§ 1
General - Scope of application
(1) Our Terms and Conditions of Sale apply exclusively; we do not recognize any terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Sale unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(2) All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
(3) Our Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of § 310 para. 1 BGB (German Civil Code).
§ 2
Offer - Offer documents
(1) If the order is to be qualified as an offer in accordance with § 145 BGB, we can accept this within 2 weeks.
(2) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. This shall also apply to such written documents which are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.
§ 3
Prices - Terms of payment
(1) Unless otherwise stated in the order confirmation, our prices shall apply in accordance with Incoterms FCA “Free Carrier, Felicitasstrasse 9”, excluding packaging; this shall be invoiced separately.
(2) The statutory value added tax is not included in our prices; it will be shown separately on the invoice at the statutory rate on the day of invoicing.
(3) The deduction of discounts requires a special written agreement.
(4) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. The statutory regulations regarding the consequences of default of payment shall apply.
(5) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognized by us. In addition, the customer is authorized to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 4
Delivery time
(1) The start of the delivery period stated by us is subject to the clarification of all technical questions.
(2) Compliance with our delivery obligation further presupposes the timely and proper fulfillment of the customer’s obligation. We reserve the right to plead non-performance of the contract.
(3) If the customer is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
(4) Insofar as the requirements of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
(5) We shall be liable in accordance with the statutory provisions insofar as the underlying purchase contract is a transaction for delivery by a fixed date within the meaning of Section 286 (2) No. 4 BGB or Section 376 HGB. We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further fulfillment of the contract has ceased to exist.
(6) We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(7) We shall also be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
§ 5
Terms of delivery
(1) When ordering, the minimum invoice amount must be € 30.00 net; orders below this amount can only be executed in exceptional cases and with the express consent of the management (e.g. sample orders). Invoices below this amount will be rounded up.
(2) Custom-made products are generally excluded from return and exchange if the goods have been delivered correctly. The basis for the delivery is a drawing or sample approved by the customer.
(3) All deliveries that are returned to us by the customer must be sent back to us carriage paid.
(4) In accordance with § 357 para. 2 BGB, the customer shall bear the costs of the return shipment in the event of withdrawal from the contract.
§ 6
Transfer of risk - packaging costs
(1) Unless otherwise stated in the order confirmation, delivery shall be “Free Carrier, Felicitasstrasse 9” in accordance with Incoterms FCA.
(2) Separate agreements shall apply to the return of packaging.
(3) If the customer so wishes, we will cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer.
§ 7
Liability for defects
(1) The customer’s claims for defects presuppose that he has properly fulfilled his obligations to inspect and give notice of defects in accordance with § 377 HGB (German Commercial Code).
(2) If there is a defect in the purchased item, the customer shall be entitled, at his discretion, to subsequent performance in the form of rectification of the defect or delivery of a new item free of defects. In the event of rectification of the defect, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the purchased item has been taken to a place other than the place of performance.
(3) If the subsequent performance fails, the customer shall be entitled, at his discretion, to demand withdrawal or a reduction in price.
(4) We shall be liable in accordance with the statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. Insofar as we are not accused of intentional breach of contract, the liability for damages shall be limited to the foreseeable, typically occurring damage.
(5) We shall be liable in accordance with the statutory provisions if we culpably breach a material contractual obligation; in this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
(6) Insofar as the customer is entitled to compensation for damages instead of performance, our liability shall also be limited to compensation for foreseeable, typically occurring damages within the scope of paragraph (3).
§ 8
Joint and several liability
(1) Any further liability for damages other than that provided for in § 6 is excluded, regardless of the legal nature of the asserted claim. This applies in particular to claims for damages arising from culpa in contrahendo, other breaches of duty or tortious claims for compensation for property damage in accordance with § 823 BGB.
(2) The limitation according to paragraph (1) shall also apply if the customer demands compensation for useless expenses instead of a claim for damages.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply with regard to the personal liability for damages of our employees, workers, staff, representatives and vicarious agents.
§ 9
Retention of title
(1) We reserve title to the purchased item until all payments arising from the delivery contract have been received. If the customer acts in breach of contract, in particular in the event of default of payment, we shall be entitled to take back the purchased item. If we take back the purchased item, this shall constitute a withdrawal from the contract. After taking back the purchased item, we are authorized to sell it; the proceeds from the sale are to be offset against the customer’s liabilities - less reasonable selling costs.
(2) The customer is obliged to treat the purchased item with care; in particular, he is obliged to insure it adequately at his own expense against fire, water damage and theft at replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(3) In the event of seizure or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.
(5) The processing or transformation of the object of sale by the customer shall always be carried out on our behalf. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered under reservation of title.
(6) If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the purchased item (final invoice amount, including VAT) to the other mixed items at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer shall transfer co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership for us.
(7) The customer shall also assign to us the claims to secure our claims against him which arise against a third party through the combination of the purchased item with a property.
(8) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; we shall be responsible for selecting the securities to be released.
§ 10
Place of jurisdiction - place of performance
(1) If the customer is a merchant, our registered office is the place of jurisdiction; however, we are also entitled to sue the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply; the application of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
Dortmund, February 2022