General Terms and Conditions of Sale
§ 1 General Matters, Scope of Applicability
(1) These General Terms and Conditions of Sale apply to all of our business relationships with our customers (hereinafter, “Buyers”),
insofar as, pursuant to Section 310, para. 1 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the Buyer is an entrepreneur
(Unternehmer) (Section 14 BGB), a legal person under public law (juristische Person des öffentlichen Rechts), or a special fund under
public law (öffentlich-rechtliches Sondervermögen).
(2) These General Terms and Conditions of Sale apply in particular to contracts for the sale and/or delivery of moveable property
(hereinafter, “Goods”), irrespective of whether we manufacture the Goods ourselves or acquire same from suppliers (Sections 433,
651 BGB). The General Terms and Conditions of Sale, in the version currently in effect, apply as a framework agreement that also
covers future contracts entered into with the same Buyer for the sale and/or delivery of Goods, obviating the need for us to make
reference to them in each individual instance.
(3) Our General Terms and Conditions of Sale apply exclusively. General terms and conditions of the Buyer that deviate from, stand
in opposition to or supplement our General Terms and Conditions of Sale may be made part of the contract with the Buyer only and
insofar as we have given our express written consent to their applicability. This requirement of consent applies in every instance,
including in particular where, despite our awareness of the Buyer’s general terms and conditions, we make deliveries to it without
(4) If reference is made to the applicability of statutory provisions, this has merely a clarifying significance. For this reason, even
absent such clarification, statutory provisions are applicable unless modified or expressly precluded by these General Terms and
Conditions of Sale.
§ 2 Offer and Conclusion of Contract
(1) All of our offers are non-binding and subject to confirmation, unless they are expressly designated as binding or set forth a specific
deadline for acceptance. We reserve our rights of ownership and copyrights in and to all offers and cost estimates submitted
by us, as well as in and to drawings, images, calculations, brochures, catalogues, models, tools, and other documents and resources
provided to the Buyer. The Buyer may not, without our express consent, make such materials available to third parties, nor may it
disclose same or use or copy same either itself or through third parties and either as such or with respect to the contents thereof. If
the Buyer no longer requires such materials in the normal course of its business, or if negotiations do not lead to the conclusion of a
contract, the Buyer must, at our request, return all such materials to us and, if applicable, destroy all copies thereof.
(2) The Buyer’s written order for the Goods constitutes a binding offer of contract. Unless specified otherwise in the order, we are
entitled to accept this offer of contract within five days of its receipt by us.
(3) The legal relationships between us and the Buyer are governed exclusively by a written, executed purchase contract, which includes
these General Terms and Conditions of Sale. The purchase contract sets forth in full all agreements between the parties with
regard to the subject of the contract. Oral commitments made by us prior to conclusion of this contract are not legally binding, and
oral agreements between the parties are deemed to have been superseded by the written contract, unless it is expressly apparent
from them that they are to continue to have binding effect. Our data regarding the subject of the delivery or service (e.g. weights,
measurements, use values, load-bearing capacity, tolerances, and technical data), as well as our depictions of same (e.g. drawings
and images), are approximate only, unless utility for the contractually intended purpose requires precise conformity. These do not
constitute attributes as to nature and quality but rate are merely descriptions or identifications of the delivery or service Productionrelated
deviations of up to 10% that are customary in the trade and deviations that are occasioned by legal requirements or constitute
technical improvements, as well as the replacement of components with parts of equal value, are permissible as long as they do not
interfere with the utility of the contractually intended purpose.
(4) To the extent that we provide technical information or act in an advisory capacity, and such information or advice does not
form part of the contractually agreed scope of services that we are obligated to render, same is provided at no charge and under
exclusion of all liability.
(5) Individual arrangements made with the Buyer in specific cases (including side agreements, additions, and amendments to the
purchase contract) always have priority over these General Terms and Conditions of Sale. The content of such arrangements is
subject to a written contract or our written confirmation.
(6) With the exception of general managers and/or Prokuristen (i.e. holders of a general commercial power of attorney), our employees
are not authorised to enter into oral agreements that deviate from the purchase contract.
(7) The requirement of written form is satisfied with transmission by fax; electronic transmission, particularly by email, is not sufficient.
§ 3 Prices and Payment Terms
(1) Unless agreed otherwise in a particular case, the applicable prices are our prices in effect at the time of each conclusion of
contract, with same being ex works and net of value-added tax. If the agreed prices are based on list prices and delivery is not to be
made until at least four months following conclusion of contract, the applicable prices are our list prices in effect upon delivery (in
each case, less an agreed percentage or fixed rebate).
(2) The deduction of early-payment discounts requires a special written agreement.
(3) With a sale by dispatch (Versendungskauf), i.e. if the Goods are sent to a location different than the place of production, the Buyer
bears the transport costs ex works and the costs of any transport insurance desired by the Buyer. We are an SLVS- (Speditions-,
Logistik- und Lagerversicherungsschein, i.e. a formalized shipping insurance certificate) prohibited customer, meaning that the
shipper generally does not obtain insurance for us against transport damage. Accordingly, separate insurance must be obtained
for each individual shipment, unless same is made at no charge. All customs duties, fees, taxes, and other public charges are for
the account of the Buyer. We do not take back transport and other packaging pursuant to the German Packaging Regulation (Verpackungsverordnung);
rather, same become the property of the Buyer. The foregoing does not include pallets and exchange canisters
(e.g. exchange or special pallets, drums, IBCs, or other containers). Exchange canisters and pallets not returned to us at no charge
within 30 days will be billed.
(4) The purchase price is due and payable within 21 days of invoicing and delivery or acceptance of the Goods. Payment is considered
as having been made at the point when we have access to the funds. If made by check, the payment is considered as having been
made at the point when the check is cashed. For payments made within 8 days of invoicing and delivery or acceptance of the Goods,
we grant an early-payment discount of 2%.
(5) Upon expiry of the aforementioned payment deadlines, the Buyer is in default. During the period of default, interest is to be
charged on the purchase price at a rate of eight percentage points over the statutory base interest rate. We reserve the right to
assert more extensive damages from the default. If the Buyer is a merchant, our claim to commercial interest accruing as of the due
date (kaufmännischer Fälligkeitszins) remains unaffected (Section 353 of the German Commercial Code [Handelsgesetzbuch, HGB]).
(6) The Buyer is entitled to rights of set off or retention only to the extent that its claim has been legally adjudicated or is uncontested.
For defects in the delivery, Section 6, paragraph 7 remains unaffected.
(7) We are entitled to make pending deliveries or render pending services only against advance payment or the posting of security in
the event that following conclusion of the contract, we become aware of circumstances that can have a substantially adverse impact
on the Buyer’s creditworthiness and that threaten the payment by the Buyer of our open claims under the respective contractual
relationship (including under other individual orders to which the same framework agreement applies).
§ 4 Delivery Deadline and Default in Delivery
(1) The delivery deadline is either agreed upon on a case-by-case basis or stipulated by us in writing with acceptance of the order.
If the foregoing is not the case, the delivery deadline is approximately four weeks after conclusion of contract. Dates and deadlines
tentatively pledged by us for deliveries and services are always approximate only, unless a fixed deadline or date has been promised
or agreed upon. If shipping has been agreed upon, delivery deadlines and dates relate to the time of transfer to the shipping company,
freight forwarder, or other third party engaged for transport.
(2) If, for reasons for which we are not responsible, we are unable to meet binding delivery deadlines (non-availability of the service),
we will give the Buyer prompt notice thereof and concurrently advise the prospective new delivery deadline. If the service continues
to be unavailable by the new delivery deadline, we are entitled to rescind the contract in whole or in part; we will promptly refund any
payments previously made by the Buyer. Non-availability of the service in this sense means, in particular, untimely delivery to us by
our suppliers, provided we have concluded a congruent covering transaction (kongruentes Deckungsgeschäft). Our statutory rights
of rescission and termination, as well as the statutory provisions on the carrying out of the contract under an exclusion of the duty
to perform (e.g. impossibility or unreasonableness of performance and/or cure), remain unaffected. The Buyer’s rights of rescission
and termination pursuant to Section 8 of these General Terms and Conditions of Sale as well remain unaffected.
(3) We are not liable for impossibility of delivery or for delays in delivery, insofar as these were caused by force majeure or other
events for which we are not responsible and which were not foreseeable at the time of contract conclusion (e.g. any type of interruption
of operations, difficulties in procuring materials or energy, delays in transport, strikes, lawful lock-outs, lack of workers, energy,
or raw materials, difficulties in obtaining necessary approvals from public authorities, measures implemented by public authorities,
or unmet, incorrect, or untimely provision by suppliers). To the extent that such events substantially impede the delivery or service
or make same impossible and such impairment is not merely of a temporary nature, we are entitled to rescind the contract. In the
case of temporary impairments, the delivery or service deadlines are extended or the delivery and service dates are postponed for
the period of the impairment, plus a reasonable time start-up deadline. If as a result of the delay, the Buyer cannot be reasonably
expected to accept the delivery or service, it may rescind the contract by giving us prompt written notice thereof.
(4) In the event of a delayed delivery by the shipping company or freight forwarder as part of a “delivery service” offered by us, the
Buyer may not assert any claims against us. The shipping company or freight forwarder is not an entity used by us to perform an
obligation (Erfüllungsgehilfe), meaning that we cannot be charged with corresponding culpability. The Buyer is at liberty to assert
claims for damages against the shipping company or freight forwarder. However, as mandated by statute, such claims are limited to
triple the amount of the freight. Any damages in excess of this may not be asserted by the Buyer, including against us.
(5) We are entitled to make partial deliveries if the partial delivery is utilisable by the Buyer in connection with the intended contractual
purpose, the delivery of the balance of the ordered Goods is assured, and the Buyer does not incur any substantial added effort
or expense in this regard (unless we declare our willingness to assume these costs).
(6) If we are in default with a delivery or service, the Buyer must send a notice of default. Our liability is limited to damages pursuant
to Section 7 of these General Terms and Conditions of Sale. If a claim is made, the Buyer may demand liquidated damages
in compensation of the default. For each completed calendar week of the default, liquidated damages amount to 0.5% of the net
price (delivery value), but not to exceed 5% of the delivery value, of the Goods that have been delivered late. We remain entitled to
prove that the Buyer suffered no damages whatsoever or only materially lesser damages than the amount of liquidated damages.
§ 5 Delivery, Transfer of Risk, Acceptance, Default in Acceptance
(1) Delivery is made ex works, which is also the place of performance. Unless agreed otherwise, we are entitled to determine in our
discretion how shipment is accomplished (in particular, transport company, method of shipment, packaging).
(2) The risk of loss and deterioration of the Goods passes, at the latest, upon transfer to the Buyer. For sales by dispatch, however,
risk of loss and deterioration of the Goods, as well as the risk of delay, passes with the transfer of the Goods to the shipping
company, the freight forwarder or other individual or entity designated for executing the shipment. If an acceptance inspection
has been agreed upon, this is controlling with respect to transfer of risk. It is equivalent to transfer or acceptance if the Buyer is in
default in acceptance.
(3) If the Buyer is in default in acceptance or fails to cooperate, or if our delivery is delayed for other reasons attributable to the Buyer,
we are entitled to demand compensation for damages incurred as a result of this, including added expenses (e.g. storage costs). With
respect to the amount of damages, we are obligated to itemise, demonstrate, and prove same. The Buyer is obligated to pay us an
additional 50% of the amount of damages in exchange for such proof.
§ 6 Claims for Defects by the Buyer
(1) Unless stipulated otherwise below, statutory provisions are applicable to the Buyer’s rights in the event of material and legal
defects (including incorrect or incomplete delivery, as well as improper assembly or defective assembly instructions). In all cases,
the special statutory provisions dealing with final delivery of the Goods to a consumer remain unaffected (recourse to suppliers
pursuant to Sections 478-479 BGB).
(2) The Buyer’s claims for defects presuppose that it has met its statutory duties to investigate and object (Sections 377 and 381
HGB). If a defect is revealed during the investigation or at a later point, we are to be given prompt written notice thereof. Notice is
deemed prompt if it is given within one week, whereby timely sending of the notice suffices for meeting the deadline. Irrespective of
such duty to investigate and object, the Buyer must give written notice of visible defects (including incorrect or incomplete delivery)
within one week of delivery, whereby again timely sending of the notice suffices for meeting the deadline. If the Buyer fails to undertake
proper investigation and/or give notice of defects, our liability for non-notified defects is precluded.
(3) The basis for our liability for defects is, above all, the written agreement as to the nature and quality of the Goods. Agreement
as to the nature and quality of the Goods is considered to be all product descriptions that form part of the specific written contract;
in this regard, it makes no difference whether the product description originated from the Buyer, the manufacturer, or us. If nature
and quality was not agreed upon, the determination of whether a defect exists is to be made in accordance with statutory provisions
(Section 434, para. 1, second sentence BGB). However, we assume no liability for public statements made by the manufacturer or
other third parties (e.g. advertised claims).
(4) Legally relevant declarations and notices that the Buyer is required to make or provide to us following conclusion of contract
(e.g. setting of deadlines, notices of defects, declaration of rescission or reduction of price) must be given in writing in order to be
(5) In the event of defects in the components of other manufacturers that we are unable to eliminate for license-related or actual
reason, we will, at our discretion, either assert our warranty claims against the manufacturers and suppliers on behalf of the Buyer
or assign same to it. Warranty claims may be asserted against us for such defects, subject to the meeting of other prerequisites
and pursuant to the terms of these General Terms and Conditions of Sale, only if judicial enforcement of the aforementioned claims
against the manufacturer and supplier was unsuccessful or, e.g. due to bankruptcy, has no prospect of success. The prescription
period for the Buyer’s relevant warranty claims against us stops running for the duration of the legal proceedings.
(6) If the delivered item is defective, we may initially choose whether our cure is to consist of elimination of the defect (repair) or
delivery of a defect-free item (replacement delivery). Our right to refuse the type of cure selected under statutory prerequisites
(7) We are entitled to make the cure owed by us dependent on the Buyer paying the purchase price due. However, the Buyer is
entitled to retain a portion of the purchase price that is reasonable in relation to the extent of the defect.
(8) The Buyer must give us the time and opportunity necessary to provide the cure owed by us, in particular, to hand over the
contested Goods for the purposes of testing. In the event of replacement delivery, the Buyer must return the defective item to us in
accordance with statutory provisions.
(9) We bear the expenses required for the purposes of testing and cure, in particular, transport, road, work, and materials costs,
provide a defect actually exists. However, if the Buyer’s demand for elimination of a defect proves unjustified, we may demand that
the Buyer compensate us for the costs incurred as a result of this.
(10) In urgent cases, e.g. risk to operational safety or to prevent unreasonable damage, the Buyer has the right to eliminate the
defect itself and to demand compensation from us for the objectively necessary expenses of this. We must be promptly informed,
if possible, in advance, of such self-help. There is no right of self-help if we were entitled to refuse a corresponding cure pursuant
to statutory provisions.
(11) If the cure failed, or if a reasonable deadline set by the Buyer for cure has gone unmet or may be dispensed with pursuant to
statutory provisions, the Buyer may rescind the contract or reduce the purchase price. However, there is no right of rescission for
a minor defect.
(12) The Buyer’s claims for damages or reimbursement of futile expenses exist only in accordance with Section 7 and are otherwise
§ 7 Other Liability
(1) Unless provided otherwise by these General Terms and Conditions of Sale, including the following provisions, we are liable for
a breach of contractual and extra-contractual duties in accordance with the relevant statutory provisions. In the event of a breach
of duty that does not consist of a defect, the Buyer may rescind or terminate only if we are responsible for the breach of duty. An
unrestricted right of the Buyer to terminate (in particular, pursuant to Sections 651 and 649 BGB) is precluded. In all other respects,
the statutory prerequisites and legal consequence apply.
(2) We are liable for damages – irrespective of legal grounds (in particular, due to impossibility, default, defective or incorrect
delivery, breach of contract, breach of duties in contract negotiations, and torts) – only for intentional or grossly negligent acts. The
foregoing applies in particular to cases of initial impossibility, where the parties determine that the subject of the purchase will at no
time be able to be manufactured. In the event of simple negligence, we are liable only for
a) damages for injury to life, body, or health,
b) damages for breach of a material contractual duty (obligation whose fulfilment is essential for the proper carrying out of the
contract and upon whose observance the party normally relies and is entitled to rely).
(3) The limitations on liability resulting from paragraph (2) do not apply if we have fraudulently concealed a defect or have given a
guarantee as to the nature and quality of the Goods. The same applies for the Buyer’s claims under the German Product Liability
(4) If we are liable for damages pursuant to paragraph (2), such liability for gross and simple negligence is limited to damages that
we had foreseen at the time of contract conclusion as a possible consequence of a breach of contract or that we should have
foreseen by employing the attention and care customary in the trade. Furthermore, indirect damages and consequential damages
that result from defects in the delivered object are subject to compensation only if such damages are typically to be expected with
proper use of the delivered object.
(5) In the event of liability for simple negligence, our duty to compensate material damages and any additional property damages resulting
therefrom is limited to the amount of € 3 million for each event of damage (corresponding to the current coverage amount under
our product liability insurance or general liability insurance), even if the matter involves a breach of essential contractual duties.
(6) The aforementioned exclusions and limitation of liability apply to the same extent in favour of our company bodies, legal representatives,
employees, and other persons or entities used to perform an obligation.
§ 8 Retention of Title
(1) Until such time as payment in full of all of our current and future claims under the purchase contract and an ongoing business
relationship (secured claims), we retain title to the sold Goods.
(2) The Buyer is authorised to resell and/or process the Goods subject to retention of title in the ordinary course of business. In such
case, the following provisions also apply:
(a) Retention of title extends to the full value of products resulting from the processing, mixing, or combining of our Goods, whereby
we are deemed to be the manufacturer. If following processing, mixing, or combining with third-party goods, such third party continues
to have a right of ownership, then we acquire co-ownership in the relation of the invoice values of the processed, mixed, or combined
Goods. In all other respects, the same applies to the resulting product as for the delivered Goods subject to retention of title.
(b) Pursuant to the foregoing paragraph, the Buyer hereby assigns to us as security, either in full or in the amount of our possible
co-ownership share, its claims against third parties resulting from the resale of the Goods or the product. We hereby accept the
assignment. The Buyer’s duties set forth in paragraph (2) also apply in view of the assigned claims.
(c) The Buyer remains entitled, along with us, to collect the claim. We undertake to refrain from collecting the claim as long as the
Buyer meets its payment obligations to us and does not come into default on payment, an application has not been made for the opening
of bankruptcy proceedings, and there is no other defect in its ability to perform. However, if such is the case, we may demand
that the Buyer disclose to us the assigned claims and the parties owing them, provide all information necessary for collection, turn
over all associated documentation, and notify the parties owing the claims (third parties) of the assignment.
(d) If the realisable value of the provided securities exceeds our claims by more than 20%, we will release such securities of our
choice at the Buyer’s request.
(3) Until such time of payment in full of the secured claims, the goods subject to retention of title many not be pledged to third parties
or otherwise transferred for the purposes of security. The Buyer must give us prompt written notice if and to the extent that third
parties seek to attach the Goods belonging to us.
(4) In the event the Buyer acts in breach of contract, in particular, by failing to pay the purchase price when due, we are entitled in
accordance with statutory provisions to rescind the contract and/or to demand immediate surrender of the Goods on the basis of
retention of title. The demand for surrender does not simultaneously constitute a declaration of rescission; rather, we are entitled to
demand solely the surrender of the Goods and reserve the right of rescission. If the Buyer fails to pay the purchase price when due,
we may assert these rights only if we have previously given the Buyer a reasonable deadline to make payment and such deadline
went unmet or if the setting of such a deadline may be dispensed with pursuant to statutory provisions.
§ 9 Prescription
(1) In deviation from Section 438, para. 1, no. 3 BGB, the general prescription period for claims for material and legal defects is
one year, beginning with delivery. If an acceptance inspection has been agreed upon, the prescription period begins to run upon
(2) However, if the Goods relate to a thing that has been used for a building in accordance with the normal way it is used and has
resulted in the defectiveness of the building (building materials), the prescription period is five years, beginning with delivery, in
accordance with the statutory arrangement under Section 438, para. 1, no. 2 BGB. In addition, the special statutory arrangements
dealing with a third party‘s in rem claims to surrender under Section 438, para. 1, no. 1 BGB, with fraudulent concealment by the
seller (Section 438, para. 3 BGB), and with claims to recourse within a supplier chain upon final delivery to a consumer (Section
479 BGB) also remain unaffected.
(3) The aforementioned prescription periods under the law of the sale of goods also apply to the Buyer’s contractual and extracontractual
claims for damages that are based on a defect in the Goods, unless the application of the regular statutory prescription
period (Sections 195, 199 BGB) would result in a shorter prescription period in a given instance. The prescription periods under the
Product Liability Act in any case remain unaffected. In all other respects, the statutory prescription periods apply exclusively to the
Buyer’s claims for damages pursuant to Section 7.
§ 10 Choice of Law and Place of Jurisdiction
(1) The law of the Federal Republic of Germany applies to these General Terms and Conditions of Sale and to all legal relationships
between us and the Buyer, under exclusion of international and supranational legal systems (governing contracts), in particular, the
UN Convention on Contracts for the International Sale of Goods. The perquisites for and effects of retention of title pursuant to
Section 8, on the other hand, are subject to the law of the place where the goods are stored, provided that under such law, the choice
of German law is impermissible or ineffective.
(2) If the Buyer is a merchant within the meaning of the Commercial Code, a legal person under public law, or a special fund under
public law, the sole place of jurisdiction – including internationally – for all disputes arising directly or indirectly out of the contractual
relationship is our place of business where the respective company ist located. However, if the seller is a branch, from which location
transactions are entered into directly, the sole place of jurisdiction in the place where our branch is located. However, we are also
entitled to initiate legal proceedings at the Buyer‘s general place of jurisdiction.
(3) If any provision of these General Terms and Condition or a provision in connection with any other agreements should be or
become ineffective, all other provisions or agreements remain in full force and effect.
Version: July 2016