General terms and conditions of sale

1 Scope, form

1) These General Terms and Conditions of Sale (GTS) apply to all our business relations with our customers (“Buyer”). The GTS shall only apply if the Buyer is a business (§ 14 German Civil Code, BGB), a legal entity under public law or a special fund under public law. Our GTS apply worldwide.

(2) The GTS apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”). Unless otherwise agreed, the GTS in the version valid at the time of the Buyer’s order or, in any case, in the version most recently communicated to him 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.

(3) Our GTS apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of Business of the Buyer shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in the knowledge of the Buyer’s General Terms and Conditions.

(4) Individual agreements made with the Buyer in individual cases (including collateral agreements, supplements and amendments) shall in any case take precedence over these GTS. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

(5) Legally relevant declarations and notifications of the Buyer in relation to the contract (e.g. setting of a deadline, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or 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 person making the declaration, remain unaffected.

(6) References to the validity of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these GTS.

2 Conclusion of contract

(1) Our offers are subject to change and non-binding. This also applies if we have provided the buyer with catalogues or other product descriptions or documents – also in electronic form – to which we reserve ownership and copyright.

(2) The order of the goods by the Buyer shall be deemed a binding offer to enter into a contract. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.

(3) Acceptance can either be declared in writing (e.g. by order confirmation) or by delivery of the goods to the Buyer.

3 Delivery period and delay in delivery

(1) The delivery period shall be agreed individually or specified by us when the order is accepted. If this is not the case, the delivery period shall be approx. two weeks from conclusion of the contract.

(2) If we cannot meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the purchaser of this immediately and at the same time inform him of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any consideration already provided by the buyer. In particular, the non-availability of the service in this sense is deemed to be the non-timely delivery by our supplier, if we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in individual cases.

(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the buyer is required. If we are in default of delivery, the buyer can demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each completed calendar week of the delay, but in total not more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer did not suffer any damage at all or only a considerably lower damage than the above lump sum.

(4) The rights of the buyer in accordance with § 9 of these GTS 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.

4 Delivery, transfer of risk, acceptance, default of acceptance

(1) Delivery shall be ex warehouse, which shall also be the place of performance for the delivery and any subsequent performance. At the request and expense of the Buyer, the goods shall be shipped to another destination (sale to destination). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer at the latest upon delivery. In the case of mail order purchases, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall already pass to the buyer upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. The handing over of the goods shall be deemed to be the same if the buyer is in default of acceptance.

(3) If the buyer is in default of acceptance, if he omits an act of cooperation or if our delivery is delayed for other reasons for which the buyer is responsible, we shall be entitled to demand compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a flat-rate compensation of 0.25% of the net price (delivery value) of the goods per calendar day of delay, but not exceeding a total of 5% of the delivery value or 10% in the event of final non-acceptance, starting with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for dispatch.

(4) The proof of higher damages and our legal claims (in particular compensation for additional expenses, appropriate compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have incurred no damage at all or only a significantly lower damage than the above lump sum.

5 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, namely ex warehouse, plus statutory value-added tax where applicable.

(2) In the case of sale by delivery to a place other than the place of performance (§ 4 para. 1), the Buyer shall bear the actual transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes and other public charges shall be borne by the buyer.

(3) The purchase price is due and payable upon receipt of the invoice and delivery of the goods. 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 declare a corresponding reservation at the latest with the order confirmation.

(4) Upon expiry of the above payment period, the buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. Our claim to the commercial due date interest (§ 353 German Commercial Code, HGB) against merchants remains unaffected.

(5) The buyer shall only be entitled to set-off or retention rights insofar as his claim has been legally established or is undisputed. The Buyer’s counter rights, in particular in accordance with § 7 Para. 6 Sentence 2 of these GTS, shall remain unaffected.

(6) If it becomes apparent after conclusion of the contract (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is endangered by the Buyer’s lack of ability to pay, we shall be entitled to withdraw from the contract in accordance with the statutory provisions on refusal to perform and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB); the statutory provisions on the dispensability of setting a deadline shall remain unaffected.

6 Retention of title

(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).

(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The buyer must inform us immediately in writing if an application is made for the opening of insolvency proceedings or if third parties seize the goods belonging to us (e.g. attachments).

(3) If the buyer acts in breach of contract, in particular if he fails to pay the due purchase price, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the goods and reserve the right to withdraw from the contract. If the buyer does not pay the due purchase price, we may only assert these rights if we have previously set the buyer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

(4) The buyer is obliged to treat the object of sale with care; in particular, he is obliged to insure it sufficiently at his own expense against fire, water and theft damage at replacement value. If maintenance and inspection work is necessary, the buyer must carry this out in good time at his own expense.

(5) Until revocation according to (c) below, the buyer 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 buyer hereby assigns to us as security all claims against third parties arising from the resale of the goods or product, either in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
b) In addition to us, the buyer remains authorised to collect the claim. We undertake not to collect the claim as long as the buyer fulfils his payment obligations to us, there is no lack of his ability to pay and we do not assert the reservation of title by exercising a right according to paragraph 3. However, if this is the case, we can demand that the buyer 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. Furthermore, in this case we are entitled to revoke the buyer’s authority to further sell and process the goods subject to retention of title.
c) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the request of the buyer.

7 Claims for defects by the buyer

(1) The legal regulations apply to the rights of the buyer in the event of material defects and defects of title (including wrong and short delivery), unless otherwise specified below. In all cases, the statutory special provisions shall remain unaffected in the case of final delivery of the unprocessed goods to a consumer, even if the consumer has processed them further (supplier recourse according to §§ 478 German Civil Code, BGB). Claims from supplier recourse are excluded if the defective goods have been further processed by the buyer or another entrepreneur, e.g. by installation in another product.

(2) The basis of our liability for defects is above all the agreement reached on the quality of the goods. All product descriptions and manufacturer’s details which are the subject of the individual contract or which were made public by us (in particular in catalogues or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on the quality of the goods.

(3) Insofar as the quality has not been agreed, the statutory regulation shall apply to assess whether or not a defect exists (§ 434 (1) p. 2 and 3 German Civil Code, BGB). However, we do not assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) which the buyer has not pointed out to us as being decisive for his purchase.

(4) We are generally not liable for defects that the buyer was aware of at the time of conclusion of the contract or was not aware of due to gross negligence (§ 442 German Civil Code, BGB). Furthermore, the buyer’s claims for defects presuppose that he has fulfilled his statutory obligations to examine and give notice of defects (§§ 377, 381 German Commercial Code, HGB). In the case of goods intended for installation or other further processing, an inspection must in any case take place immediately before processing. If a defect is discovered during delivery, inspection or at any later time, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects not detectable during inspection within the same period from the time of their detection. If the buyer fails to carry out the proper inspection and/or report defects, our liability for the defect not reported or not reported in time or not properly is excluded according to the statutory provisions.

(5) If the delivered item is defective, we may initially choose whether we provide subsequent performance by eliminating the defect (rectification of defects) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions remains unaffected.

(6) We are entitled to make the subsequent performance owed dependent on the buyer paying the purchase price due. However, the Buyer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.

(7) The buyer shall give us the time and opportunity necessary for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the buyer shall return the defective item to us in accordance with the statutory provisions.

(8) We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer for the costs incurred as a result of the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defect was not recognisable to the Buyer.

(9) If the supplementary performance has failed or a reasonable period of time to be set by the buyer for the supplementary performance has expired without success or is dispensable according to the statutory provisions, the buyer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.

(10) The buyer’s claims for damages or compensation for futile expenses shall exist only in

8 Compliance with sanctions and embargo regulations

(1) The Buyer is not permitted to sell, deliver, transfer, export and or otherwise transfer (e.g. gift or donation) the goods directly or indirectly to natural persons or entities or for use in countries or territories, insofar as and as long as the sale, delivery, transfer, export and/or transfer in any other way is opposed by commercial, trade and/or financial sanctions or embargoes of the United Nations, the European Union, the United States of America and/or the Federal Republic of Germany. This shall not apply insofar as European or German legal provisions conflict with this.

(2) Furthermore, the Buyer is not permitted to sell, deliver, transfer, export or otherwise transfer (e.g. gift or donation) the goods to a third party who does not undertake to comply with the provisions of paragraph 1.

(3) A breach of paragraph 1 or 2 constitutes a material breach of contract and entitles us to cancel the contract immediately. We expressly reserve the right to claim compensation. The Buyer shall be liable for all breaches of its contractual and/or business partners, if and to the extent that we become liable to pay damage from the breach of the provision of paragraph 1 by the Buyer’s contractual and/or business partners.

9 Other liability

(1) Insofar as nothing to the contrary results from these GTS 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.

(2) We shall be liable for damages – irrespective of the legal grounds – within the scope of liability for culpability in the case of intent and gross negligence. In the case of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; minor breach of duty), for

a) for damages resulting from injury to life, body or health
b) for damages resulting from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to the compensation of the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the Buyer under the Product Liability Act.

(4) Due to a breach of duty which does not consist of a defect, the buyer may only withdraw or terminate the contract if we are responsible for the breach of duty. In all other respects, the statutory requirements and legal consequences shall apply.

10 Limitation period

(1) Notwithstanding § 438 (1) No. 3 German Civil Code, BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery.

(2) The aforementioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 German Civil Code, BGB) would lead to a shorter limitation period in individual cases. Claims for damages of the buyer according to § 9 para. 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act shall become statute-barred exclusively according to the statutory limitation periods.

11 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these GTS and the contractual relationship between us and the Buyer to the exclusion of international uniform law, in particular the UN Sales Convention.

(2) If the Buyer is a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hamburg, Germany. The same applies if the buyer is an entrepreneur within the meaning of § 14 German Civil Code, BGB. In all cases, however, we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTS or a prior individual agreement or at the general place of jurisdiction of the buyer. Priority statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.

Status: September 2024