1. Scope of application
a) The following General Terms and Conditions of Sale and Delivery shall apply exclusively to all our deliveries and services - including future deliveries and services - including the construction of samples and other development services. We shall not recognize any terms and conditions of the Purchaser that conflict with or deviate from our Terms and Conditions of Sale and Delivery, in particular not by unconditional delivery in the knowledge of such conflicting or deviating terms and conditions. Insofar as our terms and conditions do not contain any special provisions, the statutory provisions shall apply irrespective of any trade customs.
b) These General Terms and Conditions of Sale and Delivery shall only apply vis-à-vis entrepreneurs within the meaning of Section 310 (1) of the German Civil Code (BGB).

2. Offer/Conclusion of Contract
a) Our offers are subject to change. A contract shall only be concluded upon our order confirmation, but in any case upon delivery of the goods. Any discrepancies shall be noted on our delivery bill and the CMR consignment note and countersigned by the driver; the Purchaser shall send us a copy of each of these documents without delay.
b) The quality and design of the goods manufactured by us shall be characterized and described by the production failure samples submitted to the Purchaser for inspection and approved by the Purchaser. However, the production failure samples do not contain any guarantee of quality. Deviations that are customary in the trade and deviations that occur due to legal regulations or represent technical improvements, as well as the replacement of components with equivalent parts, are permissible insofar as they do not impair the usability of the goods for the contractually intended purpose.
c) We reserve the property rights and copyrights to manufacturing specifications, samples and other specifications and information which we provide to the Purchaser - whether of a physical or non-physical nature, but in particular also in electronic form; they may not be made accessible to third parties without our express written consent. This applies in particular to written documents which have been designated as "confidential".
At our request, the customer shall return to us in full all items and documents referred to in this paragraph and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
d) Molds and tools which we manufacture ourselves or have manufactured remain our property. The purchaser shall have no claim to surrender of the same.
e) If the order is to be qualified as an offer in accordance with § 145 BGB (German Civil Code), this shall be binding on the customer for a period of 14 working days from dispatch of the order. We shall be entitled to accept the offer within this period by sending an order confirmation or by sending the ordered goods.

3. Industrial property rights of third parties
a) The Purchaser warrants that the items manufactured and to be delivered by us in accordance with drawings, models, samples or other templates provided by the Purchaser do not infringe any third party industrial property rights.
b) If we are prohibited from manufacturing or delivering items manufactured according to the Purchaser's specifications on the basis of an industrial property right, we shall be entitled to immediately discontinue the manufacture and delivery of the items concerned without prior examination of the legal situation. Any additional expenses incurred by us as a result shall be borne by the customer. The customer shall also be obliged to indemnify us against any claims relating to the infringement of property rights.

4. Price / Payment / Default interest / Liquidated damages
a) Our prices are "ex works" plus the respective statutory value added tax, unless otherwise agreed in individual cases. We shall issue a separate invoice for each individual delivery.
b) All final invoice amounts are due for payment without deduction within 30 days of the invoice date, unless otherwise agreed in individual cases. The date of receipt by us shall be decisive for the date of payment.
c) If we incur damages as a result of unjustified non-performance and/or unjustified cancellation of the contract by the Purchaser, a lump-sum damage charge of 5% of the net value of the goods of the order shall be levied, without prejudice to the Purchaser's option to prove to us that substantially less damage or no damage at all has been incurred and without prejudice to our right to claim damages in excess thereof.
d) If, after the conclusion of the contract, the Purchaser's lack of ability to perform and thus a risk to its counter-performance - in particular in the form of a significant deterioration of its financial circumstances - becomes apparent, we shall be entitled to revoke agreed payment terms - also for future deliveries - and to perform outstanding deliveries from all business relations existing with the Purchaser only against advance payment or the provision of securities customary in banking. Any further legal claims shall remain unaffected.
e) The Purchaser shall only be entitled to rights of set-off or retention to the extent that its claim has been finally adjudicated, is undisputed or has been acknowledged by us in writing. However, the purchaser shall be entitled to retention on the basis of claims arising from the same contractual relationship.

​

5. Place of performance / Delivery / Force majeure / Packaging / Transport / Transfer of risk

a) The place of performance for all obligations arising from the contractual relationship is our registered office, unless otherwise agreed.
b) We reserve the right to correct and timely self-delivery. If this fails to occur due to circumstances for which we are not responsible, we shall inform the customer accordingly without delay, but no later than 5 working days after receipt of this information by us. In this case, we may withdraw from the contract after a reasonable waiting period; we will immediately refund any consideration already paid by the purchaser. In the absence of correct and timely delivery to us, the purchaser shall be entitled to withdraw from the contract after expiry of a reasonable period of grace to be set in writing - or, in the exceptional cases regulated by law, without setting a period of grace.
c) Delivery dates shall only be binding if we expressly confirm them in writing and shall be subject to the reservations set out in clause 5 b).
d) Force majeure and other events unforeseeable at the time of conclusion of the contract, including war, riots, lawful industrial action and unlawful strikes, acts of God, shortages of energy and raw materials, traffic and unavoidable operational disruptions as well as fire - also at our suppliers - shall release us from the obligation to deliver and perform for the duration of the disruption and the extent of its effects. In the event of unforeseeable duration, but no earlier than 30 days after their occurrence, circumstances within the meaning of sentence 1 of this provision shall entitle us to withdraw from the contract in whole or in part without the customer being entitled to claim damages; the same shall apply insofar as the aforementioned circumstances render the performance of the contract permanently uneconomical and it is no longer reasonable for us to adhere to the contract. We shall notify the Purchaser as soon as possible of the occurrence of force majeure or similar events; Clause 5 b), Sentence 3 shall apply accordingly.
e) We shall be entitled to make partial deliveries and partial performance and may - after appropriate invoicing - demand separate payment for them, unless the partial delivery or partial performance is objectively of no interest to the Purchaser or cannot reasonably be expected of him. The rights of the purchaser due to delay or impossibility of our performance remain unaffected by this.
f) The risk shall pass to the customer at the latest when the goods are handed over (whereby the start of the loading process shall be decisive) to the forwarding agent, carrier or other third party designated to carry out the shipment. This shall also apply if partial deliveries are made or other services (e.g. shipping) have been assumed by us. If dispatch or handover is delayed due to circumstances for which we are not responsible, the risk shall pass to the customer on the day on which we are ready for dispatch and have notified the customer of this.
g) Storage costs after transfer of risk shall be borne by the customer. In the event of storage by us, the storage costs shall amount to EUR 2.50 per expired week and stored pallet. We reserve the right to claim and prove further or lower storage costs.
h) If the purchaser requests that we insure the shipment against theft, breakage, transport, fire and water damage or other insurable risks, he shall bear the usual costs for this.
i) Insofar as acceptance is to take place, the goods shall be deemed to have been accepted when
- the delivery has been completed,
- we have notified the Purchaser thereof with reference to the acceptance fiction and have requested the Purchaser to accept the goods,
- twelve working days have elapsed since delivery or the customer has started using the goods and in this case six working days have elapsed since delivery and
- the Purchaser has failed to accept the goods within this period for a reason other than a defect notified to us which makes it impossible to use the purchased goods or significantly impairs their use.

​

6. Warranty
a) Warranty claims of the purchaser presuppose that the purchaser has duly fulfilled its statutory obligations to inspect the goods and to give notice of defects.
b) Notwithstanding any statutory provisions, the Purchaser must notify us in writing without delay of any defects which are obvious upon delivery of the goods, in particular short deliveries and transport damage. If a defect becomes apparent during the inspection or at a later date, the Purchaser must also notify us of this in writing without delay. The notification shall be deemed to have been made without delay if it is made within seven working days, whereby timely dispatch of the notification shall suffice to meet the deadline.
c) The Purchaser shall bear the full burden of proof for all prerequisites for a claim, in particular for the defect itself, the quantity of delivered goods complained of, the time at which the defect was discovered and the timeliness of the notice of defect.
d) In the event of a justified complaint about defects for which we are responsible, we shall be entitled, at our option to be made within a reasonable period of time, to subsequent performance, i.e. either to remedy the defect or to deliver defect-free goods within a reasonable period of time, which shall also take into account the time required to procure the goods from the upstream supplier. If the subsequent performance does not succeed within a reasonable period of time, the Purchaser may, in accordance with the statutory provisions, demand a reduction of the remuneration or, if the delivery item has not only an insignificant defect, withdraw from the contract. Clause 7 shall apply mutatis mutandis to any claims for damages by the Purchaser due to defective goods.
e) We shall be entitled to make the subsequent performance owed dependent on the Purchaser paying the purchase price due. However, the customer shall be entitled to retain a part of the purchase price which is reasonable in relation to the defect.
f) The Purchaser's statutory rights of recourse against us shall exist only to the extent that the Purchaser has not entered into any agreements with its customer exceeding the statutory claims for defects. Section 7 of these General Terms and Conditions of Sale and Delivery shall apply to the scope of claims for damages and claims for reimbursement of futile expenses by way of recourse.
g) In the event of defects in components of other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturers and suppliers for the account of the Purchaser or assign them to the Purchaser. In the event of such defects, warranty claims against us shall only exist under the other conditions and in accordance with these General Terms and Conditions of Sale and Delivery if legal enforcement of the aforementioned claims against the manufacturer and supplier has been unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Purchaser against us shall be suspended.
h) The warranty shall not apply if the Purchaser modifies the delivery item or has it modified by a third party without our consent and the rectification of defects becomes impossible or unreasonable as a result. In any case, the Purchaser shall bear the additional costs of remedying the defect resulting from the modification.

7. Compensation for damages, reimbursement of futile expenses
a) Claims for damages that are not based on grossly negligent or intentional violation of our contractual or legal obligations are excluded. This shall apply to all claims for damages, irrespective of their legal basis, in particular also to claims for damages arising from culpa in contrahendo, from other breaches of duty, from tortious claims for compensation for property damage pursuant to Section 823 of the German Civil Code (BGB) or for the reimbursement of futile expenses incurred by the Purchaser.
b) The exemption from liability in a) above shall not apply with regard to our liability for culpable injury to life, limb and health, our liability for the guaranteed quality of a delivery, our liability for defects which we have fraudulently concealed, our mandatory liability under the Product Liability Act and for those cases in which we have breached a material contractual obligation (obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the customer regularly relies and may rely) due to slight negligence. In cases of slightly negligent breach of an essential contractual obligation as well as for indirect damage and damage resulting from defects of the delivered goods, our liability shall, however, be limited to the foreseeable damage typical for the contract at the time of conclusion of the contract, unless this breach of contractual obligation has resulted in damage to life, body or health.
c) In the event of liability for simple negligence, our liability to pay compensation for property damage and personal injury shall be limited to an amount of EUR 25,000.00 per case of damage (corresponding to the current coverage amount of our product liability insurance or liability insurance), even if it is a breach of a material contractual obligation pursuant to Section 7 lit. b).
d) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our executive bodies, employees, workers, representatives and vicarious agents.

​

8. Retention of title
a) We reserve title to the delivery item (hereinafter referred to as "Retained Goods") and to the documents attached to the delivery item as long as we still have claims, regardless of their nature, from current or future business relations with the Purchaser. In the case of a current account, this reservation of title shall also serve to secure our respective balance claim. In the event of a breach of contract by the customer, in the event of default in payment or in the event that payment is jeopardized by the customer's inability to pay, we shall be entitled - if necessary after setting a deadline, insofar as this is required by law - to withdraw from the contract in accordance with the statutory provisions and to take back the reserved goods and the documents; the customer shall be obliged to surrender the same. After taking back the goods subject to retention of title, we shall be entitled to realize them; the realization proceeds shall be credited against the customer's liabilities - less reasonable realization costs.
b) Transfer of ownership by way of security or assignment as well as pledging of the reserved goods or the assigned claims are not permitted. The customer shall notify us immediately in writing of any seizure or other dispositions or interventions by third parties. If the third party is not in a position to reimburse us for the judicial or extrajudicial costs incurred in connection with the enforcement of our property rights, the Purchaser shall be liable for such costs.
c) The customer shall keep the reserved goods and the documents in safe custody for us free of charge. He shall be obliged to treat them with care; in particular, he shall insure them adequately and at replacement value against the usual risks such as fire, burglary, theft and damage in transit as well as water damage. The Purchaser hereby assigns to us any claims against insurers and third parties arising from a case of damage in the amount of the invoice value of the reserved goods concerned plus any transport and disposal costs. This assignment is also accepted by us. Insofar as maintenance and inspection work is required, the purchaser must carry this out in good time at his own expense.
d) If the realizable value of the securities to which we are entitled exceeds our claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the request of the customer or of a third party affected by the excess security.
e) If the reserved goods are inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other mixed items at the time of mixing. If the mixing takes place in such a way that the Customer's item is to be regarded as the main item, it shall be deemed to have been agreed that the Customer shall transfer co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us. In all other respects, the same shall apply to the item created by mixing as to the goods subject to retention of title.

​

9. Limitation
All warranty claims, claims for damages and claims for reimbursement of expenses of the purchaser arising from material defects or defects of title shall become statute-barred 12 months after delivery, unless otherwise stipulated below. In cases of gross negligence, i.e. fraudulent intent, intent and gross negligence, claims under the Product Liability Act and in cases of injury to life, body or health, the statutory periods shall apply.

10. Final provisions
a) None of the above clauses shall lead to a change in the burden of proof to the detriment of the Purchaser in the form of imposing on the latter the burden of proof for circumstances which lie within our sphere of responsibility.
b) Insofar as the Customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Offenbach am Main shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship; we shall, however, also be entitled to sue the Customer at its principal place of business. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
c) The law of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG), even if the customer has its registered office abroad. However, the prerequisites and effects of the retention of title pursuant to Section 8 shall be governed by the law of the respective location of the item, insofar as the choice of law made in favor of the law of the Federal Republic of Germany is inadmissible or ineffective thereunder.
d) All agreements made between the Purchaser and us with regard to the Purchaser's orders and their execution are and will be set down in writing, unless the parties have agreed otherwise in individual cases or agree otherwise in the future. Legally relevant declarations and notifications to be made to us by the Purchaser after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declaration of withdrawal or reduction) must be made in writing to be effective.
The registered office of the company is Dreieich-Offenthal.
Local Court Offenbach am Main, HRB 30237