General Terms and Conditions

General Terms and Conditions of Purchase

of Hans von der Heyde GmbH & Co. KG

  1. Preamble

1.1. Hans von der Heyde GmbH & Co. KG (hereinafter referred to as “Buyer”) orders exclusively on the basis of its terms and conditions of order; the Buyer does not accept any terms and conditions contrary to or deviating from the terms and conditions of order or any additional terms and conditions unless the Buyer has expressly agreed to their validity in text form.

The tacit acceptance of deliveries or services of the Seller as well as payments by the Buyer do not imply any agreement with conflicting, deviating or additional conditions of the Seller.

1.2. Any agreement made between the Seller and the Buyer shall only become legally effective if it has been made between the parties in text form or has been confirmed in text form without delay thereafter. If the agreement is not written, formulated or confirmed in text form, it shall be deemed not to have been concluded from the outset. Further additional conditions or sales clauses introduced by the Seller shall be deemed to have been rejected until the Buyer has agreed to these additional provisions in text form.

1.3. These terms and conditions shall form the basis of all future individual contracts between the Buyer and the Seller – with the simultaneous exclusion of any general contractual terms and conditions to the contrary.

1.4. Delivery contracts or delivery call-offs and other legal transactions to be concluded between the Buyer and the Seller must be in writing. Verbal delivery agreements only serve to outline the content of the contract. The contract is not actually concluded until it has been presented in text form. Any addition
or amendment made to the concluded contract, if made verbally in advance, must be fixed at least in text form within 24 hours, otherwise the addition or amendment shall be deemed not to have been made and shall become retroactively null and void. Otherwise, these General Terms and Conditions of Purchase shall only apply to companies within the meaning of Section 310 (1) of the German Civil Code (BGB).

  1. Conclusion of contract

2.1. A purchase contract shall only be deemed to have been concluded if the Buyer has submitted a declaration of acceptance in text form after receipt of an offer within the offer period. If no binding offer is communicated, acceptance shall be deemed not to have been declared if acceptance is not declared in text form within 14 days. Silence is expressly not deemed to be acceptance.

2.2. Dimensions and weights, quantities, prices, other descriptions and other data as contained in catalogues, circulars, advertisements or price lists are only approximate values and shall not be binding on the Buyer unless they have been expressly included in the contract. These data, which were transmitted to the Seller before the conclusion of the contract, remain the exclusive property of the Buyer and may not be made accessible to third parties.

2.3. Within the bounds of what is reasonable, the Buyer is entitled to demand changes to the delivery item with regard to design and execution. In this context, the effects, in particular of the additional or reduced costs as well as the delivery dates, are to be regulated appropriately between the parties. Changes by the Seller require prior approval in text form by the Buyer.

2.4. The Seller is obliged to send the Buyer an order confirmation in text form within 10 working days after the date of the order. Silence is expressly not deemed to be acceptance. If the Seller does not comply with this obligation, the Buyer shall be entitled to revoke the order after 10 days without giving reasons. The revocation of the offer shall also be deemed to have been declared without further action by the Buyer if the Seller has not responded to the offer in text form within 14 days. A contract can only be concluded by a new offer from the Buyer and acceptance of the offer by the Seller.

2.5. If insolvency proceedings or other judicial or extra-judicial proceedings are opened against the assets of the Seller, the Buyer shall be entitled to withdraw from the unfilled part of the contract without stating any reasons, provided that a delay in payment or delivery of more than 30 days had already occurred prior to the opening of insolvency proceedings. This shall also apply if this delay in payment or delivery has occurred in transactions with other companies of the OKE group.

  1. Purchase price

3.1. The price stated in the order is binding and based on the agreement “delivered duty paid”.

3.2. The agreed purchase price includes delivery “free domicile” including packaging as well as assumption of transport insurance and statutory value added tax, which is shown separately on the invoices.

3.3. Invoices are to be issued by the Seller immediately after dispatch of the goods, stating the order and article number.

3.4. Price reductions are to be communicated by the Seller in text form and will be credited to the Buyer. If the Buyer has already rendered its services, it can demand these back, whereby the Seller waives objections or defences of any kind.

  1. Terms of payment

4.1. Payment and delivery shall be made in the manner agreed by the parties in each individual case. Unless agreed otherwise in individual cases, payment shall be made within 30 days of delivery and receipt of the invoice with a 3% discount, or within 60 days net. The due date for early deliveries shall be based on the delivery date actually agreed.

4.2. All payments made by the Buyer are subject to the express reservation of proper delivery by the Seller as well as the correctness of the invoice in terms of calculation and price.

4.3. Should the Buyer be entitled to warranty claims of any kind whatsoever arising from the defective delivery, the Buyer shall have the right to recover the full amount of the payment until proper performance by the Seller and to return or send the item at the Seller’s expense, provided that the recovery of the full amount is not contrary to good faith due to special circumstances. In this case the Buyer is entitled to set-off.

  1. Delivery conditions

5.1. Delivery shall be made on the delivery date specified in the purchase contract or the order.

5.2. The Seller is obliged to inform the Buyer immediately in text form if a delay in delivery occurs.

5.3. All shipping documents, delivery notes, letters and invoices must state the order number and article number of the Buyer.

5.4. If the Seller delivers before the agreed delivery date, it shall bear all associated costs, including in particular storage by the Buyer. If acceptance of the premature delivery is impossible for the Buyer, the latter shall be entitled to refuse acceptance. In this case, the delivery must be made again on the agreed delivery date.

5.5. In the event of a culpable delay in delivery, the Buyer is entitled to demand lump-sum damages for the delay amounting to 1% of the value of the delivery per full week, but not more than 4.5%; we reserve the right to assert further legal claims (withdrawal from the contract and damages in lieu of performance).

The Seller shall have the right to prove that no damage or substantially lower damage has been incurred as a result of the delay.

5.6. A contractual penalty can be agreed between the parties on an individual basis in the event of a delay in delivery.

5.7. The Seller’s vicarious agents, assistants and other persons who carry out work on the Buyer’s premises in the performance or fulfilment of the subject matter of the contract shall be obliged to observe the applicable provisions of the Buyer’s plant regulations. Liability for accidents which occur to the aforementioned persons on the Buyer’s works premises is excluded, insofar as these accidents were not caused by an intentional or grossly negligent breach of duty on the part of the Buyer’s legal representatives or their vicarious agents. In the case of bodily injury and damage to health, however, the Buyer is already liable for slight negligence.

  1. Transfer of risk

6.1. Unless otherwise stated in the individual delivery contracts, the time of transfer of risk shall be determined in accordance with the Incoterms of the International Chamber of Commerce in the respective valid version.

6.2. If there is no agreement on the transfer of risk, the clause “delivered, duty paid” (Incoterms in the respective valid version) shall apply.

  1. Acceptance

7.1. Subject to § 377 of the German Commercial Code (HGB), the Buyer shall have the right to inspect the delivery immediately upon receipt for obvious or visible defects and to accept the delivery only thereafter. Unless otherwise agreed in text form, formal acceptance shall always take place. The Seller shall bear the costs of justified complaints and replacement delivery.

7.2. The values for dimensions, weights and quantities determined during the incoming goods inspection are binding for both contracting parties. In the event of significant discrepancies, the Buyer shall notify the Seller within 14 days of the receipt inspection.

  1. Warranty for defects

8.1. The Seller guarantees that the goods it has delivered are free of material defects and defects of title and, if applicable, that they have the guaranteed quality.

8.2 The goods shall be inspected within a reasonable period of time for any deviations in quality and quantity; the complaint shall be deemed to have been made in good time if it is received by the Seller within a period of five working days, calculated from the date of receipt of the goods or, in the case of hidden defects, from the date of discovery.

8.3. The Buyer shall be entitled to the statutory claims for defects in full; in any case, the Buyer shall be entitled to demand that the Seller, at its discretion, either rectify the defect or deliver a new item. The right to claim damages, in particular damages in lieu of performance, is expressly reserved.

8.4. The Buyer shall be entitled to remedy the defect itself at the Seller’s expense if the Seller itself is in default with subsequent performance.

8.5. The limitation period is 24 months, calculated from the transfer of risk.

  1. Product liability / indemnity Liability / insurance cover

9.1. Insofar as the Seller is responsible for product damage, it shall be obliged to indemnify the Buyer against claims for damages by third parties on first demand, insofar as the cause lies within its sphere of control and organisation and the Seller itself is liable in relation to third parties.

9.2. Within the scope of its own delivery liability for cases of damage within the meaning of para. 1, the Seller shall also be obliged to reimburse the Buyer for any expenses pursuant to §§ 683, 670 BGB or pursuant to §§ 830, 840, 426 BGB which result from or in relation with a recall action carried out by the Buyer. The Buyer shall inform the Seller in good time in advance of the content and scope of such a recall measure – insofar as this is possible and reasonable – and give the Seller the opportunity to comment.

9.3. The necessary notification of the respective competent authority in accordance with the provisions of the Product Safety Act shall be undertaken by the Buyer in coordination with the Seller.

9.4. The Seller undertakes to maintain a product liability insurance with a sum insured of 10 million euros per personal injury / property damage – lump sum – for the duration of this contract, i.e. until the respective expiry of the limitation period for defects; if the Buyer is entitled to further claims for damages, these shall remain unaffected.

  1. Other provisions

10.1. This agreement replaces all previous agreements to the contrary previously made by the parties regarding these business fields orally or in text form; previous agreements to the contrary become ineffective with the signing of these General Terms and Conditions of Purchase.

10.2. The rights to this connection may not be assigned by either party without the prior consent in text form of the other party.

10.3. Each Party shall bear its own costs incurred in connection with the performance of this contract.

10.4. Inquiries, orders, order confirmations as well as any other correspondence of the Buyer with the Seller may not be used for advertising purposes. This shall not apply if the Buyer has given its prior consent in text form to the advertising and the form of the advertising has been clearly stated by the Seller and approved by the Buyer in text form.

10.5. The place of performance shall be the place to which the delivery item is to be delivered in accordance with the order.

  1. Jurisdiction and choice of law

German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

Any dispute arising out of the business relationship shall be finally settled by arbitration by one or more arbitrators acting in accordance with the Rules of Arbitration of the International Chamber of Commerce.

Instead of resorting to arbitration, the Buyer shall also be entitled to bring its case before an ordinary court having jurisdiction as to the subject-matter and location.

  1. Severability clauses

12.1 Should individual provisions of this contract be wholly or partially invalid or void, or become wholly or partially invalid or void as a result of a change in the legal situation or as a result of supreme court rulings or in any other way, or should this contract contain any loopholes, the parties agree that the remaining provisions of this contract shall remain unaffected and valid.

12.2 In this case, taking into account the principle of good faith, the contracting parties undertake to agree on a valid provision in place of the invalid one which comes as close as possible to the meaning and purpose of the invalid provision and of which it can be assumed that the parties would have agreed on at the time of the conclusion of the contract if they had known or foreseen the invalidity or ineffectiveness. The same applies if this contract should contain a loophole.

As at: May 2021

General Terms and Conditions of Sale

of Hans von der Heyde GmbH & Co. KG

 

  1. Preamble

1.1 Deliveries and services of Hans von der Heyde GmbH & Co. KG (“Hans von der Heyde” or “Seller”) are exclusively subject to the following terms and conditions of sale, insofar as they are not modified by an explicit deviating agreement, at least in text form, between the parties. We do not recognise any conflicting, deviating or additional conditions of the customer unless we have expressly agreed to their validity in writing. These Terms and Conditions of Sale and Delivery shall also apply if we carry out the delivery/service to the Buyer without reservation in the knowledge that the Buyer’s terms and conditions are contrary to, deviate from or additional to our terms and conditions or additional terms and conditions. If an agreement was made verbally, it must be presented in text form within 24 hours, otherwise it shall be deemed not to have been made from the outset.

1.2 Any errors in sales brochures, price lists, offer documents or other documentation of the Seller may be corrected by the Seller without the Seller being held liable for any damages resulting from such errors.

1.3 These General Terms and Conditions of Sale shall only apply to entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).

  1. Order and offer documents

2.1 The quantity, quality and description and any specification of the goods shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller). All sales documents, specifications and price lists are to be treated as strictly confidential and may not be made available to third parties.

2.2 The Buyer shall be responsible for the accuracy of the order, and the Buyer shall be responsible for providing the Seller with any necessary information regarding the goods ordered within a reasonable time in order for the order to be executed in accordance with the contract.

2.3 If the goods are to be manufactured or otherwise processed by the Seller and the Buyer has submitted a specification to that effect, the Buyer shall indemnify the Seller against any loss, damage, costs or other expenses of the Seller which the Seller has to pay or is prepared to pay because the contractual processing of the goods has been found by reason of the Buyer’s specification to infringe any patent, copyright, trademark or other proprietary right of any third party.

2.4 The Seller reserves the right to amend the description of the goods with regard to the specification to the extent that legal requirements are to be taken into account, provided that this amendment does not result in a deterioration of the order with regard to quality and usability.

2.5 We reserve the property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents that are designated as “confidential”. The customer requires our express written consent before passing them on to third parties.

  1. Purchase price

3.1 The purchase price shall be the price quoted by the Seller.

3.2 After timely notification of the Buyer and prior to delivery of the goods, the Seller reserves the right to increase the price of the goods as required by general price developments beyond the Seller’s control (such as exchange rate fluctuations, currency regulations, changes in customs duties, significant increases in material or manufacturing costs) or due to changes in suppliers.

3.3 Unless otherwise stated in the offer or unless otherwise agreed in writing between the Seller and the Buyer, all prices quoted by the Seller are on an “ex works” basis. If the parties have agreed on a different place of delivery, the Buyer shall bear the costs for transport, packaging and insurance.

3.4 Prices are exclusive of value added tax, which the Buyer must additionally pay to the Seller.

3.5 Interest on arrears shall be charged at a rate of 9% above the respective base rate. We reserve the right to claim higher damages caused by delay.

  1. Terms of payment

4.1 Unless otherwise stated on the invoice, the Buyer shall pay the purchase price within 30 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.

4.2 Payments should only be made by bank transfer or cheque; bills of exchange will not be accepted as fulfilment of the payment obligation.

4.3 It may be agreed between the contracting parties that the Buyer shall open a documentary letter of credit through its bank (or another bank acceptable to the Seller). In this individual case, it is stipulated that the letter of credit shall be opened in accordance with the General Rules and Practices for Documentary Credits, 1993 Revision, ICC Publication No. 500.

4.4 If the Buyer fails to pay on the due date, the Seller may, without prejudice to any other rights or remedies to which it is entitled, at its discretion:

  • terminate the contract or suspend further deliveries to the Buyer; or
  • charge the Buyer interest on the unpaid amount at a rate of 7% per annum above the respective European Central Bank base rate until final and full payment is made. The Buyer is entitled to prove that no or only minor damage has been incurred as a result of the delay in payment.

4.5 The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, it shall be entitled to exercise a right of retention insofar as its counterclaim is based on the same contractual relationship.

  1. Delivery of goods

5.1 The start of the delivery time stated by us presupposes the clarification of all technical questions.

5.2 Compliance with our delivery obligation further presupposes the timely and proper fulfilment of the customer’s obligation. We reserve the right to plead non-performance of the contract.

5.3 Delivery of the goods shall be made in such a way that the Buyer takes delivery of the goods at the Seller’s premises, that the goods are ready for collection, or, if a different place of delivery has been agreed with the Seller, by delivery of the goods to that place.

5.4 As far as the delivery of bulk goods is concerned, the Seller may deliver up to 3 % more or less of the quantity of goods without having to adjust its purchase price, and it is agreed that the quantity of goods so delivered shall be deemed to be in accordance with the contract.

5.5 If the Buyer is in default of acceptance on the due date, it must nevertheless pay the purchase price. In such cases, the Seller shall store the goods at the risk and expense of the Buyer. At the Buyer’s request, the Seller shall insure the goods at the Buyer’s expense.

5.6 If the conditions of paragraph (3) are met, the risk of accidental loss or accidental deterioration of the object of sale shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.

The risk of damage to or loss of the goods shall pass to the Buyer as follows:

  • insofar as the goods are not delivered at the Seller’s business premises, at the time of handover or, if the Buyer is in default of acceptance, at the time when the Seller offers to hand over the goods.
  • insofar as the goods are delivered at the Seller’s premises (“ex works”, Incoterms 2000) at the time when the Seller informs the Buyer that the goods are ready for collection.

5.7 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 of the German Civil Code (BGB) or Section 376 of the German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions if, as a consequence of a delay in delivery for which we are responsible, the customer is entitled to claim that its interest in the further performance of the contract has ceased to exist.

5.8 Furthermore, we shall 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; any fault on the part of our representatives or vicarious agents shall be attributed to us. If the delay in delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage. Liability for consequential and pecuniary damages as well as for loss of profit is not covered by the foreseeable, typically occurring damage.

5.9 We shall also be liable in accordance with the statutory provisions if the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage. In this respect, too, the foreseeable, typically occurring damage does not include consequential and pecuniary damage or loss of profit.

5.10 Further legal claims and rights of the customer remain reserved.

  • 6 Force majeure

6.1 In cases of force majeure, the contracting party affected thereby shall be released from the obligation to deliver or accept for the duration and to the extent of the effect. We will inform the Buyer in good time in writing or in text form.

6.2 A case of force majeure shall be deemed to exist in the case of any unforeseeable, serious event such as, in particular, war, terrorist conflict, epidemics or pandemics (insofar as at least an increased level of risk has been determined by the Robert Koch Institute and continues at the time of performance of the contract), illnesses, quarantine measures or industrial disputes (including strikes or lawful lock-outs) which are beyond the control of a contracting party and as a result of which a contracting party is prevented in whole or in part from fulfilling its obligations, including fire damage, energy and raw material shortages, transport bottlenecks or obstacles through no fault of its own, floods, strikes as well as operational disruptions (fire, water, machinery damage) or official orders and lawful lock-outs for which it is not responsible.

6.3 The contracting parties undertake to adapt the contract to the changed circumstances in good faith. For the duration and to the extent of the direct and indirect effects, the contracting parties shall be released from their obligations under the contract and shall not be liable for damages in this respect. In any case, we as the Seller are entitled to postpone the delivery for the duration of the impediment or to withdraw from the contract in whole or in part due to the part not yet fulfilled, provided that we have complied with our duty to inform and it is no longer reasonable for us to fulfil the contract and we have not assumed the procurement risk or a delivery guarantee.

 

  1. Retention of title

7.1 The goods delivered by the Seller shall remain the property of the Seller (“Reserved Goods”) until all outstanding claims arising from the purchase contract and from the current (present and future) joint business relationship, including interest and costs, have been settled in full.

7.2 The Seller shall have the right to withdraw from the contract in accordance with the statutory provisions and to demand the surrender of the object of sale in the event of conduct by the Buyer that is in breach of the contract, in particular in the event of default in payment, subject to § 107 (2) InsO (German Insolvency Regulations). After reclaiming the object of sale, the Seller is entitled to sell it elsewhere or otherwise dispose of it. The proceeds of the sale shall be credited against the Buyer’s liability – less reasonable costs of sale.

7.3 As long as the goods have not been paid for in full, the Buyer must hold the goods in trust for the Seller and keep the goods separate from its property and that of third parties and properly store, secure and insure the goods subject to retention of title and mark them as the property of the Seller.

7.4 The Buyer is revocably entitled to resell the reserved goods in the ordinary course of business. The Buyer hereby assigns to the Seller accepting the assignment, irrespective of any processing, all claims and ancillary rights to which it is entitled from the resale and the business relationship with its customers in connection with the resale. In the event that the delivery is sold by the Buyer together with other goods not belonging to the Seller, the assignment of the Buyer’s purchase price claim shall only apply to the value of the delivery.

7.5 The Buyer is revocably authorised to collect the claim from the resale of the reserved goods as long as it meets its payment obligations. The authorisation to collect and the right to process shall lapse, even without express revocation, if the Buyer ceases to make payments, is in default of payment, in the event of a seizure having taken place or if an application has been made to open insolvency proceedings. Assigned accounts receivable received thereafter shall be accumulated immediately in a special account with the designation to be specified separately by the Seller. At the request of the Seller, the Buyer shall immediately inform the Seller in text form of the debtors of the assigned claim(s) and notify the debtors of the assignment to the Seller. The Seller shall also be entitled to notify the Buyer’s customers of the assignment of the Buyer’s claim(s) to the Seller and to collect the claim(s).

7.6 In the event of a combination or inseparable mixing of the reserved goods with other items, the reservation of title shall also extend to the resulting uniform item. If the reserved goods are combined or inseparably mixed with other materials not owned by the Seller, the Seller shall acquire co-ownership of the uniform item in the ratio of the invoice value of the reserved goods to the invoice value of the other, third-party materials. If the combination or mixing takes place in such a way that the Buyer’s item is to be regarded as the main item, the Buyer hereby assigns to the Seller the co-ownership share determined in accordance with the above sentence. In addition, the provisions of this Section 7 regarding the goods subject to retention of title shall also apply to the uniform item created after combination or mixing.

7.7 Any processing or transformation of the reserved goods shall always be carried out on behalf of the Seller, with the result that the Seller shall become the owner of the newly produced item. If the reserved goods are processed or transformed into a new item together with other materials not owned by the Seller, the Seller shall always acquire co-ownership of the newly produced item in the ratio of the invoice value of the reserved goods to the invoice value of the third-party processed materials. In all other respects, the provisions of this Section 7 concerning the goods subject to retention of title shall also apply to the new item produced after processing or transforming the goods subject to retention of title.

7.8 The Buyer shall be deemed to be the Seller’s custodian for the Seller’s sole or joint property thus created.

7.9 In the event of seizure or other interventions by third parties – also after combining, mixing, processing or reworking – as well as any other impairment of the rights to the goods subject to retention of title owned by the Seller, the Buyer shall notify the Seller immediately in text form so that the Seller can file an action pursuant to § 771 ZPO (German Code of Civil Procedure). Insofar as the Buyer fails to comply with this obligation, it shall be liable for the damage incurred.

7.10 The Seller undertakes to release the securities to which it is entitled at the Buyer’s request to the extent that the realisable value of the securities exceeds the claims to be secured by more than 10%. The choice of the securities to be released shall be made by the Seller.

  1. Warranty and liability

8.1 Claims for defects on the part of the Buyer presuppose that it has duly fulfilled its obligations to examine the goods in accordance with § 377 of the German Commercial Code (HGB). If the goods are not delivered in full or as agreed, the Buyer is obliged to give written notice of this immediately after discovery of the defect and to assert its claim to subsequent performance. If the Seller does not fulfil its obligation of subsequent performance, the Buyer is entitled to set a reasonable deadline. If the Seller allows this period to elapse without success, the Buyer may, at its discretion, demand a reduction in price within the framework of the statutory provisions. The Buyer shall not be entitled to substitute performance (performance of the work by third parties at the Seller’s expense).

8.2 The Seller accepts no responsibility for the goods being fit for a particular purpose. In this respect, only the contractually agreed quality and/or the use expressly agreed in accordance with the contract shall be decisive. The application of § 434 Abs. 3 BGB (German Civil Code) is expressly excluded.

8.4 The liability of the Seller is assumed under the following conditions:

  • the Seller shall not be responsible for defects in the goods resulting from a description or specification of the goods by the Buyer;
  • the Seller shall not be responsible for the defectiveness of the goods if the purchase price due has not been paid by the due date;
  • the Seller’s responsibility does not extend to parts, materials or other equipment manufactured by or on behalf of the Buyer unless the manufacturer of such parts accepts responsibility vis-à-vis the Seller.

8.5 This warranty does not cover product defects resulting from improper installation or use, misuse, negligence or other causes.

8.6 All claims of the Buyer based on defects shall become statute-barred after one year. The statutory provisions shall apply to the commencement and expiry of the limitation period. The reduction shall not apply if the Seller is guilty of intentional or grossly negligent breach of duty.

The reduction of the limitation period to one year shall not apply to claims against the Seller based on mandatory statutory provisions on the recourse of intermediaries in the supply chain against the Seller (§§ 478 BGB).

The Seller’s liability for damages resulting from injury to life, body or health caused by a defect for which the Seller is responsible shall also not be affected by this clause.

8.7 The Buyer may demand replacement goods, repair or a price reduction, if this is stipulated accordingly in the specific individual contract.

8.8 Insofar as there is a defect in the purchased item for which the Seller is responsible and the Seller is notified thereof, the Seller shall be entitled to make a replacement delivery or remedy the defect free of charge. If the Seller is not willing or able to remedy the defect or to make a replacement delivery, the Buyer shall be entitled, at its discretion, to withdraw from the contract (rescission of the contract) or to demand a price reduction (reduction of the purchase price).

  1. Liability

9.1 Any further liability for damages than provided for in § 8 or mandatory by law is excluded, regardless of the legal nature of the claim asserted. This applies in particular to claims for damages arising from culpa in contrahendo, from other breaches of duty or from tortious claims for compensation for property damage in accordance with § 823 BGB.

9.2 The limitation according to paragraph (1) shall also apply insofar as the customer demands reimbursement of useless expenses instead of a claim for damages.

9.3 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, representatives and vicarious agents

  1. Packaging take back

10.1 Pursuant to Section 15 Paragraph 1 Sentence 1 of the German Packaging Act (VerpackG), manufacturers and subsequent distributors in the supply chain (each as defined by the German Packaging Act) of:

– Transport packaging

– Sales packaging and secondary packaging which, after use, does not typically accumulate as waste at private end consumers

– Sales and secondary packaging for which system participation is not possible due to system incompatibility in accordance with § 7 Paragraph 5

– sales packaging of pollutant-containing filling goods or- reusable packaging

shall be obligated to take back, free of charge, used, empty packaging of the same type, shape and size as the packaging placed on the market by it at the place of actual handover or in its immediate vicinity.

10.2 Unless we as the Seller have agreed otherwise with the Buyer, we as the Seller are the manufacturer or the subsequent operator in the supply chain within the meaning of Section 15 (1) sentence 1 of the German Packaging Act (VerpackG) and we as the Seller have used packaging material within the meaning of Section 9.1 (hereinafter referred to as “packaging material” in this Section 9) when supplying a product, the following shall apply:

The Seller shall take back the packaging material free of charge at the place of actual delivery or in the immediate vicinity thereof, insofar as the Seller is requested to do so by the Buyer prior to or upon delivery. By taking back the packaging material, the Seller shall ensure that the packaging material is returned to the recycling cycle. In all other respects, the statutory provisions shall apply.

 

  1. Other provisions

11.1 The Seller shall be entitled to modify and improve the goods without having to inform the Buyer in advance, provided that the modification or improvement does not have a lasting adverse effect on the form or function of the goods.

11.2 These Terms and Conditions replace all other agreements previously made by the contracting parties in writing or orally and which become ineffective upon the signing of these Terms and Conditions.

11.3 Each Party shall bear its own costs in implementing this agreement.

  1. Choice of law, place of jurisdiction

12.1 The place of jurisdiction for disputes arising from or in connection with the contractual relationship existing between the Seller and the Buyer shall be the Seller’s place of business. However, we are also entitled to sue the customer at its local court.

12.2 The law of the Federal Republic of Germany shall apply.

12.3 Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.

  1. Severability clause

Should one of these contractual provisions be or become ineffective, the remaining provisions shall remain effective. Should one of these contractual provisions be or become invalid, the parties shall replace this provision by way of renegotiation.

As at: April 2022