1. Scope of application
1.1 These General Delivery Terms and Conditions shall apply to all business relationships with our customers. They shall be applicable only if the customer is a businessman as defined in Section 14 of the German Civil Code (BGB).
1.2 Our General Delivery Terms and Conditions shall apply to the exclusion of any other terms and conditions. Contrary or deviating conditions of the customer shall not be accepted by us, unless we have given our explicit written consent to their applicability. Our Delivery Terms and Conditions shall also apply if we carry out the delivery to the customer without reservation despite being aware of contrary or deviating terms and conditions of the customer.
2. Offer and offer documentation
2.1 Unless explicitly otherwise provided for, our offers shall always be subject to change and non-binding.
2.2 We reserve title to and copyrights in illustrations, drawings, calculations, data and data carriers. The customer may use such documents exclusively for the intended purpose. Any disclosure to third parties shall be subject to our explicit consent.
2.3 Drawings, illustrations, dimensions, weights or other performance data shall be binding only to the extent that their usability for the contractually intended purpose requires precise conformity. Such details have to be regarded as mere product description only rather than as warranted characteristics. Customary deviations and deviations based on legal requirements or constituting technical improvements as well as the replacement of components by equivalent parts shall be admissible to the extent that the usability for the purpose contractually agreed upon is not impaired.
3. Prices and payment
3.1 Unless otherwise provided for in the order confirmation, our prices for the delivery of goods are ex warehouse plus packaging, statutory VAT, freight and customs duties as well as other expenses and charges.
3.2 Unless explicitly otherwise agreed upon, invoice amounts shall become due for payment without any deduction one week after delivery. If the customer fails to pay by the due date, any outstanding amounts shall be subject to interest at a rate of 5 % as from the due date; the right to assert higher interest amounts and additional dam-ages in case of a delay shall remain unaffected.
3.3 The customer shall be entitled to make set-offs only if the counterclaims are undisputed or have been established with legal effect.
4. Delivery and delivery term
4.1 The commencement of the delivery term indicated by us shall be subject to the clarification of any and all technical and organisational issues.
4.2 Unless a fixed term or fixed deadline has explicitly been promised or agreed upon, any terms and deadlines must be regarded as approximate periods or dates. If shipping has been agreed upon, delivery terms and delivery dates shall refer to the date of transfer to the freight forwarder, carrier or other third party entrusted with transport services.
4.3 The compliance with our delivery obligations shall be subject to the prompt and proper fulfilment of the obligations owed by the customer. Without prejudice to our rights resulting from a default on the part of the customer, we shall be entitled to request an extension of delivery periods or a postponement of delivery dates by any period of time in which the customer has failed to comply with its contractual obligations towards us.
4.4 We shall not be liable to the extent that delivery is impossible or delayed due to force majeure or other events which could not be foreseen at the time of contract conclusion (e.g. operational interruptions of any kind, measures taken by public authorities or improper or delayed deliveries on the part of our sub-suppliers) and for which we are not responsible. As far as such events have a significant impact on our delivery or even make it impossible to deliver and these impediments are not of a mere temporary nature, we shall be entitled to rescind the contract. In the event of impediments of a temporary nature, delivery terms and deadlines shall be extended or postponed by the period of the impediments plus an appropriate start-up period. If, due to the delay, the acceptance of the delivery has become unreasonable for the customer, the latter may rescind the contract by giving us immediate written notice to this effect.
4.5 If we are in delay with our delivery or become unable to deliver, our liability shall be limited to damages according to clause 9 of these General Delivery Terms and Conditions.
5. Place of performance, transfer of risk
5.1 Place of performance for all obligations arising from the contractual relationship shall be Münster, unless otherwise provided for.
5.2 The risk shall pass over to the customer no later than at the time when the delivery item is handed over to the freight forwarder, carrier or other third party entrusted with the shipment.
6. Title reservation
6.1 The title reservation provided for hereinafter serves to secure any and all current and future claims we are entitled to assert against the customer within the framework of the delivery relationship existing with the latter (inclusive of balance claims arising from a current account relationship exclusively relating to this delivery relationship).
6.2 The goods delivered to the customer shall remain our property until all secured claims have been completely settled. The supplied goods as well as the goods which are subject to retention of title and take their place according to the following provisions shall hereinafter be referred to as “Reserved Goods”.
6.3 The customer shall hold the Reserved Goods in custody for us without charge.
6.4 The customer shall be entitled to process and sell the Reserved Goods within the ordinary course of business until the occurrence of an enforcement event (clause 6.9) Pledges or security assignments shall be inadmissible.
6.5 In the event that the Reserved Goods are processed by the customer, such processing shall be done on our behalf and for our account and we, as manufacturer within the meaning of Section 950 of the German Civil Code (BGB), shall acquire ownership or – whenever materials belonging to more than one owner are processed or the value of the processed item exceeds the value of the Reserved Goods - co-ownership (fractional ownership) of the newly created item in the proportion existing between the value of the Reserved Goods and the value of the newly created item. For the case that such acquisition of ownership does not take place, the customer already now assigns to us for security purposes its future title or - in the aforementioned proportion - its co-title to the newly created item.
6.6 In the event of a resale of the Reserved Goods, the customer already now assigns to us for security purposes the claim arising from such resale against the purchaser, which shall in case of a co-title to the Reserved Goods take place in proportion to the co-ownership share. The same shall apply to other claims taking the place of the Reserved Goods or otherwise arising with respect to the Reserved Goods, such as e.g. insurance claims or claims arising from tort in case of loss or destruction. We irrevocably authorise the customer to collect the claims assigned to us in the customer’s own name. This collection authorisation may be revoked by us in the event of enforcement only.
6.7 If third parties attempt to seize the Reserved Goods, especially by way of attachment, the customer shall immediately draw such parties’ attention to our ownership and give us notice of this event in order to enable us to enforce our ownership rights. In the event that the third party is unable to refund court and out-of-court costs incurred by us in this context, the customer shall be liable to this extent.
6.8 We shall release the Reserved Goods or the items or claims taking their place if their value exceeds the amount of the secured claims by more than 50 %. The selection of the items to be released in this case shall be at our discretion.
6.9. If the customer acts contrary to the contract, particularly in case of a default in payment, we shall be entitled to request the surrender of the delivered goods (enforcement event). The taking-back of the goods shall not imply a withdrawal from the contract, unless we explicitly state to rescind the contract.
7. Liability for defects, inspection duty
7.1 The period of limitation for claims and rights based on defects of the supplied goods shall amount to one year after delivery. By way of derogation, the statutory period of limitation shall be applicable if a defect has been fraudulently concealed by us. Likewise, claims for damages resulting from the injury of life, body or health or from intentional or grossly negligent breaches of duty on our part shall become time-barred pursuant to statutory regulations.
7.2 The supplied items have to be carefully inspected immediately after their delivery. In case of apparent or other defects able to be detected in the course of an immediate careful inspection, the goods shall be deemed to have been accepted by the customer, unless we receive a written notice of defects within one week after delivery. In the event of other defects, the delivered items shall be deemed to have been accepted by the customer, unless we receive a notice of defects within one week after the time when the defect became apparent; in the event, however, that the defect would have had been able to be detected by the Purchaser during normal use at an earlier point of time already, such earlier point of time shall be decisive for the commencement of the complaint period. We may request that an objected delivery item is returned to us free of freight charges. In the event of a justified claim for defects, we shall refund the costs for the most economic means of transport; this shall, however, not apply if costs increase because the delivery item is located at another place that the place of the intended use.
7.3 In the event of material defects of the supplied items we shall initially be obliged and entitled to cure the defect or replace the goods according to our choice to be made within a reasonable period of time. In case of failure, that means if the subsequent improvement or replacement is impossible, unreasonable, refused or unduly delayed, the customer may withdraw from the contract or reduce the purchase price appropriately.
7.4 If a defect is due to a fault on our part, the customer may - subject to the provisions set forth in clause 9 of these General Delivery Terms and Conditions (“Liability for damages based on fault”) - claim damages.
7.5 A liability for defects shall not exist if the customer alters or modifies the delivery item or has it altered or modified by third parties without having obtained our consent thereto and the elimination of defects becomes impossible or unreasonable for this reason. Any additional costs for an elimination of defects arisen due to alterations or modifications by the customer shall in any case be borne by the latter.
8. Property rights
8.1 Each party shall give the other party immediate notice if it is confronted with claims by third parties due to an infringement of industrial property rights or copy-rights.
8.2 In the event that the delivery item infringes an industrial property right of copyright held by a third party, we shall - at our choice and expense - modify or replace the delivery item in a way that rights of third parties are no longer infringed and the delivery item nevertheless continues to fulfil the functions contractually agreed upon or, as an alternative, provide the customer with a right of use by executing a licence contract with the third party. If we fail to find a solution within a reasonable period of time, the customer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages on the part of the customer shall be subject to the restrictions set forth in clause 9 of these General Delivery Terms and Conditions.
8.3 In the event of legal infringements caused by goods produced by other manufacturers and delivered by us, we shal - at our choice - assert our claims against these manufacturers and sub-suppliers for the account of the customer or assign such claims to the latter. In these cases, claims against us according to clause 8.2 shall be admissible only if the attempt of a judicial enforcement of the aforementioned claims against the manufacturers and sub-suppliers failed to be successful or - for instance due to insolvency - has no prospect of success.
9. Liability for damages based on fault
9.1 Our liability for damages - for whatever reason, particularly due to impossibility of performance, delay, defective or wrong delivery, breach of contract, infringement of duties during contract negotiations and tort - shall to the extent that it is in each instance based on fault be subject to the restriction provided for in this clause 9.
9.2 We shall not be liable in case of simple negligence of our bodies, legal representatives, employees or other persons employed in the performance of our obligations, unless essential contractual duties have been violated. Essential contractual obligations shall consist of the obligation to supply the delivery item in due time, to deliver such item free from legal defects and free from those material defects which impair its functional capability or suitability for use more than insignificantly, as well as of consulting and protection obligations and duties of custody and care aiming at enabling the customer to use the delivery item as provided for in the contract or aiming at the protection of life and limb of the customer’s staff or the protection of the customer’s property against major damage.
9.3 To the extent that we are liable for damages on the merits according to clause 9.2, such liability shall be limited to the loss or damage that was at the time of contract conclusion foreseen by us as possible consequence of an infringement or ought to have been foreseen by us when applying due care and diligence. Moreover, an indirect loss or damage or a consequential damage resulting from defects of the delivery item shall be subject to compensation only to the extent that such loss or damage may typically be expected when using the delivery item in conformity with its intended purpose.
9.4 In the event of a liability for simple negligence, our compensation duty shall in case of damage to property and financial losses resulting therefrom be limited to EUR 5 million per claim, even if essential contract obligations have been infringed.
9.5 The preceding liability exclusions and restrictions shall to the same extent apply to the benefit of our bodies, legal representatives, employees and other persons employed in the performance of our obligations.
9.6 To the extent that we render technical information or become active in an advisory capacity and such information or consultations do not form a part of the contractually agreed scope of services owed by us, such information or advice shall be given without charge and under exclusion of any liability.
9.7 The restrictions set forth in this clause 9 shall not apply to a liability on our part due to intentional behaviour, to warranted characteristics, to our liability due to injury to life, body or health or according to the product liability act.
10. Final provisions
10.1 If the customer is a businessman or does not have a general place of jurisdiction in the Federal Republic of Germany, Münster shall be the place of jurisdiction for any and all disputes arising from the business relationship between the customer and ourselves. We shall, however, also be entitled to sue the customer at the place of the latter’s registered office. Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected by this provision.
10.2 The relationship between the customer and ourselves shall exclusively be subject to the law of the Federal Republic of Germany under exclusion of international private law. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) shall not apply.
10.3 If there are any loopholes in the contract or in these General Delivery Terms and Conditions, such gaps shall be regarded as filled by such legally effective provisions the contract parties would have had agreed upon in line with the economic goals of the contract and the purpose of these General Delivery Terms and Conditions had they been aware of such loophole.
(State: September 2020)