GTC

Subject of Application, Form

1. These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers("Buyer"). The GTCS shall only apply if the Buyer is an entrepreneur (Section 14 German Civil Code - Bürgerliches Gesetzbuch), a legal entity under public law or a special fund under public law.
2. The GTCS apply in particular to agreements for the sale and/or delivery of movable goods ("Goods"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sec. 433, 650 German Civil Code - Bürgerliches Gesetzbuch). Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer's order or in any case in the version last communicated to him in text form shall also apply as a framework agreement for similar future agreements without us having to refer to them again in each individual case.
3. Our GTC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Buyer shall only become part of the agreement if and insofar as we have expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the Buyer refers to his General Terms and Conditions in the context of the order and we do not expressly object to them.
4. Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation shall take precedence over the GTCS. 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.
5. Legally binding notifications and statements by the Buyer in relation to the agreement (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing. Written form within the meaning of these GTCS includes written and text form (e.g. letter, email, fax). Statutory formal requirements and further documentation, in particular in the event of doubts about the legitimacy of the declaring party, shall remain unaffected.
6. Any references to the validity of statutory provisions are for clarification purposes only. Even without such clarification, the statutory provisions shall therefore apply unless they are directly modified or expressly excluded in these GTC.

Conclusion of Agreement

1. Our offers are issued without obligation and are non-binding. This shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which we reserve ownership rights and copyrights.
2. The order of the Goods by the Buyer shall be deemed to be a binding offer. Unless otherwise stated in the order, we are entitled to accept this offer within seven (7) working days of its submission to us.
3. Acceptance can be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer.

Delivery Period and Default of Delivery

1. The delivery period shall be agreed individually or specified by us upon acceptance of the order. Otherwise, the delivery period shall be approximately four (4) weeks from conclusion of the agreement.
2. If we are unable to meet binding delivery period for reasons for which we are not responsible (unavailability of performance), we shall inform the Buyer thereof immediately and notify the Buyer at the same time of the expected new delivery period. If performance is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; in this case we shall immediately reimburse any payments already made by the Buyer. Unavailability of performance exists, for example, in the event of late delivery by our suppliers, if we have concluded a congruent coverage transaction (kongruentes Deckungsgeschäft), in the event of other disruptions in the supply chain, for example due to force majeure or if we are not obliged to procure in individual cases.
3. The occurrence of our default in delivery shall be determined in accordance with the statutory provisions. In any case, however, a notice of default by the Buyer is required.
4. The rights of the Buyer pursuant to Section VIII. of these GTCS 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.

Delivery, Transfer of Risk, Acceptance, Default of Acceptance

1. Delivery shall be carried out from the warehouse, which is also the place of performance for the delivery and any subsequent performance. At the Buyer's request and expense, the Goods will be shipped to another location (sale by shipment - Versendungskauf). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular, transport company, shipping route, packaging) ourselves.
2. The risk of any accidental loss and accidental damage to the Goods shall pass to the Buyer at the latest upon handover. In the case of a sale by shipment (Versendungskauf), however, the risk of accidental loss and accidental damage to the Goods as well as the risk of delay shall pass to the Buyer upon delivery of the Goods to the carrier, freight carrier or other person or institution designated to carry out the shipment. If acceptance has been agreed, this shall be decisive for the transfer of risk. The statutory provisions of the law on contracts for work (Werkvertragsrecht) shall also apply accordingly to any agreed acceptance. If the Buyer is in default of acceptance, this shall be deemed equivalent to handover or acceptance.
3. If the Buyer is in default of acceptance, fails to perform any cooperative action 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). Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; however, the lump sum shall be offset against further claims for money. The Buyer shall be entitled to prove that we have suffered no loss or only a significantly lower loss than the abovementioned lump sum.

Prices and Terms of Payment

1. Unless otherwise agreed in individual contracts, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT.
2. In the case of sale by shipment (Sec. IV para. 1 - Versendungskauf), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any possible customs duties, fees, taxes and other public charges shall be at the expense of the Buyer.
3. The purchase price is due and payable within 30 days from the date of invoice and delivery or acceptance of the Goods. However, we are entitled at any time, even in the context of an established business relationship, to perform a delivery in whole or in part only against prepayment. We shall declare a corresponding provision with the order confirmation at the latest.
4. The Buyer shall be in default upon expiry of the above mentioned payment period. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. Our claim to commercial maturity interest (Sec. 353 German Commercial Code - Handesgesetzbuch) against merchants shall remain unaffected.
5. The Buyer shall only be entitled to rights of set-off or right of retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the Goods delivered, the Buyer's counter-rights shall remain unaffected, in particular pursuant to Section VII para. 6 sentence 2 of these GTCS
6. If it is becoming apparent after conclusion of the agreement (e.g. through a filing of insolvency proceedings) that our claim to the purchase price is compromised by the Buyer's lack of performance, we shall be entitled to refuse performance in accordance with the statutory provisions and - if necessary after setting a deadline - to withdraw from the agreement (Sec. 321 German Civil Code - Bürgerliches Gesetzbuch). In case of agreements for manufacturing non-fungible Goods (custom-made products), we may declare our withdrawal immediately; the statutory provisions on the requirement to set a deadline shall remain unaffected.

Retention of Title

1. We hereby retain title to the sold Goods until full payment of all our current and future claims arising from the purchase agreement and the established business relationship (secured claims).
2. The Goods subject to retention of title may neither be pledged to third parties nor assigned by way of security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application is made to file insolvency proceedings or if third parties have access to the Goods owned by us (e.g. seizures).
3. If the Buyer breaches the contract, in particular, if he fails to pay the purchase price due, 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 the return of the Goods does not simultaneously include the declaration of withdrawal; we are rather entitled to request merely the return of the Goods and to reserve the right to withdraw from the contract. If the Buyer does not pay the purchase price due, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is not necessary according to the statutory provisions.
4. Until revocation in accordance with (c) below, the Buyer is authorized 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.
   1. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our Goods, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with Goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined Goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered under retention of title.
   2. The Buyer hereby assigns to us as security any 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 share in accordance with the above paragraph. We accept the assignment. The obligations of the Buyer mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
   3. The Buyer remains authorized to enforce the claim in addition to us. We undertake not to enforce the claim as long as the Buyer meets his payment obligations to us, there is no lack of his performance and we do not assert the retention of title by exercising a right in accordance with paragraph 3. If this is the case, however, 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. In this case, we are also entitled to revoke the Buyer's authorization to resell and process the Goods subject to retention of title.
   4. If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request.

Warranty Claims of the Buyer

1. The statutory provisions shall apply to the Buyer's rights 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. In all cases, the statutory provisions on the sale of consumer goods (Sec. 474 ff. German Civil Code - Bürgerliches Gesetzbuch) and the rights of the Buyer arising from separately issued guarantees, in particular on the part of the manufacturer, shall remain unaffected.
2. The basis of our liability for defects is above all the agreed quality and intended use of the Goods (including accessories and instructions). All product descriptions and  manufacturer's specifications which are the subject of the individual agreement, or which were made public by us (in particular, in catalogs or on our Internet homepage) at the time of conclusion of the agreement shall be deemed to be a quality agreement (Beschaffenheitsvereinbarung) in this sense. Insofar as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not (Section 434 para. 3 German Civil Code – Bürgerliches Gesetzbuch). Public statements made by the manufacturer or on its behalf, in particular, in advertising or on the label of the Goods, shall take precedence over statements made by other third parties.
3. In principle, we shall not be liable for any defects of which the Buyer is aware or is grossly negligent in not being aware upon conclusion of the agreement (Sec. 442 German Civil Code - Bürgerliches Gesetzbuch). Furthermore, the Buyer's claims for defects require that he has complied with his statutory obligations to examine and notify (Sec. 377, 381 German Commercial Code - Handelsgesetzbuch). In the case of building materials and other Goods intended for installation or other further processing, an inspection must always be carried out immediately before processing. If a defect is discovered during delivery, inspection or at any later point in time, we must be notified immediately in writing. In any case, obvious defects must be reported within three (3) working days from delivery and defects not recognizable during the inspection within the same period from discovery. If the Buyer has failed to properly inspect the Goods and/or report defects, our liability for the defect not being reported or not being reported on time or not being reported properly shall be excluded in accordance with the statutory provisions. In the case of Goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, in particular, the Buyer shall have no claims for reimbursement of corresponding costs ("removal and installation costs/Aus- und Einbaukosten”).
4. If the delivered Goods are defective, we may initially choose whether to provide subsequent performance (Nacherfüllung) by repairing the defect (rectification/Nachbesserung) or by delivering a defect-free item (replacement delivery/Ersatzlieferung). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory prerequisites remains unaffected.
5. We are entitled to render the subsequent performance owed, dependent on the Buyer paying the purchase price due. However, the Buyer is entitled to retain a reasonable part of the purchase price in relation to the defect.
6. The Buyer shall give us the time and opportunity necessary for the subsequent performance required, in particular to hand over the defective Goods for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective Goods to us at our request in accordance with the statutory provisions; however, the Buyer shall not be entitled to return the Goods. Subsequent performance shall not include the dismantling, removal or de-installation of the defective Goods or the installation, attachment or installation of a defect-free object if we were not originally obliged to perform these services; the Buyer's claims for compensation for corresponding costs ("removal and installation costs") shall remain unaffected.
7. We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs as well as any removal and installation costs, in accordance with the statutory provisions and these GTCS, if a defect actually exists. Otherwise, we may demand compensation from the Buyer for the costs resulting from the unjustified request to remedy the defect if the Buyer knew or could have known that there was actually no defect.
8. If a reasonable deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable in accordance with the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.
9. Claims of the Buyer for reimbursement of expenses pursuant to Sec. 445a para. 1 German Civil Code - Bürgerliches Gesetzbuch) are excluded unless the last contract in the supply chain is a consumer Goods purchase (Sec. 478, 474 German Civil Code - Bürgerliches Gesetzbuch) or a consumer contract for the provision of digital products (Sec. 445c sentence 2, 327 para. 5, 327u German Civil Code - Bürgerliches Gesetzbuch). The Buyer's claims for damages or reimbursement of futile expenses (Sec. 284 German Civl Code - Bürgerliches Gesetzbuch) shall only exist in accordance with the following Sections VIII and IX, even if the Goods are defective.

Further Liability

1. Unless otherwise stipulated in these GTCS, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.
2. We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence. In the event of simple negligence,
   we shall only be liable, notwithstanding statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), for
   1. for damages resulting from injury to life, body or health,
   2. for damages arising from the breach of a material contractual obligation (obligation whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies on and is entitled to rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.
3. The limitations of liability resulting from paragraph 2 shall also apply to third parties and to breaches of duty by persons (including in their favor) whose fault we are responsible for in accordance with statutory provisions. They shall not apply if a defect has been fraudulently withheld or a guarantee has been given for the quality of the Goods and for claims of the Buyer under the Act on Liability for Defective Products (Produkthaftungsgesetz).
4. The Buyer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the buyer (in particular in accordance with Sec. 650, 648 German Civil Code - Bürgerliches Gesetzbuch) is excluded. In all other respects, the statutory prerequisites and legal provisions shall apply.

Statute of Limitations

1. Notwithstanding Sec. 438 para. 1 No. 3 German Civil Code - Bürgerliches Gesetzbuch), the general statute of limitations for claims arising from material defects and defects of title is one year from the date of delivery. If acceptance has been agreed, the statute of limitations shall commence upon acceptance.
2. If the Goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the statute of limitations is 5 years from delivery in accordance with the statutory provisions (Section 438 para 1 No. 2 German Civil Code - Bürgerliches Gesetzbuch). Other statutory provisions on the statute of limitations remain unaffected (in particular Sec. 438 para. 1 No. 1, para. 3, Sec. 444, 445b German Civil Code - Bürgerliches Gesetzbuch).
3. The above limitation periods of the law on sales shall also apply to contractual and non-contractual compensation claims of the Buyer which are based on a defect in the Goods, unless the application of the regular statute of limitations (Sec. 195, 199 German Civil Code - Bürgerliches Gesetzbuch) would lead to a shorter statute of limitations in individual cases. The Buyer's claims for damages pursuant to Section VIII para. 2 sentence 1 and sentence 2 a) and pursuant to the Act on Liability for Defective Products (Produkthaftungsgesetz) shall be subject exclusively to the statutory limitation periods.

Applicable Law and Jurisdiction

1. These GTCS and the contractual relationship between us and the Buyer shall be governed by the law of the Federal Republic of Germany to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.
2. If the Buyer is a merchant within the meaning of the German Commercial Code - Handelsgesetzbuch), 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. The same applies if the buyer is an entrepreneur within the meaning of Sec. 14 German Civil Code - Bürgerliches Gesetzbuch). However, in all cases we shall also be entitled to file a lawsuit at the place of performance of the delivery obligation in accordance with these GTCS or an overriding individual agreement or at the Buyer's general place of jurisdiction.
   Prevailing statutory provisions, in particular regarding exclusive jurisdiction, shall remain unaffected.
3. In the event of inconsistencies between the German language version and the English language version or any other foreign language version of the present Agreement as well as in the event of doubt with respect to the content and interpretation of the present Agreement, the German language version shall take precedence and prevail.