General Terms and Conditions

General Provisions

Our deliveries and services are provided exclusively on the basis of these general terms and conditions (“GTC”). These GTC apply in the version valid at the time the contract is concluded, in any case in the version most recently notified to our contractual partner (“Purchaser”) as a framework agreement also for similar future contracts, without us having to refer to the validity of these GTC again in each individual case. These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Purchaser shall only become part of the contract if and to the extent that we have expressly consented to their validity in writing. This consent requirement applies in any case, e.g. even if we carry out the Purchaser’s order without reservation in knowledge of the Purchaser’s general terms and conditions. The GTC only apply if the Purchaser is an entrepreneur (Sec. 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.

Offers and Conclusion of Contract

Unless expressly stated otherwise, our offers are always subject to change and non-binding.

The order of the goods by the Purchaser is considered a binding offer by the Purchaser to conclude a contract. Unless otherwise stated in the order, we are entitled to accept the offer within one (1) week of receipt of the order. We generally accept an order either by order confirmation or by dispatching the goods.

Prices, Payment, Right of Set-off and Retention

All prices are in EUR plus statutory value added tax.

Unless otherwise agreed, payments must be made within 14 days of invoicing to the account specified in the invoice.

The Purchaser shall be in default without warning if they have not made payments within the payment period. During the default, the price shall bear interest at the applicable statutory default interest rate. We reserve the right to assert further damages caused by default.

If the Purchaser does not fulfill their payment obligation, does not do so properly or not on time, or if circumstances become known which make the Purchaser’s creditworthiness appear doubtful, we are entitled to make outstanding payments from the Purchaser immediately due for payment. The same applies if the Purchaser no longer has a proper business operation, in particular if their assets are seized or insolvency proceedings are applied for.

If a significant deterioration occurs in the Purchaser’s financial circumstances that endangers our claim, we are entitled to demand advance payment or appropriate security. This also applies if such circumstances existing before the conclusion of the contract only become known to us later. If the advance payment or security deposit is not provided despite a request and setting of a deadline, we are entitled to withdraw from the contract or to demand compensation instead of performance. In the aforementioned cases, the payment or provision of security cannot be made dependent on the return of current bills of exchange.

The Purchaser only has rights of set-off and retention to the extent that their claim has been legally established or is undisputed. This does not apply to the Purchaser’s rights of retention based on counterclaims of the Purchaser arising from the same contractual relationship. In the event of defects, the Purchaser’s counter-rights, especially pursuant to Section 6, remain unaffected.

Delivery Time, Place of Performance, Delivery, Transfer of Risk and Storage

Delivery dates and/or deadlines indicated by us always apply only approximately. They are non-binding for us as estimated dates and deadlines, unless we have expressly promised a fixed deadline or a fixed date for the delivery or agreed this with the Purchaser.

If we are unable to meet binding or agreed deadlines or dates for reasons for which we are not responsible (especially non-availability of the goods), we will inform the Purchaser of this without delay and at the same time communicate the estimated new deadline or the estimated new date. If delivery is also not possible within the new delivery period or by the new date, we are entitled to withdraw from the contract in whole or in part; we will immediately refund any consideration already provided by the Purchaser. A case of non-availability of the goods is in particular (i) the failure of our suppliers to deliver to us on time if we have concluded a congruent hedging transaction, or (ii) if neither we nor our suppliers are at fault.

We shall not be liable for impossibility of delivery or delivery delays insofar as these are caused by an event of force majeure. An “event of force majeure” is any unforeseeable event beyond our control that wholly or partially prevents us from fulfilling our obligations, including fire damage, epidemics and pandemics, changes in the law and official orders, floods, strikes and lawful lockouts or other operational disruptions – including at our suppliers. An event of force majeure extends the delivery time to an appropriate extent.

Delivery takes place from the warehouse specified in the order confirmation (Ex Works, Incoterms 2020), which is also the place of performance (Sec. 269 (1) BGB) for the delivery and any supplementary performance. At the request and expense of the Purchaser, we will dispatch the goods to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route and packaging) ourselves. Taking out transport insurance is the responsibility of the Purchaser at their own expense.

Reasonable partial deliveries are permissible. We bear the additional costs caused by partial deliveries.

The risk of accidental loss and accidental deterioration of the goods passes to the Purchaser at the latest upon handover. However, in the case of a sale to destination, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay passes upon delivery of the goods to the forwarder, carrier or other person or institution designated to carry out the shipment. Handover is deemed to have taken place if the Purchaser is in default of acceptance.

For the storage and safekeeping of the goods, the hygiene regulations (ordinances) of the individual federal states are primarily decisive.

Official Sampling, Resale of Goods

In the case of official sampling, the Purchaser must absolutely demand a counter-sample and send it to us immediately for counter-examination in the form handed over by the official and officially sealed, or hand it over to our representative.

The resale of the goods by the Purchaser may only take place in countries where the goods meet all requirements for the placing of the goods on the market. In the event of a resale of the goods outside the EU, the Purchaser must ensure and is responsible for ensuring that the goods meet all requirements for the placing of the goods on the market in the country in which they sell the goods. The Purchaser shall indemnify us against all claims, expenses (in particular reasonable costs of legal defense) as well as any fines or other penalty payments asserted against us due to a sale of the goods by the Purchaser in a country outside the EU.

Claims for Defects

In the case of justified complaints, supplementary performance shall take place at our discretion by remedying the defect or by replacement delivery. In addition, the Purchaser is entitled to the further statutory rights of withdrawal and reduction, provided the statutory requirements for this are met. Sections 377, 381 HGB [German Commercial Code] remain unaffected.

The Purchaser cannot withdraw from the contract due to an insignificant defect.

Claims of the Purchaser for damages or reimbursement of futile expenses exist even in the case of defects only in accordance with Section 7 and are otherwise excluded.

Liability

We are liable without limitation within the scope of fault-based liability for intent and gross negligence as well as for injury to life, body or health.

In cases of simple negligence, we are only liable for damages resulting from the breach of a material contractual obligation (i.e. an obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the Purchaser regularly relies and may rely); in this case, our liability is limited to compensation for the foreseeable, typically occurring damage.

The limitations of liability resulting from Section 7.2 also apply to breaches of duty by or in favor of persons whose fault we are responsible for according to statutory provisions. For clarification, they also do not apply to injury to life, body or health.

Claims under the Product Liability Act are available to the Purchaser without limitation.

Statute of Limitations

For claims for material defects and defects of title, the general limitation period, deviating from Section 438 (1) No. 3 BGB, is one year from delivery. Special statutory provisions on limitation (in particular Section 438 (1) No. 1 and No. 2, (3), Sections 444, 445b BGB) remain unaffected.

The limitation periods under this Section 8 also apply to contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases.

Claims for damages by the Purchaser according to Section 7.1 and under the Product Liability Act become time-barred exclusively in accordance with the statutory limitation periods.

Retention of Title

We retain title to all goods delivered by us (goods subject to retention of title) until all our claims arising from our business relationship with the Purchaser, including those from later concluded contracts – regardless of the legal basis – have been fully paid.

The Purchaser is entitled to resell the goods in the ordinary course of business as long as they are not in default of fulfilling their obligations towards us or stop their payments. In detail, the following applies:

The processing or transformation of the goods subject to retention of title is carried out for us as a manufacturer within the meaning of Sec. 950 BGB, without obligating us. By processing or transforming the goods subject to retention of title, the Purchaser does not acquire ownership of the new item pursuant to Sec. 950 BGB. If the goods subject to retention of title are processed, mixed, blended or combined with other items, we acquire co-ownership of the new item in a proportion that corresponds to the ratio of the invoice value (gross) of our goods subject to retention of title to the total value. The provisions applicable to the goods subject to retention of title apply accordingly to the co-ownership shares resulting from the above conditions.

The Purchaser hereby assigns their claims from the resale with all ancillary rights to us, proportionately also insofar as the goods are processed, mixed or blended and we have acquired co-ownership thereof in the amount of our invoice value. As far as the goods subject to retention of title are processed, mixed or blended, we are entitled from this assignment to a fraction of the respective claim from the resale corresponding to the ratio of the invoice value of our goods subject to retention of title to the invoice value of the newly created object. If the goods subject to retention of title are sold by the Purchaser together with other goods not delivered by us, the Purchaser hereby assigns to us a share of the claim from the resale amounting to the invoice value of our goods subject to retention of title. If the Purchaser has sold this claim in the context of genuine factoring, they assign the claim replacing it against the factor to us. If the claim from the resale is placed by the Purchaser in a current account relationship with their customer, the Purchaser assigns their claims from the current account relationship to us in the amount of the invoice value of the goods subject to retention of title. We hereby accept the assignments regulated in this section.

The Purchaser is only entitled to resell the goods subject to retention of title if they also reserve ownership until their claims from the resale have been paid in full.

The Purchaser is authorized to collect the claims assigned to us until we revoke this authorization. The collection authorization expires upon revocation, which takes place in the event of default in payment by the Purchaser or cessation of payment by the Purchaser. In this case, we are authorized by the Purchaser to inform the customers of the assignment and to collect the claim ourselves. The Purchaser is obliged to provide us on request with an exact list of the claims to which they are entitled, including the names and addresses of the customers, the amount of the individual claims, invoice date, etc., and to provide us with all information and documents necessary for asserting the assigned claims and to permit the verification of this information.

Amounts received by the Purchaser from assigned claims must be kept separately for us until transfer.

Pledging or transferring the goods subject to retention of title or the assigned claims by way of security is not permitted. We must be informed immediately of any attachments, stating the attaching creditor.

If the Purchaser requests this, we will release the securities to which we are entitled to the extent that their realizable value exceeds the value of our outstanding claims against the Purchaser by more than 10%. We are entitled to select the securities to be released.

The Purchaser stores the goods subject to retention of title for us free of charge. They must insure them against usual risks such as fire, theft and water to the usual extent. The Purchaser hereby assigns their compensation claims to which they are entitled from damages of the aforementioned kind against insurance companies or other parties liable to pay compensation to us in the amount of our claims. We accept the assignment.

Declarations, Form, Statutory Provisions

Legally relevant declarations and notifications by the Purchaser relating to the contract (e.g. setting a deadline, notification of defects, withdrawal or reduction) must be submitted at least in text form (e.g. email). Statutory formal requirements remain unaffected.

The written form within the meaning of these GTC can, in addition to complying with the written form within the meaning of Section 126 BGB, also be met by sending a physically or digitally signed document as a PDF (by email or post) or by using digital signature software commonly used in Germany (e.g. DocuSign or Adobe Sign).

References to the applicability of statutory provisions only have clarifying significance. Even without such clarification, the statutory provisions therefore apply, unless they are directly amended or expressly excluded in these GTC.

Applicable Law, Jurisdiction, Severability Clause, Assignment

The contract concluded between the Purchaser and us is subject – subject to mandatory provisions of international private law – exclusively to the law of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods, and excluding private international law. The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contract is Munich.

Should individual provisions of the respective concluded contract including these general terms and conditions be or become completely or partially invalid, this shall not affect the validity of the other provisions. The invalid provisions shall be replaced by the statutory provisions, if any.

The Purchaser is not entitled to transfer and/or assign rights and obligations from the contract to third parties without our consent. This prohibition of assignment does not apply to monetary claims.

Status: March 2024