Terms and Conditions

§1 General scope

(1) These Terms of Sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 (1) of the German Civil Code (BGB). We only recognise conditions of the Buyer that conflict with or deviate from our Terms of Sale if we expressly agree to their validity in writing.

(2) Orders only become binding upon the Supplier’s order confirmation. Amendments and additions should be made in text form. All offers are subject to change unless they are designated as firm offers.

(3) In the case of ongoing business relationships, these Terms also apply to future transactions in which they are not expressly referred to, provided that the Buyer received them with an order previously confirmed by the Supplier.

(4) The Buyer’s terms and conditions do not apply unless they are expressly recognised by the Supplier.

(5) Should individual provisions be or become invalid, the remaining conditions shall not be affected.

§2 Prices and terms of payment

(1) Unless otherwise stated in the order confirmation, our prices apply ex works, including packaging, excluding shipping, freight, customs duties and ancillary import charges, plus VAT at the statutory rate. Dead freight and additional costs for urgent and express goods are borne by the Buyer. For new orders (= follow-up orders), the Supplier is not bound by previous prices. All payments are to be made in € (EURO) exclusively to the Supplier.

(2) Unless otherwise agreed, the purchase price is payable within 14 days of delivery. The deduction of a cash discount requires a special written agreement. The statutory rules concerning the occurrence and the consequences of default in payment apply.

(3) The Buyer is only entitled to rights of set-off if its counterclaims have been legally established, are undisputed or have been recognised by us. In addition, the Buyer is entitled to exercise a right of retention only insofar as its counterclaim is based on the same contractual relationship.

(4) Persistent non-compliance with the terms of payment, or circumstances that give rise to serious doubts about the Buyer’s creditworthiness, result in all of the Supplier’s claims becoming due immediately. In this case, the Supplier is furthermore entitled to demand advance payments for outstanding deliveries and, after a reasonable deadline has expired without success, to withdraw from the contract.

§3 Obligation to deliver and to accept delivery

(1) An agreed delivery date is stated on the order confirmation. However, the delivery period only begins once all details of execution have been fully clarified and any agreed down payment has been received. It begins anew if the Buyer initiates changes to the order, and then in accordance with the confirmation of the change.

(2) If an agreed delivery period is not met due to the Supplier’s own fault, the Buyer is entitled, provided the Supplier has not acted with gross negligence or intent and to the exclusion of further claims, to demand compensation for delay or to withdraw from the contract after a reasonable grace period has expired. Compensation for delay is limited to a maximum of 5% of that part of the delivery that was not made in accordance with the contract. Withdrawal is excluded if the Buyer is itself in default of acceptance. Further statutory claims and rights of the Buyer remain unaffected.

(3) Reasonable partial deliveries and reasonable deviations from the ordered quantities of up to plus/minus 10% are permitted.

(4) In the case of call-off orders without agreement on term, production lot sizes and acceptance dates, the Supplier may demand a binding determination of these no later than 6 months after the order confirmation. If the Buyer does not comply with this demand within three weeks, the Supplier is entitled to set a grace period of two weeks and, after its expiry, to withdraw from the contract and/or claim damages. Unless otherwise agreed, the maximum term is 12 months after the order confirmation.

(5) If the Buyer fails to fulfil its obligations to accept delivery, the Supplier, without prejudice to other rights, is not bound by the provisions on self-help sale but may instead sell the delivery item privately after giving prior notice to the Buyer.

(6) Events of force majeure entitle the Supplier to postpone delivery for the duration of the hindrance plus a reasonable start-up period, or to withdraw from the contract in whole or in part with respect to the part not yet fulfilled. Shortages of raw materials and energy, strikes, lockouts or unforeseeable, unavoidable circumstances, e.g. operational disruptions, which make timely delivery impossible for the Supplier despite reasonable efforts, are equivalent to force majeure; the Supplier must provide evidence of this. This also applies if the aforementioned hindrances occur during a delay or at a sub-supplier. The Buyer may request the Supplier to declare within two weeks whether it intends to withdraw or to deliver within a reasonable grace period. If the Supplier makes no declaration, the Buyer may withdraw from the unfulfilled part of the contract. The Supplier will notify the Buyer without delay if a case of force majeure as set out in paragraph 1 occurs. It must keep any adverse effects on the Buyer as low as possible.

§4 Packaging, shipping, transfer of risk and default of acceptance

(1) Unless otherwise agreed, the Supplier chooses the packaging, shipping method and shipping route.

(2) Shipping is carried out at the Buyer’s expense and risk. Even in the case of carriage-paid delivery, the risk passes to the Buyer when the goods leave the supplying plant. In the event of delays in dispatch for which the Buyer is responsible, the risk passes as soon as notice of readiness for dispatch is given.

(3) At the Buyer’s written request, the goods will be insured at the Buyer’s expense against risks to be specified by the Buyer.

§5 Retention of title

(1) We retain title to the delivered item until all claims arising from the supply contract have been paid in full. This also applies to all future deliveries, even if we do not always expressly refer to it. We are entitled to take back the purchased item if the Buyer acts in breach of contract.

(2) As long as ownership has not yet passed to the Buyer, the Buyer is obliged to treat the purchased item with care. If maintenance and inspection work is required, the Buyer must carry it out in good time at its own expense. As long as ownership has not yet passed, the Buyer must notify us in writing without delay if the delivered item is seized or subjected to other interventions by third parties. Insofar as the third party is unable to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 of the German Code of Civil Procedure (ZPO), the Buyer is liable for the loss incurred by us.

(3) The Buyer is entitled to resell the reserved goods in the ordinary course of business. The Buyer hereby assigns to us the claims against its customer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including VAT). This assignment applies regardless of whether the purchased item has been resold without or after processing. The Buyer remains authorised to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we will not collect the claim as long as the Buyer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended.

(4) Any processing or transformation of the purchased item by the Buyer is always carried out in our name and on our behalf. In this case, the Buyer’s expectant right to the purchased item continues in the transformed item. If the purchased item is processed with other items not belonging to us, we acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the Buyer’s item is to be regarded as the main item, it is deemed agreed that the Buyer transfers proportionate co-ownership to us and holds the sole ownership or co-ownership thus created in safekeeping for us. To secure our claims against the Buyer, the Buyer also assigns to us such claims as accrue to it against a third party through the combination of the reserved goods with a property; we hereby accept this assignment.

(5) We undertake to release the securities to which we are entitled at the Buyer’s request insofar as their value exceeds the claims to be secured by more than 20 %.

§6 Warranty and notice of defects as well as recourse/manufacturer’s recourse

(1) The Buyer’s warranty rights presuppose that the Buyer has duly complied with its obligations to inspect the goods and give notice of defects under § 377 of the German Commercial Code (HGB).

(2) Claims for defects become time-barred 12 months after the goods supplied by us have been delivered to our Buyer. The statutory limitation period applies to claims for damages in cases of intent and gross negligence and in cases of injury to life, body and health based on an intentional or negligent breach of duty by the user of these terms. Insofar as the law mandatorily prescribes longer periods pursuant to § 438 (1) no. 2 BGB, § 445 b BGB and § 634a (1) BGB, these periods apply. Our consent must be obtained before any return of the goods.

(3) If, despite all care taken, the delivered goods have a defect that already existed at the time of the transfer of risk, we will, subject to timely notice of defects, at our discretion either repair the goods or deliver replacement goods. We must always be given the opportunity for subsequent performance within a reasonable period. Recourse claims remain unaffected by the above provision without restriction.

(4) If subsequent performance fails, the Buyer may – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.

(5) Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, only insignificant impairment of usability, natural wear and tear, or damage arising after the transfer of risk as a result of faulty or negligent handling, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground or special external influences not assumed under the contract. If the Buyer or third parties carry out improper repair work or modifications, there are likewise no claims for defects for these and the resulting consequences. The quality and finish of newly developed products, or of existing products in a customised material version, are determined by the initial samples which the Supplier submits to the Buyer for inspection on request. The reference to technical standards serves to describe the performance and is not to be interpreted as a guarantee of quality. The printed reproduction in the catalogue or other offers may differ from the original for technical reasons. Slight deviations in quantity, dimensions, weight, colouring etc. must remain reserved.

(6) Claims by the Buyer for expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded insofar as the expenses increase because the goods supplied by us have subsequently been taken to a location other than the Buyer’s place of business, unless such relocation corresponds to their intended use.

(7) Recourse claims of the Buyer against us exist only insofar as the Buyer has not made any agreements with its customer that go beyond the statutory mandatory claims for defects. Paragraph 6 also applies accordingly to the scope of the Buyer’s recourse claim against the Supplier.

§7 General limitations of liability

In all cases in which the Supplier, deviating from the above conditions, is obliged to pay damages or reimburse expenses on the basis of contractual or statutory grounds, it is only liable insofar as it, its executive employees or vicarious agents are guilty of intent, gross negligence, or injury to life, body or health. Strict liability under the German Product Liability Act (Produkthaftungsgesetz) and liability for the fulfilment of a quality guarantee remain unaffected. Liability for the culpable breach of material contractual obligations also remains unaffected; in this respect, however, except in the cases of sentence 1, liability is limited to the foreseeable damage typical of the contract. The above provisions do not entail a change in the burden of proof to the detriment of the Buyer.

§8 Moulds and fixtures, documents provided

(1) Injection moulds, thermoforming moulds and other fixtures that are made by the Supplier itself or by a third party on its behalf are, in view of the Supplier’s design engineering work, in principle its property, unless otherwise agreed.

(2) The Supplier is not obliged to accept follow-up orders.

(3) In the case of mould cost contributions, the Buyer undertakes to pay the remaining amount if the agreed quantity is not taken by the Buyer.

(4) For moulds and fixtures, 50% is generally payable net, without deduction of cash discount, upon receipt of the initial samples. Deviations from this are only possible by written agreement.

(5) We reserve property rights and copyrights to all documents provided to the Buyer in connection with the placing of the order, such as calculations, drawings etc. These documents may not be made accessible to third parties unless we give the Buyer our express written consent. If we do not accept the Buyer’s offer within the period of two weeks, these documents must be returned to us without delay.

§9 Industrial property rights and defects of title

(1) The Supplier holds the copyrights and, where applicable, industrial property rights, in particular all rights of use and exploitation, to the models, moulds and fixtures, designs and drawings created by it or by third parties on its behalf.

(2) The Buyer will respect these rights pursuant to item 1, will not make or have made any replicas of the goods and will not use the goods to produce samples.

(3) For each case of violation of the obligation pursuant to item 2, the Buyer will pay the Supplier a contractual penalty amounting to 50 times the respective invoice amount of the delivery of goods, but at least EUR 6,000.00 (in words: six thousand euros). The assumption of a continuing connection is excluded.

(4) Drawings and samples provided to the Supplier that did not lead to an order will be returned on request; otherwise the Supplier is entitled to destroy them three months after submitting the offer. This obligation applies accordingly to the Buyer.

(5) If the Supplier is to deliver according to drawings, models, samples or using parts provided by the Buyer, the Buyer guarantees that this does not infringe the property rights of third parties in the country of destination of the goods. The Supplier will inform the Buyer of rights known to it. The Buyer must indemnify the Supplier against claims by third parties and compensate for the damage incurred. If the Supplier is prohibited by a third party from manufacturing or delivering on the basis of a property right belonging to that third party, the Supplier is entitled – without examining the legal situation – to stop work until the legal situation has been clarified by the Buyer and the third party. Should continuation of the order no longer be reasonable for the Supplier due to the delay, the Supplier is entitled to withdraw.

(6) If other defects of title exist, §6 applies accordingly to these.

§10 Miscellaneous, place of performance, place of jurisdiction

(1) This contract and all legal relations between the parties are governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).

(2) The place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation. The Supplier is free to sue the Buyer at the Buyer’s general place of jurisdiction.

(3) All agreements made between the parties for the purpose of executing this contract are set out in writing in this contract.