General Terms and Conditions

General Terms and Conditions for Business Dealings with Business Enterprises, Legal Persons under Public Law or a Separate Estate under Public Law (as of: January 2017)


1. General
Orders and/or purchase orders placed by business enterprises, legal persons under public law or a separate estate under public law will be confirmed and executed by us solely in accordance with our General Terms and Conditions. Our General Terms and Conditions also apply to all of the following deliveries and services (“Delivery/-ies”) without explicit agreement being necessary. Terms and conditions which differ from these General Terms and Conditions or statutory provisions, shall apply only to the extent that they are explicitly confirmed by us in writing.

2. Terms of Delivery
2.1 Our Deliveries are made “ex works” (EXW, Incoterms 2010), unless agreed otherwise.
2.2 Performance of the stipulated time for delivery is subject to our timely receipt of all documents and information to be provided by the customer, as well as fulfillment of the agreed terms of payment and other obligations by the customer. To the extent said conditions are not fulfilled on time, the time for delivery shall be extended accordingly, unless we are responsible for the delay.
2.3 The Deliveries shall be subject to our complete and timely reception of the deliveries by our sub suppliers.
2.4 In case of delay with delivery culpably caused by us, our liability for Damages thereby caused shall be limited to an amount of 0.5 % of the price of the delayed part of the Delivery (excluding VAT) for each full week of delay up to a maximum of 5.0 % of the price of the Delivery (excluding VAT). This limitation of liability shall not apply in case of willful misconduct or gross negligence.
2.5 We are entitled to partial deliveries, over-deliveries and short-deliveries as long as these are reasonable taking into account divergences common in customs. The same shall apply to early deliveries.
2.6 Our Deliveries are subject to the condition that the required export licenses are issued and that our obligation to fulfill the contract is not prevented by any impediments arising out of national or international foreign trade and customs requirements or any embargos or other sanctions. If required by applicable law, the customer shall, upon request, provide us with a duly completed and signed end-use certificate.

3. Prices
3.1 If not stated otherwise in the order confirmation, prices shall be “ex works“, net, and shall exclude packing, freight, insurance, disposal and any additional expenses.
3.2 In the event of an increase in the normal market costs of the good by more than 10 % after conclusion of the contract, we reserve the right to unilaterally adapt the purchase price in accordance with Section 315 of the German Civil Code (BGB), in line with equity and the new cost situation. We are not entitled to adjust the purchase price, in case the agreed date of delivery will be within four month of conclusion of the contract. If we increase the purchase price due to an increase in cost, the customer will be entitled to withdraw from the contract; however, each party shall pay its own costs resulting from the termination.
3.3 In case of over-deliveries and short-deliveries, prices shall be adjusted accordingly.

4. Terms of Payment, Set-off, Retention
4.1 Unless otherwise stated in the order confirmation, the customer may, at his discretion, effect payment either without deductions no later than 30 days subsequent to the invoice date, or within 7 days, for which a cash discount of 2 % is granted. Discounts are not permitted as long as invoiced amounts due for payment are not settled by the customer. Alternatively we are allowed to agree on advance payment conditions for our deliveries.
4.2 The customer may set off only those claims which are undisputed between the parties, have been finally adjudicated or which are in a reciprocal relationship to our claim, against which the set off may be effected. The same shall apply mutatis mutandis to any right of retention of the customer.
4.3 The assignment of claims against us shall be excluded.

5. Defects
5.1 Unless otherwise agreed, Deliveries shall only be deemed to be non-conforming if already at the time of the transfer of risk they are clearly different to our product descriptions, specifications or the labelling of the delivery. Information with respect to percentages and mixing ratios are to be considered as approximate mean values only. We expressly reserve the right with respect to unavoidable variations within customary tolerances that may occur in spite of all care exercised when manufacturing the goods and when fixing the corresponding values.
5.2 All advices regarding the application and utilization of our Deliveries take place according to our best knowledge, but only constitute a non-binding guideline and do not release the customer from his obligation to perform proper examinations of the Delivery regarding their suitability for the planned purposes and applications.
5.3 The customer shall immediately inspect the Deliveries and shall notify us in writing without undue delay of any defects.
5.4 Remedying of defects shall be done, at our discretion, by repair or replacement.
5.5 Any claims of the customer arising in relation to the rectification of non-conforming Deliveries, in particular expenses for transport, shall be excluded, if they accrue because the delivered goods have been moved after delivery to another location than the customer’s place of business, unless this represents the contractual use.
5.6 Section 6 shall apply regarding claims for damages and expenses due to defects.

6. Limitation of Liability
6.1 Regarding claims for damages due to a delay in delivery, the limitation of liability set forth in Section 2.4 shall apply exclusively. Further claims for damages or expenses (“Damages”) of the customer against us, irrespective of the legal basis, shall be excluded.
6.2 The exclusion of liability according to the aforementioned Section 6.1, 2nd sentence shall not apply, (i) in case of mandatory liability pursuant to the Product Liability Act (“Produkthaftungsgesetz”), (ii) in case of willful misconduct or gross negligence (“grobe Fahrlässigkeit”), (iii) in case of culpable injury of life, body or health, (iv) in case of a culpable infringement of material contractual duties, i.e. such duties whose fulfillment is essential for enabling the due performance of the contract and on whose observation the customer normally and properly relies. However, in case of slight negligence the customer’s Damages shall be limited to the foreseeable damage, which will typically occur in such cases unless liability is due to intent, gross negligence, injury to life, body or health or pursuant to the Product Liability Act (“Produkthaftungsgesetz”).
6.3 To the extent our liability is limited pursuant to this Section 6, this shall equally apply for the respective personal liability of our employees, persons used to perform our obligations and legal representatives of us.
6.4 The foregoing provisions shall not imply any shift in the burden of proof to the detriment of the customer.

7. Limitation Period
7.1 The limitation period for claims and rights arising from defects in quality or title shall be 1 year from the statutory beginning of the limitation period. Notwithstanding this provision, the statutory limitation period shall apply (i) with respect to all claims and rights of the customer in case of Section 438 Subsection 1 No. 1 German Civil Code (right of a third party), Section 479 Subsection 1 German Civil Code (rights of recovery) or in case we fraudulently conceal a defect; (ii) and in case of Damages where we are at fault for injury to life, body or health, where claims are brought under the Product Liability Act, and in cases of breaches of duty by gross negligence or intent.
7.2 Repair and replacement delivery are generally performed by us as a courtesy and without acknowledging any legal duty to do so. An acknowledgement followed by a recommencement of the limitation period requires our express declaration.

8. Retention of Title
8.1 The title in the delivered goods shall not pass to the customer until we have received in full in cleared funds all sums due from the customer in relation to this contract and the general business relationship between us and the customer („Reserved Goods“).
8.2 The customer is entitled and authorized to process or resell the Reserved Goods only in the due and proper course of business.
8.3 Claims against third parties arising from the resale of the Reserved Goods shall be assigned onto us to the amount of the invoice value of the Reserved Goods, irrespective of whether the resale takes place without or following processing, or to one or several third parties. In case the Reserved Goods are being processed, connected or blended, such action shall take place for our benefit. As a consequence, we acquire the co-ownership in the new goods to the extent of the pro rata value of the invoice amount of the Reserved Goods in relation to the invoice amount of the new goods.
8.4 If our title in the Reserved Goods expires due to processing, the customer transfers to us already now the ownership rights to the new goods or items to the amount of the invoice value of the Reserved Goods and keeps them in custody for us free of charge. The subsequently arising co-ownership rights shall be considered as Reserved Goods.
8.5 We reserve the right to cancel the authorization to resell the Reserved Goods and to receive payment for good cause, in particular in case the customer is in delay with payment or disposed of the Reserved Goods outside the due and proper course of business; the same applies in the event of payment stoppages or a significant deterioration of the customer’s creditworthiness. In case of an insolvency application concerning customer’s assets, the authorization to resell the Reserved Goods expires automatically.
8.6 In case the value of the securities acquired by us pursuant to this Clause 8 exceeds the value of our secured claims by more than 10 %, we will, at our discretion and at the customer’s request, release securities in an appropriate amount.

9. Place of Performance, Applicable Law, Jurisdiction
9.1 The place of performance (including remedying of defects) shall be the respective place of delivery.
9.2 The contract shall be governed by the laws of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG).
9.3 The exclusive place of jurisdiction for any disputes arising out of or related to the contract shall be Frankfurt/Main. However, we are entitled to raise an action against the customer also at any other competent court.