General terms and conditions

§ 1 General and scope of application

The following General Terms and Conditions (GTC) shall apply to all contracts with entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 (1) of the German Civil Code (BGB) for deliveries and other services, including contracts for work and services and the delivery of non-fungible items.
We do not recognize any terms and conditions of the customer that are contrary to or deviate from our terms and conditions, unless we have expressly agreed to their validity in writing.
Within the framework of current business relations, the following terms and conditions shall apply to future contracts even if this is not expressly agreed in the future.

§ 2 Conclusion of contract

Our offers - in particular with regard to quantity, price and delivery time - are always subject to change and revocable at any time.
Orders of the buyer are only considered as accepted when we have confirmed them in writing. If we do not confirm a contract concluded orally or by telephone in writing, the invoice issued by us shall be deemed to be the confirmation.
Our travelers and representatives have no authority to give assurances of quality, to assume guarantees or to make agreements that deviate from the terms and conditions. Any such agreements must be confirmed by us in writing in order to be effective.

§ 3 Prices, terms of payment and invoice

All our prices are ex works, unpacked, uninsured and duty unpaid plus the statutory value added tax applicable on the day of delivery.
Deliveries for which no express price agreement has been made shall be invoiced at the list price in € valid on the day of delivery.
If unforeseeable cost increases occur between conclusion of the contract and delivery and after expiry of a price fixing period of six weeks, in particular increases in raw material and material prices or wage costs, e.g. due to collective agreements of our suppliers, transport costs, taxes or duties, we shall be entitled, even in the case of an express price agreement, to make a price adjustment corresponding to these factors. The same shall apply in the event of cost reductions. Cost increases and cost reductions shall be proven to the Buyer upon request as soon as and insofar as they have occurred. If the adjusted price exceeds the agreed price by more than 8%, the Buyer shall be free to withdraw from the contract. The price adjustment may not lead to an additional profit for the Seller.
The purchase price is due and payable within 14 days from the date of invoice and delivery or acceptance of the goods. The invoice is issued upon shipment or acceptance. If the goods ready for shipment cannot be shipped or the acceptance cannot take place for reasons that fall within the sphere of risk of the buyer, the invoice shall nevertheless be issued and due. If the invoice amount is received by us within 7 days of the invoice date, the buyer is entitled to deduct a 2% discount. Further discount deductions are inadmissible.
During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate of 9 % above the base interest rate.
If a significant deterioration occurs in the financial circumstances of the purchaser, we shall be entitled to terminate all trade credits and to demand immediate settlement of all outstanding claims from deliveries from the purchaser. In this case, we shall further be entitled to refuse further deliveries until all our claims, whether due or not, are settled or security is provided for them. The same shall apply if the Buyer suspends payments, files for insolvency proceedings, a creditor's application for insolvency is admitted and a decision is made in accordance with § 21 InsO (German Insolvency Code) or the Buyer asks its creditors for an out-of-court settlement. Our right to withdraw from the contract (§ 321 BGB) remains unaffected.
The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer's counter rights shall remain unaffected, in particular pursuant to § 6 No. 1 Sentence 4 of these GTC.

§ 4 Delivery and shipping

Our delivery obligation shall always be subject to timely and proper delivery by our own suppliers, the timely granting of any necessary permits and releases, and the timely receipt of all documents to be provided by the Buyer.
Stated delivery and unloading times are always non-binding unless otherwise expressly agreed in writing.
Impediments to delivery due to force majeure or due to unforeseen events for which we are not responsible, such as operational disruptions, strikes, lockouts, official directives, subsequent loss of export or import possibilities and our own reservation of supply in accordance with the above clause 1 shall release us from the obligation to comply with any agreed delivery or unloading times for the duration and to the extent of their effects. They shall also entitle us to withdraw from the contract without the Buyer being entitled to any compensation or other claims as a result.
If an agreed delivery or unloading time is exceeded to a greater extent than is customary in the industry, without there being an impediment to delivery in accordance with the aforementioned Item 3, the Buyer shall grant us in writing a reasonable grace period of at least two weeks. If we are in default of delivery after this period, the purchaser may demand lump-sum compensation for the damage caused by the delay. The lump-sum compensation shall amount to 0.5% of the net price (delivery value) for each full calendar week of the delay, but in total not more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the purchaser has not suffered any damage at all or that the damage is significantly less than the aforementioned lump sum.
If the contracting parties have agreed on the shipment of the goods, the delivery period shall also be deemed to have been complied with if the shipment ready for distribution has been dispatched or collected within the agreed period. The same shall apply if the shipment is delayed for reasons for which the Buyer is responsible and we have notified the Buyer that the goods are ready for shipment within the delivery period.
If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to claim compensation for the resulting damage including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of 0.1% of the value of the goods per calendar day, starting with the delivery deadline or - in the absence of a delivery deadline - with the notification that the goods are ready for shipment. However, the Purchaser shall be at liberty to demonstrate and prove that the expenses incurred are lower than those to be expected in the normal course of events.
Partial deliveries are permissible unless they are unreasonable for the buyer.
If acceptance by the customer in partial quantities within a certain period of time has been agreed, the customer shall - both in terms of time and quantity - make an approximately equal distribution of the acceptance and acceptance quantities. Insofar as the delivery is to be made in whole or in part on call, we shall be entitled to deliver within 4 weeks after the call has been made. If a complete call-off is not made within 1 year, we shall be entitled, at our discretion, either to withdraw from the contract or to demand immediate complete acceptance.
Shipping method and shipping route are chosen by us. Additional costs due to deviating wishes of the customer shall be borne by him. In the case of stacked goods, we reserve the right to deliver goods in their original packaging.
In the case of custom-made products, all information about the delivery quantity is only approximate. The entire batch is sold. In this case, the total delivery quantity can be exceeded or fallen short of by 10%. Excess quantities within this tolerance range shall be accepted and remunerated, short quantities within this range shall nevertheless result in our complete and proper fulfillment of the contract.
We have joined the approved collection system. We therefore do not take back sales packaging with a green dot. Transport and outer packaging can be returned by the buyer at his own expense to the disposal company commissioned by us. This also applies to the return of sales packaging. The delivery point can be requested from us. In the case of mail order purchases, our respective shipping point is the point of sale within the meaning of the VerpackV.
In the case of intra-Community deliveries, the Buyer shall be obliged to provide us with its ID number and to provide us with the other information necessary to verify the tax exemption and to provide us with the documents necessary to prove the tax exemption. If the Buyer fails to comply with these obligations in due time, we shall not treat the delivery as tax-exempt. We shall then be entitled to additionally charge and demand the respective applicable sales tax. Insofar as we have wrongly accepted a delivery as tax-exempt due to incorrect information provided by the customer, the customer shall indemnify us against the tax liability and bear all additional expenses.

§ 5 Transfer of risk

Our products are shipped from our manufacturing plant or distribution warehouse at the purchaser's expense and risk.
In the case of agreed collection, the risk of accidental loss and accidental deterioration of delivery items shall pass to the purchaser upon notification of provision. Otherwise, the risk of accidental loss and accidental deterioration of the goods shall pass to the Purchaser at the latest upon handover. In the case of sale by delivery to a place other than the place of performance, § 447 BGB shall apply. If acceptance has been agreed, this shall be decisive for the transfer of risk. The handover or acceptance is equal if the buyer is in default of acceptance.
We shall only take out transport insurance if the Buyer expressly requests this; the Buyer shall bear the costs incurred in this respect.
We shall not be liable in principle for defects which the purchaser is aware of at the time of conclusion of the contract or is not aware of due to gross negligence (§ 442 BGB). Furthermore, the Buyer's claims for defects shall require that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be notified to us in writing within 5 working days of delivery and defects which are not apparent during the inspection must be notified to us in writing within the same period of time after discovery.
No warranty shall be assumed for damage caused by the following reasons:
a. unsuitable or improper use,
b. in case of excessive stress,
c. if thinners, hardeners, additional varnishes or other admixtures are added by the purchaser which have not been obtained from us or expressly approved by us in writing for admixture.
Minor deviations in our deliveries with regard to color, structure, viscosity, drying time and setting time shall not constitute grounds for defects.
We provide product information and technical application information to the best of our knowledge and belief, without thereby guaranteeing any properties or assuming responsibility for advising the customer. All data and information on the suitability and application of our goods do not release the buyer from his own responsibility to check and test the suitability of the products for the intended processes, purposes and applications. The buyer must check by trial processing whether the delivered goods are suitable for the intended use. If no trial processing is carried out, liability for damage which could have been avoided by trial processing shall be excluded.
Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 and shall otherwise be excluded.

§ 6 Liability for defects

In the event of a defect in the purchased goods, we shall be entitled, at our discretion, to remedy the defect or to deliver new goods free of defects. In the event of subsequent performance, we shall bear the necessary expenses only up to the amount of the purchase price. In all other cases, the purchaser shall bear the costs. We shall be entitled to make the subsequent performance owed dependent on the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect. Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
The purchaser shall make the object of sale available to us for a reasonable period of time for the purpose of inspecting the defectiveness. In the event of an unjustified request for rectification of a defect, we may demand reimbursement from the purchaser of the costs incurred as a result if the purchaser knew or was negligent in not knowing that there was actually no defect.
Subsequent performance shall not include the dismantling, removal or de-installation of the defective item or the installation, attachment or installation of an item free of defects if we were not originally obligated to perform these services; claims of the Buyer for reimbursement of corresponding costs ("removal and installation costs") shall remain unaffected.
We shall not be liable in principle for defects which the purchaser is aware of at the time of conclusion of the contract or is not aware of due to gross negligence (§ 442 BGB). Furthermore, the Buyer's claims for defects shall require that he has complied with his statutory duties of inspection and notification (§§ 377, 381 HGB). In the case of building materials and other goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent during delivery, inspection or at any later time, we must be notified of this in writing without delay. In any case, obvious defects must be notified to us in writing within 5 working days of delivery and defects which are not apparent during the inspection must be notified to us in writing within the same period of time after discovery.
No warranty shall be assumed for damage caused by the following reasons:
a. unsuitable or improper use,
b. in case of excessive stress,
c. if thinners, hardeners, additional varnishes or other admixtures are added by the purchaser which have not been obtained from us or expressly approved by us in writing for admixture.
Minor deviations in our deliveries with regard to color, structure, viscosity, drying time and setting time shall not constitute grounds for defects.
We provide product information and technical application information to the best of our knowledge and belief, without thereby guaranteeing any properties or assuming responsibility for advising the customer. All data and information on the suitability and application of our goods do not release the buyer from his own responsibility to check and test the suitability of the products for the intended processes, purposes and applications. The buyer must check by trial processing whether the delivered goods are suitable for the intended use. If no trial processing is carried out, liability for damage which could have been avoided by trial processing shall be excluded.
Claims of the Purchaser for damages or reimbursement of futile expenses shall also exist in the event of defects only in accordance with § 8 and shall otherwise be excluded.

§ 7 Limitation of liability

Unless otherwise stipulated in these General Terms and Conditions including the following provisions, we shall be liable for any breach of contractual and non-contractual obligations in accordance with the statutory provisions.
We shall be liable for damages - irrespective of the legal grounds - within the scope of culpability in the event of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), only.
a) for damages resulting from injury to life, body or health,
b) for damages resulting from the breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the observance of which the contractual partner regularly relies and may rely).
Insofar as we are obliged to pay damages, this obligation shall always be limited to the damage foreseeable at the time of the conclusion of the contract.
The above limitations of liability shall also apply to the personal liability of our vicarious agents.
Further claims of the buyer exist only:
a) in cases of liability under the Product Liability Act in the event of defects in the delivery item personal injury or property damage to privately used objects,
b) in the case of defects in properties which have been expressly warranted, if the purpose of the warranty was precisely to protect the Buyer against damage which did not occur to the delivery item itself,
c) in the case of defects which have been fraudulently concealed or the absence of which we have guaranteed.
Liability is excluded in all other respects.

§ 8 Limitation

Claims arising from material defects and defects of title shall become statute-barred one year after delivery or acceptance, notwithstanding § 438 para. 1 no. 3 BGB. This shall not affect the statutory limitation periods pursuant to § 438 para. 1 no. 2, § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB.
The limitation period pursuant to the first sentence of No. 1 above shall also apply to contractual and non-contractual claims for damages of the Buyer 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 the individual case. Claims for damages of the Buyer pursuant to § 7 para. 2 sentence 1 and sentence 2 lit. a) as well as pursuant to the Product Liability Act shall become time-barred exclusively in accordance with the statutory limitation periods.
In all other respects, the statutory limitation periods shall apply.

§ 9 Retention of title

The goods delivered by us shall remain our property until full payment of all our present and future claims arising from the business relationship between us and the Buyer. In the case of current account relationships within the meaning of § 355 of the German Commercial Code (HGB), § 356 of the HGB shall apply mutatis mutandis to our security rights under this section.
The Buyer shall be obliged to keep the reserved goods in safe custody and to insure them against loss and damage at his own expense. He hereby assigns his claims under the insurance contracts to us in advance. We accept this assignment.
The Buyer may neither pledge the secured claims to third parties nor assign them as security. The Buyer shall notify us in writing without delay if an application for the opening of insolvency proceedings is filed or if third parties (e.g. seizures) have access to the goods belonging to us.
Until revocation according to c) below, the Buyer shall be entitled to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition.
a. The retention of title shall extend to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we shall be deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same shall apply to the resulting product as to the goods delivered under retention of title.
b. The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or the product in total or in the amount of our co-ownership share, if any, pursuant to the preceding paragraph. We accept the assignment. The obligations of the Buyer set forth in § 9 No. 2 shall also apply with regard to the assigned claims.
c. The Buyer shall remain authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of title by exercising a right pursuant to § 9 No. 3. If this is the case, however, we may demand that the Buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we shall be entitled to revoke the Buyer's authorization to further sell and process the goods subject to retention of title.
d. If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer's request. In the event of processing, combining, mixing or blending of the reserved goods with other goods or items not belonging to us, we shall be entitled to the resulting co-ownership share in the new item in the ratio of the invoice value of the reserved goods to the other processed goods or items at the time of processing, combining, mixing or blending. If the Buyer acquires sole ownership of the new item, the contracting parties agree already now that the Buyer grants us co-ownership of the new item in the ratio of the invoice value of the processed or combined, mixed or blended reserved goods to the invoice value of the other processed goods or items. The production wage, overhead costs and other imputed cost factors shall not be taken into account in the calculation of our co-ownership share. The Buyer shall be obligated to disclose to us at any time upon our request the calculation of its cost of sales for the purpose of determining our co-ownership share. A free of charge safekeeping of the goods in our co-ownership for us by the buyer is already agreed now.
In the case of contracts for services or work performance, upon the fulfillment of which our reservation of title expires, the Buyer's wage claim in the amount of the invoice value of the processed goods subject to reservation of title shall already now be assigned to us; we accept this assignment. In the case of down payments on wage claims partially assigned to us, the Buyer shall be obliged to first offset the down payment against the part of the claim not assigned to us. Between us and the Buyer, the partial amount not assigned to us shall always be deemed to have been paid first by means of partial payments collected by the Buyer.
The direct debit authorization does not authorize factoring. We also do not agree to the assignment of the resale or wage claims assigned to us within the framework of a genuine factoring agreement.
At our request, the purchaser shall be obliged to provide written information at any time on the whereabouts of the goods subject to our retention of title.

§ 10 Place of performance, place of jurisdiction, final provisions

The place of performance for all obligations arising from this contract, in particular for payment by the Buyer, as well as the exclusive - including international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, shall be our registered office if the Buyer is a merchant within the meaning of Section 38 (1) of the German Code of Civil Procedure (ZPO).
The law of the Federal Republic of Germany shall apply exclusively; the application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The foregoing terms and conditions shall not be waived by any commercial practice or by tacit acquiescence. The possible invalidity of one of the above conditions shall not affect the validity of the other conditions.

Ditzingen, May 2022