Terms of service

1. General and scope of application

1.1 These General Terms and Conditions of Delivery and Service (“GTCS”) apply to all our business relationships with our customers (“Purchaser”).

1.2 These GTS apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the Customer's order or in any case in the version last communicated to the Customer in text form shall also apply as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

1.3 Our deliveries, services and offers are made exclusively on the basis of these GTCS; we do not recognize any terms and conditions of the customer that conflict with or deviate from our GTCS unless we have expressly agreed to their validity in writing. Our GTCS shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer's terms and conditions conflict with or deviate from our GTCS or if the customer refers to its general terms and conditions in the context of the order and we do not expressly object to this.

1.4 Our General Terms and Conditions shall only apply to entrepreneurs (§ 14 BGB), legal entities under public law and special funds under public law.

1.5 Individual agreements made with the customer in individual cases (e.g. framework supply agreements or quality assurance clauses) and information in our order confirmation shall in any case take precedence over these GTCS. In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract. 

1.6 Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting of deadlines, reminders or withdrawal) must be made in writing. Written form within the meaning of our ALB includes written and text form (e.g. letter, e-mail, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected. 

1.7 Insofar as reference is made below to the validity of statutory provisions, this is for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless we have directly amended or expressly excluded them in our GTCS.

2. Conclusion of contract

2.1 Our offers are subject to change and non-binding and subject to prior sale, unless they are expressly marked as binding. This shall also apply if we have provided the customer with samples, catalogs, other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights.

2.2 The order of the goods by the customer shall be deemed to be a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two (2) weeks of its receipt by us.

2.3 The acceptance of contractual offers can be declared by us either in writing (e.g. by order confirmation) or by delivery of the goods to the customer.

2.4 The documents supplied by the customer (information, drawings, samples or the like) shall be authoritative for us; the customer shall be liable for their correctness, technical feasibility and completeness; we shall not be obliged to check them.

3 Prices and terms of payment

3.1 Unless otherwise agreed in individual cases, our current prices at the time of conclusion of the contract shall apply (ex warehouse, plus statutory VAT).

3.2 Unless otherwise stated in the order confirmation, our prices are EXW (ex works in Hückeswagen) in accordance with Incoterms 2020 or the current version. Packaging costs are not included in the prices, unless expressly agreed otherwise.

3.3 Unless otherwise stated in the order confirmation, our invoices are due for payment net (without deduction) within twenty-one (21) days of the invoice date and receipt of the invoice. If payment is made within eight (8) days of the invoice date, we grant a two (2) % discount. Shipping, printing, screen and film costs on invoices are cost price costs on which we do not grant any discount. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.

3.4 The customer is not entitled to withhold payments due to counterclaims or to offset them against counterclaims unless these have been recognized by us, are undisputed or have been legally established. Counterclaims of the customer arising from the same contract due to defects, non-performance and/or unfinished or incomplete performance shall remain unaffected by this.

3.5 If it becomes apparent after conclusion of the contract (e.g. by termination of the commercial credit insurance or application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the customer's inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

4 Delivery time, delay in delivery, force majeure

4.1 Unless expressly agreed otherwise, information on delivery times is only approximate. A delivery period shall not commence until all details of execution have been clarified and both parties have agreed on the terms of the order. Agreed delivery dates shall be postponed accordingly.

4.2 Compliance with our delivery obligation also presupposes the timely and proper fulfillment of the obligations incumbent on the customer. This includes in particular the timely and complete delivery of the documents to be supplied by the customer, insofar as we perform according to drawings, specifications, samples, requirements and/or other documents of the customer. We reserve the right to plead non-performance of the contract.

4.3 The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder is required.

4.4 If we are prevented from timely delivery or performance due to force majeure, such as labor disputes for which we are not responsible, official measures, energy or raw material shortages, transport bottlenecks or obstacles, pandemics or epidemics and measures to combat them, operational hindrances, e.g. due to fire, water and/or machine damage or other disruptions in our operations or those of our suppliers/subcontractors for which we are not responsible and which are demonstrably of considerable influence, we are obliged to inform the customer immediately. In such cases, we shall be entitled to postpone the delivery or performance period by the duration of the force majeure event or the disruption, provided that we have complied with our above obligation to provide information. If the delivery or service becomes impossible as a result, our obligation to perform shall lapse to the exclusion of compensation. If the customer proves that the subsequent performance is of no interest to him as a result of the delay, he may withdraw from the contract to the exclusion of any further claims. If the event of force majeure or the disruption lasts longer than one (1) month, we may withdraw from the contract with regard to the part not yet fulfilled if we have fulfilled our above obligation to provide information and insofar as we have not assumed the procurement risk or a delivery guarantee. Force majeure is any external event caused by elementary forces of nature or by the actions of third parties, which is unforeseeable according to human insight and experience, which cannot be prevented or rendered harmless by economically acceptable means, even with the utmost care reasonably to be expected in the circumstances, and which is not to be accepted by us due to its frequency.

4.5 Clause 4.4 shall apply accordingly if we have concluded a congruent hedging transaction with the customer prior to the conclusion of the contract which, if properly executed, would have enabled us to fulfill our contractual delivery obligations to the customer and we are not supplied by our supplier, not supplied correctly and/or not supplied on time and we are not responsible for this.

4.6 If we are in default, the customer shall be entitled to set a reasonable grace period in writing and to withdraw from the contract if this period expires without result. There is no need to set a grace period if we seriously and finally refuse performance or if the underlying contract is a fixed-date transaction within the meaning of § 323 para. 2 no. 2 BGB or § 376 HGB or if there are special circumstances which justify immediate withdrawal after weighing up the interests of both parties.

4.7 The rights of the Customer pursuant to Section 10 of these GTCS and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

5 Transfer of risk and shipment

5.1 Unless otherwise stated in the order confirmation, delivery EXW (ex works) is agreed in accordance with Incoterms 2020 or the current version. The place of delivery and place of performance is our location in Hückeswagen. This shall also apply if we have assumed the transportation costs or disbursed them for the Customer or if partial deliveries are made.

5.2 At the request and expense of the Buyer, the goods shall be shipped to another destination (sales shipment).

5.3 If shipment has been agreed, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon handover to the forwarding agent, carrier or other person or institution designated to carry out the shipment. This shall also apply if we have assumed the transportation costs or disbursed them for the customer or if partial deliveries are made. If dispatch or handover is delayed for reasons for which the customer is responsible, the risk shall pass to the customer from the day on which the goods are ready for dispatch and we have notified the customer of this.

5.4 If acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services shall also apply accordingly to an agreed acceptance, unless otherwise stipulated below.

5.5 If acceptance is to take place, the goods shall be deemed accepted if (i) the delivery and, if we also owe the installation, the installation has been completed, (ii) we have notified the customer of this with reference to the fiction of acceptance in accordance with this clause 5.5 and have requested him to accept the goods, (iii) twenty (20) working days have elapsed since delivery or (iii) twenty (20) working days have elapsed since delivery or installation, and (iv) the customer has failed to accept the goods within this period, unless the failure to accept the goods was due to a defect notified to us which makes the use of the purchased goods impossible or significantly impairs it.

5.6 If the customer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.

5.7 The customer must inform us in writing if he wishes a special mode of transportation and/or cover by transport insurance for the shipment. The costs incurred in this respect shall be borne by the customer, even if we have otherwise exceptionally assumed the transportation costs.

5.8 We are authorized to make partial deliveries insofar as this is reasonable for the customer, taking into account his interests.

5.9 If the customer is in default of acceptance or if the delivery is delayed for reasons for which the customer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses. In such cases, we shall store the products at the risk of the customer and charge the customer for storage.

6 Packaging

Unless otherwise agreed, the packaging shall be at our discretion. The costs of packaging shall be borne by the customer.

7 Retention of title

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

7.2 The goods subject to retention of title may not be pledged to third parties or assigned as security by the customer without our express written consent before full payment of the secured claims. In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can bring an action in accordance with § 771 of the German Code of Civil Procedure (ZPO). If the action was successful and the third party is not in a position to reimburse us for the judicial or extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the costs incurred by us.

7.3 The customer is entitled to resell the delivered goods in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claims which accrue to him from the resale against his customers or third parties, irrespective of whether the purchased item has been resold without or after processing. The customer shall remain authorized to collect this claim even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as there are no bill and check protests, the customer meets his payment obligations from the proceeds received, is not in default of payment and no application has been made to open insolvency proceedings against his assets. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.

7.4 The processing or transformation of the reserved goods delivered by us by the customer shall always be carried out on our behalf. If the reserved goods delivered by us are processed with other objects/materials not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other processed objects/materials at the time of processing. In all other respects, the same shall apply to the item created by processing as to the goods delivered subject to retention of title.

7.5 If the reserved goods delivered by us are inseparably mixed or combined with other objects / materials not belonging to us in such a way that they become essential components of a uniform item, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other mixed or combined objects / materials at the time of combination or mixing. If the combination or mixing is carried out in such a way that the customer's item is to be regarded as the main item, it is hereby agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the resulting co-ownership for us. In all other respects, the same shall apply to the item created by combining or mixing as to the goods delivered under reservation of title.

7.6 The customer is obliged to treat the reserved goods with care, in particular he is obliged to insure them adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.

7.7 In the event of loss of or damage to the goods subject to retention of title, the customer shall assign to us in advance as additional security any existing claims to insurance benefits in the amount of the final invoice amount (including VAT) of our claims in respect of the delivery item.

7.8 If, in the case of deliveries abroad, certain measures and/or declarations are required on our part in the importing country in order for the retention of title regulated above or the other rights described in the preceding paragraphs to be effective, the customer must inform us of this immediately in writing or in text form and carry out or make these measures and/or declarations immediately at his own expense. If the law of the importing country does not permit a reservation of title, the customer shall be obliged to provide us with other suitable securities for the delivered goods or other securities at his own expense without delay at our reasonable discretion (§ 315 BGB).

7.9 We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.

8 Intellectual property

8.1 Unless otherwise agreed, we shall be entitled to the rights to the results of our services (in particular any rights to inventions, copyrights and other industrial property rights) in relation to the customer. Upon full payment of the agreed remuneration (or the respective installments due), the Customer shall receive the non-exclusive, non-transferable, temporally and geographically unrestricted right to use the results of the services (subject to compliance with any other conditions of our agreement with the Customer) for its own business purposes or the purposes specified in the offer and/or the order confirmation. The granting of further rights of use requires a separate agreement.

8.2 Unless otherwise agreed, the rights to the customer's existing results shall remain with the customer. We are entitled to use the customer's existing results if and insofar as this is necessary for the provision of the agreed services.

9 Warranty and liability for breaches of duty

9.1 The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly/installation or defective instructions), unless otherwise specified below.

9.2 In all cases, the statutory provisions on the sale of consumer goods (§§ 474 et seq. BGB) and the rights of the customer arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected. 9.3 The basis of our liability for defects is above all the agreement reached on the quality and intended use of the goods (including accessories and instructions). Product descriptions or manufacturer's specifications shall only be deemed to be an agreement on quality in this sense if this has been contractually agreed or if such descriptions or specifications were made public by us (in particular in catalogs) at the time the contract was concluded.

9.4 If the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 (3) BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the goods, shall take precedence over statements made by other third parties.

9.5 In the case of goods with digital elements or other digital content, we shall only be obliged to provide and, if applicable, update the digital content if this is expressly stated in a quality agreement in accordance with Section 9.3. In this respect, we assume no liability for public statements made by the manufacturer or other third parties.

9.6 The Buyer's warranty rights are subject to the condition that the Buyer has duly fulfilled its inspection and notification obligations pursuant to Sections 377 and 381 of the German Commercial Code (HGB). If the Buyer fails to properly inspect the goods and/or report defects, our liability for the defect not reported or not reported on time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, in particular, the customer shall have no claims for reimbursement of corresponding costs (“removal and installation costs”). If the contractual relationship between us and the customer is a contract for work and services, § 377 HGB (German Commercial Code) shall apply accordingly.

9.7 If an acceptance or initial sample inspection has been agreed with the Customer, the notification of defects which the Customer could have detected during a careful acceptance or initial sample inspection shall be excluded.

9.8 If the delivered goods or the manufactured work are defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering defect-free goods (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

9.9 We are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

9.10 The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective goods to us upon request in accordance with the statutory provisions; however, the customer shall not be entitled to return the goods. Subsequent performance shall not include the dismantling, removal or uninstallation of the defective goods or the installation, attachment or installation of goods free of defects if we were not originally obliged to provide these services. Claims of the customer for reimbursement of corresponding costs (“removal and installation costs”) shall remain unaffected.

9.11 We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these ALB, if a defect actually exists. Otherwise, we may demand compensation from the Customer for the costs arising from the unjustified request to remedy the defect if the Customer knew or could have recognized that there was in fact no defect.

9.12 In urgent cases, e.g. if operational safety is jeopardized or to prevent disproportionate damage, the customer shall have the right to remedy the defect himself and to demand compensation from us for the expenses objectively necessary for this purpose. We must be notified immediately, if possible in advance, of any such self-remedy. The right of self-remedy does not exist if we would be entitled to refuse a corresponding subsequent performance in accordance with the statutory provisions.

9.13 If the subsequent performance has failed or a reasonable deadline to be set by the customer for the subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.

9.14 Claims of the Customer for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded, unless the last contract in the supply chain is a consumer goods purchase (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c sentence 2, 327 (5), 327u BGB). Claims of the customer for damages or reimbursement of futile expenses (§ 284 BGB) shall only exist in accordance with the following clause 10, even in the event of defects in the goods, and are otherwise excluded. Clause 11 of these ALB shall apply to the limitation periods.

10 Exclusions and limitations of liability

10.1 Subject to the provisions of clause

10.2 We shall only be liable for damages - in the case of contractual, non-contractual or other claims for damages, irrespective of the legal grounds, in particular due to defects, default and impossibility, culpa in contrahendo and tort - in the event of intent and/or gross negligence, including intent and/or gross negligence on the part of our representatives or vicarious agents. In addition, we shall also be liable in the event of simple negligence, including simple negligence on the part of our representatives and vicarious agents, for damages arising from the breach of a material contractual obligation, i.e. an obligation whose fulfillment is essential for the proper execution of the contract and on whose fulfillment the customer may therefore regularly rely (cardinal obligation). Insofar as we are not accused of intentional breach of duty, liability for damages shall, however, be limited to the foreseeable, typically occurring damage. 10.2 The exclusions and limitations of liability set out in clause 10.1 shall not affect claims for damages resulting from injury to life, body and health as well as claims of the customer under the Product Liability Act, the special statutory provisions for final delivery of the goods to a consumer and other mandatory statutory liability provisions. The above exclusions or limitations of liability shall also not apply if we have fraudulently concealed a defect or if we are liable due to the assumption of a guarantee or due to the assumption of the procurement risk.

10.3 Clauses 10.1 to 10.2 shall also apply if the customer demands compensation for useless expenses instead of a claim for damages in lieu of performance.

10.4 Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents based on the same legal grounds.

11 Limitation period

11.1 Claims of the customer arising from material defects and defects of title shall become time-barred within one (1) year of delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

11.2 Mandatory statutes of limitation remain unaffected. The easing of the limitation period referred to in clause 11.1 shall not apply to claims due to injury to life, body or health, to claims due to intent and/or gross negligence and to claims due to the assumption of a guarantee or the assumption of the procurement risk. The longer limitation periods according to § 438 para. 1 no. 1 BGB (rights in rem of a third party), §§ 438 para. 1 no. 2, 634a para. 1 no. 2 BGB (buildings, building materials and components as well as planning services for a building), §§ 438 para. 3 and 634a para. 3 BGB (fraudulent intent) also remain unaffected. If the last contract in the supply chain is a purchase of consumer goods within the meaning of Section 474 BGB (i.e. final delivery of the goods to a consumer), the limitation periods pursuant to Section 445b BGB shall also remain unaffected.

11.3 The limitation periods for claims due to material defects and defects of title pursuant to Sections 11.1 and 11.2 shall apply accordingly to competing contractual and non-contractual claims for damages of the Buyer which are based on a defect of the contractual goods. However, if in individual cases the application of the statutory limitation rules should lead to an earlier limitation of the competing claims, the statutory limitation period shall apply to the competing claims. The statutory limitation periods under the Product Liability Act shall remain unaffected in any case.

11.4 Insofar as the limitation period for claims against us is shortened in accordance with clauses 11.1 to 11.3, this shortening shall apply accordingly to any claims of the customer against our legal representatives, employees, staff, agents and vicarious agents based on the same legal grounds.

12. rights of withdrawal and termination

12.1 The customer shall only be entitled to withdraw from the contract due to a breach of duty on our part which does not consist of a defect if we are responsible for the breach of duty.

12.2 If the contract is a contract for work and services or a contract for work and materials for movable, non-fungible goods, the customer's free right of termination (Sections 650, 648 BGB) is excluded. 

13 Compliance with laws, compliance 

13.1 In connection with the contractual relationship, the Customer is obliged to comply with the relevant statutory provisions. This applies in particular to anti-corruption and money laundering laws as well as antitrust, labor and environmental protection regulations. 

13.2 The Buyer shall comply with the applicable export control and sanction regulations and laws of the European Union (EU), the United States of America (US/USA) and other legal systems (“Export Control Regulations”).

13.3 The Customer shall inform us in advance and provide us with all information (incl. end-use) necessary for our compliance with export control regulations, in particular if our products, technology, software, services or other goods are ordered for use in connection with (i) any country or territory, person or entity subject to restrictions or prohibitions under EU, US or other applicable export control and sanctions regulations, or (ii) the design, development, production or use of military or nuclear goods, chemical or biological weapons, missiles, space or aircraft applications and delivery systems therefor.

13.4 The fulfillment of the contractual obligations by us is subject to the proviso that the applicable export control regulations do not conflict with this. In such a case, we are therefore entitled in particular to refuse or withhold performance of the contract without any liability to the customer.

14 Place of jurisdiction, choice of law, partial invalidity

14.1 If the Customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be Hückeswagen; however, we shall also be entitled to sue the Customer at the court of its place of residence.

14.2 The contractual relationship shall be governed by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.

14.3 Should a provision in these General Terms and Conditions of Sale and Delivery or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.

11/2024