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§ 1 Scope of application; Form

(1) These “AGBs” (Terms of Business) are applicable to all of our business dealings with our customers (“purchasers”). These Terms of Business are applicable only if the Purchaser is a contractor (as per §14, BGB (=German Civil Code)), a legal entity under public law or a special fund under public law.

(2) The Terms of Business are applicable in particular to contracts for the sale and/or supply of movable articles (“goods”) irrespective of whether we manufacture the goods ourselves or buy them in from suppliers (refer §§ 433, 650 BGB). Unless otherwise agreed, the Terms of Business in the version as disclosed and applicable at the time of the Purchaser’s order, or in any event in the version most recently notified to the Purchaser in text form, will also stand as a framework agreement for equivalent future agreements so that we do not have to repeatedly draw the Purchaser’s attention to the Terms in each individual instance.

(3) Our Terms of Business apply with exclusive effect. Any of the Purchaser’s own Terms of Business with any deviating, contrary or supplementary effect will become a constituent part of the Agreement only if and to the extent that we have expressly approved their applicability. This requirement for approval is applicable in all cases, including – for example – if the Purchaser refers to its own Terms of Business in the context of its order and if we do not expressly contest such terms.

(4) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and information provided within our order confirmation will take priority over the Terms of Business. In the event of any doubt, trade clauses must be interpreted in accordance with the version applicable upon negotiation of contract, and in accordance with Incoterms®, as issued by the International Chamber of Commerce (ICC) in Paris.

(5) The Purchaser’s legally significant declarations and indications concerning the Agreement (e.g. the setting of deadlines, the reporting of deficiencies, withdrawal or reduction) must be issued in writing. For purposes of these Terms of Business, written form includes written and text forms (e.g. postal letters, emails and faxes). This does not affect statutory requirements of form and further instances of proof, especially in cases of doubt as to the declaring party’s legitimation.

(6) References made to the applicability of legal regulations are merely for informational purposes. Consequently, even in the absence of such explanation, the provisions of law are applicable unless they are directly amended or expressly excluded within these Terms of Business.

§ 2 Negotiation of the Agreement

(1) Our offers are without obligation and non-binding. This also applies if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, forms, calculations and references to DIN Standards), further product descriptions, price lists or documentation – including in electronic form – over which we reserve rights of ownership and copyright for ourselves

(2) The Purchaser’s order of goods constitutes a binding offer of contract. Unless otherwise indicated in the order, we are entitled to accept such an offer of contract within 14 days of its reaching ourselves.

(3) Acceptance can be declared either in writing (e.g. in the form of a confirmation of order) or in the form of the goods’ being supplied to the Purchaser.

§ 3 Delivery timeframe; Delay in delivery

(1) The delivery timeframe is negotiated individually and/or indicated by ourselves upon our acceptance of the order. Where this is not the case, the delivery timeframe will be approximately 14 days as from the negotiation of contract.

(2) Where binding delivery deadlines cannot be adhered to (non-availability of service) for reasons not being our fault, we will promptly notify the Purchaser of the situation and at the same time indicate the prospective, new timeframe for delivery. If service is still not available within the new timeframe, then we are entitled to withdraw in whole or in part from the Agreement; in which event we will promptly reimburse any corresponding payment already paid by the Purchaser. Examples of non-availability of service are held to arise upon our own suppliers’ failure to obtain their respective supplies promptly: if we have negotiated a covering transaction or in the event of other disruptions in the supply chain (due to instances of force majeure, for example) or if we are not under obligation to provide supply in that individual case.

(3) The onset of delay in delivery as attributable to ourselves is determined according to the provisions of law. In all cases, however, it is necessary for the Purchaser to have issued a reminder.

(4) This does not affect the Purchaser’s rights under §8 of these Terms of Business and our own legal rights with particular reference to the exclusion of the obligation to provide service (for example, due to incapacitation or unreasonable demands relating to service and/ or rectification).

§ 4 Delivery; Transfer of risk; Receipt; Delay in acceptance; Flat-rates for compensation

(1) Delivery is provided on the basis of FCA (Free Carrier) delivery to Hauptstraße 7-15, 74246 Eberstadt, Germany, which is also the place of fulfilment for delivery and any rectification. At the Purchaser’s request and expense, the goods will be sent to any different destination (sales shipment). Unless otherwise agreed, we are entitled to decide for ourselves as to the mode of dispatch (especially as to transport companies, the dispatch route and packing).

(2) The risk of fortuitous loss and of fortuitous deterioration of the goods will transfer to the Purchaser no later than at the stage of handover. In the case of a sales shipment, however, the risk of fortuitous loss and of fortuitous deterioration of the goods, together with the risk of delay, is transferred no later than by the stage of the handing of the goods to the shipper, to the transporter or to the individual person or firm specifically appointed to carry out the dispatch. Where receipt has been agreed upon, it also applies to the transfer of risk. Furthermore, the provisions of the law governing service contracts will be applicable, as appropriate, to the agreed receipt of goods. It is equated with handover or receipt if the customer incurs delay in acceptance.

(3) If the Purchaser incurs delay in acceptance, if it culpably fails to complete a collaborative action or if our delivery is delayed for any other reasons attributable to the Purchaser, then we are entitled to claim reimbursement of the loss consequently arising including additional costs (e.g. costs of storage). In such a case we will charge a flat rate of compensation amounting to 0.5% of the order value (net) per full calendar week, but not more than a maximum of 5% of the purchase price (net) commencing on the delivery deadline date or – in the absence of such date – upon the announcement of readiness for dispatch of the goods (flat-rate compensation). This does not affect the right to prove a higher loss and our own statutory claims (especially: reimbursement of additional expenditures, reasonable compensation, cancellation); however, the flat rate of compensation should be accounted in conjunction with further financial claims. The Purchaser is entitled to bring proof that we have not suffered any loss at all or merely a loss substantially less than the corresponding flat rate of compensation.

§ 5 Prices and payment conditions

(1) Unless agreed otherwise in an individual instance, our current prices as applicable on the date of negotiation of the Agreement, and as picked from stores, are subject to the addition of VAT at the statutory rate

(2) In the case of a sales shipment (refer §4, paragraph 1) the Purchaser pays the costs of transportation from the store and the costs of any transport insurance which may be required by the Purchaser. The Purchaser pays any Customs duties, fees, taxes and other public duties.

(3) The purchase price falls due for settlement and must be paid within 14 days as from invoicing and delivery and/or receipt of the goods. However, even in the context of an ongoing business connection, we are entitled at any time to carry out a delivery exclusively in return for advance payment (either in whole or in part). We will declare any such reservation no later than by the stage of confirmation of the order.

(4) The Purchaser is held to have incurred delay upon expiry of the above-mentioned payment timeframe. The purchase price will attract interest at the statutory rate of interest applicable during the delay. We reserve the right to claim a higher loss consequent upon delay. This does not affect our entitlement for commercial due-date interest (refer §353, HGB (=Commercial Statute Book)).

(5) The Purchaser holds rights of offset or of retention only to the extent that its corresponding claim is confirmed in Court or is undisputed. This does not affect the Purchaser’s converse rights applicable to cases of deficiencies in supply: particularly rights arising on the basis of §7, paragraph 6, clause 2 of these Terms of Business.

(6) Should it transpire, after negotiation of the Agreement (e.g. due to an application for the institution of insolvency proceedings) that our claim to receive the purchase price is at risk due to the Purchaser’s inability to pay, then we are entitled under legal regulations concerning the withholding of service — having, where applicable, set a further deadline — to withdraw from the Agreement (refer §321, BGB). In the case of agreements for the manufacture of non-transferable articles (individual productions), we may declare withdrawal immediately; this will not affect the statutory provisions governing the absence of need for deadlines.

(7) In the case of orders below the value of 250.00 euros, the Purchaser will be invoiced a further flat rate charge (costs of processing the order) of 50.00

§ 6 Reservation of ownership

(1) We reserve the right of ownership over sold goods pending the settlement of all of our present and future claims arising from the purchase contract and an ongoing business connection (secured claims).

(2) Goods which are subject to a reservation of ownership may not – before full settlement of secured claims – either be assigned to third parties or made over as security. The Purchaser must promptly write to inform us if any application for the institution of insolvency proceedings has been filed or if any access applications (pledge claims, for example) are issued in respect of goods belonging to ourselves.

(3) In the event of the Purchaser’s actions in breach of the Agreement – and especially in the event of non-payment of the due purchase price – we are entitled to withdraw from the Agreement under the provisions of law and/or to require the return of the goods on the basis of reservation of ownership. The claim for the return of goods does not also constitute declaration of withdrawal; rather, we are entitled to require the return of the goods as such and to reserve the right of withdrawal. If the Purchaser fails to settle the due purchase price, then we can substantiate these rights only if we have already served the Purchaser with a reasonable deadline for payment, but without satisfaction; or if the setting of such a deadline is not required under the provisions of law.

(4) The Purchaser is entitled, pending revocation as described in clause (c) below, to sell on and/or process goods being the subject of reservation of ownership in the normal course of business. In that event, the following provisions will also apply.

(a) The reservation of ownership extends to products created by the processing, mixing or combination of our goods to their full value, whereby we will stand as the manufacturer. If the rights of ownership held by third parties remain in place in the event of processing, mixing or combining with their goods, then we acquire co-ownership in proportion to the values charged for the goods that have been processed, mixed or combined. Otherwise the resultant product will be subject to the same conditions as those applicable to reserved ownership over delivered goods.

(b) The Purchaser hereby assigns to ourselves, as a security, the claims against third parties acquired by virtue of the selling-on of the goods or of the resultant product, either fully or to the extent of any co-ownership share which we hold as defined in the above paragraph. We accept such assignment. The Purchaser’s obligations as mentioned in paragraph 2 also apply in respect of assigned claims.

(c) The Purchaser remains entitled, in addition to ourselves, to foreclose on the claim. We undertake not to foreclose on the claim provided that the Purchaser fulfils its payment obligations in relation to ourselves, that there are no issues with the customer’s ability to pay and that we do not substantiate the reservation of ownership by exercising a right corresponding to paragraph 3. If any of the above instances should arise, however, then we may require that the Purchaser should inform us of the assigned claims and their debtors, that it should provide all information required for collection of the corresponding claims, that it should provide us with the corresponding documentation and that it should notify the debtors (third parties) of the assignment. In that event, furthermore, we are entitled to revoke the Purchaser’s entitlement to sell on and to process goods which are subject to reserved ownership.

(d) If the realisable value of the securities comes to exceed our own claims by more than 10%, then (at the Purchaser’s request) we will release the securities at our own discretion

§ 7 Purchaser’s claims for defects

(1) The Purchaser’s rights upon material defects and legal deficiencies (including incorrect supply and insufficient supply, together with inexpert assembly/installation or deficient instructions) are governed by the provisions of law unless otherwise specified below.

In all cases, the special legal regulations governing the reimbursement of expenditures upon final delivery of newly manufactured goods to a consumer (supplier’s right of recourse under §§ 478, 445a, 445b and §§ 445c, 327 paragraph 5, 327u BGB) continue to apply unchanged unless equivalent compensation has been negotiated, such as in the case of a quality assurance Agreement.

(2) Our liability for defects is primarily based on the arrangement negotiated for the condition and for the stipulated utilisation of the goods (including fittings and instructions). A correspondingly-defined arrangement concerning condition is held to arise in the form of product descriptions and manufacturers’ information under an individual agreement — or those made public by ourselves (especially in catalogues or on our Internet homepage) — by the date of the negotiation of the Agreement. Where condition had not been made the subject of any agreement, then it must be determined – by the corresponding statutory provision – as to whether or not a defect is present (refer §434, paragraph 3, BGB). In this context, the manufacturer’s public statements or statements made in its order – especially in its advertising or on the product label – will take priority over any other third parties’ statements.

(3) In the case of goods with digital components or other digital contents, we are required to provide – and, where applicable, to update – such digital contents only to the extent that this is expressly stipulated under an agreement for condition as per paragraph 2, above. To that extent, we do not accept any liability for public statements made by the manufacturer and by other third parties.

(4) Essentially, we are not liable for any defects which the Purchaser was aware of – or, by gross negligence, was unaware of – at the stage of negotiation of the Agreement (refer §442 BGB). Furthermore, the Purchaser’s claims regarding defects are dependent on its having fulfilled its own statutory obligations for examination and reporting (refer §§ 371, 381 HGB). In each case, an examination must be made immediately before the processing of any goods intended for installation or further processing. Should a defect come to light at the stage of delivery or of examination or at any subsequent point in time, then we must be provided with a corresponding written report. Should the Purchaser fail to conduct the correct investigation and/or to report any defect, then our liability for the defect which was not reported, not promptly reported or not correctly reported will be excluded under statutory provisions. The above situation will also apply in the case of goods intended for fitting, attachment or installation even if the defect – as the result of the infringement of one of the above obligations – only came to light after the corresponding processing; in that event, in particular, the Purchaser will hold no claims for reimbursement of corresponding costs (“costs of extraction and installation”).

(1) The Purchaser is obliged to keep itself informed concerning all statutory provisions affecting it, with particular reference to obligations which have to be urgently complied with, and the Purchaser is obliged to comply with them strictly. This is primarily applicable in cases where the goods (or parts of the same) have been sold on or exported – to Russia, for example – by the Purchaser to third parties. In particular, it is necessary to comply with Customs provisions, sanctions, obligations of notification and approval or other export provisions corresponding to the dual-use regulation applicable to goods with a dual application, in this instance referring especially to (EU) 328/2022, (EU) 833/2014 and, by co-applicability: (EU) 2021/821.

(1) The Purchaser is obliged to keep itself informed concerning all statutory provisions affecting it, with particular reference to obligations which have to be urgently complied with, and the Purchaser is obliged to comply with them strictly. This is primarily applicable in cases where the goods (or parts of the same) have been sold on or exported – to Russia, for example – by the Purchaser to third parties. In particular, it is necessary to comply with Customs provisions, sanctions, obligations of notification and approval or other export provisions corresponding to the dual-use regulation applicable to goods with a dual application, in this instance referring especially to (EU) 328/2022, (EU) 833/2014 and, by co-applicability: (EU) 2021/821.

(7) The Purchaser must allow us the required time and scope of opportunity to provide the required rectification especially concerning the handover of the problem goods, so that they can be tested/inspected. In the case of replacement supply, the Purchaser must hand the defective product back to ourselves, at our request, under statutory regulations; however, the Purchaser does not hold the right of return. Rectification does not include either the extraction, the removal or the de-installation of the defective article, nor the fitting, attachment or installation of a non-defective article if we were not originally obliged to provide such services; this does not affect the Purchaser’s entitlements for the reimbursement of corresponding costs (“costs of extraction and installation”).

(8) We will bear or reimburse the expenditures required for purposes of testing/inspection and rectification, especially the costs of transportation, travel, labour and materials, together – where applicable – with the costs of extraction and installation, as required by the corresponding statutory regulation and by these Terms of Business, if a defect is actually present. Otherwise we are entitled to require the reimbursement of the costs arising from the Purchaser’s unjustified requests for troubleshooting if the Purchaser was aware – or was unaware due to negligence – that no defect was in fact present.

(9) In urgent cases, such as a threat to industrial safety, or instances of damage too major to be prevented, then the Purchaser is entitled to take steps to rectify the defect directly and to require us to provide reimbursement of the expenditures that were objectively necessary for the purpose. We should be notified promptly (or, if possible, in advance of) any such direct action. The right of direct action does not apply if we would have been entitled, under the provisions of law, to decline to provide corresponding rectification.

(10) If any reasonable deadline to be set by the Purchaser concerning rectification has expired without satisfaction or is non-essential under the provisions of law, then the Purchaser may, under the provisions of law, withdraw from the purchase agreement or may reduce the purchase price. However, there is no right of withdrawal in the case of an insubstantial defect.

(11) The Purchaser’s claims for compensation and/or for the reimbursement of lost expenditures are applicable – even in the presence of defects – only as defined in §8, and are otherwise excluded.

§ 8 Other liability

(1) Unless otherwise indicated in these Terms of Business, including the following provisions, we are subject to liability upon infringement of contractual and of extra-contractual obligations to the legally required extent.

(2) We are liable to provide compensation – on whatsoever legal grounds – within the framework of fault liability for wilful intent and gross negligence. In an instance of plain negligence, we are liable – subject to reservation of statutory restrictions upon liability (e.g. care taken in one’s own activities, insubstantial breach) — only:
a) for claims arising from instances of fatality, physical injury or damage to health,
b) for claims arising from the infringement of a substantial contractual obligation (obligation which could only be fulfilled in any event by the correct implementation of the Agreement and upon whose fulfilment the partner in contract was appropriately relying and was entitled to rely); in such an event, however, our liability is restricted to compensation for the foreseeable loss which would typically arise

(3) The liability restrictions arising from paragraph 2 above are also applicable in the event of breaches on the part of persons (including such breaches in their own favour) for whose culpability we are liable under the provisions of law. These restrictions do not apply if there was deliberate failure to disclose any defect or to the extent that a guarantee for the condition of the goods has been taken on, together with a guarantee for the Purchaser’s claims under product liability regulations.

(4) The Purchaser may withdraw from or terminate an agreement on the grounds of a breach which did not consist of a defect only if the breach was attributable to ourselves. The Purchaser’s elective right of termination (especially under §§ 650, 648, BGB) is excluded. Otherwise, the provisions of law and legal consequences are applicable.

§ 9 Expiry

(1) By way of deviation from §438, paragraph 1, clause 3, BGB, the general statute of expiry for claims arising from material and legal deficiencies is one year as from delivery. Where receipt has been agreed upon, expiry starts to run upon receipt.

(2) If the goods consist of a building project or of an item which has been used for a building project in accordance with the regular practice and which has caused it to be defective (building material), the period of expiry is 5 years as from receipt of delivery under the provisions of law (refer §438, paragraph 1, clause 2, BGB). This does not affect further special provisions governing expiry (especially §438, paragraph 1, clause 1, paragraph 3, §§444, 445b, BGB).

(3) The above-mentioned periods of expiry under purchasing law are also applicable to the Purchaser’s contractual and extracontractual compensation claims arising from a defect in the goods unless the application of the normally applicable statutory expiry (refer §§ 195, 199 BGB) would lead to a shorter period of expiry in any individual instance. The Purchaser’s compensation claims under §8, paragraph 2, subclause 1 and subclause 2 (a) and those arising under product liability legislation, will expire exclusively in accordance with the statutory expiry periods.

§ 10 Purchaser’s further obligations – Purchaser’s obligation to give exoneration

(1) The Purchaser is obliged to keep itself informed concerning all statutory provisions affecting it, with particular reference to obligations which have to be urgently complied with, and the Purchaser is obliged to comply with them strictly. This is primarily applicable in cases where the goods (or parts of the same) have been sold on or exported – to Russia, for example – by the Purchaser to third parties. In particular, it is necessary to comply with Customs provisions, sanctions, obligations of notification and approval or other export provisions corresponding to the dual-use regulation applicable to goods with a dual application, in this instance referring especially to (EU) 328/2022, (EU) 833/2014 and, by co-applicability: (EU) 2021/821.

(2) In the event that we should suffer any loss as the result of infringement of the above-mentioned prohibition, or in connection with the same, the Purchaser will compensate us for such loss. In particular, the Purchaser undertakes to hold us fully exempt, upon first request, from any claims which result from an infringement – attributable to the Purchaser – of applicable law or of third parties’ rights. In particular, the exemption obligation additionally (and specifically) comprises exoneration from reasonable national and international costs of legal defence (e.g.: Court and attorney costs).

§ 11 Choice of law; Jurisdiction

(1) German law, to the exclusion of standard international law – and especially to the exclusion of UN purchasing law – is applicable to these Terms of Business and to the contractual relationship between ourselves and the Purchaser.

(2) If the Purchaser is a business person as defined in the commercial statute book, a legal entity registered under public law or a public-legal special fund, then our head office in 74246 Eberstadt is the exclusive place of jurisdiction (including at international level) for all disputes arising directly or indirectly from our contractual relationship. The same will apply if the Purchaser is a contractor as defined in §14, BGB. In all cases, however, we are also entitled to bring action at the place of fulfilment for the delivery obligation under these Terms of Business or under any prior individual agreement, or otherwise at the Purchaser’s general place of jurisdiction. This does not affect statutory regulations with particular reference to exclusive attributions of competency.