General Terms and Conditions of Sale and Delivery

I. Scope of application

For all our sales and other deliveries and services, the following terms of delivery shall apply exclusively, as far as the customer is a merchant within the meaning of the German Commercial Code (HGB) or an entrepreneur within the meaning of § 14 BGB. We shall only be bound by any deviating terms and conditions or counter-confirmations of the customer if and as far as we have expressly agreed to them. In particular, our silence with regard to such deviating terms and conditions or counter-confirmations of the customer shall not be deemed to constitute recognition or consent. Such deviating conditions or counter-confirmations of the customer are hereby expressly rejected.

II. Conclusion of contract

1.    Our offers are subject to change. We reserve the right to make technical changes as well as changes in shape and colour and/or weight within the permissible tolerances.

2.    By ordering goods, the customer makes a binding declaration that he wishes to purchase the ordered goods. If the goods are ordered electronically, we will confirm receipt of the order without delay. This confirmation of receipt does not constitute a binding acceptance of the order.

3.    Acceptance can be declared either in writing, by electronic means or at the latest by delivery of the goods to the customer.

4.    Our own obligation to perform is subject to proper and timely delivery to us by our suppliers. This shall only apply in the event that we are not responsible for the improper or untimely delivery, in particular if a congruent hedging transaction is concluded with our supplier in suitable time. The customer shall be informed immediately of the non-availability of the service and the reasons for this.

III. Price and payment

1.    Our prices are generally based on the most recent price and conditions sheet provided to our customer. If and as far as we have notified the customer of deviating prices and/or conditions, these prices and conditions shall apply. Unless expressly agreed otherwise, our prices are exclusive of any value added tax at the respective statutory rate. Unless expressly agreed otherwise, they generally include standard packaging for transportation by truck and, from a delivery quantity of 2,000 kg, flat-rate transportation by us or a vicarious agent to an agreed destination in Germany or abroad. Any customs duties, levies and taxes that may be incurred due to a cross-border delivery are also taken into account and included in the price calculation, unless expressly agreed otherwise. Special packaging and metal pallets (see Section V. of these GTCSD) shall be invoiced separately to the Buyer plus statutory VAT. In the case of delivery quantities lower than the agreed (minimum) delivery quantity, the Purchaser shall bear the usual freight costs in addition to the prices listed in each case.

2.    The dispatch weight determined in the supplying plant or in our warehouse shall be decisive for invoicing.

3.    Our invoices are due immediately upon receipt and without deduction. 

4.    If, after acceptance of the order, justified doubts arise as to the payment and/or creditworthiness of the customer, we shall be entitled to demand advance payment or appropriate security before delivery or to withdraw from the contract. In this case, the customer shall not be entitled to claim damages.

5.    Any payment and discount periods granted shall commence on the invoice date, but not before the day on which the customer receives the goods, unless otherwise agreed. The timeliness of payments shall be determined by the value date on which the money is credited to our bank account. The customer shall bear the costs of payment transactions.

6.    If the agreed payment deadline is exceeded, we shall be entitled to charge interest on arrears at a rate of 8 percentage points above the respective base interest rate from the due date of the claim. We expressly reserve the right to claim further damages. In this case, we also reserve the right to conduct outstanding deliveries only against advance payment or the provision of appropriate security. If the customer allows a reasonable grace period set by us for advance payment or provision of security to elapse, we shall be entitled to refuse performance and/or withdraw from the contract. In addition, we shall be entitled to prohibit the resale of the goods in our ownership or co-ownership and to demand their immediate return to us or the immediate granting of co-ownership at the customer's expense. To the extent permitted by law, such a demand shall not be deemed a withdrawal from the contract. Furthermore, in this case the customer must refrain from any disposal of the reserved goods which could impair our rights.

IV. Deliveries, delivery time, transfer of risk

1.    Unless otherwise agreed, deliveries shall be made by making the goods available to the customer at the agreed destination ready for unloading on the means of transport, usually a truck; at this time, any risk of deterioration or loss of the goods shall pass to the customer. Unloading shall be conducted by the customer at his own expense and risk.

2.    Binding delivery dates and deadlines must be expressly agreed. In the case of non-binding or only approximate (e.g. approx., about, etc.) delivery dates and periods, we shall endeavour to comply with these to the best of our ability. We shall specify approximate delivery dates to the customer in a suitable form as soon as possible.

3.    Deliveries before expiry of the delivery period are permissible after prior notification. We are entitled to make partial deliveries.

4.    In the case of call-off orders, we shall be entitled to withdraw from the contract and claim damages if the customer exceeds the call-off deadlines after setting a reasonable grace period.

5.    In the event of any transport damage, the customer must contact us immediately to assert claims for compensation. In the event of a culpable breach of this obligation, the customer shall bear any additional damages and other disadvantages arising therefrom which could have been avoided if the customer had duly informed us. 

6.    If delivery is delayed because we exercise our right of retention in the event of agreed advance payment due to the customer's default in payment in whole or in part or for any other reason for which the customer is responsible, the risk shall pass to the customer at the latest from the date of notification of readiness for dispatch. The statutory consequences of default of acceptance shall remain unaffected.

V. Take-back and recycling of packaging

1.    In accordance with the statutory provisions of the German Packaging Act (VerpackG), we shall take back and recycle the used packaging of our delivered goods directly or indirectly through a third party in accordance with Section 33 VerpackG, as described in detail in Sections 2 to 3 below.

2.    If and to the extent that we deliver the goods with packaging material in the form of metal pallets (hereinafter referred to as "pallets"), this shall be deemed a sale combined with the offer of repurchase ("sale with conditional repurchase guarantee") at the conditions set out below, unless otherwise agreed individually. 

The scope of the delivery of pallets shall be determined by us at our reasonable discretion as required when processing the respective order. The number and size of the pallets to be delivered and invoiced shall be specified in the delivery bill. Unless otherwise agreed, the same payment period shall apply for the invoiced pallets as for the delivered goods without discount deduction (cf. Section III Clause 3). 

The pallets are individually labelled by our company. 

If the customer notifies us in writing, by telephone, by fax or by electronic means (e-mail) within 1 year of delivery that the pallets delivered to him are ready for collection at the original place of delivery or at an individually agreed different collection location, collection from the customer shall be carried out during normal business hours by us or an authorized representative at our expense. 

If and as far as pallets are taken back by us, this shall be deemed to be a repurchase at the price agreed at the time of the respective sale. 

If pallets have been so severely damaged while remaining in the customer's sphere of risk that repair at the customer's expense is uneconomical, we will nevertheless take them back. We will dispose of them after taking them back and the purchase price will not be credited to the respective customer. If a repair of the returned pallets is possible with reasonable effort, the responsible customer shall bear the costs associated with a professional repair by deducting them from the credit note to be issued. 

Until such time as it has been determined that the purchased pallets will not be returned to us by the customer in accordance with the above specifications, the customer shall not be entitled to remove or obscure the individual marking of the delivered pallets. We are not obliged to take back pallets that do not bear our company's labelling.

After 1 year from delivery, we are entitled to refuse to repurchase the pallets.

3.    The customer has the option of handing over packaging other than the pallets mentioned in the above clause 2 free of charge to a recycling and environmental service provider commissioned by us (hereinafter: "service provider") for the purpose of proper and environmentally friendly recycling, provided that it is authorized packaging. Authorized packaging is our transport packaging, sales and secondary packaging (which does not accumulate with the private end consumer or for which system participation is not possible due to system incompatibility in accordance with Section 7 (7) VerpackG) and packaging of hazardous goods (in accordance with Section 3 (7) in conjunction with Section 15 (1) No. 4), but not metal pallets. They are marked with the service provider's trademark. Upon request, we will provide the customer with an information sheet containing the necessary information for the proper handling of the collection from the customer as the so-called collection point, in particular the contact details of the service provider and the details of the collection criteria to be met by the customer for the smooth return of the packaging free of charge. If the customer makes use of this return option, he undertakes to comply with all the collection criteria specified in the information sheet in accordance with the service provider's information sheets. In the event that he does not comply with these obligations, the additional costs arising from this, which can also be found in the information sheets, will be invoiced directly to the customer by the service provider. 

If the customer wishes to make use of this option, he shall contact the service provider directly and, in accordance with the service provider's information sheets, undertakes to cooperate in the environmentally sound recycling of the authorized packaging and to bear any additional costs incurred by him. The recycling service provider shall directly coordinate the collection of the registered packaging and packaging parts from the customer (collection point) and ensure the subsequent proper recycling. 

4.    The customer is obliged to properly dispose of other packaging that does not fall under items 1 to 3 himself; we will not take it back.

VI. Retention of title

1.    We reserve title to all goods sold (goods subject to retention of title) until all our current and future claims arising from the purchase contract and an ongoing business relationship (secured claims) have been paid in full. All our present and future claims shall also include any rights of recourse and indemnification arising from bills of exchange and checks as well as a balance in our favour if individual or all claims are included by us in a current account (current account) and the balance is drawn.

2.    The processing or transformation of the reserved goods by the customer shall always be conducted for us as the manufacturer. The retention of title shall also extend to the new items created by combining, mixing, or processing our goods. The customer hereby assigns to us his rights to the new item. If, when processing, combining, or mixing our goods with items of third parties, the latter's right of ownership remains in force, we shall acquire co-ownership in proportion to the value of the processed items at the time of processing, combining, or mixing. If the customer combines or mixes the reserved goods with the main item of third parties for a fee, he hereby assigns to us his claims for remuneration against these third parties. We hereby accept the assignment.

3.    The customer shall be entitled to resell the goods subject to retention of title in the ordinary course of business. The customer hereby assigns to us a first-digit portion of his claims from this resale up to the amount of our outstanding claims. We hereby accept the assignment. The customer is authorized to collect the claims from the resale as long as he duly fulfils his obligations to us, and we do not object. At our request, he shall be obliged to disclose the assignment to the purchasers and to provide us with the information and documents required to assert our rights against the purchasers.

4.    If the realizable value of the securities provided to us in the event of utilization exceeds our secured claims by more than 10 percent, we shall be obliged to release securities of our choice at the customer's request.

5.    The customer must inform us immediately in writing     of any application for the opening of insolvency proceedings and of any access by third parties to goods subject to retention of title or claims assigned to us (e.g. seizures). If the third party is not in a position to reimburse us for court or out-of-court costs incurred in a lawsuit to secure our property, the customer shall be liable for the loss incurred by us.

VII. Claims for defects by the customer

1.    The statutory provisions shall apply to the rights of the customer in the event of material defects and defects of title (including incorrect and short deliveries as well as improper assembly/installation or defective instructions), unless otherwise specified below. In all cases, the special statutory provisions on the reimbursement of expenses in the event of final delivery of the newly manufactured goods to a consumer (supplier recourse pursuant to Sections 478, 445a, 445b or Sections 445c, 327 (5), 327u BGB) shall remain unaffected, unless equivalent compensation has been agreed with the Customer.

2.    Our liability for defects is based primarily on the agreements made regarding the quality and intended use of the goods (including accessories and instructions). All product descriptions and manufacturer's specifications which are the subject of the individual contract, or which were made public by us (in particular in catalogues or on our Internet homepage) at the time of conclusion of the contract shall be deemed to be an agreement on quality in this sense. As far as the quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists or not. Our public statements as manufacturer or those made on our behalf, in particular in our advertising or on the manufacturer's label of the goods, shall take precedence over any statements made by other third parties; this shall apply accordingly to the public statements of a manufacturer of the goods delivered by us, insofar as we are not manufacturers ourselves but only dealers. 

3.    In principle, we shall not be liable for defects which the customer is aware of or is grossly negligent in not being aware of when the contract is concluded (§ 442 BGB). 

4.    Furthermore, the customer's claims for defects require that he has fulfilled his statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must always be conducted immediately before processing. If a defect is discovered during delivery, inspection or at any later time, we must be notified immediately in writing. In any case, obvious defects must be reported in writing within 5 working days of delivery and defects not recognizable during the inspection within the same period of time from discovery. If the customer fails to conduct the proper inspection and/or report defects, our liability for the defect not reported or not reported in suitable time or not reported properly shall be excluded in accordance with the statutory provisions. In the case of goods intended for assembly, mounting or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of a breach of one of these obligations; in this case, in particular, the customer shall have no claims for reimbursement of corresponding costs ("removal and installation costs").

5.    If the delivered item is defective, we may choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the customer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

6.    We are entitled to make the subsequent performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.

7.    The customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer shall return the defective item to us at our request in accordance with the statutory provisions; however, the customer shall not be entitled to return the item. Unless we expressly declare that we wish to carry out any necessary dismantling and installation measures ourselves, subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, attachment or installation of a defect-free item if we were not originally obliged to perform these services; claims of the customer for reimbursement of corresponding costs ("dismantling and installation costs") shall remain unaffected.

8.    We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, dismantling and installation costs, in accordance with the statutory provisions and these General Terms and Conditions of Sale and Delivery, if a defect actually exists. Otherwise, we may demand compensation from the customer for the costs incurred as a result of the unjustified request to remedy the defect if the customer knew or was negligently unaware that there was in fact no defect.

9.    If a reasonable deadline to be set by the customer for subsequent performance has expired without success or is dispensable in accordance with the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price in accordance with the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.

10.    Claims of the Purchaser for reimbursement of expenses pursuant to Section 445a (1) BGB are excluded, unless a sale of consumer goods is involved (Sections 478, 474 BGB). Claims of the customer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with Section VIII. and are otherwise excluded.

VIII. Other liability

1.    unless otherwise stated in these General Terms and Conditions of Sale and Delivery, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the statutory provisions.

2.    We shall be liable for damages - irrespective of the legal grounds - within the scope of fault-based liability in cases of intent and gross negligence.     In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in our own affairs; insignificant breach of duty), for

a)    for damages resulting from injury to life, body, or health,

b)    for damages arising from the breach of a material contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable damage typically occurring in corresponding delivery relationships. 

3.    To the extent permitted by law, we shall only be liable for damages that are typically foreseeable and/or to be expected on the basis of the information available to us, but not for typically unforeseeable and/or otherwise extraordinary damages. To the extent permitted by law, our liability for indirect damages and consequential damages of the customer, including any loss of profit, loss of goodwill, loss of business and wasted expenditure, is also excluded. This shall not apply to (i) claims which third parties justifiably assert against the customer and which are aimed at compensation for the damages mentioned in the preceding sentence, or (ii) reasonable attorney's fees and other legal costs incurred by the customer in securing and defending against third-party claims.

4.    The limitations of liability resulting from para. 2 and para. 3 shall also apply in accordance with § 334 BGB (German Civil Code) towards third parties and in the event of breaches of duty by persons (also in their favour) whose fault we are responsible for in accordance with statutory provisions, in particular also directly in favour of our employees, workers, staff, representatives and/or vicarious agents. They shall not apply if a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed and for claims of the customer under the Product Liability Act.

5.    The customer     may only withdraw from or terminate the contract     due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the customer (in particular according to §§ 650, 648 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

6.    we shall not be liable for impossibility of delivery or for delays in delivery as far as these were caused by force majeure within the meaning of section IX. by AVuLB.

IX. Force majeure 

1.    In cases of force majeure, the affected contracting party shall be released from the obligation to deliver or take delivery for the duration and to the extent of the impact. Force majeure is any event beyond the control of the respective contracting party which prevents it in whole or in part from fulfilling its obligations, including war, civil war, natural disasters, fire damage, floods, strikes and lawful lockouts, unexpected pandemics or epidemics and similar events as well as operational disruptions or official orders for which it is not responsible. The following shall be deemed equivalent to force majeure: strikes, lawful lockouts, official interventions, energy and raw material shortages, transport bottlenecks, operational hindrances through no fault of our own, e.g. due to fire, water or machine damage and all other hindrances which, from an objective point of view, have not been culpably caused by us. The past coronavirus pandemic does not mean that future coronavirus claims cannot be classified as force majeure. This applies accordingly to the Ukraine war and corresponding events that are characterized by recurring occurrence or comparable effects. Supply difficulties and other performance disruptions on the part of the upstream suppliers of the contracting parties shall be deemed force majeure if the upstream supplier is prevented from providing the service incumbent upon it by an event pursuant to sentence 1.

2.    The affected party shall immediately notify the other party of the occurrence and cessation of the force majeure and shall use its best endeavours to remedy the force majeure and to limit its effects as far as possible.

3.    In the event of the occurrence of force majeure, the contracting parties shall agree on the further procedure and determine whether the products not delivered during this period are to be delivered subsequently after its termination. Notwithstanding the foregoing, either party shall be entitled to cancel the orders affected thereby if the force majeure lasts for more than 6 months from the agreed delivery date. The right of either party to terminate the contract for cause in the event of prolonged force majeure shall remain unaffected.

X. Statute of limitations

1.    Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. If acceptance has been agreed, the limitation period shall commence upon acceptance.

2.    If the goods are a building or an item that has been used for a building in accordance with its normal use and has caused its defectiveness (building material), the limitation period shall be 5 years from delivery in accordance with the statutory regulation (§ 438 para. 1 no. 2 BGB). Other special statutory provisions on the limitation period remain unaffected (in particular § 438 Para. 1 No. 1, Para. 3, §§ 444, 445b BGB).

3.    The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the Purchaser pursuant to Clause VIII para. 2 sentence 1 and sentence 2(a) of these General Terms and Conditions of Sale and Delivery and pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.

XI. Compliance

1.    All contracting parties are obliged to comply with the minimum wage provisions and regulations applicable to them on minimum conditions at the workplace.

2.    Both parties undertake to comply with the legal regulations applicable to their company. They support and respect the principles of the "Global Compact" ("UNGC"), the United Nations Universal Declaration of Human Rights and the 1998 Declaration on Fundamental Principles and Rights at Work of the International Labor Organization as amended in 2022 and in accordance with national laws and practices. In particular, both parties will in their companies

• do not employ children or use forced labour,

• comply with the respective national laws and regulations on working hours, wages and salaries and other employer obligations,

• comply with the applicable occupational health and safety regulations and ensure a safe and healthy working environment in order to maintain the health of employees and prevent accidents, injuries, and work-related illnesses, 

• refrain from any discrimination based on race, religion, disability, age, sexual orientation, or gender,

• comply with international anti-corruption standards as set out in the UNGC and local anti-corruption and bribery laws,

• comply with all applicable environmental laws and regulations,

• request their business partners, suppliers, and subcontractors in an appropriate manner to base their actions on the aforementioned principles.

XII. Final provisions

1.    The place of performance is Gatterstädt / Saxony-Anhalt, unless otherwise stipulated above.

2.    German law shall apply to the exclusion of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG).

3.    The place of jurisdiction for all disputes between us and the customer arising from any transaction to which these General Terms and Conditions of Sale and Delivery apply shall be, at our discretion, Essen, Gatterstädt / Saxony-Anhalt, or the registered office of the customer. Essen shall be the exclusive place of jurisdiction for legal action against us.

4.    Should individual provisions of the contract with the customer, including these General Terms and Conditions of Sale and Delivery, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision that corresponds to the mutual intention of the parties. 

Status September 2023