1. Scope of application

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

Any differing Purchasers’ conditions and declarations will be incorporated into the contract only if we expressly confirmed their validity. The same will apply even if we provide delivery to the Purchaser without our expressing any reservations, despite being aware of the Purchaser’s terms of business. These Terms of Sale are furthermore applicable – unless otherwise agreed – in the text-form version applicable and/or presented to the Purchaser at the stage of the Purchaser’s order, as a framework agreement which is also applicable to contracts of the same type negotiated in the future, without our having to refer back to them in each individual instance.

The remaining provisions of the contract will still be valid even if any individual portions of these Terms or of the contract should be invalid. In the event of any increases exceeding 10% in the cost prices charged to ourselves by our own suppliers, we shall be entitled to withdraw from the contract.

2. Negotiation of Contract

Our offers are non-binding in every respect, especially regarding pricing, quantities and delivery deadlines. The Purchaser’s issuance of an order for goods will stand as a binding offer of contract. Acceptance may be expressed either in writing or by virtue of the goods’ being delivered to the Purchaser. The same will apply even if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, plans, calculations, schedules and references to DIN Standards), further definitions of products or documentation (including electronic form).

3. Delivery timeframe

Delivery timeframes are calculated to the best of our knowledge and ability. Delivery is normally completed within 2-3 weeks following receipt of order. Part-deliveries are permissible.

Where we are unable to fulfil binding delivery timeframes through no fault of our own, we will promptly notify the Purchaser together with the offer of a prospective, new delivery timeframe. If service is not provided even within the fresh delivery timeframe, then we are entitled to withdraw from the Contract partially or completely. We will promptly reimburse the Purchaser for any payment already made. A particular case of non-availability of service as described above is held to arise if our own suppliers fail to give us prompt deliveries, if we have negotiated a hedging transaction, if no culpability attaches either to ourselves or to our suppliers or if – in an individual instance – we are not under obligation to conduct procurement.

The onset of delay in delivery is defined by legal regulations, and – in particular – a reminder must have been issued by the Purchaser. If we incur delay in delivery, then the Purchaser is entitled to require a flat rate of compensation in lieu of delay. For each full calendar week of delay, the flat rate of compensation is 0.5% of the net price (consignment value) but only up to a maximum of 5% of the consignment value of the goods whose delivery is delayed. We are entitled to bring proof that the Purchaser has either suffered no loss or only an extent of loss far less than is represented by the flat rate amount in question.

4. Delivery; Risk

Delivery is made from the consignment store designated by ourselves, or otherwise ex-works. At the Purchaser’s request and expense, the goods can be sent to a different destination. The delivery route and the means of transport will be determined by ourselves unless the Client makes any particular arrangements of its own. Packing is provided at cost.

We are not bound to choose the most economical means of dispatch. The risk of fortuitous loss and of fortuitous deterioration in the condition of the goods is determined according to statutory conditions.

5. Prices; Payment

Our prices in place are those applicable on the date of negotiation of contract: ex-works plus transport costs. Our invoices must be paid within eight days as from the date of billing and delivery of the goods, and on that basis will permit a 2% discount unless otherwise determined overleaf.

If any deadlines are exceeded, we reserve the right to charge interest in lieu of delay at the rate of 2% above the ECB lending rate applicable at the time. This does not affect the right to claim compensation for further losses.

If it becomes apparent, after the negotiation of contract, that our claim to receive the purchase price is jeopardised by the Purchaser’s lack of solvency, then we are entitled – subject to the provisions of statutory regulations – to withhold delivery and to withdraw from the contract. In the case of custom orders, we are entitled to declare immediate withdrawal from contract; this will not affect statutory provisions governing the requirement to serve a period of notice. All payments must be made directly to ourselves.

6. Reservation of ownership

1. Deliveries are provided exclusively subject to reservation of ownership. Ownership over the sold goods reverts to the Purchaser only once it has fulfilled our present and future claims arising from the purchase contract and from an ongoing business connection. In particular, the Purchaser is not entitled to assign such goods to third parties. The Purchaser must promptly write to inform us if any claim is filed to institute insolvency proceedings or if attempts (e.g. attachment applications) are made by third parties concerning goods belonging to ourselves.
2. Upon the Purchaser’s breach of contract – and especially its failure to pay the due purchase price – we shall be entitled under legal regulations to withdraw from contract and/or to require that the goods be released by virtue of reserved ownership. The request for release does not automatically include declaration of withdrawal; rather, we may choose to require exclusively the release of the goods whilst reserving the option of withdrawal. If the Purchaser fails to pay the due purchase price, then we may substantiate the above-defined rights only once we have allowed the Purchaser a reasonable deadline within which to make payment, but without satisfactory result, or if the rules of law do not require that such a reasonable deadline should be allowed.
3. The Purchaser holds the right of free disposal over goods supplied under reserved ownership in the normal course of business, until such right is revoked. In that event, the reservation of ownership will extend to the full value of the products created by the processing, mixing or combining of our goods, in which context we will stand as the manufacturer as defined under § 950, BGB (=German Civil Code). If the supplied goods are processed, mixed or combined with other third-party items, and if ownership over said third parties’ goods remains in place, then we shall acquire co-ownership of the total of all values of the goods which have been processed, mixed or combined. Otherwise, the final product will be subject to the same provisions as those applicable to goods supplied under reserved ownership. The Purchaser hereby assigns to ourselves – as a security – any claims arising against third parties due to the resale of the goods in their entirety and/or to the extent of any share of co-ownership which we may hold in accordance with the preceding paragraph. We accept such assignment.

   The Purchaser is entitled in conjunction with ourselves to collect on the claims arising from resale, until we revoke such a situation, which we are entitled to do at any time. We undertake to refrain from collecting on the claim for as long as the Purchaser fulfils its payment obligations to ourselves, for as long as there are no issues concerning its ability to make payment and for as long as we have not substantiated the reservation of rights of ownership by exercising a right corresponding to Para. 2 above. However, if any of the above situations arise, we may require that the Purchaser should inform us of the assigned claims and of the corresponding debtors, should provide us with all of the information required in order to pursue collection, should provide us with the corresponding documents and should notify the debtors (third parties) of the fact of the assignment. In that event, furthermore, we shall be entitled to revoke the Purchaser’s authorisation to continue retailing and processing our reserved-ownership goods.

4. Should the value of the securities appointed for ourselves come to exceed the value of our claims by more than 10%, then we will be obliged at the Purchaser’s request to release a portion – at our discretion – of the securities.

7. Liability in the event of deficiencies

Liability in the event of deficiencies is based on the provisions agreed regarding condition of the goods. Such provisions are represented by all product descriptions on which the individual contract is based or those which have been published by ourselves (especially in catalogues or on our Internet homepage). Shore A hardness information relates to the tolerance range of +3 for thermoplastic materials and +5 for elastomers. Deviations not exceeding the commercial standard scale – for result, weight and colour – will not establish entitlement for the delivery to be rejected. No guarantee can be taken on for colour stability in plastics. We do not take on any liability for statements published by third parties.

Any complaints regarding obvious defects must be sent in writing to ourselves promptly, and at latest within eight days following the arrival of the goods. Upon any investigation of concealed defects, complaints must be sent to us within the same timeframe, and in writing. All entitlements regarding deficiencies will lapse if complaints are not sent promptly.

The rectification of defects on the grounds of deficient performance, failure to deliver, positive breaches of contract or other legal grounds will be provided only in the form of replacement supplies for rectification – at the discretion of our Management – and under the same conditions as those applicable to the deliveries themselves. Rectification will include neither the extraction of the deficient item nor its reinstallation unless we were under obligation to provide installation in the first place.

Claims for compensation and/or the reimbursement of lost expenditures, even when deficiencies were present, will be honoured only in accordance with the following paragraph, and will be excluded in any other instances.

8. Compensation

1. In instances of wilful intent and gross negligence, we are obliged to provide compensation on whatsoever legal grounds within the framework of fault-based liability. In the case of plain negligence, we shall be liable – subject to a more lenient scale of liability – under statutory regulations (e.g. those applicable to our duty of caution in our own procedures) only:

   a) for claims arising from loss of life, physical injury or damage to health,

   b) for claims arising from substantial infringement of an important contractual obligation (the obligation whose fulfilment was an essential prerequisite for the correct execution of the contract, upon whose fulfilment our partner in contract was correctly expecting and was entitled to expect); in that event, however, our liability will be limited to reimbursing the foreseeable, typical extent of claim.

2. The restrictions upon liability as arising from para. 1 above will also apply in the event of instances of malpractice incurred by or for the benefit of individuals for whose faults we are answerable under the rules of law. Such restrictions do not apply in any instances where we deliberately failed to disclose a fault or where we took on a guarantee for the condition of the goods and for the Purchaser’s claims in accordance with product liability regulations.

   The Purchaser may terminate or withdraw from contract on the grounds of an instance of malpractice not relating to a defect only if we were answerable for the instance of malpractice. Otherwise the rules of law and those governing legal consequences will apply.

9. Expiry period

By way of deviation from § 438, para. 1, clause 3, BGB (=German Civil Code) the general period of expiry for claims arising from material faults and legal deficiencies is one year following delivery. Where acceptance has been agreed, the period of expiry commences upon acceptance.

However, if the goods consist of a building project or an item which has been used in accordance with regular practice for a building project – and if this was the cause of the fault (construction material) – then the period of expiry will come to 5 years as from the date of delivery in accordance with the applicable regulation (§ 438, para. 1, clause 2, BGB (=German Civil Code)). And this will not affect any further specific legal regulations concerning expiry (especially § 438, para. 1, clause § 1, para. 3, §§ 444, 445(b), BGB (=German Civil Code)).

10. Right of retention and offset

The Purchaser will hold rights of offset and of retention only to the extent that its claim has been confirmed with legally-binding effect or that it is undisputed. The Purchaser’s reciprocal rights, particularly those arising under Section 7 of these Terms of Sale, will remain unaffected in the event of failures to deliver.

11. Place of fulfilment; Jurisdiction

Wiesbaden is the place of fulfilment for all of the Purchaser’s and Vendor’s obligations. Wiesbaden is the place of jurisdiction. German law is applicable. The provisions of UN sales law (CISG) will not apply.

Status of Terms of Sale as at: July 2024