Terms and Conditions

(3) The occurrence of a delay in delivery on our part shall be determined in accordance with the statutory provisions. In any case, however, a reminder from the customer is required. We reserve the right to prove that the customer has suffered no loss at all or only a significantly lower loss than the above-mentioned lump sum.

(4) The purchaser’s rights pursuant to § 8 of these General Terms and Conditions 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), remain unaffected.

§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance, Packaging Act

(1) Delivery is ex-warehouse, which is also the place of performance for the delivery and any subsequent performance. At the purchaser’s request and expense, the goods shall be dispatched to a different destination (sale by delivery). Unless otherwise agreed, we shall be entitled to determine the method of dispatch (in particular the carrier, route of dispatch and packaging) ourselves. Quantities, dimensions, weights and colours of the delivery are subject to customary commercial tolerances.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover. In the case of a sale by delivery to a place other than the place of performance, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay, passes to the customer upon delivery of the goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment. Where acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to any agreed acceptance. The handover or acceptance shall be deemed to have taken place if the customer is in default of acceptance.

(3) If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs). The customer shall be entitled to prove that we have incurred no damage at all or only significantly less damage.

(4) The Packaging Act (VerpackG) sets out the requirements for product responsibility for packaging. In order to reduce the impact of packaging waste on the environment, the Act aims to ensure that packaging waste is avoided and, furthermore, prepared for reuse or sent for recycling, cf. Section 1(1) sentence 3 VerpackG.
According to Section 15 VerpackG, the following packaging is not subject to the obligation to participate in a packaging system: 1. Transport packaging, such as pallets 2. Sales and outer packaging which, after use, typically does not end up as waste with the private end consumer but in B2B business.
In accordance with the take-back and recovery requirements under Section 15(1) of the VerpackG, we as the manufacturer (or subsequent distributors in the supply chain) are obliged to take back used, completely empty packaging free of charge. We comply fully with this obligation. The return takes place at our premises (Strandbadweg 8, 58566 Kierspe). Any costs for returning the packaging to our premises are to be borne by the customer.

§ 5 Prices and Terms of Payment

(1) Unless otherwise agreed in individual cases, our prices valid at the time of conclusion of the contract shall apply, ex-warehouse, plus statutory VAT.

(2) In the case of sale by delivery (§ 4(1)), the customer shall bear the transport costs ex-warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges shall be borne by the customer.

(3) Unless otherwise agreed individually, the purchase price is payable net within 30 days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to carry out a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest upon confirmation of the order.

(4) Upon expiry of the aforementioned payment period, the customer shall be in default. Interest shall be charged on the purchase price at the applicable statutory default interest rate during the period of default. We reserve the right to claim further damages resulting from the default. Our claim to commercial interest on overdue payments (Section 353 of the German Commercial Code (HGB)) remains unaffected in relation to merchants.

(5) The purchaser shall only be entitled to rights of set-off or retention to the extent that their claim has been legally established or is undisputed. In the event of defects in the delivery, the purchaser’s counterclaims, in particular pursuant to Section 7(6) sentence 2 of these General Terms and Conditions, shall remain unaffected.

(6) If, after conclusion of the contract, it becomes apparent (e.g. through an application to open insolvency proceedings) that our claim to the purchase price is jeopardised by the customer’s inability to pay, we shall be entitled, in accordance with the statutory provisions, to refuse performance and – where applicable, after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code (BGB)). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we may declare our withdrawal immediately; the statutory provisions regarding the dispensability of setting a deadline remain unaffected.

§ 6 Retention of title

(1) We retain title to the goods sold until full payment has been made of all our present and future claims arising from the sales contract and an ongoing business relationship (secured claims).

(2) The goods subject to retention of title may not be pledged to third parties or transferred as security prior to full payment of the secured claims. The customer must notify us immediately in writing if an application for the

(3) In the event of the customer’s breach of contract, in particular non-payment of the purchase price due, we shall be entitled, in accordance with statutory provisions, 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 does not simultaneously constitute a declaration of withdrawal; rather, we are entitled merely to demand the return of the goods and to reserve the right to withdraw. If the customer fails to pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment without success, or if setting such a deadline is dispensable under the statutory provisions.

(4) Until revoked in accordance with (c) below, the customer is authorised 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.

(a) The retention of title extends to the products created by processing, mixing or combining our goods to their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with third-party goods, the third party’s right of ownership remains in force, 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.

(b) The purchaser hereby assigns to us, by way of security, all claims against third parties arising from the resale or subletting of the goods or the product, either in full or to the extent of our share of co-ownership in accordance with the preceding paragraph. We accept the assignment. The obligations of the purchaser referred to in paragraph 2 shall also apply in respect of the assigned claims.

(c) The purchaser remains authorised to collect the claim alongside us. We undertake not to collect the claim so long as the purchaser meets their payment obligations towards us, there is no impairment of their ability to pay, and we do not assert the retention of title by exercising a right in accordance with paragraph 3. However, if this is the case, we may demand that the purchaser discloses to us the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment. Furthermore, in this case, we shall be entitled to revoke the purchaser’s authority to further sell and process the goods subject to retention of title.

(d) If the realisable value of the securities exceeds our claims by more than 10%, we shall, at the purchaser’s request, release securities of our choice.

§ 7 Claims for defects by the customer

(1) Unless otherwise specified below, the statutory provisions shall apply to the customer’s rights in the event of material defects and defects of title (including incorrect or short delivery, as well as improper assembly or defective assembly instructions). In all cases, the special statutory provisions regarding final delivery of unprocessed goods to a consumer remain unaffected, even if the consumer has further processed them (supplier’s right of recourse pursuant to Sections 478 of the German Civil Code (BGB)). Claims arising from the supplier’s right of recourse are excluded if the defective goods have been further processed by the customer or another business, e.g. by incorporation into another product.

(2) Our liability for defects is based primarily on the agreement regarding the quality of the goods. Any product descriptions that form part of the individual contract or have been publicly disclosed by us (in particular in catalogues or on our website) shall be deemed to constitute an agreement regarding the quality of the goods.

(3) Where the quality has not been agreed, the existence of a defect shall be assessed in accordance with the statutory provisions (Section 434(1) sentences 2 and 3 of the German Civil Code (BGB)). However, we accept no liability for public statements made by the manufacturer or other third parties (e.g. advertising claims).

(4) The purchaser’s claims for defects are subject to their having fulfilled their statutory obligations to inspect and give notice of defects (Sections 377, 381 HGB). Should a defect become apparent upon delivery, during inspection or at any later point in time, we must be notified of this in writing without delay. In any event, obvious defects must be reported in writing within 5 working days of delivery, and defects not detectable during inspection must be reported in writing within the same period following their discovery. If the customer fails to carry out the proper inspection and/or give notice of defects, our liability for defects not notified, or notified late or improperly, is excluded in accordance with the statutory provisions.

(5) If the delivered goods are defective, we may initially choose whether to provide subsequent performance by rectifying the defect (repair) or by delivering goods free from defects (replacement). Our right to refuse subsequent performance under the statutory conditions remains unaffected.

(6) We are entitled to make the subsequent performance due conditional upon the customer paying the purchase price due. However, the customer is entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.

(7) The customer must give us the time and opportunity necessary for the required subsequent performance, in particular to hand over the goods subject to complaint for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Rectification does not include either the removal of the defective item or its reinstallation, if we were not originally obliged to carry out the installation.

(8) We shall bear or reimburse the expenses necessary for the purposes of testing and rectification, in particular transport, travel, labour and material costs, as well as any removal and re-installation costs, in accordance with the statutory provisions, provided that a defect actually exists. Otherwise, we may demand reimbursement from the customer for the costs incurred as a result of the unjustified request for rectification of defects (in particular inspection and transport costs), unless the absence of a defect was not apparent to the customer.

(9) In urgent cases, e.g. where operational safety is at risk or to prevent disproportionate damage, the customer has the right to remedy the defect themselves and to demand reimbursement from us for the expenses objectively necessary for this. We must be notified of such self-remedy without delay, if possible in advance. The right to self-remedy does not apply if we would be entitled to refuse corresponding subsequent performance in accordance with statutory provisions.

(10) If the subsequent performance has failed, or if a reasonable period to be set by the purchaser for subsequent performance has expired without result or is dispensable under statutory provisions, the purchaser may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of a minor defect.

(11) If the use of the delivered goods results in an infringement of industrial property rights or copyright in Germany, we shall, at our expense, in principle secure the right for the purchaser to continue using the goods or modify the delivered goods in a manner reasonable for the purchaser so that the infringement of property rights no longer exists. If this is not possible on economically reasonable terms or within a reasonable period, the customer shall be entitled to withdraw from the contract. Furthermore, we shall indemnify the customer against any undisputed or legally established claims by the relevant intellectual property rights holders. Subject to the provisions of § 8, our obligations in this regard are exhaustive in the event of an infringement of intellectual property rights or copyright.

(12) Claims by the Customer for damages or reimbursement of wasted expenditure shall, even in the event of defects, only exist in accordance with § 8 and are otherwise excluded.

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§ 8 Other Liability

(1) Unless otherwise provided for in these General Terms and Conditions, including the following provisions, we shall be liable for breaches of contractual and non-contractual obligations in accordance with statutory provisions.

(2) We shall be liable for damages – irrespective of the legal basis – within the scope of fault-based liability in cases of intent and gross negligence. In cases of simple negligence, subject to a lower standard of liability under statutory provisions (e.g. regarding the standard of care in one’s own affairs), we shall only be liable

a) for damage resulting from injury to life, limb or health,

b) for damage resulting from a material breach of a fundamental contractual obligation (an obligation the fulfilment of which is essential for the proper performance of the contract and on the observance of which the contracting party regularlyin this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability arising from paragraph 2 also apply in the event of breaches of duty by or in favour of persons for whose fault we are liable under statutory provisions. They shall not apply where we have fraudulently concealed a defect or have given a guarantee as to the quality of the goods, nor shall they apply to claims by the purchaser under the Product Liability Act.

(4) In the event of a breach of duty that does not consist of a defect, the customer may only withdraw from the contract or terminate it if we are responsible for the breach of duty. A free right of termination on the part of the customer (in particular pursuant to Sections 651, 649 of the German Civil Code (BGB)) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

§ 9 Limitation Period

(1) Notwithstanding Section 438(1)(3) of the German Civil Code (BGB), the general limitation period for claims arising from material defects and defects of title is one year from delivery. Where acceptance has been agreed, the limitation period begins upon acceptance.

(2) The above limitation periods under sales law also apply to the purchaser’s contractual and non-contractual claims for damages based on a defect in the goods, unless the application of the standard statutory limitation period (Sections 195, 199 BGB) would result in a shorter limitation period in the individual case. However, the purchaser’s claims for damages pursuant to Section 8(2), first and second sentences (a), and under the Product Liability Act shall be subject exclusively to the statutory limitation periods.

§ 10 Choice of Law and Jurisdiction

(1) These General Terms and Conditions and the contractual relationship between us and the Customer 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 customer is a trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Kierspe. The same applies if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB). However, in all cases we are also entitled to bring an action at the place of performance of the delivery obligation in accordance with these General Terms and Conditions or a prior individual agreement, or at the general place of jurisdiction of the purchaser. Overriding statutory provisions, in particular regarding exclusive jurisdiction, remain unaffected.