GENERAL DELIVERY CONDITIONS

As of April 08th 2024

 I. Scope, offer and conclusion of contract

1. These General Terms and Conditions of Delivery only apply to entrepreneurs, legal entities under public law or special funds under public law within the meaning of Section 310 Paragraph 1 of the German Civil Code (BGB). Individual contractual agreements take precedence over the General Terms and Conditions of Delivery.

2. Deliveries are made on the basis of the contractor's offer - possibly modified in accordance with the outcome of a contract award negotiation - and the client's order referring to this offer. Orders or contracts can be accepted within 14 days of receipt. In any case, a contract is only concluded upon written order confirmation from the contractor or upon delivery of the goods to the client.

Unless expressly stated otherwise, all delivery specifications included in an offer from the Contractor – descriptions of properties and quality as well as dimensions and weight details – are only approximate and only relevant within the scope of tolerances customary in the industry.

3. Purchasing conditions of the client that deviate from the contractor's conditions are binding on the contractor only if they are expressly confirmed in writing, even if reference is made to them in the order. In the exceptional case of an agreement to purchase conditions of the client, the contractor's conditions also apply to the extent that they relate to items not regulated therein.

4. Additions and amendments to the agreements made, including these General Terms and Conditions of Delivery, must be made in writing to be effective.

5. Unless expressly stated otherwise, any offers made by the Contractor are subject to change.

6. The Contractor is entitled to use the assistance of third parties as vicarious agents at any time to fulfil its obligations.

II. Prices and payment terms

1. The agreed prices are exclusive of applicable VAT and ex works from the contractor’s delivery warehouse, excluding storage charges and transport insurance.

2. The Contractor may invoice the Client for the products and services before, upon or at any time after completion of delivery. Payment is due no later than 30 calendar days after the invoice date, unless a different deadline is stated on the invoice or otherwise communicated to the Client in writing. Partial deliveries may be invoiced separately. The Contractor may submit invoices electronically and is not obliged to issue a paper invoice.

3. In the event of default of payment by the Client, the Contractor shall, subject to the assertion of further claims for damages, charge interest at the rate of the respective Contractor's own bank liabilities, but at least 9 percentage points above the base interest rate.

4. The client's right to withhold payment or refuse performance, which is not based on intentional or grossly negligent breaches of contract by the contractor or his vicarious agents, is excluded insofar as the counterclaims on which they are based are not undisputed or legally established. The above exclusion does not apply if the client has already paid for defective partial deliveries and the contractor asserts further payment claims instead of a replacement delivery.  

5. The Client is only entitled to offset payment claims of the Contractor with counterclaims that are undisputed by the Contractor or have been legally established.

6. If, after conclusion of the contract, it becomes apparent that the contractor's claim for payment is at risk due to the client's lack of performance or that the client is in arrears with significant payments, the contractor is entitled to the rights under Section 321 of the German Civil Code (BGB). In this case, the contractor is entitled to demand payment or security for all claims from all existing contracts and to refuse to fulfill all existing contracts until advance payment or security is made. A significant delay in payment exists in particular if the client is in arrears with the payment of three consecutive installments when payment by installments has been agreed.

III. Delivery times

1. All dates and deadlines are only approximate, unless the contractor has designated them as binding in writing. The delivery periods begin with the dispatch of the order confirmation by the contractor, but not before receipt of all official permits to be obtained by the client, documents to be made available by him, in particular delivery specifications, and not before receipt of any agreed down payment. If these requirements are not met in time, the dates and deadlines will be extended accordingly.

2. Partial deliveries are permitted.

3. If the contractor is prevented from properly carrying out the service due to circumstances that were not foreseeable at the time the contract was concluded and which are directly or indirectly due to the effects of wars or other warlike circumstances and/or directly or indirectly due to the corona virus or comparable pathogens and/or due to other random events for the contracting parties, e.g. natural events, operational disruptions, strikes, lockouts, lack of means of transport, official interventions, energy supply difficulties, direct or indirect blockages of trade routes by third parties or other unforeseeable difficulties in procuring materials, such as late delivery by suppliers and subcontractors, or due to the failure of the contractor's own staff, the contractor is entitled to a correspondingly appropriate extension of the delivery time; this also applies to the extent that such circumstances are in addition to a delay that has already occurred on the part of the contractor. In the event of a delay of more than six months, both parties are entitled to terminate the contract or to withdraw from the concluded contract. Possible claims of the parties according to § 313 BGB remain unaffected. If the delivery or service becomes impossible or unreasonable due to the circumstances mentioned, the contractor is released from the delivery obligation. The contractor will notify the client immediately of the circumstances mentioned.

4. In the event of delays in delivery for which the contractor is responsible, the client must grant him a reasonable grace period. If the contractor has not indicated that the goods are ready for dispatch after this grace period has expired, the client is entitled to withdraw from the contract with regard to the part of the delivery that has not yet been fulfilled or, in the event that legal representatives or vicarious agents of the contractor are guilty of intent or gross negligence with regard to the delay, to demand compensation for this part instead of performance; if the client proves in the event of partial delay that partial performance is of no interest to him, he is entitled to the aforementioned rights with regard to the entire contract.

5. Delays in delivery for which the customer is responsible shall not affect agreed payment obligations and payment deadlines.

IV. Transfer of Risk

1. Unless expressly agreed otherwise, delivery and transfer of risk shall take place FCA Welserstr. 7, Halle 3 – 5, 41468 Neuss. Incoterms® 2020.

2. The Contractor shall package the Contract Product with the care of a prudent businessman and shall bear the costs thereof.

V. Retention of title

1. The Contractor reserves title to the delivered goods – including partial deliveries – until the entire delivery has been paid for in full.

2. Any processing or working of the reserved goods by the customer, to which the customer is entitled within the scope of its proper business operations, is carried out for the contractor without this giving rise to any obligations for the contractor. If the reserved goods are combined, mixed or blended with other items or if they are processed or worked on, the contractor acquires co-ownership of the new item in the ratio of the invoice value of the reserved goods to the value of the new item; the customer will store the new item for the contractor with the care of a prudent businessman.

3. Subject to revocation for reasons for which the client is responsible, the client is entitled to sell the goods owned or co-owned by the contractor for a fee within the scope of proper business operations. In this case, the client hereby assigns his purchase price claim against the purchaser, including all security and ancillary rights, to the purchaser until all of the contractor's claims from existing business relationships have been paid in full in the amount of the respective arrears; in the case of the sale of goods co-owned by the contractor, however, this requirement only applies to the pro rata purchase price claim in the amount of the invoice value of the reserved goods. The agreement of a prohibition on assignment with regard to the purchase price claim against the purchaser is not permitted.

4. The assignment pursuant to clause 3 is made as security with the proviso that the client remains entitled to collect the purchase price claim from the purchaser as long as and to the extent that he properly meets his payment obligations to the contractor or there is no deterioration in his financial situation, of which he must inform the contractor immediately. At the contractor's request, the client will provide him with all documents and information required to enforce the purchase price claim; after the circumstances described in sentence 1 occur, the contractor is entitled to inform the purchaser of the assignment.

5. The Contractor undertakes to release the securities to which he is entitled at the Client's request to the extent that the realisable value of these securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be the responsibility of the Contractor.

6. The Client is not entitled to pledge or transfer as security goods that are the property or co-ownership of the Contractor; in the event of seizure or confiscation by third parties, the Client will disclose the ownership situation to these third parties and, in order to protect its rights, immediately inform the Contractor by handing over all documents essential for an intervention.

VI. Rights of the Client in the Event of Defects

1. Excluding any further claims, the customer is entitled to demand subsequent performance in the form of repair or - at the contractor's discretion - replacement delivery for wholly or partially defective deliveries or services to the extent of the defect, but replacement delivery only in return for return of the defective goods; the customer's right to demand a reduction in price or to withdraw from the contract in the event of definitive failure of subsequent performance, i.e. after two failed attempts at subsequent performance, remains unaffected. In the case of an insignificant defect, the right to withdraw and the right to compensation instead of the entire service are excluded. Insignificant defects exist when there is only an insignificant deviation from the agreed quality, when there is only an insignificant impairment of usability, when there is natural wear and tear or when there are deviations that arise due to special external influences that are not assumed under the contract.

2. The Contractor shall be granted a reasonable period of time to carry out the repair or replacement delivery; otherwise the Contractor shall be released from his obligations in respect of defects.

3. The Contractor is entitled to make the subsequent performance owed dependent on the Client paying the price due. In the event of complaints about defects, however, the Client may withhold payments to an extent that is in reasonable proportion to the material defects that have occurred.

4. If the defect is due to the faultiness of third-party products, the contractor is entitled, at its discretion, to assign to the client any related and any further claims for defects to which it is entitled against the manufacturer or sub-supplier instead of its own replacement delivery in accordance with clause 1, first half-sentence; the contractor will support the client in enforcing such claims. In such a case, warranty claims against the contractor shall only exist under the other conditions and in accordance with these General Terms and Conditions of Delivery if the legal enforcement of the aforementioned claims against the supplier, i.e. exhaustion of the legal appeals process and/or enforcement, was unsuccessful or, for example due to insolvency, is futile. During the duration of the legal dispute, the limitation period for the client's warranty claims against the contractor is suspended. The provisions of clause 1, second half-sentence apply accordingly with regard to the contractor.

5. The client's statutory obligation to inspect and give notice of defects remains unaffected. If a defect is discovered during delivery, inspection or at any later point in time, the contractor must be notified of this in writing immediately. In any case, obvious defects must be reported in writing within one week of delivery and defects not apparent during inspection must be reported in writing within the same period of time after discovery. If the client fails to carry out the proper inspection and/or report the defect, the contractor's liability for the defect not reported or not reported in time or not properly is excluded in accordance with the statutory provisions. Timely dispatch is sufficient to meet the deadline. The client bears the full burden of proof for all claim requirements, in particular for the defect itself, for the time at which the defect was discovered and for the timeliness of the complaint.

6. If the Contractor has reasonable grounds to suspect that the defect is a serial defect that has an impact on safety, the Contractor is entitled to stop selling the goods until the matter has been clarified and, in the case of an actual serial defect, the defect has been remedied.

VII. Compliance with the requirements of foreign trade law

If the client intends to export the delivery goods after receiving them from the contractor, the client is responsible for complying with the legal and official regulations. In particular, the client may not export the delivery goods in violation of embargoes or sanctions of the Federal Republic of Germany or the EU.

VIII. Re-export to Russia

1. The Contracting Authority shall not sell, export or transfer, directly or indirectly, to the Russian Federation for use in the Russian Federation any goods or technology supplied under or in connection with this Contract and falling within the scope of Article 12g of Council Regulation (EU) No 833/2014.

2. The Client shall use its best endeavours to ensure that the purpose of paragraph (1) is not frustrated by third parties further down the supply chain, including possible resellers. 

3. The Contracting Authority shall establish and maintain an appropriate monitoring mechanism and endeavour to detect any conduct by third parties further down the supply chain, including possible resellers, which would frustrate the purpose of paragraph (1).

4. Any culpable breach of paragraph (1), (2) or (3) shall constitute a material breach of the Contract and the Contractor shall be entitled to take appropriate remedies, including but not limited to:

a. termination of this Agreement; and

b. the assertion of a contractual penalty, the amount of which the contractor shall determine at his own discretion and the appropriateness of which may be reviewed by the competent court in the event of a dispute. The assertion of other claims or higher compensation remains unaffected; any contractual penalty already paid shall be offset against any higher compensation claimed. Any further statutory or contractual rights of the contractor remain unaffected.

5. The Client shall promptly inform the Contractor of any problems in the application of paragraph (1), (2) or (3), including relevant activities of third parties that may frustrate the purpose of paragraph (1). The Client shall provide the Contractor with information on compliance with the obligations under paragraphs (1), (2) and (3) within two weeks of simply requesting such information.

IX. Liability

1. The Client’s claims for damages are – subject to the provisions of this Section VII – excluded.

2. Excluded from this are claims by the client for damages arising from the negligent breach of essential contractual obligations by bodies, legal representatives, employees or other vicarious agents of the contractor, i.e. those obligations whose fulfilment makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner has regularly relied and was entitled to rely and whose culpable non-fulfillment endangers the achievement of the purpose of the contract. In the event of negligent breach of essential contractual obligations, the contractor is only liable for the damage that was foreseeable and typically occurred at the time the contract was concluded.

3. The limitations and exclusions of liability in this Section VII do not apply to the Contractor’s liability for intentional conduct or gross negligence on the part of its bodies, legal representatives, employees or other vicarious agents, for defects whose absence the Contractor has assured or guaranteed, or which the Contractor has fraudulently concealed, for injury to life, body or health or under the Product Liability Act.

4. The above exclusions and limitations of liability apply to the same extent to the bodies, representatives, employees and other vicarious agents of the Contractor if claims are asserted directly against them.

5. Indirect, special or consequential damages of any kind, such as damages due to delay, damages due to business interruption, lost profits, lost savings, lost revenue, lost opportunities, loss of goodwill, loss of data, damage to reputation or incurred penalties or fines, are only compensable to the extent that such damages are typically to be expected when the goods are used as intended.

X. Limitation Period

1. Deviating from Section 438 Paragraph 1 Number 3 of the German Civil Code (BGB), claims arising from material and legal defects expire within 12 months from delivery to the customer or, if acceptance has been agreed or is required by law, from acceptance. Other special statutory provisions on limitation periods remain unaffected, in particular Sections 438 Paragraph 1 Number 1, Paragraph 3, 444, 445b of the German Civil Code (BGB).

2. The above limitation periods under the law of purchase also apply to contractual and non-contractual claims for damages by the customer that are based on a defect in the goods. Excluded from this are claims for damages by the customer due to intentional or grossly negligent conduct and due to damage to life, body and health as well as under the Product Liability Act; they expire exclusively according to the statutory limitation periods.

3. The statutory provisions on suspension of the expiry, interruption and restart of time limits remain unaffected.

XI. Early termination of the contract

1. If the contractual relationship is terminated for any reason before the Contractor has fully fulfilled the order, the deliveries made up to that point shall be remunerated as follows:

a) in the case of deliveries for which remuneration is paid on a lump sum basis, the full remuneration shall be paid if and to the extent that the Contractor has fully provided his deliveries; otherwise the full remuneration shall be reduced by a percentage corresponding to the part not yet provided, which shall be estimated if necessary;

b) Deliveries to which separate remuneration amounts are allocated or for which remuneration is based on expenditure shall be invoiced in accordance with the level of execution achieved.

2. Any further claims of the Contractor due to the premature termination of the contract remain unaffected

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XII. Place of performance and jurisdiction

1. The place of performance for deliveries and payments is the registered office of the Contractor.

2. The exclusive place of jurisdiction – including international jurisdiction – for all disputes arising directly or indirectly from the contractual relationship is the registered office of the contractor. The contractor also has the right to assert its own claims before the courts at the registered office of the client.

XIII. Applicable Law

The law of the Federal Republic of Germany applies, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.