accept the delivery or performance, the Customer may withdraw from the contract by written declaration to us without undue delay.

We shall be entitled to make partial deliveries if

• the partial delivery can be used by the Customer within the scope of the contractually intended purpose,
• delivery of the remaining goods ordered is ensured, and
• this does not cause the Customer any significant additional work or additional costs (unless we agree to bear these costs).

The risk shall pass to the Customer upon handover at the latest. In the case of a sale involving shipment, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass upon delivery of the goods to the freight forwarder, the carrier or any other person or institution designated to carry out the shipment. Where acceptance (Abnahme) is to take place, the risk shall pass upon acceptance. It shall be deemed equivalent to acceptance if the Customer is in default of acceptance. In all other respects, the statutory provisions of the law governing contracts for work (Werkvertragsrecht) shall apply mutatis mutandis to any agreed acceptance.

If shipment or handover is delayed or does not take place as a result of circumstances for which the Customer is responsible, the risk shall pass to the Customer as soon as we have notified the Customer that the goods are ready for dispatch.

We retain title to the goods sold until full payment of all our present and future claims arising from the purchase contract and from an ongoing business relationship (secured claims).

Prior to full payment of the secured claims, the goods subject to retention of title may neither be pledged to third parties nor transferred by way of security. The Customer must notify us in writing without undue delay if an application for the opening of insolvency proceedings is filed or if and to the extent that third parties access the goods belonging to us (e.g. by way of attachment).

In the event of conduct by the Customer in breach of contract, in particular non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand return of the goods on the basis of the retention of title. A demand for return shall not at the same time constitute a declaration of withdrawal; rather, we shall be entitled merely to demand return of the goods and to reserve the right to withdraw. If the Customer fails to pay the purchase price due, we may assert these rights only if we have previously set the Customer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.

Until revoked in accordance with (c) below, the Customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.

• (a)The retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed the manufacturer. If, in the case of processing, mixing or combining with goods of third parties, their title remains in place, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered subject to retention of title.
• (b)The Customer hereby assigns to us in advance by way of security all receivables against third parties arising from the resale of the goods or the product, in their entirety or, as the case may be, in the amount of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment. The obligations of the Customer set out in para. 2 shall also apply with respect to the assigned receivables.
• (c)The Customer remains authorised, alongside us, to collect the receivables. We undertake not to collect the receivables as long as the Customer meets its payment obligations towards us, there is no deficiency in its ability to perform and we do not assert the retention of title by exercising a right pursuant to para. 3. If this is the case, however, we may demand that the Customer disclose to us the assigned receivables and their debtors, provide all information required for collection, hand over the related documents and notify the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Customer’s authorisation to further resell and process the goods subject to retention of title.
• (d)If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Customer’s request.

The limitation period for claims for defects (warranty period) shall be one year from delivery or, where acceptance is required, from acceptance. This period shall not apply to claims for damages by the Customer arising from injury to life, body or health or from intentional or grossly negligent breaches of duty by us or our vicarious agents (Erfüllungsgehilfen), or to claims under product liability law, which shall in each case become time-barred in accordance with the statutory provisions.

The statutory provisions shall apply to the Customer’s rights in the event of material defects and defects of title (including delivery of the wrong goods, short delivery and defective instructions), unless otherwise provided below. In all cases, the special statutory provisions on the reimbursement of expenses in the event of final delivery of the newly manufactured goods to a consumer (supplier recourse – Lieferantenregress) shall remain unaffected, unless equivalent compensation has been agreed, e.g. within the scope of a quality assurance agreement.

As a matter of principle, we shall not be liable for defects of which the Customer is aware at the time the contract is concluded or of which the Customer is unaware due to gross negligence (Section 442 of the German Civil Code, BGB). Furthermore, the Customer’s claims for defects presuppose that the Customer has complied with its statutory duties of inspection and notification (Sections 377 and 381 of the German Commercial Code, HGB). In the case of materials and other goods intended for installation or other further processing, an inspection must in any event be carried out immediately prior to processing. If a defect becomes apparent upon delivery, during the inspection or at any later time, we must be notified thereof in writing without undue delay. In any event, obvious defects must be notified in writing within 7 (seven) working days of delivery, and defects not detectable during the inspection within the same period from their discovery. If the Customer fails to carry out a proper inspection and/or to give proper notice of defects, our liability for any defect not notified, not notified in time or not notified properly shall be excluded in accordance with the statutory provisions.

If the item delivered is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering an item free of defects (replacement delivery).

We shall be entitled to make the subsequent performance owed conditional upon the Customer paying the purchase price due. However, the Customer shall be entitled to retain a portion of the purchase price that is reasonable in relation to the defect.

The Customer must give us the time and opportunity required for the subsequent performance owed and, in particular, hand over the goods complained of for inspection purposes. In the event of a replacement delivery, the Customer must return the defective item to us upon our request in accordance with the statutory provisions; the Customer shall, however, have no right of return.

The warranty shall lapse if the Customer, without our consent, modifies the goods delivered or has them modified by third parties and this renders remedying the defect impossible or unreasonably difficult. In any event, the Customer shall bear the additional costs of remedying the defect resulting from the modification.

Unless otherwise provided in these Terms and Conditions, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.

We shall be liable for damages – irrespective of the legal grounds – within the scope of fault-based liability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. standard of care exercised in one’s own affairs; insignificant breach of duty), only

• (a)for damage resulting from injury to life, body or health,
• (b)for damage resulting from the breach of a material contractual obligation (an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable damage that typically occurs.

The limitations of liability resulting from para. 2 shall also apply vis-à-vis third parties and in the event of breaches of duty by persons (also in their favour) for whose fault we are responsible under the statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been given, nor to our liability under the German Product Liability Act (Produkthaftungsgesetz).

The law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and to the exclusion of the conflict-of-law rules of private international law.

The place of jurisdiction for dealings with merchants (Kaufleute), legal entities under public law or special funds under public law shall be Düsseldorf. The same shall apply if the Customer is an entrepreneur within the meaning of Section 14 BGB. However, we shall be entitled, at our option, to bring an action at the Customer’s registered office. Overriding statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.