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All deliveries of goods and services, now and in the future, are subject exclusively to our terms and
conditions that follow, even if we do not expressly refer to them in the future. Deviating terms and
conditions not expressly recognised by us in writing are not binding for us.

Section 1 Scope of validity, application

(1) All our deliveries, services and/or offers are performed exclusively by us on the basis of these General Terms and Conditions. These are part of all contracts that we conclude with customers. They also apply to all future deliveries, services and/or offers, even if these are not agreed again separately. They apply regardless of whether we perform all the services required for fulfilment of the contract ourselves or have these performed by suppliers or sub-contractors.

(2) Other terms and conditions of business shall not apply, even if we do not specifically object to their validity on a case-by-case basis, unless their validity is expressly agreed in writing. This written consent is required in all cases, for example even if we acknowledge the customer's General Terms and Conditions and supply the goods without reservation.

(3) Any deviating agreements made on a case-by-case basis must be explicitly agreed and must be in writing. These type of agreements take precedence over these General Terms and Conditions.

(4) These General Terms and Conditions shall not apply in relation to consumers.

(5) References to the validity of legal provisions are made for clarification purposes only. Even if clarification is not provided, legal provisions shall apply unless directly amended or expressly excluded in these General Terms and Conditions.

 

Section 2 Contract conclusion

 (1) Our offers are subject to change and are non-binding unless they have been explicitly declared binding or include a specific period of acceptance. Details on the subject of the contract (e.g. weight, dimensions or other technical data), including but not limited to those in our documents (such as figures, drawings or catalogues), are only approximate unless expressly declared as binding or use for the purpose intended by the contract requires exact agreement. They do not constitute a quality agreement. Deviations that are customary in trade are subject to change.

(2) The ordering of goods on the part of the customer constitutes a binding contractual offer. Unless otherwise agreed in the order, we are entitled to accept this contractual order within 14 days following receipt of the offer.

(3) Acceptance of the order can either be provided in writing (e.g. by means of an order confirmation) or by delivering the goods to the customer.

(4) The supplier retains all ownership of and copyrights to cost proposals, drawings and other documentation. This documentation must not be published or made available to third parties without our explicit written consent. At our request, this documentation must be immediately returned to us provided this is not opposed by any statutory retention periods.

 

Section 3 Scope of services

(1) The content of our order confirmation is decisive for the scope of the performance we owe.  Any additional extra or special performance shall be remunerated separately.

(2) If we do not create an order confirmation for an offer, the content of our offer shall be decisive.

(3) The place of performance and place of any subsequent performance is the site of our warehouse unless otherwise expressly agreed in writing on a case-by-case basis. Where we have agreed to also perform installation work, the place of performance is the installation site.

 

Section 4 Prices, terms and conditions of payment and due date

(1) Agreed prices are prices in Euro excluding the statutory value added tax. Any customs duties, fees, taxes or other public duties are borne by the customer.

(2) These prices include the costs of packaging and cargo shipping within Germany, or more specifically as far as the German border or a German port. This shall not apply to deliveries of goods with a value of up to EUR 500.00; packaging and shipping shall be calculated in addition.

(3) Unless otherwise agreed in writing upon conclusion of the contract, the purchase price shall be due and shall be payable without deduction within 14 days of the invoice being issued and the goods being delivered or accepted. The time of payment shall be deemed the time at which we receive it. However, we are entitled at any time, also within an ongoing business relationship, to perform a delivery in whole or in part only after advance payment, provided the customer was informed of this no later than upon confirmation of the order.

(4) Where the customer fails to provide performance by the due date, interest of 5% shall be paid on any outstanding amounts as of the due date. The right to claim further losses or higher interest rates is reserved.

(5) Bills of exchange and cheques shall only be accepted following special explicit agreement and on account of performance free of costs and fees for us.

 

Section 5 Delivery

(1) Delivery times specified by us are generally non-binding unless a fixed delivery period or a fixed delivery time has been expressly agreed.

(2) Any agreement on performance or delivery deadlines/periods must be made in writing. Any such agreement shall always be subject to the condition precedent that the customer provides any and all required documents, approvals and materials and that no other circumstances for which the customer is responsible delays or prevents execution of the delivery. 

(3) Where a delivery period or a delivery deadline has been agreed, these refer to the time of handover to the third party commissioned with transportation or, if collection by the customer or a third party commissioned by them has been agreed, these refer to the time at which notification of readiness for delivery is provided.

(4) In the event that we are unable to adhere to the binding delivery deadlines for reasons that cannot be attributed to us (delivery not available), we shall inform the customer without delay and, at the same time, provide a new expected delivery date. If the delivery is then not available by the new delivery date, we are entitled to withdraw either fully or partially from the contract. In this case, we shall reimburse any payments already received from the buyer without delay. Here, the unavailability of the delivery applies particularly if our supplier does not provide the delivery on time when we have concluded a matching cover transaction, if neither us nor our supplier is responsible for the delay, or if we are not obliged to procure goods on a case-by-case basis.

(5) A delay in delivery by us is determined in accordance with the legal provisions. However, the customer must issue a written reminder in every case.

(6) We are also entitled to fulfil delivery and performance obligations in the form of partial deliveries or partial performance provided the partial delivery is useful for the customer, the partial delivery does not significantly delay the delivery as a whole and provided it does not incur any substantial additional expenses for the customer.

(7) We are entitled without restriction to assign sub-contractors to fulfil contractual performance. The use of sub-contractors does not need to be approved by or notified to the client. The selection of the sub-contractor is solely at the contractor's discretion.

(8) If it becomes apparent after conclusion of the contract, that our claim to the purchase price may be put at risk by the customer's inability to pay (e.g. a request to open insolvency proceedings), we are entitled to refuse delivery in accordance with the relevant legal provisions and withdraw from the contract, if necessary after setting a deadline. For contracts regarding the production of specific items (custom-made items), we can declare our withdrawal from the contract immediately; the legal regulations regarding the dispensability of a deadline remain unaffected.

(9) If the delivery is delayed because the customer defaults on acceptance or fails to provide necessary cooperation, or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damages, including for additional expenditure such as storage costs. For this, we calculate a flat-rate fee of 0.5% of the invoice amount per month, starting with the month after the agreed date of shipping or, if such a date has not been agreed, after notification of readiness for shipping . The right to assert claims for higher losses is reserved and the flat rate calculated based on such losses. The customer is free to prove that no losses, or only minor losses, have occurred as a result of the delay.

(10) We are liable for compensation in accordance with Section 10 if we are in arrears with the delivery or if delivery is not possible.

(11) The other rights of the customer and our statutory rights, particularly concerning the exclusion of liability (e.g. if the performance and/or subsequent performance cannot or cannot reasonably be provided), shall remain unaffected.

 

Section 6 Transfer of risk

(1) The risk of accidental damage to or deterioration of the goods is transferred to the customer when the goods are handed over to the forwarder, carrier or any other third party charged with the task of performing shipment. This shall likewise apply if partial deliveries are made or other services such as shipping or installation have been undertaken. In each case, the risk is transferred to the customer at the latest upon handover to the latter.

(2) Where no other explicitly concluded agreements have been made, we shall determine the method of transport and the transport company at our discretion. In this case, shipping is performed in state-of-the-art packaging complying with the industry standard. Transport insurance will only be taken out and special packaging used only at the express request and at the expense of the customer.

(3) The risk of accidental damage to or deterioration of the goods is transferred to the customer at the latest when the goods are handed over.

(4) If acceptance is to take place, this is used as the point of transfer of risk. In other respects, the legal provisions of the German law on contracts for work and services [Werkvertragsrecht] shall apply to the agreed acceptance process.

 

Section 7 Retention of title

(1) Until all our current and future receivables from the purchase contract and any ongoing business relationship (secured receivables) have been paid in full, we retain the right to ownership of the goods sold.

(2) The goods to which the retention of titles are reserved must not be pledged to third parties or assigned as security until the receivables have been paid in full. The customer must inform us in writing without delay if an application is filed for the opening of insolvency proceedings, or if third parties access goods belonging to us (e.g. seizures).

(3) If the customer violates the terms of the contract, in particular if the customer fails to pay the purchase price due, we are entitled, after an appropriate period has elapsed, to request for goods to be returned due to the reservation of title. The request for goods to be returned does not represent our withdrawal from the contract; rather, we are entitled to request that the goods be returned while retaining the right to withdraw.

(4) As part of the ordinary course of business, the customer is authorised, up until withdrawal from the contract in accordance with (c), to sell and/or process goods for which there is retention of title. In this event, the following supplementary provisions shall apply.

(a) The retention of title shall extend to the full value of the outcome of any processing of our goods or if these goods are combined or connected in any way. We are considered to be the manufacturer. Should our goods be processed, combined or connected to a third party's goods, where the third party's right of ownership exists, we shall apply for co-ownership in proportion with the invoice value of the reprocessed, combined or connected goods. Furthermore, the same provisions shall apply to these outcomes as to the goods delivered with retention of title.

(b) As collateral, the customer shall assign to us all receivables from third parties resulting from the further sale of goods or outcomes either in total or in proportion with our share of the co-ownership in accordance with the preceding paragraph. We accept the above assignment. The customer's obligations listed under para. 2 shall continue to apply for assigned receivables.

(c) The customer remains authorised to collect the receivables in addition to us. We undertake not to collect receivables provided the customer fulfils their payment obligations to us, there are no problems regarding their ability to pay and we do not exercise the retention of title by asserting a right in accordance with para. 3. However, should any of these circumstances arise, we may demand that the customer informs us of the assigned receivables and their debtors, provides all the information required for the collection of receivables, hands out the relevant documentation and informs the debtors (third parties) of the assignment. In this case, we are furthermore entitled to withdraw the customer's authorisation to further onward sales and processing of the goods under the retention of title.

(d) If the realisable value of collateral exceeds our receivables by more than 10%, we shall release collateral of our choice at the customer's request.

 

Section 8 Warranty

(1) In the event of material defects and defects of title (including incorrect or incomplete deliveries, faulty assembly, or inaccurate assembly instructions), legal provisions shall apply with regard to the customer's rights unless otherwise agreed in the following. The special legal provisions concerning the final delivery of goods to the consumer shall remain unaffected in all cases.

(2) General details on the product specification or service specifications should not be understood to be a quality agreement or a guarantee of quality or durability unless otherwise agreed with us in writing on a case-by-case basis. The customer shall not receive warranties from us in a legal sense unless an agreement designated as a "warranty" is expressly agreed. Manufacturer warranties from third parties shall remain unaffected.

(3) Should the customer request subsequent performance, we can, at our discretion, provide this through rectification or replacement delivery. Our right to refuse subsequent performance in accordance with legal requirements remains unaffected.

(4) The delivered items must be inspected carefully by the customer immediately after delivery. If a defect is detected during or after the inspection, the customer must notify us in writing without delay, generally by providing notification within two weeks. Irrespective of this obligation to inspect and give notice of defects, the customer must send written notification of any visible defects (including any incorrect or incomplete deliveries) within two weeks of delivery, whereby notification is still valid if dispatched within this time period. Should the customer fail to correctly inspect the goods or provide notification of defects, our liability shall be excluded for defects which have not been notified.

(5) If the rectification of defects is rendered impossible or unreasonable by the customer changing the delivered items or having them changed by a third party without our consent, there shall be no claim to warranty. If as a result of a non-approved change, additional costs are incurred for the rectification of defects, but this is still possible and reasonable, these additional costs are to be borne by the customer.

(6) We are entitled to make the necessary subsequent performance dependent upon the customer paying the owed purchase price. However, the customer is entitled to withhold a portion of the purchase price in accordance with the extent of the defect.

(7) In the event of a breach of a contractual obligation that is not related to a defect, the customer can only withdraw from or terminate the contract if we are responsible for this breach.

(8) The customer must give us time and occasion to provide subsequent performance and must hand over the goods in question for inspection. In the event that a replacement delivery is provided, the customer must return the defective goods to us in accordance with legal provisions. If we were not originally contracted to install the goods, any subsequent performance shall not include the dismantling of the defective goods or the installation of the new goods.

(9) If, in agreement with the customer, the delivery of used goods has been agreed, there shall be no claim by the customer to the assertion of rights with regards to warranties for defects.

 

Section 9 Limitation period for warranty rights

Notwithstanding Section 438(1) No. 3 German Civil Code, the limitation period for warranty claims is one year from delivery of the goods or, if acceptance is required, from acceptance. This shall also apply to the customer's contractual and non-contractual claims to compensation related to defective goods unless the application of the ordinary legal limitation period (Sections 195 and 199 German Civil Code) leads to a shorter limitation period on a case-by-case basis.

(2) Claims as defined in Section 438(1) No. 2 German Civil Code resulting from the guarantee of a specific condition, fraudulent concealment of a defect, intentional or grossly negligent causation or loss of life, physical injury or damage to health, as well as claims asserted in accordance with the German Product Liability Act shall, however, only expire after the statutory limitation periods.

 

Section 10 Extent of liability

(1) Unless specified otherwise below, our liability for compensation is irrespective of the type of breach of a contractual obligation and includes any unlawful actions limited to grossly negligent behaviour or intent.

(2) In the event of a breach of essential contractual obligations, we are liable for any negligence, but only up to the amount of any foreseeable, typically occurring losses according to the type of order upon conclusion of the contract. Any claims to loss of profits, expenses saved, claims for compensation asserted by third parties and any other direct losses or subsequent losses cannot be asserted unless a quality feature guaranteed by us is intended to protect the customer from such losses . Essential contractual obligations include the obligation for timely delivery and installation of the delivery item, its freedom from defects of title and from such material defects which significantly influence its functionality or usability, as well as obligations to provide advice, offer protection and to exercise proper care which are intended to enable the customer to use the delivery item in accordance with the contract or which serve to protect the customer's property from significant damage.

(3) Where we provide technical information, recommendations and advice, and these services are not part of the contractually agreed services, these shall be exempt from any liability.

(4) Any and all limitations and exclusions of liability shall not apply to claims arising due to malicious behaviour. Furthermore, these limitations and exclusions of liability shall not apply to features guaranteed by us or to claims under the German Product Liability Act, or to any claims arising from loss of life, physical injury or damage to health.

(5) As far as our liability is excluded or limited, this shall also extend to the personal liability of our employees, staff members, (legal or contractual) representatives as well as sub-contractors and vicarious agents.

 

Section 11 Property rights

If deliveries take place in accordance with drawings or other details provided by the customer and this violates

third-party property rights, the customer shall release us vis-à-vis third parties from all costs and obligations.

 

Section 12 Miscellaneous provisions

(1) The exclusive and international place of jurisdiction for complaints against us is Iserlohn, Germany. We are free to choose whether to file a claim against the customer at another location. This shall not apply if the legal regulations stipulate a different, exclusive place of jurisdiction.

(2) Any assignment of claims against us is only permitted after prior written consent.

(3) The offsetting of claims by us is only permitted if the customer's counter claims have been established as legally binding, are undisputed or recognised by us.

(4) The customer shall only have a right of retention if their counter claim originates from the same contractual relationship.

(5) Legal declarations and notices that the customer is required to submit to us following the conclusion of the contract (e.g. deadlines, notices of defects, declarations of withdrawal or reduction) shall only be effective in written form.

(6) Should any individual provisions of the contract with the customer, including these General Terms and Conditions, be or become completely or partially ineffective, or if a loophole arises, the effectiveness of the remaining provisions shall remain unaffected. In place of the ineffective contractual provision, or in order to eliminate the loophole, a legally valid replacement provision shall apply that reflects or comes closest to that which the parties intended in the contract or the General Terms and Conditions, the economic meaning and the purpose of the cancelled provision.

(7) Any changes or additions to these General Terms and Conditions and/or to any other contractual relationship requires the written form; the same shall apply to any waiver of the written form.

 

 

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