Terms and Conditions of Sale
Conditions of Sale (PDF, 228 KB)
Terms and Conditions
of Sale USA (PDF, 301 KB)
§1 - General
(1) All of our deliveries, services and
offers shall be made on the basis of these terms and conditions
notwithstanding the fact that they may not have been expressly
referred to during negotiations. We will not accept any differing
terms and conditions notwithstanding that we may not have expressly
rejected them nor by means of our referring to correspondence with
the contractual partner in which reference is made to the
contractual partner’s terms and conditions. Our terms and conditions
shall also apply to future business relationships in respect of
contracts with tradesmen, legal entities under public law and
special public law funds notwithstanding their not having been
agreed afresh. Our terms and conditions shall be deemed to have been
accepted from no later than the time at which the goods are accepted.
(2) Any conditions of the purchaser which are contrary to or
which deviate from our terms and conditions shall not apply unless
we have expressly consented in writing to their applying.
§2 – Offer
(1) Our sales assistants are
not authorised to make verbal supplemental agreements nor to give
oral assurances that go beyond the scope of the written contract.
All provisions agreed under this contract are recorded within the
written contractual documentation. There shall be no supplemental
(2) Delivery dates are estimates only and
are without obligation unless we have expressly agreed to their
being binding. Statements relating to the goods to be supplied (e.g.
technical data, tolerances, measurements, weight specifications
etc.) and their illustration shall be for descriptive and
identification purposes only and shall not be binding unless express
confirmation in writing is given by us in this respect. We reserve
the right to make technical changes or changes to the design of the
goods to be supplied provided such changes are customary in the
trade and provided they do not compromise the customer to an
unreasonable extent and do not affect the goods’ fitness for use.
(3) Our offers are subject to change until the contract is
(4) We reserve all ownership and copyrights in
design drawings, samples, price quotations and similar business
objects, whether tangible or intangible. They must be treated with
the utmost confidence at all times. They must not be made available
to any third party without our consent. In the event of any breach
of these duties the purchaser shall be liable to us in full in
accordance with legal provisions. Advertising using our name as a
reference and similar promotional activities shall be prohibited
unless our prior approval is sought.
§3 - Prices
(1) Our prices are quoted ex works exclusive of shipment and
exclusive of packaging, both of which will be invoiced separately.
Unloading and storage of the goods are the purchaser’s
responsibility. Value added tax as chargeable at the date of the
invoice will be added to our prices. The cost of any transport
insurance or similar insurance that has been arranged shall be
borne by the purchaser unless otherwise agreed.
delivery may be invoiced separately in the event of deliveries being
made in parts.
(3) If on any given delivery date, which is at
least four months after the date on which the contract was concluded,
any changes should occur to the basis on which prices have been
established (e.g. an increase in the price charged for raw materials,
materials, wages, transportation or storage), we shall reserve the
right to adapt our prices accordingly after informing the purchaser
of this change, whereby the individual cost elements and their
increase shall be given a fair weighting in determining any new
prices. In the event that individual cost elements should increase
whilst others decrease, this shall also be taken into consideration
when determining the new price.
(4) Our prices as applicable
on the date of delivery shall apply in the event that prices are not
agreed at the time the contract is concluded.
- Conditions of Payment
(1) Unless the confirmation
of order (or alternatively the invoice) states otherwise, payment of
the net purchase price shall be due (without deductions) within 10
days from the date of invoice.
(2) We reserve the right to
charge interest on late payments at 9% above the base rate should
the purchaser fall into arrears in respect of payment. We may at all
times provide evidence of a higher rate loss due to interest and may
charge the purchaser accordingly. In the event of any default in
payment we shall be entitled to withdraw any allowances, discounts
or other concessions granted. We shall have the right to demand that
future deliveries be made on condition that payment be made in
(3) Breach of any of the conditions for payment,
default or circumstances which may undermine the purchaser’s
creditworthiness shall result in the immediate acceleration of all
(4) The purchaser shall have no rights of set-off
unless the purchaser’s counterclaims have been established in a
legally binding manner, or, admitted by us or they are undisputed.
(5) The purchaser may exercise a right of retention insofar as
the purchaser’s counterclaim is based on the same contractual
relationship or the counterclaim has been accepted, decided by a
court of law or is pending judgement.
(6) We are not obliged
to accept bills of exchange or cheques. Credit given on either basis
shall in all instances be deemed to be subject to redemption (by
payment, not in lieu of payment); it shall be credited to the
purchase less the discount charged to us on transfer, less stamp
duty and bank charges and also less collection fees where applicable.
(7) We reserve the right to raise other contractual or legal
claims in the event of default.
§5 - Delivery
Period and Barriers to Delivery
(1) The delivery
period shall commence at the time at which the confirmation of order
is dispatched, but no sooner than the purchaser has provided the
relevant documentation, authorisation and clearances required to be
provided, made a down-payment and clarified all technical issues.
(2) The delivery period shall be deemed to have been observed if
the goods to be delivered have left the factory before expiry of the
delivery period, or the purchaser has been notified that the goods
are ready to be dispatched.
(3) In the event on any
unforeseen circumstances which are not of our volition and which we
are unable to avert despite reasonable efforts in the circumstances
- regardless of whether they shall occur on our part or on the part
of a supplier – such as force majeure (war, fire or natural
disasters) of delays in the supply of significant raw materials etc.
– we shall be entitled to rescind the contract in part or in full or
to extend the delivery period for the duration of the hindrance. We
shall be entitled to the same rights in the case of any strike or
lockout on our part or on the part of our suppliers. We will notify
the purchaser without delay of any such circumstances.
Delivery is subject to our receiving the correct and timely supplies
ourselves. The purchaser will be notified of any delays. Should our
suppliers fail to supply us correctly or should they fail to supply
us on time, through no fault of our own, then the delivery period
will be postponed by an appropriate period. Alternatively we may in
this instance elect to rescind the contract in respect of such goods
as have not been delivered. Insofar as permitted under competition
law we will assign to the purchaser any claims we may have against
suppliers in respect of any delivery that has not been made as
agreed under the contract. The purchaser shall not have any other
rights to claim damages or reimbursement of expenses.
the case of any delay in delivery the purchaser shall have a right
to rescind the contract provided that a reasonable period of grace
has passed in which delivery has not occurred; the purchaser shall
be entitled to exercise this right without having granted a period
of grace if it becomes impossible for us to provide the relevant
goods. Without prejudice to clause 6 and §9, neither of which are
intended to reverse the burden of proof, all claims for damages (including
any consequential loss) shall be excluded; the same shall apply in
respect of any claim for reimbursement of expenses. If a fixed deal
has been agreed then we shall be liable in accordance with the
applicable laws; the same applies in the event of a purchaser being
able to assert that its interest in the contract being fulfilled has
fallen away as a result of the delay for which we are responsible.
(6) If shipment of goods is delayed at the purchaser’s behest,
the purchaser will be charged for the cost of storage from a period
commencing one month after the date on which the purchaser was
notified that the goods were ready to be dispatched.
§6 - Passing of Risk
(1) In the event that
the purchaser is obliged to collect the goods, risk shall pass to
the purchaser at the time the goods are singled out and made
available as agreed under the contract. The same shall apply if the
seller is using a carrier to convey the goods to the purchaser, in
which case risk shall pass when the goods are handed to the courier.
If it is the seller’s duty to deliver the goods to the purchaser
then risk shall pass when the goods leave the seller’s factory
premises. The same shall apply in the event of any default in
(2) Without prejudice to the purchaser’s rights
arising from §8 and §9, goods delivered must be accepted by the
purchaser notwithstanding any immaterial defects in the goods.
Delivery in parts shall be permissible provided it is reasonable to
expect the purchaser to accept delivery in parts.
§7 - Retention of Title
(1) We shall reserve
title to all goods delivered until such a time as the purchaser has
paid all current and future debts resulting from the business
relationship. This right of retention of title shall also apply to
spare or replacement parts notwithstanding that such parts may have
been built in already, since this does not mean that they have
become major components within the meaning of §93 of the German
Civil Code (BGB).
(2) We may retract the goods if the
purchaser is in breach of the contract, particularly in relation to
payment default. Such retraction of goods shall not constitute
rescission of the contract unless we have granted a period of grace
which has passed without the purchaser fulfilling its obligation and
we have expressly indicated that we intend to rescind the contract.
Any costs incurred by us in retracting the goods (transportation
costs, in particular) shall be at the purchaser’s expense. We
further have the right to prohibit the purchaser from reselling
goods or from processing goods delivered the title of which we have
retained, and to recall the direct debit mandate (§7V). The
purchaser may not request the delivery of goods that have been
retracted where no express declaration of rescission was made until
such time as the purchase price and all costs have been paid in full.
(3) The purchaser must handle the goods with care (and this
includes an obligation to carry out inspections and maintenance).
(4) The purchaser may not mortgage, give as security or assign
the goods delivered nor make any claims in lieu/a transfer of claims.
In the event of the goods being mortgaged or of any other third
party intervention, the purchaser must notify us in writing without
delay so that we may commence proceedings in accordance with §771 of
the German Code of Civil Procedure (ZPO). The costs of any such
legal action under §771 of German Code of Civil Procedure (ZPO) that
may remain despite our winning the case shall be borne by the
(5) The purchaser may resell, process or combine
the purchased goods in the usual course of business; however, the
purchaser agrees to assign to us all claims resulting from any
resale, processing, merging or any other legal grounds (insurance or
illegitimate acts, in particular) up to the value of the final
amount invoiced (including value-added tax), along with any
ancillary rights. Should any delivered goods continue to be
part-owned by us by virtue of our having retained title to them,
then assignment of any claims shall be in proportion to our share in
the goods’ ownership. Should the delivered goods be sold on jointly
with any third party goods that are not owned by the purchaser then
the resulting claims shall be assigned to us in such a proportion as
equates to the final invoice value of our goods compared with the
final invoice amount of the third party goods. If the assigned
claims are to be included in any running invoice/account? then the
purchaser hereby agrees to assign to us an appropriate proportion of
the balance (including the final balance) from the open account;
should interim invoices be drawn up and should it have been agreed
that the amounts be carried forward then any claim resulting from
the interim invoice to which we may be entitled in accordance with
the aforementioned provision shall be treated as being assigned to
us to be dealt with under the next invoice. The purchaser shall
continue to have a right to enforce any such claim notwithstanding
any assignment, however this shall not affect our right to enforce a
claim ourselves. We agree to not enforce a claim so long as the
purchaser can meet its payment obligations from the proceeds
received and provide the purchaser is not on payment default, no
petition for bankruptcy or liquidation has been filed and payment
has not been suspended. Should this be the case then the purchaser
shall on request provide us with details of any claims that have
been assigned and of who the debtors are, provide all the necessary
details required for collection along with the corresponding
documentation, and inform the (third party) debtor of the assignment.
This shall also apply in the event of the purchaser reselling,
processing or mixing the goods in breach of contract.
right to retention of title extends to all products at full value
resulting from the processing or modification of our goods, whereby
these procedures shall be deemed to be carried out on our behalf so
that we are deemed to be the manufacturer under property law. Should
any third party rights of retention survive in the course of any
processing or modification of our goods on connection with goods of
third parties, the purchaser agrees to grant us joint ownership to
the goods in proportion to the objective value of these goods; in
this case the p also agrees to store the goods for us in a diligent
manner. If goods to which we have retained title are joined with
other moveable goods from a uniform item or are inseparably combined
with other goods, whereby the other goods are deemed to be the
principal goods, the purchaser hereby agrees to assign to us its
right to part ownership in proportion to its ownership of the
principal goods; the p shall store the (part) owned goods for us.
The same shall apply to goods created in this manner as to those
goods delivered the title to which has been retained.
security for our claims the purchaser agrees to assign its claims
against third parties resulting from the combining of the delivered
goods with other property. This assignment shall rank in priority to
any other security.
(8) The security to which we are entitled
shall not be ascertained to the extent that the value of our
security exceeds the nominal value of the claims that are to be
secured by 50%; we shall be free to decide which security has been
(9) The purchaser must ensure that any special
conditions or formalities that are required by any country of
destination of the goods in order for the retention of title to be
valid are fulfilled.
§8 - Liability for Material
Defects and Defects of Title
We shall be liable for
defects in goods delivered as follows, provided the purchaser has
met its obligations to inspect and give notice of defects in
accordance with §377 of the German Commercial Code (HGB) (whereby
any notice of defects must be given in writing):
(1) If goods
are defective we shall have a right to chose whether to rectify the
defect or to deliver non-defective goods (subsequent performance),
provided the defect is not an immaterial defect. We may refuse to
remedy a defect if one or both of these methods of subsequent
performance are impossible or disproportionate. In addition, we may
refuse subsequent performance if the purchaser has not met its
payment obligations to an extent corresponding to the non-defective
portion of the goods.
(2) If subsequent performance as set
out at clause 1 above is impossible or fails, the purchaser shall be
entitled to choose whether to reduce the purchase price or to
rescind the contract in accordance with the applicable laws; it
shall apply in the case of culpable delay or refusal to carry out
subsequent performance, in particular, or where subsequent
performance fails for the second time. All other claims by the
purchaser on whatever legal grounds shall be excluded or limited in
accordance with §9.
(3) We do not accept liability for loss
on the following grounds: inappropriate or improper use, defective
assembly by the purchaser or a third party, fair wear and tear,
defective or negligent handling, inappropriate equipment, defective
construction works, an inappropriate building site, alternative
materials, chemical, electrochemical or electrical influences (unless
these are our responsibility), or improper alterations or repairs by
the purchaser or a third party which have not been authorised by us
(4) The limitation period for claims for defects
shall expire one year after delivery of the purchased goods,
provided the claims are ones for which we have limited liability in
accordance with §8 or §9. In the case of any goods used for a
building in accordance with their usual application and which have
become defective, the limitation period for claims shall expire
after five years. Claims to a reduction in price and to the exercise
of a right of rescission shall be excluded. If the situation set out
in the third sentence of this clause applies, the purchaser may
nevertheless refuse to pay the purchase price insofar as the
purchaser would be entitled to do so as a result of the price
reduction or contractual rescission; we shall be entitled to rescind
the contact in the event of an exclusion of rescission and
subsequent refusal to pay.
(5) Warranties or guarantees shall
not be deemed to have been validly given unless we have given them
expressly in writing.
§ 9 – Rescission by the
Purchaser and Miscellaneous Liability on our part
(1) The purchaser’s legal right of rescission – with the exception
of cases that fall within §8 – shall be neither excluded nor
limited. Likewise it is not intended to exclude or limit any legal
or contractual rights or claims to which we may be entitled.
(2) We shall be liable without limit for intentional harm and gross
negligence (including that of our legal representatives or agents)
and for injury to life, limb or health. We shall also have unlimited
liability in providing guarantees if a defect that is covered by a
guarantee triggers liability. There shall also be no limit to our
liability in relation to offences relating to the creation of a
hazard, particularly in accordance with the German Product Liability
Act (Produkthaftungsgesetz). This shall not affect any liability
under the recourse principles under §478 et seq. of the German Civil
(3) In the case of any other culpable breach of
significant contractual duties (cardinal duties) our remaining
liability shall be limited to foreseeable damage as is usual for
this type of contract.
(4) All other forms of liability shall
be excluded from this contract regardless of their legal grounds, in
particular claims resulting from a breach of any main or ancillary
duties under the contract, illegal acts and any other tortious acts.
(5) The same exclusions, limitations and exceptions shall apply
in respect of claims based on fault at the time the contract was
(6) §9 shall apply analogously in the case of any
reimbursement of expenses (with the exception of any reimbursement
of expenses in accordance with §439 II or §635 II of the German
Civil Code (BGB)).
(7) Any exclusion or limitation of our
liability shall also apply to our legal representatives and agents.
(8) No reversal of the burden of proof is intended. Cardinal
duties are significant duties, i.e. such duties which characterise
the contract and on which the contractual partner can rely; these
are therefore the significant rights and duties which are the
prerequisites for contractual performance and which are
indispensable in order to fulfil the contractual purpose.
§ 10 – Place of performance, Jurisdiction Applicable
Law, Contractual Language and Burden of Proof
The place of performance shall be the place at which the goods are
dispatched (the factory or place of storage).
(2) The place
of jurisdiction shall be our head office provided the purchaser is a
merchant, corporate body governed by public law or a public law fund.
The same shall apply if the purchaser does not have a place of
jurisdiction in Germany, or if the purchaser’s head office has moved
abroad since conclusion of the contract, or the purchaser’s head
office is not known at the time at which the legal action is brought.
We may, if we wish, sue the purchaser in other permissible courts of
(3) This contract shall be governed be the non-harmonised
law of the Federal Republic of Germany (German Civil Code (BGB),
German Commercial code (HGB)). The application of UN sale of goods
law (CISG) and any conflict of laws provisions under the
Introductory Act to the German Civil Code (EGBGB) are expressly
excluded from this contract. The contractual language is English.
(4) None of the provisions agreed in any of the terms and
conditions are intended to alter the legal or common law
distribution of the burden of proof.
§ 11 –
(1) Amendments to this
contract shall not be valid unless agreed with us.
any provision contained in these terms and conditions be invalid or
void in part or in full, this shall not affect the validity of the
remaining provisions. The contractual partners undertake to consent
to a provision that achieves as best as possible the purpose of the
invalid or void provision within the business sphere.
will not use any data regarding the purchaser for any purpose other
than for the conclusion of business in accordance with the
provisions of the relevant applicable data protection provisions.
The purchaser may on written demand request access to any personal
data of the purchaser that has been collected, processed or used.
(4) All terms and provisions are gender-neutral and in all other
respects non-discriminatory within the meaning of the German
Equality Act (AGG).