GENERAL TERMS AND CONDITIONS OF DELIVERY

– As of April 8th 2024

  I. Scope of Application, Offer and Conclusion of Contract

    1. These General Terms and Conditions of Delivery shall only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB). Individual contractual agreements shall take precedence over the General Terms and Conditions of Delivery.

    2. Deliveries shall be made on the basis of the Contractor's offer – which may be modified following the outcome of an award negotiation – and the Client's order referring to this offer. POs or orders can be accepted within 14 days of receipt. In any case, a contract shall only be concluded upon written order confirmation by the Contractor or upon delivery of the goods to the Client.

Unless expressly specified otherwise, all delivery specifications pertaining to an offer of the Contractor, including descriptions of properties and quality, as well as dimensional and weight details, shall only be considered as approximations and only authoritative within the scope of tolerances customary in the industry.

    3. Any terms and conditions of purchase of the Client that deviate from the Contractor's terms and conditions shall only apply to the Contractor if expressly confirmed in writing, even if reference is made to them in the purchase order. In the event of an exceptional agreement of the Client's terms and conditions of purchase, the Contractor's terms and conditions shall also apply insofar as they relate to items not regulated therein.

    4. Additions and amendments to the agreements concluded, including these General Terms and Conditions of Delivery, must be made in writing in order to be effective.

    5. In the absence of any express declarations to the contrary, all offers submitted by the Contractor shall be non-binding.

    6. The Contractor shall be entitled at any time to engage the assistance of third parties as vicarious agents in order to fulfil its obligations.

    II. Prices and Terms of Payment

    1. The agreed prices are exclusive of the applicable value added tax in the case of deliveries ex distribution centre of the Contractor, excluding warehousing charges and transport insurance.

    2. The Contractor may invoice the Client for the products and services before, upon or at any time after completion of the delivery. Payment shall be due no later than 30 calendar days after the invoice date, unless a different deadline is specified in the invoice or the Client is otherwise notified in writing. Partial deliveries may be invoiced separately. The Contractor may submit invoices electronically and is not obliged to issue an invoice in paper form.

    3. If the Client is in default of payment, the Contractor shall charge interest at the interest rate of its own bank liabilities, at a minimum, however, of 9 percentage points above the base interest rate, subject to the assertion of further claims for damages.

    4. The Client shall have no right of retention or right to withhold performance in respect of the Contractor's payment claims, unless these are based on wilful or grossly negligent breaches of contract by the Contractor or its vicarious agents or assistants, insofar as the counterclaims on which their assertion is based are undisputed or have been legally established. The above exclusion shall not apply if the Client has already paid for defective partial deliveries and the Contractor asserts further payment claims in lieu of a replacement delivery in this respect.  

    5. The Client may only offset payment claims of the Contractor with counterclaims that are undisputed by the Contractor or have been legally established.

    6. If it becomes apparent after conclusion of the contract that the Contractor's claim for payment is jeopardised by the Client's inability to pay or that the Client is in arrears with substantial payments, the Contractor shall be entitled to the rights under Section 321 BGB. In this case, the Contractor shall be entitled to demand payment or provision of security for all claims arising from all existing contracts and to refuse fulfilment of all existing contracts until advance payment or provision of security has been confirmed. A significant delay in payment is said to exist in particular if payment by instalments has been agreed and the Client is in arrears with the payment of three consecutive instalments.

    III. Periods of Delivery

    1. All dates and deadlines shall only be considered as approximations, unless the Contractor has specified them as binding in writing. The periods of delivery shall commence with the dispatch of the Contractor’s order confirmation, but not before receipt of any official authorisations to be obtained by the Client, any documents to be provided by the Client – in particular delivery specifications – or any agreed advance payment. If these requirements are not met in good time, the dates and deadlines shall be extended accordingly.

    2. Partial deliveries are permitted.

    3. If the Contractor is impeded in the proper performance of its work due to circumstances deemed unforeseeable at the time the contract was concluded and attributable directly or indirectly to the effects of war or other war-like circumstances and/or directly or indirectly to the coronavirus or comparable pathogens and/or to other events considered accidental for the Contracting Parties, e.g. in the event of natural disasters, operational disruptions, strikes, lockouts, transportation issues, official interventions, energy supply difficulties, direct or indirect blockades of trade routes by third parties or other unforeseeable difficulties in procuring materials, such as the failure of suppliers and subcontractors to deliver on time, or due to the absence of the Contractor's own personnel, the Contractor shall be entitled to receive an appropriate extension of the delivery period; this shall also apply in cases where such circumstances might add to a delay already incurred by the Contractor. If a delay extends beyond six months, both Parties shall be entitled to terminate the contract or withdraw from the concluded contract. Potential claims of the Parties under Section 313 BGB shall remain unaffected. If the delivery or service becomes impossible or unreasonable due to the aforementioned circumstances, the Contractor shall be released from its obligation to deliver. The Contractor shall notify the Client of the aforementioned circumstances without delay.

    4. In the event of delays in delivery for which the Contractor is responsible, the Client shall grant the Contractor a reasonable grace period. If, even after this grace period has expired, the Contractor has still not provided notification of readiness for dispatch, the Client shall be entitled to withdraw from the contract with regard to the part of the delivery that has not yet been fulfilled or, in the event that legal representatives or vicarious agents of the Contractor are guilty of intent or gross negligence with regard to the delay, to demand compensation for damages in lieu of performance with regard to this part; if, in the event of partial default, the Client can show that partial fulfilment is of no interest to it, it shall be entitled to the aforementioned rights with regard to the entire contract.

    5. Delays in delivery for which the Client is responsible shall not affect agreed payment obligations or payment deadlines.

    IV. Transfer of Risk

    1. Unless expressly agreed otherwise, the delivery and transfer of risk shall take place FCA at Welserstr. 7, Halle 3 – 5, 41468 Neuss (according to Incoterms® 2020).

    2. The Contractor shall pack the contractual product with the due care of a prudent businessperson and bear the costs thereof.

    V. Retention of Title

    1. The Contractor shall retain title to the goods delivered – including partial deliveries – until full payment of the entire delivery has been received.

    2. Any treatment or processing of the reserved goods by the Client, to which the Client is entitled in the ordinary course of business, shall be carried out on behalf of the Contractor without any obligations arising for said party. If the reserved goods are combined, mixed or blended with other items or undergo other treatment or processing, the Contractor shall acquire co-ownership of the new item in the ratio of the invoice value of the reserved goods to the value of the new item; the Client shall store the new item for the Contractor with the due care of a prudent businessperson.

    3. The Client shall be entitled, subject to cancellation for reasons attributable to it, to sell the goods owned or co-owned by the Contractor in the ordinary course of business against payment. In this case, the Client shall hereby assign its purchase price claim against the purchaser with all security and ancillary rights until full payment of all claims of the Contractor from existing business relationships has been made in the amount of the respective arrears; in the case of the sale of goods co-owned by the Contractor, however, this condition shall only relate to the pro rata purchase price claim in the amount of the invoice value of the reserved goods. The agreement of a non-assignment clause with regard to the purchase price claim against the purchaser is not permitted.

    4. The assignment pursuant to Section 3 shall be made by way of security with the proviso that the Client remains authorised to collect the purchase price claim against the purchaser insofar and as long as it duly fulfils its payment obligations to the Contractor or no deterioration of its financial situation occurs, the circumstances of which it must communicate to the Contractor immediately if necessary. The Client shall provide the Contractor, at its request, with all documents and information required to enforce the purchase price claim; in the event of the circumstances described in Sentence 1, the Contractor shall be entitled to inform the purchaser of the assignment.

    5. The Contractor shall release the securities to which it is entitled at the request of the Client to the extent that the realisable value of these securities exceeds the claims to be secured by more than 10%; the Contractor shall be responsible for selecting the securities to be released.

    6. The Client may not pledge or transfer by way of security goods owned or co-owned by the Contractor; in the event of seizure or confiscation by third parties, the Client shall disclose the ownership situation to them and inform the Contractor immediately in order to safeguard its rights, in the process handing over all documents essential for an intervention.

    VI. Rights of the Client in the Event of Defects

    1. To the exclusion of any further claims, the Client shall be entitled to demand subsequent fulfilment in the form of rectification or – at the Contractor's discretion – replacement delivery due to wholly or partially defective deliveries or services based on the severity of the defects; however, replacement delivery shall only occur in conjunction with the return of the defective delivery item; the Client's right to demand a reduction in price or to withdraw from the contract in the event of definitive failure of subsequent fulfilment, i.e. after two failed attempts at subsequent fulfilment, shall remain unaffected. In the event of a minor defect, the right of cancellation and the right to compensation in lieu of the entire service shall be excluded. Defects shall be regarded as minor in cases where only minor deviations from the agreed quality are detected, in cases of minor impairments of usability, in cases of natural wear and tear, or in cases where deviations arise due to particular external influences not anticipated in the contract.

    2. The Contractor shall be granted a reasonable period of time to carry out the rectification or replacement delivery; otherwise, the Contractor shall be released from its defect obligations.

    3. The Contractor shall be entitled to make the subsequent performance owed dependent upon the Client paying the price due. In the event of complaints, however, the Client may withhold payments to an extent that is in reasonable proportion to the material defects that have occurred.

    4. If the defect is caused by the defectiveness of third-party products, the Contractor shall also be entitled, at its discretion, in lieu of its own replacement delivery and in accordance with Section 1, Clause 1, to assign to the Client any claims for defects in this respect and any further claims for defects to which it itself is entitled against the manufacturer or upstream supplier; the Contractor shall support the Client in the enforcement of such claims. In such cases, warranty claims against the Contractor shall only exist under the other prerequisites and in accordance with these General Terms and Conditions of Delivery if the judicial enforcement of the aforementioned claims against the supplier, i.e. the exhaustion of legal recourse, and/or enforcement, was unsuccessful or is considered futile, for example, due to insolvency. For the duration of the legal dispute, the limitation period for the relevant warranty claims of the Client against the Contractor shall be suspended. The regulation of Section 1, Clause 2 shall apply accordingly with regard to the Contractor.

    5. The Client's statutory obligations to inspect and give notice of defects shall remain unaffected. If a defect is discovered during delivery, inspection or at any later point in time, the Contractor must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within one week of delivery and defects not recognisable during the inspection within the same period from the moment of discovery. If the Client fails to carry out a proper inspection and/or report defects, the Contractor's liability for the defect, which may not have been reported at all, not reported on time or not reported properly, shall be excluded in accordance with the statutory provisions. Timely dispatch shall suffice to meet the deadline. The Client shall bear the full burden of proof for all prerequisites for claims, in particular for the defect itself, for the time of discovery of the defect and for the timeliness of the notice of the defect.

    6. If the Contractor has reasonable grounds to suspect that the defect is a serial defect that has an impact on safety, the Contractor shall be entitled to suspend distribution of the goods until the facts have been clarified and, in the case of an actual serial defect, until the defect has been rectified.

    VII. Compliance with the Requirements of Foreign Trade Legislation

If the Client intends to export the delivered goods after receipt from the Contractor, the Client shall be responsible for compliance with the statutory and official regulations. In particular, the client may not export the delivered goods in violation of embargoes or sanctions imposed by the Federal Republic of Germany or the EU.

    VIII. Re-export to Russia

        1. The Client may not sell, export or transfer to the Russian Federation for use in the Russian Federation, directly or indirectly, any goods or technologies supplied under or in connection with this contract that fall within the scope of Article 12g of Council Regulation (EU) No 833/2014.

        2. The Client shall make all reasonable efforts to ensure that the purpose of Paragraph (1) is not undermined by third parties in the wider supply chain, including potential resellers. 

        3. The Client shall establish and maintain an appropriate monitoring mechanism and endeavour to identify behaviour by third parties in the wider supply chain, including potential resellers, that would undermine the purpose of Paragraph (1).

        4. Any culpable breach of Paragraph (1), (2) or (3) shall constitute a material breach of the contract and the Contractor shall be entitled to take appropriate remedies, including but not limited to:

    a. cancellation of this contract; and

    b. the assertion of a contractual penalty, the amount of which shall be determined by the Contractor at its reasonable discretion and the appropriateness of which may be reviewed by the competent court in the event of a dispute. The assertion of other claims or higher damages shall remain unaffected; any contractual penalty already paid shall be offset against any higher damages asserted. Further statutory or contractual rights of the Contractor shall remain unaffected.

        5. The Client shall inform the Contractor immediately of any problems in the application of Paragraph (1), (2) or (3), including relevant activities by third parties that could undermine the purpose of Paragraph (1). The Client shall provide the Contractor with information on compliance with the obligations under Paragraphs (1), (2) and (3) within two weeks of a simple request for such information.

    IX. Liability

    1. Claims of the Client for damages shall be excluded – subject to the provisions of this Section VII.

    2. This shall exclude any claims of the Client for damages arising from the negligent breach of material contractual obligations by the Contractor's bodies, legal representatives, employees or other vicarious agents, i.e. such obligations whose fulfilment is essential for the proper performance of the contract and on whose compliance the contractual partner has regularly relied and may rely, and whose culpable non-fulfilment jeopardises the achievement of the purpose of the contract. In the event of a negligent breach of material contractual obligations, the Contractor shall only be liable for typically occurring damage deemed foreseeable at the time the contract was concluded.

    3. The limitations and exclusions of liability in this Section VII shall not apply to the Contractor's liability for intentional behaviour or gross negligence on the part of its bodies, legal representatives, employees or other vicarious agents, for defects whose absence the Contractor has warranted or guaranteed, or which the Contractor has fraudulently concealed, for injury to life, limb or health or under the Product Liability Act.

    4. The above exclusions and limitations of liability shall apply to the same extent in favour of the Contractor's bodies, representatives, employees and other vicarious agents if claims are asserted directly against them.

    5. Indirect, special or consequential damages of any kind, such as damages caused by delay, business interruption, loss of profits, loss of savings, loss of revenue, loss of opportunity, loss of goodwill, loss of data, damage to reputation or forfeited penalties or fines, shall only be eligible for compensation if such damages can be typically expected when the delivered goods are used for their intended purpose.

    X. Statute of Limitations

    1. Notwithstanding Section 438 (1) (3) BGB, claims arising from material defects and defects of title shall become time-barred 12 months after delivery to the Client or, if acceptance has been agreed or is provided for by law, following acceptance. Other special statutory provisions on the statute of limitations, in particular Sections 438(1) (1), (3), 444 and 445b BGB, shall also remain unaffected.

    2. The aforementioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Client based on a defect in the goods. This shall exclude any claims for damages by the Client due to intentional or grossly negligent behaviour and due to damage to life, body and health, or under the Product Liability Act; these claims shall lapse exclusively in accordance with the statutory limitation periods.

    3. The statutory provisions on suspension of expiry, suspension and recommencement of time limits shall remain unaffected.

    XI. Premature Termination of Contract

    1. If the contractual relationship is terminated for any reason before the Contractor has completely fulfilled the order, its deliveries made up to that point shall be remunerated as follows:

        a) in the case of deliveries for which remuneration is paid as a lump sum, the full remuneration shall be paid if and insofar as the Contractor has fully performed its deliveries; otherwise, the full remuneration shall be reduced on a percentage basis in accordance with the part that has not yet been performed, which shall be estimated if necessary;

        b) deliveries to which separate remuneration amounts are allocated or which are remunerated on a time and material basis shall be invoiced in accordance with the stage of completion reached.

    2. Any further claims of the Contractor due to the premature termination of the contract shall remain unaffected.

    XII. Place of Fulfilment and Jurisdiction

        1. The place of fulfilment for deliveries and payments shall be the Contractor's registered office.

        2. The exclusive – and international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the Contractor's registered office. The Contractor shall also have the right to assert its own claims before the courts at the Client's registered office.

    XIII. Applicable Law

The law of the Federal Republic of Germany shall apply to the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.