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General Terms And Conditions

General terms and conditions for the sale and delivery of goods (28.02.2020)


I. Application; Offers; Obligation to communicate information by the Purchaser


1. These general sales terms and delivery conditions (hereinafter referred to as "Conditions")
    shall apply to all – including future – agreements for deliveries and other services between
    us (hereinafter referred to as "we" or "us") and Purchasers who are entrepreneurs (Sec. 14
    BGB (German Civil Code)), a legal entity under public law, or a public separate estate. We
    will not recognize conflicting or deviating terms and conditions of the Purchaser, unless we
    expressly agreed to the application thereof in writing. We are hereby objecting to potential
    terms and conditions of the Purchaser in the event that we receive such conditions in a
    confirmation letter or in other ways, or we perform deliveries or services vis-a-vis the
    Purchaser without reservations, or we accept services by the Purchaser without
    reservations without objecting to the Purchaser's terms and conditions again.
2. Our offers are non-binding. Agreements, in particular ancillary verbal agreements,
    acceptances, guarantees, and other assurances by our staff shall only be binding upon our
    written confirmation. The actual delivery of the ordered goods, other behaviors on our end,
    or silence do not justify any reliance of the Purchaser on the conclusion of an agreement.
    The written form shall also be deemed adhered to when sending a fax or email.
3. Prior to the conclusion of an agreement, the Purchaser shall give us written notice if the
   goods to be delivered are not exclusively to be suitable for their common use or if the goods
   are to be used in uncommon conditions or conditions which constitute a specific health or
   safety risk or require major strain. Moreover, the Purchaser shall notify us regarding any
   atypical damage potential or damage amounts connected to the agreement.


II. Prices


1. Our prices are calculated, unless agreed otherwise in writing, ex factory, excluding
packaging, plus statutory sales tax, in the respective amount valid at the time of the
conclusion of the agreement.
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2. If the goods are delivered packaged, we will charge the packaging at cost price; within the
context of statutory regulations, we accept the return of packaging delivered by us if the
Purchaser returns it free of charge within a reasonable period of time.
3. Packing containers are charged separately. We accept returns of rented packing containers
winches and will credit them at 2/3 of the invoice amount, insofar as they are returned to us
free of charge and free of defects within 2 years after the delivery. We do not accept returns
of disposable packing containers.
4. We reserve the right to, at our reasonable discretion, make appropriate changes to our
prices if price-relevant costs decrease or increase after the conclusion of the respective
agreement, in particular based on collective wage agreements or changes in material and
energy prices. We shall announce this in writing to the Purchaser in good time prior to entry
into effect of the changed prices. The Purchaser may terminate the agreement in writing in
case of retroactive price increases, however only within two weeks from the date when it
received our announcement of the price increase.


III. Terms of payment


1. Unless agreed otherwise in writing, our invoices shall be due for payment 14 days after the
invoice date. The payment is to be made in such a manner that the invoiced amount is at
our disposal on the due date at the latest. The Purchaser shall be deemed in default at the
latest 10 days after the due date of our receivables without a warning being necessary.
2. Granted discount periods shall begin as of the invoice date. An agreed discount shall only
ever refer to the invoice amount, excluding freight and packaging costs, and requires
complete settlement of all of the Purchaser's debts which have become due at the time of
the discount.
3. Invoices with amounts under EUR 50.00 as well as for assembly, repairs, shapes, and tool
cost proportions shall respectively be due in their net amount and payable immediately.
4. The Purchaser shall not be entitled to offset against our claims, unless the counterclaim is
undisputed or legally established. Furthermore, the Purchaser shall not be entitled to retain
payments or suspend other obligations affecting it, unless we materially violated due
obligations from the same contractual relationship despite a written warning, and have not
offered adequate safeguarding. Sec. 215 BGB (German Civil Code) shall not apply.
5. If the payment due date is exceeded, at the latest at the occurrence of default, we shall be
entitled to charge interest in the amount of the relevant bank interest rates for overdraft
facilities; at least, however, the statutory delay interest will be charged. We reserve the right
to claim additional damages caused by default. If the Purchaser is in default with payments
with any payment obligations vis-a-vis us, all open receivables shall fall due immediately.
6. Insofar as our payment claim appears to be jeopardized as a result of circumstances
occurring after the conclusion of the agreement, due to which a substantial deterioration of
the financial situation of the Purchaser must be feared from our perspective, we shall be
entitled to immediately demand payment of open receivables. If the Purchaser is in arrears
with payments, which we deem an endangerment of our receivables, we shall additionally
be entitled to take back already delivered goods, to potentially enter the Purchaser's
premises and take away the goods. In addition, we may prohibit any further processing of
the delivered goods. This shall not apply if the Purchaser is not at fault for the arrears in
payments. The retrieval is not a withdrawal from the agreement. In both cases, we can
revoke the direct debit authorization pursuant to Sec. V/5 and demand advance payment
for outstanding deliveries. The Purchaser can avert all of these legal consequences by
providing collateral security in the amount of our jeopardized claim for payment. We have a
claim for usual collateral in terms of nature and extent for our receivables, also insofar as
they are conditional or restricted. The statutory provisions regarding payment default will
remain unaffected.


IV. Terms of delivery; Default


1. Terms of delivery and dates shall only apply approximately, unless we expressly denoted
them as binding in writing. Binding terms of delivery shall be deemed to begin after the
receipt of all documents required for the execution of the order, potential timely material
sourcing, and agreed down payments. In all other cases, the agreed terms will begin with
the date of our written order confirmation.
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2. Should the Purchaser not fulfill its cooperation or secondary duties in due time, such as, for
example, opening of a letter of credit, provision of domestic or foreign confirmations,
furnishing prepayment or the like, we shall be entitled to appropriately extend the agreed
delivery terms and dates irrespective of our rights based on the default of acceptance of the
Purchaser - according to the needs of our course of production.
3. Delivery terms and dates shall be deemed adhered to if the delivery item has left our
premises at the end thereof. If the goods cannot be sent out on time or the Purchaser fails
to timely call them off without any fault on our part, the terms and dates shall be deemed
adhered to upon notification on readiness for shipment.
4. Our delivery obligation shall be subject to our suppliers delivering to us correctly and
punctually, unless we are at fault for receiving incorrect or late delivery.
5. In the event of force majeure, we shall be entitled to delay deliveries by the time of the
obstruction and an adequate start-up period. This shall also apply if such events occur
during default. In this context, currency, trade-related, and other measures taken by
authorities, strikes, lockouts, disruption of operations which are not our fault, obstruction of
transportation routes, delay in import / customs clearance, as well as all other
circumstances for which we are not at fault which significantly impede deliveries and
services or render them impossible, shall constitute force majeure. In that event, it is
irrelevant whether the circumstances occur with us, the supply plant, or another supplier.
Should performance become unfeasible for one of the contractual parties as a result of the
above-mentioned events, the so affected party may terminate the agreement by means of
prompt written declaration.
6. In the event that we are in default, the amount of compensation for default damages shall
be limited to 0.5 % for each week of delay, at the most to 5 % of the value of the delayed
delivery. The Purchaser is entitled to provide evidence of damage in excess of such
amount. We reserve the right to prove that no damage or only significantly smaller damage
was incurred.
7. At the end of an adequate grace period determined by the Purchaser in writing, which shall
be 4 weeks at least, the Purchaser may insofar terminate the agreement if the goods have
not been sent out or reported ready for shipment by the end of the grace period. The same
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shall apply if delivery of the goods becomes impossible for reasons which are our
responsibility. We will promptly notify the Purchaser of the occurrence of an unforeseen
event and communicate a period of time for supplementary performance.
8. The Purchaser shall not have any additional rights due to default. Any recourse to other
bases of claims, in particular of non-contractual nature, shall be excluded.


V. Reservation of Title


1. All delivered goods shall remain our property until any and all receivables have been settled
by the Purchaser from the business relation, irrespective of the legal ground, including
receivables arising in the future or that are conditional (hereinafter referred to as "Reserved
Goods").
2. Treatment and processing of the Reserved Goods shall occur for us as manufacturer in
terms of Sec. 950 BGB (German Civil Code) without obligating us. The processed goods
shall be deemed Reserved Goods within the meaning of Sec. V/1. In case of processing,
compounding and mixing of the Reserved Goods with other goods by the Purchaser, we
shall become a co-owner of the new goods in proportion to the invoice amount of the
Reserved Goods to the other goods used. If we cease to be the owner due to compounding
or mixing, the Purchaser shall already assign us the proprietary rights to the new inventory
or the goods to which it is entitled in the scope of the invoice amount of the Reserved
Goods at this point in time and shall store it for us free of charge and in trust. The coownership
rights arising herefrom shall be deemed Reserved Goods within the meaning of
Sec. V/1.
3. The Purchaser may only sell the Reserved Goods in regular business dealings under its
usual terms and conditions and only as long as it is not in default. The Purchaser shall not
be entitled to other disposal of the Reserved Goods, in particular a repeated transfer of
ownership, pledging, or assignment of our retention rights to third parties.
4. The Purchaser's receivables from its buyers from the resale of the Reserved Goods shall
already be assigned to us in the amount of the invoice amount of the Reserved Goods at
this point in time. This shall also apply in the case of a resale after processing within the
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meaning of Sec. V/2. We hereby accept the assignments. The assignment in advance shall
also extend to all substitutes for the Reserved Goods, e.g. receivables from third parties
(insurance, injuring parties) due to loss of or damage to the Reserved Goods.
5. The Purchaser shall be entitled to collect receivables in trust from the resale until our
revocation, which shall be admissible at any time. At our request, the Purchaser is obligated
to immediately notify its buyers of the assignment to us – unless we do so ourselves – and to
give us the information and documents required for collection.
6. In the event of an occurred or impending pledging or other impairment of our Reserved
Goods by third parties, the Purchaser is to immediately notify us in writing and to label our
property of which we retain the title as such.
7. If the value of existing securities should exceed the secured receivables in total by more
than10 %, then we shall upon written request of the Purchaser insofar be obligated to
release securities at our own choice.
8. If the above-mentioned rights to retention of title are not valid or enforceable under the law
of the territory where the goods are located, the security corresponding to the retention of
title in this territory shall be deemed as agreed. The Purchaser undertakes to take and to
collaborate in all required measures which are necessary to substantiate and retain
comparable rights or securities.


VI. Performing Delivery


1. With the handover of the goods to a carrier or forwarder, but at the latest upon exiting the
warehouse or – in the case of wholesaler-to-client sales – the supply plant, the risk shall
pass to the Purchaser, including if delivery is made freight prepaid. The obligation and costs
of unloading shall be borne by the Purchaser. Insurance is provided solely upon written
instruction and at the cost of the Purchaser.
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2. We are entitled to make partial deliveries insofar as they are reasonable to the Purchaser.
In the case of manufacture goods, excess and short deliveries of up to 10 % of the agreed
amount shall be admissible.
3. In the case of call orders, we shall be entitled to manufacture or to have manufactured the
entire ordered amount completely in one setting. We cannot take potential changes into
account after the order was placed, unless this was expressly agreed in writing. Call dates
and amounts can, unless expressly agreed otherwise, only be adhered to within the scope
of our delivery or manufacturing possibilities. If goods reported ready to ship are not called
according to the agreement, we shall be entitled to send or store them at the cost of the
Purchaser at our discretion and to invoice them immediately. The risk also passes to the
Purchaser if it does not fulfill its obligation to take the goods.
4. In the event of orders with consecutive deliveries, we must be notified in due time of calloffs
and classifications for approximately the same monthly amounts. The determination of
adequate lead time and call amounts shall be made in written agreement with the
Purchaser in individual cases and in the case of a lack of agreement, according to industry
standards. During call issuing, the Purchaser shall in any case take adequately into account
the lead times and setup times required by us, as well as the necessary delivery by our
suppliers. If calls or classification are not performed in due time, we shall – after expiry of a
reasonable grace period – be entitled to perform classification on our end and to deliver the
goods, or to terminate the impending part of the order and to demand compensation for
damage instead of the service.


VII. Warranty; Examination and notification duty


1. The goods shall be deemed defective if the Purchaser proves that it noticeably deviates
from the type, amount, and quality agreed in our written order confirmation at the time of the
passing of the risk. If there is no such agreement, the defectiveness of the goods shall be
assessed in accordance with the DIN and EN standards effective at the time of the
conclusion of the agreement, and if such standards are not available, according to
customary business practice. References to standards and similar guidelines as well as
specifications on quality, types, dimensions, weight, and usability of the goods,
specifications in drawings and illustrations, as well as statements in advertising material
shall not constitute assurances or guarantees if they are not expressly designated as such
in writing. The same shall apply to conformity declarations and associated mark such as CE
or GS. Suitability and usage risks fall to the Purchaser alone.
2. The existence of deficiency in title shall be determined pursuant to Sec. 435 BGB (German
Civil Code).
3. The Purchaser's warranty rights require that it properly fulfilled its duty to examine the
goods and notify us of any, both under the applicable law and these General Terms and
Conditions. The Purchaser shall be obligated vis-a-vis us to immediately examine each
individual delivery in all respects for noticeable and typical deviations, and to promptly notify
us in writing of each determined defect, but at the latest 5 days after delivery. Any defect
which is not discovered until later despite thorough examination shall be notified to us
immediately, but at the latest 5 days after discovery.
4. Insofar as the goods have a defect for which we are at fault, we shall remedy the
defectiveness or provide replacement at our discretion. Where we remedy the defect, we
shall be obligated to bear all costs required for the purpose of remedying such defect, in
particular transportation, labor, and material costs, insofar as they do not increase due to
the goods being delivered to a different destination than the original place of delivery.
5. The Purchaser is to give us time and opportunity to determine the noted defect and to
examine the rejected goods. The rejected goods are to be immediately returned to us upon
our request; we shall assume the transportation costs if the notice of defect is justified. If
the Purchaser does not give us time and opportunity to examine the rejected goods or
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samples thereof despite our request, it shall not be entitled to claim the defectiveness of the
goods. An unjustified demand for the remedy of a defect shall entitle us to claim
compensation for damages if the Purchaser could have discovered upon thorough
examination that no defect existed.
6. We shall neither be responsible for defects caused by unsuitable or improper use, faulty
assembly and/or startup by the Purchaser or third parties, normal wear and tear, faulty or
negligent handling, nor for the consequences of improper changes made without our
consent or repair work by the Purchaser or third parties. The same shall apply to defects
which only insignificantly lower the value or the suitability of the goods.
7. There are no additional claims due to defects of the goods. Any recourse to competing
bases of claims, in particular of non-contractual nature, shall be excluded.
8. All claims by the Purchasers due to delivery of deficient goods shall expire one (1) year
after the beginning of the statutory limitation period. Claims based on malicious and
deliberate violation of the agreement shall remain unaffected. Replacement delivery or
rectification shall not result in a new beginning of the statutory limitation period.


VIII. Liability


1. Except for liability under the Product Liability Law (ProdHaftG), for malicious nondisclosure
of a defect, due to a guarantee we assumed for the quality of an item or for damage arising
from culpable injury to life, limb, or health, we are only liable to pay damages vis-a-vis the
Purchaser in the case of a breach of duties arising from the agreement concluded with the
Purchaser in accordance with the following provisions without waiving the statutory
requirement for such a liability.
2. We are only liable for the culpable breach of material contractual obligations and the
grossly negligent or intentional breach of other contractual duties to Purchaser. Material
contractual obligations are such obligations which render, only if fulfilled, the proper
execution of the agreement possible in the first place and on the fulfillment of which the
Purchaser relies and may rely regularly.
3. In the event of a breach of significant obligations by simple negligence, our liability shall be
limited to the replacement of the foreseeable, typically occurring damage.
4. In the event of a breach of other, i.e. non-material contractual obligations existing vis-a-vis
the Purchaser by simple negligence, our liability shall be excluded.
IX. Intellectual property rights
1. With regard to cost estimates, drafts, drawings, and other documents, we reserve the right
of ownership and the intellectual property rights; third parties may only be granted access
thereto upon our prior written consent. Drawings associated with offers and other
documents shall be returned upon request.
2. Insofar as we delivered goods pursuant to drawings, models, prototypes, or other
documents provided by the Purchaser, the Purchaser warrants that third-party property
rights are not violated. If third parties prohibit us from manufacturing and delivering such
goods in particular, invoking property rights, we shall be entitled to – without the obligation
to verify the legal situation – insofar suspend all activities and demand payment of damages
if the Purchaser is at fault. Moreover, the Purchaser shall be obligated to indemnify us
immediately from all claims by third parties in connection therewith.


X. Test components, shapes, tools


1. If the Purchaser is to provide components for the execution of an order, they are to be
delivered on time, free of charge and free from defects to the production site in the agreed
quantity, or otherwise in an adequate excess quantity for potential rejects. Should this not
occur, costs and other consequences incurred herefrom shall be borne by the Purchaser.
2. The construction of trial components, including the costs of shapes and tools shall be borne
by the Purchaser.
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3. Our liability for tools, shapes, and other manufacture devices provided by the Purchaser
shall be limited to our reasonable care. The cost of maintenance and care shall be borne by
the Purchaser. Our duty to preserve records shall cease to exist – irrespective of the
Purchaser's property rights – at the latest two years after the last manufacture using the
shape or tool.


XI. Place of performance; place of jurisdiction; applicable law


1. The place of performance for all obligations arising from the contractual relationship with
the Purchaser and the place of jurisdiction shall be our legal seat. However, we may
choose to file an action against the Purchaser at its place of jurisdiction as well.
2. German law shall apply to all legal relationships between us and the Purchaser, excluding
its conflicts of laws provisions and excluding the UN Convention on Contracts for the
International Sale of Goods (CISG).


XII. Final Provisions


1. The INCOTERMS in their respectively latest valid version shall be relevant for the
interpretation of trade terms.
2. The Purchaser shall keep secret any business and trade secrets of which it has or will
become aware as well as information deemed confidential or clearly to be treated
confidentially based on other circumstances, also beyond the business relationship until
such information becomes public, however, at least for a period of 5 years after the end of
the business relationship, and shall not disclose such information to third parties.
3. Should a provision of these Conditions be or become partially or fully invalid, this shall not
affect the validity of the remaining provisions of these Conditions. The parties hereby
already agree at this point in time to replace any invalid provisions with effective provisions
which come as close as possible to achieving the economic purpose intended by the
parties.