All our offers, services and deliveries are made exclusively on the basis of these General Terms (hereinafter also referred to as "Terms"). These Terms only apply if Purchaser is an entrepreneur, a legal entity under public law or a special fund under public law.
These Terms shall apply in the version valid at the time of Purchaser's order or, in any case, in the version last notified to Purchaser in text form as a framework agreement also for future orders without our having to refer to them again in each individual case.
These Terms shall apply exclusively. We do not recognize any conflicting or deviating terms and conditions of Purchaser unless we have expressly agreed to their approval in writing in each individual case. This requirement of consent shall apply in any case, for example even if Purchaser refers to his general terms within the scope of the order and we do not expressly object to this. Silence on the part of Purchaser to any different terms and conditions communicated to us does not in any way imply acceptance of his terms and conditions. Our Terms shall therefore also apply, if we carry out the delivery without reservation in the knowledge of conflicting or deviating terms and conditions of Purchaser.
Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation take precedence over these Terms to the extent as provisions deviating from these Terms are made therein.
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.
Legally relevant declarations and notifications of the contracting parties with regard to the order (e.g. conclusion of the contract including amendments, setting of deadlines, notification of defects, withdrawal or reduction) shall be made in writing. Written form within the meaning of these Terms includes e-mail and fax. Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
References to applicable statutory provisions shall only have a clarifying significance. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these Terms.
Our offers, in particular in our online store, are subject to change. The order of the goods by the Purchaser shall be deemed to be a binding offer of contract to us. A contract with us shall not be concluded until we have accepted or confirmed an order of the Purchaser explicitly. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within 14 days of its receipt by us.
For orders in our Online Store, the following applies in addition:
Purchaser may place articles in the “shopping cart” using the button provided. purchaser may select the “shopping cart” via the corresponding button in the navigation bar and make changes to it at any time. After selecting the “checkout” and filling in the personal data as well as the payment and shipping methods, Purchaser is finally shown the order details as an order overview. Before submitting the order, Purchaser has the option of checking the details in the order overview again, changing them or canceling the order. By sending the order via the corresponding button and paying the purchase price, Purchaser submits an offer to us to conclude the purchase contract. However, the offer can only be submitted and transmitted if Purchaser accepts these Terms by selecting the “Accept Terms and Conditions” button, whereby these Terms become part of Purchaser's application. This shall also apply if Purchaser has accepted these Terms before.
After having received the offer, we will send to Purchaser an automatic confirmation of receipt of his offer by e-mail, in which the order details are summarized again. This automatic confirmation documents that we have received the purchaser's order and does not constitute any acceptance of the offer. A contract with us is not concluded before we have given an explicit declaration of acceptance of the offer, which we send in a separate e-mail (order confirmation). The order confirmation shall in any case require payment of the purchase price.
In case we should send to Purchaser an order confirmation that deviates from his order, this shall be deemed to be a new application on our side. In this case, the contract shall be concluded on these terms and conditions unless Purchaser immediately objects to the order confirmation.
The processing of the order and transmission of all information required in connection with the conclusion of the contract is carried out by e-mail, partly automatically. Purchaser shall therefore ensure that the e-mail address he has registered with us is correct, that the receipt of e-mails is technically ensured and, in particular, that it is not prevented by SPAM filters.
Our prices are quoted FCA (Incoterms®) at our loading ramp at our warehouse in Moers, Germany, net in Euro plus transport packaging and VAT applicable at the time of delivery.
All customs duties, fees including bank and payment fees, taxes and other public charges, transport costs as well as transport insurance shall be borne by Purchaser unless otherwise agreed by the parties. If increases in public duties and/or transport costs occur in the period between conclusion of the contract and delivery, the Purchaser shall bear these increases even if we have assumed these duties and costs, unless we are responsible for such increases. If we undertake the transport ourselves, internal reasons and circumstances of us do not justify such increases.
In case of cross-border sales, Purchaser shall be obliged to provide us immediately with his valid VAT identification number (VAT ID no./VAT). Purchaser declares that the purchase is made for his company. If Purchaser provides us not or not with the correct VAT number, or if he misuses the VAT number, we will charge the prices gross.
Purchaser has the payment options shown in our Online Store or in the respective offer of us. If Purchaser uses an instant payment system (e.g. PayPal / PayPal Express, Amazon-Payments, instant bank transfer) for orders in our Online Store as a payment method, he will either be redirected to the order overview page in our Online Store or to the website of the provider of the instant payment system. If Purchaser is redirected to the respective instant payment system, Purchaser may enter his data there. Finally, Purchaser is shown the order data as an order overview on the website of the provider of the instant payment system or after being redirected back to our Online Store.
In the case of contracts for which delivery is expected until a period of more than 2 months after conclusion of the contract, we reserve the right to adjust the purchase price accordingly, if in the period between conclusion of the contract and fulfilment of the contract cost increases occur due to reasons and circumstances external to us as a result of increases in raw material prices and delivery costs. We will prove these cost increases to Purchaser upon request. Internal reasons and circumstances of us do not entitle to price adjustments. We will send to Purchaser an adjusted invoice. Purchaser is obliged to pay us the difference resulting from the price increase without delay. Price increases do not entitle Purchaser to withdraw from the contract unless the price increase leads to an increase in the purchase price of more than 50%.
Unless otherwise agreed, orders are only due for immediate payment against advance payment. We only grant discounts if we have expressly agreed this in advance.
(Specified) delivery periods and dates are non-binding unless they have been expressly agreed as binding. Compliance with our delivery obligation requires the timely and proper fulfilment of Purchaser's obligation, in particular to perform cooperative acts of any kind, such as the provision of the necessary customs quotas. If Purchaser does not fulfil such obligations, the delivery period shall be extended accordingly. This shall not apply, if we are responsible for the delay.
We shall be deemed to have complied with a delivery period, if we have notified Purchaser that the goods are ready for collection by the end of the delivery period. If shipment of the goods has been agreed, the handover to the carrier shall be decisive for compliance with the delivery period.
If we are unable to meet delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform Purchaser of this without delay and at the same time inform him of the expected new delivery period. For the duration of this non-availability of performance, we shall be released from the obligation to meet any delivery deadlines and the delivery period shall be extended accordingly by this period in this case. Cases of non-availability of performance in this sense shall include in particular, without limitation, (i) failure of our suppliers to deliver to us on time, provided we have concluded a congruent hedging transaction, (ii) other disruptions in the supply chain, for example due to force majeure or other natural events, and (iii) operational disruptions, strike, lockout or disruption of transportation routes, terror, official orders, epidemics, pandemics, social or economic lockdown, restrictions on exports, contact blocks or comparable events, provided that such obstacles according to (i) to (iii) are demonstrably of considerable influence on the delivery of the sold goods. This shall also apply, if these obstacles occur at our suppliers and their sub-suppliers. If the performance 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 refund any consideration already paid by Purchaser.
With regard to timely delivery, we shall only be liable for our own fault and that of our vicarious agents. We shall not be liable for the fault of our suppliers, as they are not our vicarious agents. In particular, we shall not be liable for late or non-delivery by our suppliers and shall not be obliged to procure replacements, if we have concluded a congruent hedging transaction and we are not responsible for late or non-delivery by our suppliers. However, we are obliged to assign to Purchaser, at the Purchaser's request, any claims to which we may be entitled against our suppliers.
The Purchaser may only withdraw from the contract due to our delayed delivery, if we are in default with our performance and the delay is not only insignificant.
Otherwise, any delay in performance shall be determined in accordance with the statutory provisions. Delay in performance shall require in any case a reminder by Purchaser.
Place of performance for all obligations arising from the contractual relationship at our registered office in Moers, Germany, unless otherwise agreed (s. sec. III.1.).
The risk of accidental loss and accidental deterioration of the goods shall pass to Purchaser when the goods are handed over to Purchaser (whereby the start of the loading process shall be decisive) or, in the case of sale to destination, to the forwarding agent, carrier or other transport person designated to carry out the shipment, including our own employees. This shall also apply, if partial deliveries are made or if we have also assumed responsibility for shipment.
In the case of a sale to destination we are free to choose the type of shipment and the means of transport, if Purchaser does not give any explicit instructions. Transport insurance shall only be taken out by us on the explicit instruction and at the expense of Purchaser.
If shipment or handover is delayed due to circumstances caused by Purchaser, the risk shall pass to Purchaser from the day on which the goods are ready for shipment / hand over and we have notified Purchaser of this. Storage costs after the transfer of risk shall be borne by Purchaser. We are entitled to demand a lump-sum compensation for storage costs in the amount of net EUR 250,00 per calendar day, beginning with the default of acceptance. Purchaser shall be entitled to prove that we have incurred no damage or only significantly less damage than the aforementioned lump sum.
If Purchaser is in default of acceptance of the goods, we shall be entitled to sell the goods ourselves for the account of Purchaser. In this case, we may also commission a neutral and expert broker with the brokerage of the goods in a private sale.
We retain title to the goods delivered until all present and future claims arising from the business relationship with Purchaser have been settled (secured claims). In the case of a current account, the retained title shall be deemed to be security for the respective balance claim from the account.
The Purchaser is obliged to store the goods with retained title properly and to treat them with care, in particular to insure them adequately at replacement value against fire, water, breakage, theft and other damage at his own expense.
The Purchaser may neither pledge the delivered goods nor assign them as security before full payment of the secured claims. The Purchaser must inform us immediately if an application is made to open insolvency proceedings against him or if third parties (e.g. seizures) have access to the goods with retained title.
In the event of any breach of contract by Purchaser, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract and/or to demand the return of the goods on the basis of the retention of title. The demand for return of the goods does not at the same time include the declaration of withdrawal mandatory; we are rather entitled to demand only the return of the goods and to reserve the right of withdrawal. If Purchaser does not pay the purchase price due, we may only assert these rights, if we have set Purchaser a reasonable deadline for payment without success or if setting such a deadline is dispensable by mandatory law.
We shall release the goods subject to retention of title and the goods or claims replacing them at the request of Purchaser, if their value exceeds the amount of the secured claims by more than 10%. The selection of the goods to be released thereafter shall be at our discretion.
Until revoked by us, Purchaser is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. If the goods subject to retention of title are processed by Purchaser, we shall be deemed to be the manufacturer. We shall acquire direct ownership or - if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods - co-ownership of the newly created good in the ratio of the value of the retained good to the value of the newly created good. In the event that we do not acquire such ownership, Purchaser hereby assigns to us by way of security his future ownership or - in the above ratio - co-ownership of the newly created good. If the goods subject to retention of title are inseparably mixed or blended with other goods not belonging to us to form a uniform good, we shall acquire co-ownership of the new good in the ratio of the value of the retained goods delivered by us to the other mixed good at the time of mixing. Purchaser hereby assigns to us by way of security his claims against third parties arising from the resale of the goods or the product in total or in the amount of our possible co-ownership. The same shall apply to other claims which substitute the goods subject to retention of title or which otherwise arise in respect of the goods subject to retention of title, such as insurance claims or claims in tort in the event of loss or destruction. Purchaser remains revocably authorized to collect the claims alongside us. We undertake not to collect the claim as long as Purchaser meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right in accordance with this para. 6. If we do so, however, we may demand that Purchaser 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 Purchaser's authority to further sell and process the goods subject to retention of title.
The statutory provisions shall apply to the rights of the purchaser 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. The statutory provisions on the sale of consumer goods (sec. 474 et sqq BGB (German Civil Code)) and the rights of Purchaser from separately issued guarantees, in particular on the part of the manufacturer, remain unaffected.
Only our own description, in particular in our Online Store and the manufacturer's product description, but not other advertising, public promotions and statements by the manufacturer, shall be deemed to be an agreement on the quality of the good. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether or not a defect exists (sec 434 (3) BGB (German Civil Code)).
The Purchaser shall inspect carefully the goods upon handover, in the case of sale to destination or handover at Purchaser’s destination/warehouse, immediately, if possible before unloading, in any case after delivery to the Purchaser or to the third party designated by him. The delivered goods shall be deemed to have been approved by Purchaser with regard to obvious defects or other defects which would have been recognizable in the course of an immediate, careful inspection, if we do not receive notice of defects immediately after handover or delivery. The notice of defect must contain a detailed description of the defect. If the goods have not been unloaded at the time of the notice of defect, we may demand that they be inspected before unloading. With regard to other defects, the goods shall be deemed to have been approved by Purchaser, if the notice of defect is not received by us immediately after the time at which the defect became apparent; however, if the defect was already recognizable to Purchaser at an earlier time during normal use, this earlier time shall be decisive for the start of the period for giving notice of defect. If the Purchaser fails to properly inspect the goods and/or notify us of a defect, our liability for the defect not being notified or not being notified in time or not being notified properly shall be excluded, unless we have fraudulently concealed the defect.
For goods which have a defect, the cause of which already existed at the time of the transfer of risk - which must always be proven by Purchaser - we shall, at our discretion, carry out a repair or subsequent delivery. For this purpose, Purchaser shall give us the necessary time and opportunity after prior consultation.
Goods which are the subject of a complaint must be returned to us carriage paid at our request. In the event of a justified complaint, we shall reimburse the costs of shipment; this shall not apply insofar as the delivery costs increase because the goods are located at a place other than the place of intended use.
Claims for defects shall be excluded in the case of insignificant deviations from the agreed quality, in the case of insignificant impairment of usability, in the case of damage occurring after the transfer of risk as a result of faulty or negligent handling or as a result of external influences which are not assumed under the contract.
We are entitled to make partial deliveries to a reasonable extent. In this case, partial deliveries do not constitute a defect.
In the event of defects of title, the provisions on defects of quality above shall apply accordingly. If a third party asserts justified claims against Purchaser due to the infringement of industrial property rights by deliveries made by us and used in accordance with the contract, we shall only be liable insofar as Purchaser immediately notifies us of the claims asserted by the third party, does not acknowledge an infringement and all defensive measures and settlement negotiations are reserved for us. Claims of Purchaser due to the infringement of property rights of third parties are excluded insofar as he is responsible for the infringement of property rights or this is caused by special specifications of Purchaser, by a use not foreseeable by us or by the fact that the goods are changed by Purchaser or used in a manner not in accordance with the contract.
Unless otherwise stipulated in these Terms, 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.
We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in the event of intent and gross negligence. In the case of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only for
a. damages resulting from injury to life, body or health,
b. damages arising from the breach of a material contractual obligation (obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.
The limitations of liability resulting from para. 2 shall also apply to third parties as well as in the case of breaches of duty by persons (also in their favor) whose fault we are responsible for according to statutory provisions. They do 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 Purchaser under the German Product Liability Act.
In the event of liability for simple negligence, our liability to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EUR 10 million per case of damage (corresponding to the current sum insured under our product liability insurance or third party liability insurance). This shall also apply in case of a breach of material contractual obligations.
Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives or vicarious agents.
Purchaser may only withdraw from or terminate the contract due to a breach of duty which does not consist of a defect, if we are responsible for the breach of duty. A free right of termination on the part of Purchaser is excluded.
Purchaser's claims for defects shall become time-barred 12 months after transfer of risk. This period shall also apply to contractual and non-contractual claims for damages of Purchaser which are based on a defect of the goods. Insofar as we have assumed a guarantee for the quality of the goods, in the case of fraudulent concealment of a defect, in cases of injury to life, limb or health and in the case of intentional or grossly negligent breaches of duty, statutory periods shall apply.
Purchaser acknowledges that all products, software, technology, and technical data (collectively “Articles”) ordered from us might be subject to various economic sanctions and export control laws, in particular, but not limited to, Regulation (EU) No 833/2014 Annexes XI, XX, XXXV, XL, and Regulation EU 258/2012. These laws may prohibit the sale, shipment, or transfer of Articles directly or indirectly to sanctioned all Russian and Belarussian parties. These laws may apply even after the initial sale and shipment of the Articles, and despite the transfer of legal title in the Articles.
To that end Purchaser will not directly or indirectly export, re-export, rent, sell, ship, or otherwise transfer any of the Articles to or through any countries, territories, parties, or facilities or for use in such countries, territories, parties, or facilities, subject to embargos, economic sanctions, or other restrictive trade measures enforced by Canada, the European Union, the United Kingdom, or the United States without first obtaining required government authorizations. For the avoidance of doubt, this includes, but is not limited to, any parties appearing on the following restricted party lists:
• The Consolidated Canadian Autonomous Sanctions List;
• The European Union’s Consolidated Sanctions List;
• The United Kingdom’s List of Consolidated Financial Sanctions Targets;
• The U.S. Commerce Department Denied Parties List, Entity List, and Unverified List; and
• The economic sanctions lists administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”).
Purchaser further confirms that the Articles will not be used for military purposes, including for the development of ballistic missiles or nuclear, chemical, or biological weapons. Nor will Purchaser sell, ship, or otherwise transfer the Articles to a military end-user or any parties that are at least 50 percent owned by OFAC-sanctioned entities, whether individually or in the aggregate.
Purchaser will undertake its best efforts to ensure that the purpose of the obligations above is not frustrated by any third parties further down the commercial chain, including by possible resellers. In particular Purchaser will not directly or indirectly export, re-export, rent, sell, ship, or otherwise transfer any of the Articles to a third parties unless this third party agrees not to directly or indirectly export, re-export, rent, sell, ship, or otherwise transfer any of the Articles to a third party in sanctioned country or for use in a sanctioned country (in particular to Russia / Belarus or for use in Russia / Belarus).
Purchaser shall set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of the obligations above.
Purchaser shall immediately inform us of any indications that Articles sold by us have been or will be sold, supplied, transferred or exported, in whole or on part, directly or indirectly, to sanctioned countries, in particular Russia / Belarus or for use in Russia / Belarus.
Any violation of the obligations under this certification shall constitute a material breach of an essential obligation of the purchaser against us. We shall be entitled to seek appropriate remedies, including, but not limited to (i) termination of any agreement on Articles, (ii) adequate compensation, (iii) indemnification from and against all liabilities, claims etc. resulting from customers failure to comply with its obligations under this certification.
The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship - including disputes arising from documents, bills of exchange and cheques - shall be the district of district court Duisburg, Germany. However, we shall also be entitled to assert claims against Purchaser before the court in whose jurisdiction Purchaser's place of business is located. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
The contractual relationship, including these Terms, shall be governed by German Law, excluding United Nations Convention on Contracts for the International Sale of Goods (CISG).
Should any provision of these Terms be or become, either in whole or in part, void, ineffective or unenforceable, then the validity, effectiveness and enforceability of the other provisions of these Terms shall remain unaffected thereby. Any such invalid, ineffective or unenforceable provision shall, to the extent permitted by law, be deemed replaced by such valid, effective and enforceable provision as most closely reflects the economic intent and purpose of the invalid, ineffective or unenforceable provision regarding its subject-matter, scale, time, place and scope of application. The aforesaid rule shall apply mutatis mutandis to fill any gap that may be found to exist in these Terms. It is the express intent of the parties to the contract that this para. 3. shall not merely result in a reversal of a burden of proof but that sec. 139 BGB (German Civil Code) is hereby contracted out in its entirety.
Status June 2024
