General Terms and Conditions

Version: november 2021

The basis of a permanent and enduring business relationship are not terms of delivery and payment, but cooperation and mutual trust. Nevertheless, it is essential for us to agree upon several points for all business transactions with our customers in deviation from or in addition to the statutory regulations.

1. Validity of the terms and conditions and conclusion of contract

1.1 The deliveries, services and offers of the seller shall be exclusively carried out based on these business terms and conditions. These shall thus also apply to all future business relationships , even if they are not explicitly agreed once again. Contrary business terms and conditions of the buyer or those which deviate from the business terms and conditions of the seller – for example in the form of the counter-confirmation with reference to its business terms and conditions or terms of purchase – are hereby objected to.

1.2 The offers of the seller are without obligation and non-binding. Declarations of acceptance and all orders shall require the written or telex confirmation of the seller in order to be legally valid.

1.3 There are no pre-contractual oral agreements or shall only be valid if they have been agreed in writing. Reference is made to Subclause 11 with regard to collateral agreements with employees.

1.4 If the seller also takes over the laying, installation or assembly of building materials or construction elements, the Contracting Rules for the Awarding of Public Works Contracts (VOB) shall be the basis for the contract. The seller offers the buyer the right to inspect the contractual terms and conditions of the VOB/B and the technical regulations of the VOB/C.

2. Prices and price calculation

2.1 Insofar as not otherwise derived from the order confirmation, the prices shall apply ex works without packaging.

2.2 The seller reserves the right, in case of contracts with an agreed delivery time of more than 4 months, to increase the prices in line with the occurred cost increases owing to collective wage agreements, material price increases or other price developments beyond our control. If the increase is more than 10% of the agreed price the buyer shall have a right of rescission within 14 days after notification of the price increase.

2.3 The prices are deemed without value added tax.

3. Shipment and transfer of risk

3.1 The risk shall pass to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the seller’s plant for the purpose of shipment. If the shipment is delayed at the buyer’s request the risk shall pass to him with the report that the goods are ready for shipment.

3.2 At the request of the buyer deliveries shall be insured in his name and for his account.

3.3 The seller shall make an effort to take requests and interests of the buyer into consideration with regard to the type of shipment and the dispatch route. Additional costs incurred hereby shall be for at the expense of the buyer – even with carriage paid delivery.

4. Delivery and service time

4.1 If the buyer is a consumer the following shall apply:

4.1.1 Events of force majeure shall suspend the contractual obligations of the parties for the duration of the interference and in the scope of its effect. Deemed as such are the circumstances and incidents, which are unforeseeable, unavoidable or exceptional, such as for example unforeseeable interferences to operation, shortages of raw materials or other events, for which the party is not responsible. If the thus ensuing delays exceed a period of six weeks then both contractual parties are entitled to cancel the contract with regard to the affected scope of service. There are no other claims.

4.1.2 With the existence of delays in delivery for which the seller is responsible, the duration of the final deadline that is to be set by the buyer by law shall be stipulated at two weeks, which shall begin with the receipt of the setting of the final deadline by the seller.

4.1.3 Insofar as the seller provides own packaging and means of transport, the special packaging conditions of the seller shall apply. The seller shall offer the right to inspect these packaging conditions. In case of a late return, i.e. exceeding of the customary or agreed unloading time by an unreasonable duration of loading devices or private tank and bulk good wagons the seller reserves the right to invoice the incurred costs and rents to the buyer.

4.1.4 The compliance with the delivery and service obligation of the seller presumes the timely and proper fulfilment of the buyer’s obligations.

4.2 ​​​​If the buyer is an entrepreneur the following shall apply:

4.2.1 Events of force majeure shall suspend the contractual obligations of the parties for the duration of the interference and in the scope of its effect. Deemed as such are the circumstances and incidents, which are unforeseeable, unavoidable and exceptional, such as for example unforeseeable interferences to operation, shortages of raw materials or other events, for which the party is not responsible. They shall entitle the seller to postpone the delivery or service by the duration of the impediment plus a reasonable start-up time or to cancel the contract in full or in part owing to the not yet fulfilled part.

4.2.2 If the impediment lasts for longer than three months the buyer is entitled, after the setting of a reasonable final deadline, to cancel the contract with regard to the not yet fulfilled part. If the delivery time is extended or if the seller is released from its obligation the buyer cannot derive any claims for damages from this. The seller can only refer to the stated circumstances if it informs the buyer without delay.

4.2.3 If the seller is responsible for the non-adherence to binding promised deadlines and dates or is in default the buyer shall be entitled to compensation due to delay in the amount of 1⁄2% for each completed week of the delay, in total however to a maximum of up to 5% of the invoice value of the deliveries and services affected by the delay. Claims beyond this are excluded, unless the delay is due to at least gross negligence of the seller.

4.2.4 The seller is entitled to partial delivery and partial service at all times, unless the partial delivery or partial service is of no interest for the buyer.

4.2.5 The compliance with the delivery and service obligation of the seller presumes the timely and proper fulfilment of the buyer’s obligations.

4.2.6 If the buyer is in default with acceptance then the seller is entitled to request compensation of the damages suffered by it; with the occurrence of the default with acceptance, the risk of the accidental deterioration and the accidental loss shall pass to the buyer.

4.2.7 Insofar as the seller provides own packaging and means of transport, the special packaging conditions of the seller shall apply. The seller shall offer the right to inspect these packaging conditions. In case of a late return, i.e. exceeding of the customary or agreed unloading time by an unreasonable duration of loading devices or private tank and bulk good wagons the seller reserves the right to invoice the incurred costs and rents to the buyer.

5. Payment

5.1 If the buyer is a consumer the following shall apply:

5.1.1 Insofar as not otherwise agreed, invoices of the seller shall be due and payable on the day of the delivery, otherwise upon completion of the project.

5.1.2 Sales personnel and technical personnel are not entitled to payment collection in cash; excepted from this are amounts up to EUR 2,000.00 in cash against hand-over of a cash sales receipt. In addition, any payments can only be made with discharging effect directly to the seller, into a bank or postal cheque account stated hereby.

5.1.3 The seller explicitly reserves the right to refuse bills of exchange and cheques. The acceptance will always only be carried out in lieu of payment. Discount and bill of exchange charges shall be for the expenses of the buyer and are due and payable immediately.

5.1.4 The seller is entitled, despite provisions of the buyer to the contrary, to initially offset payments on its older debts and will inform the buyer about the type of offsetting that is carried out. If costs and interest have been incurred already then the seller is entitled to initially offset the payment against the costs, then against the interest and finally against the main service.

5.1.5 The buyer is only entitled to offset if the counter-claim is undisputed or has been determined final and binding. The buyer is, however, also entitled to retention owing to counter-claims from the same contractual relationship.

5.2 If the buyer is an entrepreneur the following shall apply:

5.2.1 Insofar as not otherwise agreed, invoices of the seller shall be due and payable on the day of the delivery, otherwise upon completion of the project.

5.2.2 The seller is entitled, despite provisions of the buyer to the contrary, to initially offset payments on its older debts and will inform the buyer about the type of offsetting that is carried out. If costs and interest have already been incurred already then the seller is entitled to initially offset the payment against the costs, then against the interest and finally against the main service.

5.2.3 We explicitly reserve the right to refuse bills of exchange and cheques.

5.2.4 A payment shall only be deemed as made when the seller may dispose of the amount. In the event of cheques the payment shall only be deemed as made when the cheque is cashed.

5.2.5 If the buyer is in default the seller is entitled to request interest from the relevant time in the amount of 8 percentage points above the base lending rate as flat rate damages. They are to be estimated lower if the buyer proves a lower burden. The seller is permitted to prove higher damages.

5.2.6 If the seller becomes aware of circumstances, which raise questions about the creditworthiness of the buyer, in particular if it does not cash a cheque or suspends its payments, or if the seller becomes aware of other circumstances, which raise questions about the creditworthiness of the buyer, the seller is entitled to deem the total residual debt due, even if it has accepted cheques. In this case the seller is additionally entitled to request advance payments or provision of security.

5.2.7 The buyer is only entitled to offsetting, retention or reduction, even if complaints of defect or counter-claims are asserted, if the counter-claims are undisputed or are declared final and binding. The buyer is, however, also entitled to retention owing to counter-claims from the same contracual relationship.

6. Rights of the buyer owing to defects

6.1 If the buyer is a consumer the following shall apply:

6.1.1 If the delivered object does not have the agreed condition or is not suitable for the use presumed according to the contract or the use in general or if it does not have the properties, which the buyer can expect according to the public statements of the seller, the seller will principally perform subsequent fulfilment by a subsequent delivery of a faultless object. Multiple subsequent delivery is permitted. If a subsequent fulfilment fails twice the buyer can, at his choice, reduce the purchase price by a reasonable extent or cancel the contract.

6.1.2 The statute-of-limitations for the aforementioned claims is one year from delivery of the goods.

6.2 If the buyer is an entrepreneur the following shall apply:

6.2.1 The products shall be delivered free of manufacturing and material defects; the deadline for the assertion of the claims due to defects is one year from delivery of the products.

6.2.2 If operating or maintenance instructions of the seller are not complied with, changes made to the products, parts are exchanged or consumables used, which do not comply with the original specifications, claims owing to defects to the products shall cease to apply if the buyer does not refute a correspondingly substantiated claim that only one of these circumstances caused the defect.

6.2.3 The buyer must inform the customer service of the seller of defects immediately, no later however than within one week after receipt of the object of delivery in writing. Defects, which even with a careful inspection cannot be discovered within this deadline are to be reported to the seller in writing without delay after they are discovered.

6.2.4 In the event of a notification from the buyer that the products feature a defect the seller shall, at its choice and at its costs, request that

a) the faulty part or device is sent to the seller for repair and subsequent return;
b) the buyer keeps the faulty part or device available and a service technician of the seller will be sent to the buyer in order to carry out the repair. If the buyer requests that subsequent improvement work will be carried out at a location determined by him, the seller can satisfy this request, whereby replaced parts will not be charged, whereas working hours and travelling costs are to be paid at the standard rates of the seller.

6.2.5 If the subsequent improvement fails after a reasonable deadline the buyer can, at his choice, request a reduction in the remuneration or cancel the contract.

6.2.6 A liability for normal wear and tear is excluded.

6.2.7 Only the direct buyer will be entitled to claims owing to defects against the seller and are not transferable, as the partial delivery or partial services is of no interest for the buyer.

7. Reservation of title

7.1 If the buyer is a consumer the following shall apply:

7.1.1 Until the fulfilment of all claims, to which the seller is entitled against the buyer for all legal grounds now or in future, the seller reserves the ownership to the delivered goods (reserved goods). The buyer may not dispose over the reserved goods.

7.1.2 In case of accesses of third parties – in particular court bailiffs – to the reserved goods the buyer will point out the ownership of the seller and notify it without delay so that the seller can assert its property rights. If the third party is not in the position to reimburse the seller, the court or out-of-court costs incurred in this context the buyer will be liable in this respect.

7.1.3 In case of conduct of the buyer that is in breach of the contract – in particular in case of default of payment – the seller is entitled to cancel the contract and to request that the reserved goods are handed over.

7.2 If the buyer is an entrepreneur the following shall apply:

7.2.1 Until the fulfilment of all claims (including all balance claims from current account), to which the seller is entitled against the buyer for all legal grounds now or in future, the seller will be granted the following security, which it will release upon request at its choice, insofar as their value exceeds the claims in the long-term by more than 20%.

7.2.2 The goods shall remain the property of the seller. The processing or re-design shall always be carried out for the seller as the manufacturer, however without an obligation by it. If the (co-)ownership of the seller lapses due to connection, then it is hereby agreed now already that the (co-)ownership of the buyer to the uniform object shall pass pro rata of the value (invoice value) to the seller. The buyer shall hold the (co-) ownership of the seller in safekeeping free of charge. Goods, to which the seller is entitled to (co-)ownership are hereinafter referred to as reserved goods.

7.2.3 The buyer is entitled to process and to sell the reserved goods in proper business transactions as long as he is not in default. Pledges or assignments as collateral are not permitted. The buyer hereby assigns the claims (including all balance claims from current account) established from the resale or any other legal grounds (insurance, illicit act) with regard to the reserved goods now already as a precautionary measure to the seller in full. The seller revocably authorises him to collect the claims assigned to the seller for his account in his own name. This collection authorisation can only be revoked if the buyer does not properly satisfy his payment obligations.

7.2.4 In case of accesses of third parties to the reserved goods, in particular attachments, the buyer will point out the ownership of the seller and notify it without delay so that the seller can assert its property rights. If the third party is not in the position to reimburse the seller the court or out-of-court costs incurred in this context the buyer will be liable in this respect.

7.2.5 In case of conduct of the buyer that is in breach of the contract – in particular default of payment – the seller is entitled to cancel the contract and to request that the reserved goods are handed over.

8. Liability

8.1 If the buyer is a consumer the following shall apply:
In case of slight negligence the liability of the seller is limited to the direct average damages, which are foreseeable according to the type of the goods and are typical for the contract. This shall also apply in case of slightly negligent breaches of duties by the legal representatives or vicarious agents of the seller.

8.2 If the buyer is an entrepreneur it shall apply:

8.2.1 Claims for damages are are excluded irrespective of the type of breach of duty, including illicit acts, insofar as there is no wilful or grossly negligent action.

8.2.2 In case of the breach of essential contractual duties the seller will be liable for all negligence, however only up to the amount of the foreseeable damages. Claims for missed profits, saved expenses, from claims for damages of third parties as well as for other indirect and consequential damages cannot be requested, unless a cha- racteristic guaranteed by the seller particularly aims at protecting the buyer against such damages.

8.2.3 The liability limitations and exclusions in numbers 8.2.1. and 8.2.2. shall not apply to claims, which were established owing to malicious conduct of the seller as well as with liability for guaranteed characteristics, to claims according to the German Product Liability Act as well as damages from the injury to life, the body or the health.

8.2.4 Insofar as the liability of the seller is excluded or limited, this shall also apply to employees, workers, representatives and vicarious agents of the seller.

9. Place of performance

The place of performance is the registered business seat of the seller. In case of another place of departure of the goods this shall be the place of fulfilment.

10. If the buyer is an entrepreneur the following shall additionally apply:

10.1 Construction changes. The seller reserves the right to make construction changes at all times; it is however not obliged to also make such changes to already delivered products.

10.2 Patents

10.2.1 The seller shall indemnify the buyer and his buyers owing to claims from infringe- ments of copyrights, trademarks or patents, unless the blueprint of an object of delivery stems from the buyer. The indemnification obligation of the seller is limited in terms of amount to the foreseeable damages. An additional prerequisite for the indemnification is that the conducting of lawsuits is left to the seller and that the claimed infringements of rights is exclusively attributed to the method of construction of the seller’s objects of delivery without connection or use with other products.

10.2.2 The seller has the right, at his discretion, to acquit himself from the obligations taken on with 10.2.1 by either

a) procures the necessary licences with regard to the allegedly infringed patents

or

b) makes a changed object of delivery or parts thereof available to the buyer, which in the event of the exchange of the infringing object of delivery or its part reme- dies the accusation of infringement with regard to the object of delivery.

10.3 Confidentiality

If not explicitly otherwise agreed in writing the information submitted to the seller in connection with orders shall not be deemed as confidential.

10.4 Applicable Law

The law of the Federal Republic of Germany shall apply to these business terms and conditions and the entire legal relationships between the seller and the buyer. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.

10.5 Place of jurisdiction

Insofar as the buyer is a merchant, legal entity under public law or special fund un- der public law Hersbruck shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.

10.6 Partial nullity

Should one provision in these business terms and conditions or a provision within the scope of other agreements be or become invalid this shall have no effect on the validity of all other provisions or agreements.

11. Restriction to the power of representation

Oral collateral agreements with employees, who are not entitled to a power of representation owing to statutory regulations, are only valid if they are confir- med by the seller in writing.