Terms & Conditions
§ 1 Scope of application
The seller's deliveries, services and offers are provided exclusively on the basis of these terms and conditions. These shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations by the buyer with reference to his terms and conditions of business or purchase are hereby objected to.
Deviations from these terms and conditions are only effective if the seller confirms them in writing.
These terms and conditions do not apply to contracts with consumers.
§ 2 Conclusion of the contract
Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, estimates) and other product descriptions or documents (including in electronic form). We reserve the ownership rights and copyrights to all documents provided to the buyer in connection with the placing of the order. These documents may not be made accessible to third parties unless we give the buyer our express written consent to do so.
The presentation of products in the online shop does not constitute a legally binding offer, but rather a non-binding online catalog. You can initially place our products in your shopping cart without obligation and correct your entries at any time before submitting your binding order by using the correction aids provided and explained in the order process. By clicking on the order button, you are submitting a binding offer for the goods contained in your shopping cart. Confirmation of receipt of your order will be sent by email immediately after the order has been submitted.
The order is a binding offer. It can be accepted at the seller's discretion within 2 weeks by sending an order confirmation or by delivering the ordered goods to the customer within this period
The seller's sales staff are not authorised to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract
Individual agreements (e.g. framework supply contracts, quality assurance agreements) and information in our order confirmation take precedence over these general terms and conditions of sale and delivery. In case of doubt, trade terms are to 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 the conclusion of the contract.
§ 3 Prices
The agreed prices are ex warehouse including packaging and plus the statutory value added tax, which is calculated in the statutory manner. Additional deliveries and services will be invoiced separately. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.
Any changes, e.g. in import and export duties, sales tax, exchange rates, freight costs and insurance and/or war insurance premiums, which occur after the order has been placed, shall be in favour of or at the expense of the buyers, without any increases being able to give the buyers cause to cancel the order.
Dimensions and quantities of the ordered goods are taken into account as accurately as possible. Deviations of 5% upwards or downwards are permissible and must be tolerated.
§ 4 Delivery and performance time
Delivery dates or deadlines, which can be agreed upon as binding or non-binding, must be in writing.
The seller shall not be held responsible for delays in delivery and performance due to force majeure and due to events that make delivery considerably more difficult or impossible for the seller – including, in particular, strikes, lockouts, official orders, etc., even if they occur at the seller's suppliers or their subcontractors – even in the case of bindingly agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part with regard to the unfulfilled part.
If the hindrance lasts longer than two months, the buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the seller is released from his obligation, the buyer cannot derive any claims for damages from this. This exclusion does not apply
a) for damages arising from injury to life, limb or health caused by an intentional or negligent breach of duty by the seller or his legal representative or vicarious agent, or
b) for other damages caused by an intentional or grossly negligent breach of duty by the seller or a legal representative or vicarious agent of the seller as a result of this circumstance.
The seller may only invoke the aforementioned circumstances if he notifies the buyer immediately.
Insofar as the seller is responsible for the non-observance of bindingly agreed deadlines and dates or is in default, the buyer shall be entitled to compensation for default in the amount of
0.5% for each full week of default, but in particular not more than 5% of the invoice value of the deliveries and services affected by the default. Claims over and above this are excluded, unless the delay is due to at least gross negligence on the part of the seller.
This exclusion does not apply
a) to damages arising from injury to life, limb or health caused by a negligent breach of duty by the seller or an intentional or negligent breach of duty by his legal representative or agent, or
b) for other damages caused by a grossly negligent breach of duty by the seller or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the seller due to this circumstance.
The seller is entitled to make partial deliveries and provide partial services at any time.
If it has been agreed that the buyers will specify their order in more detail, e.g. with regard to dimensions, designs, models, and the buyers have exceeded the deadline agreed for drawing up this specification, any resulting delay in delivery shall be at the expense of the buyers, without prejudice to the right of the sellers to cancel the order not specified in time in whole or in part.
If we sell goods duty unpaid, an increase in import duties, sales tax and/or other taxes and/or duties does not give the buyers the right to cancel the order; nor can a change to any quality specifications and/or objections raised by third parties on the basis of patent specifications, trademarks and other similar rights lead to the cancellation of the order by the buyers under any circumstances.
If the buyers do not take delivery of the goods immediately upon arrival, for whatever reason, all costs arising therefrom (e.g. storage costs) shall be for their account, without prejudice to our right to sell the goods to a third party (after notifying the buyer and then waiting 5 working days) and to hold the original buyers liable for any loss.
§ 5 Transfer of risk
Risk shall pass to the buyer as soon as the consignment has been handed over to the person carrying out the transport or has left the seller's warehouse for the purpose of dispatch. If dispatch becomes impossible through no fault of the seller, the risk shall pass to the buyer upon notification of readiness for dispatch.
§ 6 Warranty for defects
a) If the purchase is a commercial transaction for both parties, the following applies in accordance with §377 HGB (German Commercial Code):
(1) The buyer must inspect the goods immediately after delivery by the seller, insofar as this is feasible in the ordinary course of business, and, if a defect is discovered, notify the seller immediately.
(2) If the buyer fails to make the notification, the goods shall be deemed to have been approved, unless the defect is one that could not be detected during the inspection.
(3) If such a defect becomes apparent at a later date, notification must be made immediately after discovery; otherwise the goods shall be deemed to have been approved even in view of this defect.
(4) The timely sending of the notification is sufficient to uphold the rights of the buyer.
(5) If the seller has fraudulently concealed the defect, he cannot invoke these provisions.
b) If the buyer purchases within the framework of a commercial enterprise that, due to its nature and size, does not require a commercially organised business operation, §377 HGB (German Commercial Code) shall apply accordingly.
Technical or other information about the goods in catalogues, brochures or other public statements by the manufacturer (Section 4 of the Product Liability Act), the seller or his agents, in particular in advertising or labelling, do not constitute a guarantee within the meaning of Section 443 of the German Civil Code. They also do not substantiate any claim to a quality that goes beyond the suitability for the use presumed according to the contract or usual use and the usual quality for objects of the same kind and the quality to be expected by the buyer according to the kind of object.
Insofar as the seller is responsible for a defect in the purchased item, the seller is entitled, at his discretion, to provide subsequent performance (remedy of the defect or replacement delivery). The seller shall bear the expenses necessary for the purpose of subsequent performance (§439 para. 2 BGB). If the seller does not carry out the subsequent performance immediately after receipt of the notification of defect, the buyer can set him a reasonable period of grace for subsequent performance. If the reasonable extension of time elapses without result due to circumstances for which the seller is responsible, the buyer may, at his discretion, withdraw from the contract instead of demanding subsequent performance. In the cases of §§281 para. 2, 323 para. 2 and 440 BGB, the setting of a grace period is not required. Compensation or reimbursement of wasted expenditure (§437 clause 3 BGB) are excluded. This exclusion does not apply
a) to damages resulting from injury to life, limb or health caused by the defect due to a negligent breach of duty by the seller or an intentional or negligent breach of duty by his legal representative or vicarious agent,
b) for other damages caused by the defect due to a grossly negligent breach of duty by the seller or an intentional or grossly negligent breach of duty by a legal representative or vicarious agent of the seller,
c) insofar as the seller has fraudulently concealed a defect or has assumed a guarantee for the quality of the item.
The Buyer's claims for defects in the purchased item shall become time-barred after one year. The limitation period shall commence upon delivery of the purchased item. The statutory limitation period shall apply to claims for damages due to a defect in the purchased item in the cases of sections 3 a), b) and c).
§7 n.a.
§ 8 Retention of title
The Seller shall retain title to the purchased item until receipt of all payments arising from the business relationship with the Purchaser. In the event of a breach of contract by the Purchaser, in particular in the event of default in payment, the Seller shall be entitled to take back the purchased item. Taking back the purchased item shall not constitute a withdrawal from the contract unless the Seller expressly declares this. Seizure of the purchased item by the Seller shall always constitute a withdrawal from the contract. After taking back the object of sale, the Seller shall be entitled to realize it; the realization proceeds shall be credited against the liabilities of the Purchaser - less 10% of the net value of the goods.
In the event of seizure or other interventions by third parties, the Purchaser shall immediately notify the Seller in writing so that the Seller can object to the seizure. Insofar as the third party is not in a position to reimburse the Seller for the judicial and extrajudicial costs of a third-party action, the Purchaser shall be liable for the loss.
The Purchaser shall be entitled to resell the object of sale in the ordinary course of business, however, he hereby assigns to the Seller all claims in the amount of the final invoice total (including VAT) 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 Purchaser shall remain authorized to collect this claim even after the assignment. The Seller's authority to collect the claim itself shall remain unaffected. However, the Seller undertakes not to collect the claim as long as the Purchaser meets its payment obligations from the proceeds collected, is not in default of payment, in particular no application for the opening of insolvency proceedings has been filed or payments have not been suspended. In the event of cessation of payments or in the event of an application for the opening of insolvency proceedings, the Seller may demand that the Purchaser discloses the assigned claims and their debtors in detail and provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
If the purchased item is inseparably mixed with other items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the value of the purchased item to the other mixed items at the time of mixing. If mixing takes place in such a way that the Purchaser's item is to be regarded as the main item, it shall be deemed to have been agreed that the Purchaser shall transfer co- ownership to the Seller on a pro rata basis. The Purchaser shall hold the sole and co-ownership thus created in safe custody for the Seller.
The Seller undertakes to release the securities to which it is entitled at the Purchaser's request to the extent that the value of the securities exceeds the claims to be secured by more than 20%; the Seller shall be responsible for selecting the securities to be released.
§ 9 Payment
Unless otherwise agreed, the invoices of the seller are payable 10 days after invoicing without deduction.
The Seller shall be entitled, despite any provisions of the Buyer to the contrary, to set off payments first against the Buyer's older debts and shall inform the Buyer of the nature of the set-off made. If costs and interest have already been incurred, the Seller shall be entitled to set off the payment first against the costs, then against the interest and finally against the main performance.
A payment shall be deemed to have been made only when the Seller can dispose of the amount. In the case of checks, payment is considered made when the amount of the check is credited to the account.
If the Buyer is in default, the Seller shall be entitled, at its discretion, to charge interest at the rate charged by commercial banks for open overdrafts plus the statutory value added tax instead of the statutory interest rate from the relevant date. They shall then be set at a lower rate if the Purchaser proves a lower charge. We reserve the right to claim further damage caused by default.
If the Seller becomes aware of circumstances that call into question the creditworthiness of the Buyer, in particular if the Buyer fails to honor a check or suspends a payment, or if the Seller becomes aware of other circumstances that call into question the creditworthiness of the Buyer, the Seller shall be entitled to call due the entire remaining debt, even if the Seller has accepted checks. In this case, the Seller shall also be entitled to demand advance payments or the provision of security.
§ 10 Data Protection
The parties shall comply with data protection laws – in particular the GDPR (General Data Protection Regulation) and the BDSG (Federal Data Protection Act) – and shall process the personal data of employees provided to them in accordance with the principles of Art. 5 GDPR. The personal data shall be processed exclusively for a specific purpose, in particular for the execution of the contract, and shall subsequently be deleted after the statutory retention periods have expired. The parties shall take all necessary and reasonable technical and organisational measures, in accordance with the state of the art, to ensure the confidentiality, integrity and availability of this data. The transfer of personal data to a non-EU or EEA third country shall only take place in accordance with the safeguards set out in Chapter V of the GDPR.
§ 11 Export Compliance
The Buyer acknowledges that the goods and technology received from the Seller are subject to export and re-export restrictions under the export control and economic sanctions laws and regulations of the United States, the European Union and other countries, which, among other things, prohibit transactions for certain prohibited end users. Buyer warrants that it will comply with all applicable export control regulations and all terms, procedures and documentation requirements issued by Seller from time to time to comply with export control regulations.
§ 12 Corruption Compliance
In connection with any business in which Seller may be engaged or any goods or technology which Buyer may have acquired, Buyer will not, directly or indirectly, pay, offer, authorise, or promise any money or anything of value to any person or entity for the purpose of influencing improperly any act or decision of such person in violation of anti-bribery or anti-corruption laws, including the US FCPA. The Buyer shall take appropriate measures to ensure that all persons representing it or acting under its instructions or control also comply with this section.
§ 13 Packaging
The seller ships the products with packaging and transport packaging that is designed to ensure safe transport to the customer and, at the same time, the sustainable use of materials. In order to reduce packaging and packaging routes, the buyer and seller agree that the buyer shall assume the seller's disposal obligations with regard to transport packaging and, as far as possible, the outer packaging of the products at their own expense.
§ 14 Limitation of liability
Claims for damages by the Buyer due to contractual obligations, culpa in contrahendo and tortious acts, as well as any other legal grounds, are excluded, unless otherwise provided for in these Terms and Conditions.
This exclusion does not apply in the case of the following liability:
a) in the event of culpable injury to life, limb or health
b) in the event of intent
c) in the event of fraudulent intent
d) for damages resulting from a grossly negligent breach of duty by the seller, legal representatives or executives
e) under the Product Liability Act
f) for claims according to §6
g) In the case of claims for breach of material contractual obligations, ‘cardinal obligations’, i.e. obligations that arise from the nature of the contract and whose breach jeopardises the achievement of the purpose of the contract.
However, the claim for damages for the breach of material contractual obligations is limited to the foreseeable damage typical for the contract, unless another of the aforementioned cases applies.
§ 15 Language Version
The terms and conditions are written in several languages. In the event of a contradiction between language versions, the German version shall be binding.
§ 16 Applicable law, place of jurisdiction, partial invalidity
These terms and conditions and the entire legal relationship between seller and buyer shall be governed by the laws of the Federal Republic of Germany, excluding the UN Sales Convention.
The place of performance for both parties, seller and buyer, is the seller's place of business, Emmerich am Rhein, Germany; the place of jurisdiction is Düsseldorf, Germany, where the seller's branch is located.
Should any provision of these terms and conditions or any provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected.