General Terms of Contract

All of our supplies and services are subject to the following General Terms of Contract which shall apply to all future business with our customer (hereinafter: “Customer”) even if we made no separate reference or agreement which explicitly provides for the incorporation of these terms.

1. Conclusion of the Contract

1.1 Unless we have explicitly confirmed that an offer made by us shall have binding effect, our offers are non-binding and subject to revocation until a contract has been concluded. An order received from a customer shall constitute a binding offer which shall result in a binding contract once we have confirmed acceptance of such offer within 14 days following receipt by way of an order confirmation or by advice of delivery.

1.2 Any information provided by us on the delivery item or service (e.g. weights, dimensions, utility values, loading capacity, tolerances and technical data) as well as representations of the same (e.g. samples, drawings and illustrations) are only approximate information, unless the usability for the contractually intended purpose requires exact conformity. Those characteristics are not guaranteed, but descriptions or labelling of the delivery or service. Deviations customary in trade and deviations that occur due to legal regulations or which are technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair usability for the contractually intended purpose. If the customer provides us with specifications, we are, unless agreed otherwise, not obliged to check such specifications received from the customer for correctness and accuracy - in particular not for correctness and accuracy in relation to the named or presumed purpose of use.

1.3 To any documents we make available to the customer in the context of initiating a contract and/or contract execution (in particular, but not exclusively drawings, technical illustrations or technical data sheets, business documents such as cost estimates), we reserve unrestricted property and copyright utilisation rights. Such documents may only be made accessible to third parties, disclosed, utilised or reproduced or used by the Customer or by a third party with our prior consent. Upon request, the Customer must return these items to us in full and destroy any copies made if they are no longer required by the Customer in his ordinary course of business or if negotiations do not lead to the conclusion of a contract.

1.4 Both, we as well as the Customer are aware that electronic, unencrypted communication (e.g. by e-mail) is subject to security risks. In this type of communication, neither we nor the customer will therefore assert claims based on the lack of encryption, unless if or insofar as encryption was agreed.

2. Delivery, Adjustment of Prices

2.1 Unless otherwise agreed in individual cases, all deliveries shall be made FCA within the meaning of INCOTERMS 2020.

2.2 The delivery of our products shall be subject to timely and proper compliance of the Customer with his obligations. We reserve the defence of non-fulfilment of the contract by the Customer. In case of delayed acceptance of the goods ordered as well as in case the Customer violates other duties of cooperation, we shall be entitled to compensation of damage or economical disadvantage resulting therefrom, including damages arising from increased costs and expenditures (e.g. appropriate storing costs). Further claims for damages are reserved at any time. The rise of accidental loss or deterioration of the goods shall automatically pass to the Customer at the moment he is in default of accepting the goods, or when he fails to comply with obligations of cooperation.

2.3 If the contract provides that delivery of the goods shall occur later than six months following the date of our declaration of will to conclude the contract (offer or confirmation of Customer’s order) – hereinafter “long-term contract” – and provided there is a significant change in labour, material or energy costs occurring during this period, or in cases where circumstances having a significant impact upon prices of raw materials or prefabricated products or on lead times required for the purchase of prefabricated products have unforeseeably changed since our declaration of will, the dates for delivery and the agreed prices shall be adjusted appropriately. Increases in one type of cost, e.g. raw materials, may only be used for a price increase to the extent such costs are not offset by any declining costs in other areas, such as production costs. Should the Customer refuse to agree to such adjustment, we shall be entitled to rescind the contract, without this giving rise to any claims on the part of the Customer (with exception of the right to repayment of any advance payment already made).

2.4 If a framework, successive delivery or other long-term contract has been concluded and the Customer purchases less than the target quantity provided for in such contract, we shall be entitled to appropriately increase the unit price in accordance with the effects caused by the lower purchase quantity, We will disclose to the customer upon request the key parameters for calculating such an appropriate increase.

2.5 In case of orders of major size, in case orders with a delivery or service date more than three months after the conclusion of the respective contract and in case the customer's creditworthiness is unclear or appears to be too low, we reserve the right to demand an advance payment or other security from the Customer, even if this was not expressly provided for or mentioned in our offer or our order confirmation. This may also occur after conclusion of the contract in the event of a deterioration in creditworthiness compared to the time of conclusion of the contract.

3. Force Majeure

3.1 We shall not bear responsibility for delayed delivery or failure of delivery if and to the extent such delay or failure is attributable to force majeure or other events not reasonably foreseeable at the time when the contract came into effect (such as interruptions or disturbances of business operations, difficulties in sourcing raw materials and/or energy, delayed transport, war, circumstances or events similar to war, riots, labour strikes, legal lock-outs, lack of manpower, energy or raw materials, embargo or sanction regulations, difficulties in obtaining public permits, pandemic, epidemic, public measures, lack of supply by sub-suppliers – provided we have timely and duly ordered such supplies), for which we are not responsible. If and to the extent such circumstances or events do significantly impair or delay the delivery of goods or the provision of services by us or make it impossible to deliver goods or provide services not only temporarily (i. e. for more than three months), we shall have the right to rescind the contract unless the Customer agrees to an appropriate modification of the time for supply or services. In case of just temporary delays, the times and dates for delivery and services shall be postponed correspondingly plus an appropriate amount of time for the re-start of operations. If such postponement of delivery services is not reasonably acceptable for the Customer, he shall be entitled to rescind the contract with undue delay by way of written notification.

3.2 In case force majeure or unforeseeable events in the sense of above Section 3.1 of these General Terms of Contract significantly change the economic significance or the content of the delivery or have a significant impact on our operations, the contract shall be adapted appropriately in good faith. If such adaption is not reasonable from an economical point of view for us or for our Customer, the respective Party shall have the right to withdraw from the contract. If we or the Customer wish to make use of this right of withdrawal, the Party concerned must inform the other Party immediately after realising the consequences of the event, even if an extension of the delivery time had initially been agreed upon or would have been reasonable.

4. Reservation of Title

4.1 We reserve title to the goods delivered until we have received full payment of the purchase price. The Customer is entitled to resell the goods in the ordinary course of business. The Customer, however, automatically assigns to us all receivables arising out of the resale of the goods to which title is reserved, to customers or other third parties, equal to the amount of the goods invoiced on which title is reserved. We hereby accept such assignment in advance. The assertion of security rights - in particular a claim for restitution - shall not constitute a cancellation of the contract unless we expressly declare such cancellation.

4.2 For the duration of the retention of title, the customer is prohibited from pledging or transferring ownership by way of security.

4.3 If goods subject to retention of title are shipped abroad, such security interests shall be deemed agreed which are possible under the relevant national law and which come closest to the security interests described in this Section 4.

5. Legal Warranty, Defects

5.1 Any rights and claims of the Customer based upon defects or deficiencies of the goods are effective only if the Customer has observed his obligation to inspect the goods and to promptly report any defects and/or deficiencies in accordance with §§ 377 of the German Commercial Code and/or Articles 38, 39 of the UN Convention on the International Sale of Goods.

5.2 Should the delivered products turn out to be defective, we shall – at our choice – always be granted the opportunity to supply products as replacement which correspond to the agreed specifications or eliminate the defect(s) by proper means, in particular by way of repair. Should replacement or repair be inacceptable for the Customer taking replacement into regard all circumstances, he may reject our choice. Our right, however, to refuse replacement in accordance with applicable law, shall remain unaffected.

5.3 To the extent we are unable or not prepared to supply replacement goods free of defects and in accordance with agreed specifications, or if due to reasons attributable to us the time for such supply exceeds an appropriate term, or if the performance of such replacement supply fails for other reasons, the Customer – at his discretion and without prejudice to any claims for damages – is entitled to either rescind the contract or to claim an adequate reduction of the purchase price. Claims by the Customer for expenses incurred in the course of subsequent performance, in particular transport, travel, labour and material costs, are excluded to the extent the expenses increased due to the fact that the delivery item has subsequently been moved to a location other than the place of delivery, installation or use agreed between the parties. In any case, we may demand the return of the defective delivery item if we provide a temporary replacement to ensure the customer's operational capability. Replaced delivery items shall become our property.

5.4 Any claims under legal warranty shall be time-barred after twelve months following delivery or, insofar as acceptance is required or expressly agreed upon, following acceptance. The foregoing shall not apply as regards claims of Customer resulting from violation of life, limb or health, or from intentional or grossly negligent violation of our duties by our representatives, officers, employees and/or vicarious agents (which are subject to limitation according to statutory requirements), or if compulsory law foresees longer periods of limitation

5.5 The foregoing clauses shall not be interpreted as shifting the burden of proof to the Customer.

5.6 In the event of notices of defects, the Customer may withhold payments to an extent, which is in reasonable proportion to the defects that have occurred. The Customer may only withhold payments if, after proper and immediate inspection of the goods upon receipt, a sufficiently specified notice of defects has been asserted, the justification of which is beyond reasonable doubt. The Customer shall have no right of retention if his claims for defects are time-barred. If a notice of defects has been unjustified, we shall be entitled to charge the customer for any expenses (including transport costs) incurred by us by examining the notice of defects and by any attempts to remedy the defect.

6. Liability

6.1 Notwithstanding provisions to the contrary within these General Terms (including provisions following this section 6.1), we shall be liable for the violation of contractual as well as non-contractual obligations in accordance with applicable law.

6.2 We shall be liable for damages caused by intentional or grossly negligent act or failure to act, irrespective of the legal ground of such liability. In case of simple negligence and provided our liability for simple negligence is not excluded by immediate effect of law, we shall only be liable
a) for damage to life, limb or health,
b) for damage resulting from the breach of a material contractual obligation (a material obligation is an obligation the fulfilment of which is essential for the proper and due performance of the contract and the compliance with which the other Party may expect and rely upon); in such case, however, our liability shall be limited to the amount or scope of damage that could have reasonably been foreseen by us at the time our first declaration of will intending to result in the contract (binding offer or order confirmation) was made: and
c) in case of any other liability provided for by mandatory law.
The Customer's claim for damages shall limited in all cases - except in the case of intent or mandatory statutory liability - in such a way that it must be in reasonable proportion to the order value and to the insurance cover usually in place.

6.3 The exclusions and limitations of liability resulting from Sect. 6.2 above shall also apply with respect to third parties as well as regarding the violation of obligations by persons (also in their favour) for whose behaviour we are liable under applicable law. The exclusions and limitations of liability shall not apply where we have concealed a defect we knew of or where we have guaranteed certain characteristics of the goods, as well as regarding claims that the Customer is entitled to under applicable product liability law or other mandatory legal provisions.

6.4 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 such breach of duty. A free right of cancellation on the part of the Customer (in particular in accordance with § 648 of the German Civil Code (BGB), to the extent the contract in question is subject to the regulations on contract for works) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.

7. Assignment

Without prior written consent - which may not be unreasonably withheld - the Customer shall not be authorised to assign his claims against us or to have them collected by third parties. This shall not apply to assignments to banks, factoring companies or the like in the ordinary course of business.

8. Legal Venue and Applicable Law

Exclusive legal venue and place of performance for all contractual and non-contractual obligations resulting from the respective Contract in connection therewith shall be Dortmund. We reserve the right to bring legal action against the Customer before any court having jurisdiction over the Customer or the subject matter. The legal relationship between the Customer and us is governed by German law. If the Customer`s place of business or his branch issuing the order is outside Germany, the UN Convention on the International Sale of Goods (“CISG”) shall apply.