GTCs

General Terms and Conditions for Deliveries and Services

Section 1 Scope, Form

All of our business relationships with our customers shall be governed by these General Terms and Conditions for Deliveries and Services (hereinafter referred to as "GTC"). They shall apply only if the customer is an entrepreneur (Section 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.
These GTC shall apply in particular to contracts governing the sale and/or delivery of movable property (hereinafter referred to as "Goods" or “Product” or “Delivery Item"), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). Unless otherwise agreed, these GTC shall apply as a framework agreement also for similar future contracts in the version applicable at the time the order was placed by the customer and/or in the text form last communicated [“text form” as defined under § 126b BGB] to the customer, without any requirement on our part to refer to them in each individual case.
Our GTC shall apply exclusively. Any deviating, conflicting or supplementary general terms and conditions used by the customer shall only become an integral part of the contract if and to the extent that we have expressly agreed to their validity. Our consent shall be required in each and every case, for example also if the customer makes reference to its terms and conditions in the context of the order and we do not expressly object to this.
In case of doubt, trade terms shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version applicable at the time of the conclusion of the contract.

Section 2 Information / Consulting / Characteristics of Products and Services / Cooperation of the Customer

Information on and elucidation of our Products and the services that are provided by us, our employees and/or our sales agents shall be based exclusively on our experience to date. Unless otherwise expressly agreed with the customer, they do not constitute an agreement on properties or guarantees with respect to our Products. Unless otherwise expressly agreed with the customer, any figures specified hereby shall be regarded as average values for our Products.
Product specifications agreed with the customer shall conclusively specify the characteristics or properties owed. Further characteristics of the Delivery Item or of our performance hereby affected, such as suitability for the intended use declared by the customer or usual properties of such Products shall not be owed.
Unless otherwise expressly agreed with the customer, all information about our Products and services, in particular information in our offers and publications and on the internet, and the illustrations, drawings, dimensions, properties or performance characteristics contained therein, as well as other information, in particular technical data or performance data, shall be deemed approximate average values. Product data not specified with tolerances, such as those shown on our website or in our catalogs and/or brochures, are also subject to customary and/or production-related variances and changes, in particular due to further developments in production technology and the materials used.
If we provide instructions for use, these have been set up with the care customary in the trade, but do not release our customers from the obligation to carefully examine the Products with regard to their suitability for the purpose intended by them. The same shall apply to information on our part regarding import, export, customs and/or registration regulations.
Unless otherwise agreed, the customer shall in any case remain responsible for checking that our Products and/or services provided are suitable for the purpose intended by the customer.
We will only assume consulting obligations if such have been expressly stipulated by virtue of a written, separate consultancy agreement.
A no-fault guarantee shall only be deemed to have been assumed by us if we have expressly declared that a property and/or a successful outcome is "legally guaranteed".
Unless otherwise expressly agreed with the customer, we do not assume any liability for the usability and/or registrability and/or marketability of our Products or services for the intended use envisaged by the customer over and above the statutory mandatory liability. The provisions of Section 11 below shall remain unaffected hereby.
As an essential duty to cooperate, the customer undertakes to provide us with all and any information and data required for the provision of the services in full and on time and to provide all cooperation measures from its sphere of influence in a timely manner and free of charge so that we can provide our service in accordance with the contract. This shall include in particular that any official approvals required for the service are obtained on time and that we are informed in a timely manner of any approval requirements that apply so that we can perform in accordance with the contract.

Section 3 Specimens / Documents and Data Provided / Samples / Cost Estimates

The properties of samples and/or specimens shall only become part of the contract if this has been expressly agreed. The customer shall not be entitled to exploit and pass on samples. If we sell to the customer on the basis of a demo sample or sample and unless otherwise expressly agreed, deviations therefrom in the delivered Goods shall be permissible and shall not entitle the customer to raise any complaints and assert any claims against us, provided that such deviations do not have a lasting effect on the normally intended use of the delivered Goods and the delivered Goods are in compliance with any specifications that may have been agreed.
We reserve all title and copyrights to all and any samples, illustrations, images, photos, drawings, data, cost estimates and other documents disclosed or provided to the customer that relate to our Products and services. The customer undertakes to ensure that the samples, information, photos and/or documents listed in the preceding sentence are not made available to any third party, unless we have given our express written consent to this. However, the customer shall remain entitled to pass on samples of Goods to its customers for sampling. The customer guarantees that the customer, as well as its customers and dealers, will not disassemble or dismantle the Products or counterfeit the Products. If an order is not placed with us on the basis of these samples, information and/or documents, these must be returned to us immediately upon request. This shall apply if the right to keep the aforementioned items and/or data is not otherwise contractually stipulated in favor of the customer. The provisions of sentences 1 and 2 shall apply mutatis mutandis to documents, drawings or data of the customer; however, we shall be entitled to make these accessible to such third parties, as to whom we transfer deliveries and/or services relating to the subject matter of the contract with the consent of the customer, or who we use as vicarious agents or suppliers.
Our cost estimates are binding only if they are expressly designated by us as being binding and if, based on the contract, the service contained therein is commenced immediately after receipt of the cost estimate by the customer.

Section 4 Conclusion of Contract, Performance Obligation, Scope of Delivery and Service, Software, Procurement Risk and Guarantee

Our offers are without obligation and are not binding. This shall also apply if we have provided the customer with catalogs, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve title and copyrights.
The order of the Goods by the customer shall be deemed a binding contract offer. Unless otherwise provided for in the order, we shall be entitled to accept this contractual offer within 14 calendar days of its receipt by us, unless, under ordinary circumstances, the customer must also regularly expect a later acceptance by us (Section 147 BGB). This shall also apply to repeat orders on the part of the customer.
Acceptance can be declared either in writing (e.g. by order confirmation) or by delivering the Goods to the customer, whereby dispatch of the delivery or provision of the service shall be authoritative.
The customer must inform us in writing or in text form of any special requirements for our Products in good time before the conclusion of the contract. However, such notification shall not extend our contractual obligations and liability. Unless otherwise expressly agreed, we shall only be under the obligation to deliver the ordered Products as goods that can be marketed and approved in the Federal Republic of Germany.
In deviation from Section 434 BGB, the Goods delivered by us shall be deemed free from material defects if they have the properties agreed in the contractual specification, in the absence of such specification the properties listed in our general technical data sheet for the Product at the time the contract is concluded. Sections 434 [2] no. 3 and [3] no. 4 (accessories and instructions) and 434 [3] no. 2 lit. b) (statement made on properties in public statements and in advertising) as well as Section 434 [3], last paragraph, (cases where seller is not bound by public statements) shall remain unaffected. Unless otherwise expressly agreed, any additional properties of the Delivery Item - in particular (i) the usual quality that the customer can expect for items of this type, (ii) suitability provided for under the contract, (iii) suitability for normal use, (iv) quality of a specimen or sample - shall not be owed by us.
We shall only be under the obligation to render performance out of our own stock [German „Vorratsschuld“ – debt settled out of one’s own stock].
The assumption of a no-fault procurement risk equivalent to a guarantee as under Section 276 BGB or of a procurement guarantee shall not be based solely on our obligation to deliver an item that is defined only by its type.
We will only assume such a procurement risk as under Section 276 BGB and/or strict liability by virtue of an express, separate agreement and if we assume a procurement risk by using the phrase "we accept the procurement risk..."
Unless otherwise expressly agreed in writing or in text form, or if we are subject to a deviating legal regulation, we shall only owe user information for our Products as well as a Product label in German or, at our discretion, in English.
We reserve the right to change the specification of the Goods to the extent that legal requirements make this necessary, provided that such change does not cause any deterioration in quality and usability for the usual purpose and, if suitability for a specific purpose has been agreed, for this purpose, and the overall character of our performance obligation does not change.
We shall be entitled to effect excess or short deliveries of up to 10% of the agreed delivery quantity.
We shall also be entitled to deliver Products with customary deviations in quality, dimensions, weight, color and equipment. Such Goods shall be deemed to be in conformity with the contract.
If the Delivery Item contains software or consists of software, the customer shall be granted a simple, irrevocable, non-exclusive right of use for the purpose of using the Delivery Item and/or the software. If the customer sells or entrusts the Delivery Item to a third party, the customer shall be entitled to sublicense this right of use but exclusively for the purpose of the intended use of the Delivery Item.
If the Delivery Item contains software and unless otherwise expressly agreed, the customer shall not be entitled to obtain the source code of the software. If, should the need arise, we agree to maintain the software and/or eliminate errors in the software at customary commercial terms, the customer shall be entitled to have access to the source code, but exclusively for the purpose of maintenance and troubleshooting.
If the Delivery Item contains software, the customer shall not be entitled to reverse-engineer the software (revere engineering) for as long as we agree to remedy defects or maintain the Delivery Item at standard market conditions.
If the customer has properly fulfilled its contractual obligations, the customer shall be granted the right to use the services as provided in accordance with the contract. Unless expressly otherwise agreed, all and any copyrights, patents or other industrial property rights shall remain with us.
We do not accept any penalties and contractual penalties, in particular not if such are included in general terms and conditions of purchase and codes of conduct, unless a separate express agreement has been concluded in this regard.
We do not accept any indemnification obligation imposed on us by the customer, in particular not in the general terms and conditions of purchase and codes of conduct, unless a separate express agreement has been concluded in this regard.

Section 5 Delivery Period and Delay in Delivery

Any binding delivery dates and delivery periods must be expressly agreed. In the event of non-binding or approximate delivery dates and delivery periods (approximately, about, etc.) we will take our best efforts to meet these delivery dates and delivery periods.
If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (unavailability of the service/performance), we will inform the customer of this without delay and at the same time will inform the customer of the expected new delivery time. If performance is not available within the new delivery period either, we shall be entitled to withdraw from the contract, either in whole or in part; we will reimburse any consideration already provided by the customer without delay. “Unavailability of service/performance” within this meaning shall include but not be limited to cases in which we are not supplied by our own suppliers in a timely manner if we have concluded a matching cover transaction, in the event of other disruptions in the supply chain, for example due to Force Majeure, or if, in individual cases, we have no procurement obligation.
The onset of our being in delay in delivery shall be determined on the basis of the statutory provisions. In any case, however, a reminder by the customer shall be required. If we are in default of delivery, the customer must first of all grant us a reasonable grace period of at least 14 calendar days to perform. If this period expires without result, claims for damages due to breach of duty, irrespective of the reason thereof, shall apply only in accordance with the provision laid down in Section 11 below.
We shall not be in default for as long as the customer is in default with the fulfilment of its obligations towards us, including those arising from other contracts.
The rights of the customer in accordance with Section 11 of these GTC and our rights laid down by law, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

Section 6 Delivery, Passing of Risk, Acceptance, Default of Acceptance

Delivery shall be effected FCA (in our factory in Keltern), which shall also be the place of performance for delivery and subsequent performance, if applicable. Upon the request and expense of the customer, the Goods will also be shipped to another point of destination (sale by dispatch). Unless otherwise agreed, we shall have the right to determine the respective type of shipment (in particular select the shipping company, dispatch route, packaging) ourselves.
The risk of accidental loss and accidental deterioration of the Goods shall pass to the customer upon delivery at the latest. However, in the case of sale by dispatch the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass with delivery of the Goods to the carrier, forwarding agent or other person or entity charged with the shipping of the Goods.
If shipment is delayed because we avail ourselves of our right of retention due to the customer being in default of payment, either in whole or in part, or if shipment is delayed for another reason for which the customer is responsible, the risk shall pass to the customer when the notification of readiness for dispatch and/or readiness to perform is sent to the customer at the latest.
If the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we shall be entitled to demand compensation for the damage incurred thereby, including additional expenditures (e.g. storage costs).
The right to provide proof of a higher damage as well as our claims laid down by law (including but not limited to the reimbursement of additional expenditures, reasonable compensation, termination) shall remain unaffected; however, the flat rate shall be set off against further monetary claims. The customer shall have the right to prove that we have suffered no damage at all or that the damage was significantly below the above flat rate.
If acceptance has been agreed, such acceptance shall be authoritative for the passing of risk. In other respects, the statutory provisions of the law on contracts for work and services [German “Werkvertragsrecht”] shall apply mutatis mutandis if acceptance has been agreed. Default in acceptance [German “Annahmeverzug”] by the customer shall be equivalent to delivery [German “Übergabe”] or acceptance [German “Abnahme”]. If a work performance [German “Werkleistung”] has been agreed, the customer undertakes to accept such work performance immediately after notification of readiness for acceptance by us. If the customer uses the work performance commercially for more than 14 calendar days outside of an agreed functional test, such work performance shall be deemed to have been accepted. The refusal of acceptance due to insignificant defects (= defects that do not impair the technical function of the Product owed) shall be excluded.

Section 7 Supply by our own Suppliers, Force Majeure

If, for reasons for which we are not responsible, we are not supplied, not correctly supplied or not supplied on time by our sub-suppliers for the provision of our contractually owed deliveries or services despite proper and sufficient coverage of requirements before conclusion of the contract with the customer in accordance with the quantity and quality resulting from our supply or performance agreement with the customer (matching cover transaction) or if events of Force Majeure occur which continue for a not insignificant length of time (i.e. lasting more than 14 calendar days), we will inform our customer thereof in writing or in text form in good time. In such case, we shall be entitled to postpone the delivery for the duration of the impediment or to withdraw from the contract in whole or in part on account of the part of the contract that has not yet been fulfilled, insofar as we have fulfilled our aforesaid obligation to provide information and have not assumed the procurement risk or a delivery guarantee.
In any case, Force Majeure shall apply in the event of hostilities (irrespective of whether a war has been declared or not), riots, explosions, fire, floods, earthquakes, typhoon, epidemics, pandemics (including the Covid 19 pandemic), diseases or quarantine, strike, lockout, official intervention, cyberattacks, disruptions to the operation of the world wide web (internet) and labor law disputes as a result of which business operations come to a complete or major standstill, as well as in the event of acts, omissions or measures of any government or in compliance with government requests and official interventions.
Force Majeure shall include energy and raw material shortages, transport bottlenecks or impediments for which we are not responsible, operational impediments for which we are not responsible, e.g. on account of fire, water or machine damage - and all and any other impediments which, from an objective point of view, have not been culpably caused by us.
With the aforementioned exemption from performance, our obligation to pay damages and/or contractual penalties as a consequence of a delay in delivery/performance shall also cease to apply.
If a delivery date or a delivery period has been bindingly agreed and the agreed delivery date or the agreed delivery period is exceeded due to events in accordance with Section 7 [1] above, the customer shall be entitled – after a reasonable grace period has expired without result – to withdraw from the contract on account of the part that has not yet been fulfilled. In such case, any further claims of the customer, in particular claims for damages, shall be excluded.
The above provision pursuant to Section 7 [2] shall apply mutatis mutandis, if, for the reasons stated in Section 7 [1], even without contractual agreement of a fixed delivery date further adherence to the contract cannot objectively be expected of the customer.

Section 8 Prices and Price Adjustment, Terms of Payment, Defense of Uncertainty

Unless otherwise agreed in individual cases, our prices applicable at the time of conclusion of the contract shall apply, namely FCA in our factory in Keltern, plus statutory value added tax.
Discount deduction shall only be permitted on the basis of an explicit agreement between the customer and us and only in terms of content within the scope of the cash discount agreement.
Any repair costs shall be due for payment immediately after completion of the repair work and receipt of the respective notification by the customer.
In the case of sale by dispatch to a place other than the place of performance (Section 6 [1]), the customer shall bear the transport costs ex warehouse as well as the costs of any transport insurance which may be requested by the customer. Unless we invoice the transport costs actually incurred in the individual case, a flat rate for transport costs (excluding transport insurance) in the amount of 3% of the respective net price shall be deemed to have been agreed. Any customs duties, fees, taxes and other public levies shall be borne by the customer.
The purchase price shall be due for payment within 14 days of the invoice and delivery and/or acceptance of the Goods. However, even in the context of an ongoing business relationship, we shall be entitled at any time to effect delivery in whole or in part only against advance payment. We shall declare the respective reservation with the order confirmation at the latest.
Upon the expiry of the above payment period, the customer shall be in default. The purchase price shall bear interest during the delay at the applicable statutory default interest rate. We reserve the right to assert further damage caused by the delay. With regard to merchants, our claim to interest on maturity under commercial law (Section 353 HGB [German Commercial Code]) shall remain unaffected.
Unless otherwise agreed, services that are not part of the agreed scope of delivery shall be carried out on the basis of our general price lists for such services applicable at the time of our commissioning. If special requests by the customer regarding the type of delivery, dispatch route or packaging are accommodated, the associated costs shall be borne by the customer.
We shall be entitled to increase the remuneration accordingly and unilaterally in the event of an increase in material production prices and/or material procurement costs and/or product procurement costs, wage costs and ancillary wage costs, social security contributions as well as energy costs and costs due to environmental regulations and/or currency regulations and/or customs changes and/or freight rates and/or public charges, if these affect the production or procurement costs of the Goods or the costs of our contractually agreed services, either directly or indirectly, and if there are more than 4 months between the conclusion of the contract and delivery. An increase within the aforementioned meaning shall be excluded if the cost increase for individual or all of the aforementioned factors is offset by a cost reduction for other of the aforementioned factors with regard to the overall cost burden for the delivery (balancing). If the aforementioned cost factors are reduced without the reduction being compensated by the increase in other of the aforementioned cost factors, the cost reduction shall be passed on to the customer by way of a price reduction.
If the new price exceeds the original price by 20% or more due to our aforementioned right to adjust prices, the customer shall be entitled to withdraw from those contracts that have not yet been fully executed with respect to the part that has not yet been executed. This right must however be asserted by the customer immediately after notification of the price increase.
The customer shall only be entitled to offset counterclaims or exert a right of retention if its claims are undisputed or have been recognized by non-appealable judgement.
If after conclusion of the contract it becomes apparent (e.g. due to the filing of an application for the institution of insolvency proceedings) that our claim to the purchase price is at risk due to the customer’s inability to perform, we shall be entitled to refuse performance in accordance with the statutory provisions and – after setting a deadline, if applicable – to withdraw from the contract (Section 321 BGB). With respect to contracts on the production of non-fungible goods (custom-made items) we shall have the right to withdraw from the contract immediately; the statutory provisions on the dispensability of setting deadlines shall remain unaffected.

Section 9 Retention of Title, Seizures

We retain title to the Goods sold until each and every current and future claim arising out of the purchase contract and an ongoing business relationship (secured claims) has been paid in full.
The Goods subject to retention of title may not be pledged to any third party nor assigned by way of security until the secured claims have been paid in full. The customer must notify us immediately in writing if an application for the institution of insolvency proceedings has been filed or if the Goods owned by us are subjected to third-party intervention (e.g. seizures).
If the customer acts in breach of the contract, in particular if the customer fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to claim the surrender of the Goods based on retention of title. Such claim for surrender does not at the same time include the declaration of withdrawal; rather, we shall be entitled to demand only the return of the Goods and to reserve the right to withdraw from the contract. If the customer does not pay the purchase price due, we may only assert these rights if we have previously set the customer a reasonable deadline for payment and such deadline has expired without result or if such a deadline is dispensable according to the statutory provisions.
Until revocation in accordance with item (c) below, the customer shall be entitled to resell and/or process the Goods subject to retention of title within the framework of the ordinary course of business. In this case, the following provisions shall apply in addition.
1. Retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of our Goods, whereby we shall be deemed to be the manufacturer. If the Goods are processed, mixed or combined with goods of third parties whose right of ownership is still in force, we shall acquire co-ownership in proportion to the invoiced values of the processed, mixed or combined goods. In all other respects, the provisions applicable to the Goods delivered under retention of title shall also apply to the resulting product.
2. The customer hereby assigns to us by way of security the claims against third parties arising out of the resale of the Goods or the product in total or to the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the customer stipulated under item 2 above shall also apply with regard to the assigned claims.
3. Besides ourselves, the customer shall remain authorized to collect the claim. We undertake not to collect the claim for as long as the customer fulfils its payment obligations towards us, there is no defect in its ability to perform and we do not assert retention of title by exercising a right pursuant to item 3 above. However, in this case, we can require the customer to disclose to us the claims assigned as well as the debtors thereof, to provide us with all information required for collection, to hand over all relevant documents and to notify the debtors (third parties) of the assignment. In this case, we shall also be entitled to revoke the customer's authorization to further sell and process the Goods subject to retention of title.
4. If the realizable value of the securities exceeds our claims by more than 10%, we will, upon customer request, release securities at our option.
Handling and processing of the Goods subject to retention of title shall be carried out on behalf of us as the manufacturer, but without any obligation on our part. If the Goods subject to retention of title are processed or inseparably combined with other items which do not belong to us, we shall acquire co-ownership of the new item in proportion to the value of the net invoice amount of our Goods and the net invoice amounts of the other processed or combined goods. If our Goods are combined with other movable items to form a single item which is to be considered as the principal thing, as early as with the present the customer hereby assigns to us co-ownership hereof in the same proportion. The customer shall store such property or co-owned property for us free of charge. The resulting co-ownership rights shall be deemed to be goods subject to retention of title. At our request, the customer shall be under the obligation at any time to provide us with the information necessary to pursue our ownership or co-ownership rights.
If, in the case of our deliveries to the customer or to the agreed point of delivery abroad, in the importing country specific measures and/or declarations are necessary on the part of the customer for the aforesaid retention of title or the other rights specified therein to be effective, the customer must inform us thereof in writing or in text form immediately after conclusion of the contract and must carry out such measures and/or make such declarations at its own expense without delay. We will cooperate in this to the extent necessary. If the law of the importing country does not permit retention of title, but allows us to reserve other rights to the Delivery Item, we shall be entitled to exercise all such rights at our reasonable discretion (Section 315 BGB). If an equivalent security of our claims against the customer is not achieved as a result, the customer shall be under the obligation to immediately provide us, at its own expense, with a guarantee of payment from a German credit institution affiliated with the credit protection fund, excluding the defense of unexhausted remedies [German “Vorausklage”, also “defense of failure to pursue remedies”] and the lodging of deposits under German law and with German place of jurisdiction.
In the event of seizures or other third-party interventions, the customer must notify us immediately in writing so that we can take legal action in accordance with Section 771 ZPO [German Code of Civil Procedure]. If the third party is not in a position to reimburse us for the judicial and out-of-court costs of an action pursuant to Section 771 ZPO, the customer shall be liable to us for the loss incurred by us.

Section 10 Claims for Defects of the Customer

Unless otherwise provided for in the following, the provisions laid down by law shall apply to the rights of the customer in the case of material defects and defects of title (including incorrect delivery and short delivery as well as improper assembly/installation or faulty assembly instructions). In all cases, the statutory provisions on the purchase of consumer goods (Section 474 et seq. BGB) and on the rights of the customer arising from guarantees given separately, in particular on the part of the manufacturer, shall remain unaffected.
Our liability for defects shall above all be based on the agreement made about the quality of the Goods and the use provided for (including accessories and instructions). An agreement on the quality of the Goods within this meaning shall be deemed all Product descriptions and manufacturer's information that are the subject-matter of the individual contract or that have been published by us (in particular in catalogs or on our website) at the time of the conclusion of the contract. To the extent that the quality has not been agreed, it must be determined whether or not a defect exists based on the provisions laid down by law (Section 434 [3] BGB). Public statements made by the manufacturer or on behalf of the manufacturer, in particular in advertising or on the label of the Goods, shall hereby take precedence with respect to statements of other third parties.
In the case of Goods with digital elements or other digital content, we shall only owe the provision and updating, if applicable, of the digital content insofar as this expressly results from a quality agreement as per item 2 above. In this respect, we assume no liability for public statements made by the manufacturer and any other third party.
On principle, we shall not be liable for any defects that the customer has knowledge of - or has no knowledge of due to gross negligence - at the time of conclusion of the contract (Section 442 BGB). Furthermore, the customer may only assert claims for defects on the proviso that the customer has met its statutory inspection and notification obligations (Sections 377, 381 HGB). In the case of building materials and other goods intended for incorporation or other further processing, an inspection must in any case be made immediately before processing. If a defect becomes apparent upon delivery, during inspection or at any later date, we must be notified thereof in writing without delay. In any case, obvious defects must be reported in writing within 8 calendar days of delivery, and defects not recognizable during inspection must be reported in writing within the same time period from their detection. If the customer fails to perform a proper inspection and/or to give notification of defects, our liability for the defect that has either not been reported at all or has not been reported in time or has not been reported in due form shall be excluded in accordance with the provisions laid down by law. In the case of Goods intended for incorporation, attachment or installation, this shall also apply if the defect resulting from the breach of one of these obligations becomes apparent only after corresponding processing; in this case, in particular, the customer shall not be entitled to any claims for reimbursement of the corresponding costs ("dismantling and installation costs").
If the Delivery Item is defective, we may, first of all, choose to effect supplementary performance by either remedying the defect (repair) or by delivering an item free from defect (replacement delivery). If the type of supplementary performance selected by us is unreasonable for the customer in an individual case, the customer may reject it. Our right to refuse supplementary performance if the respective conditions under statutory law are met shall remain unaffected.
The customer must grant us the necessary time and opportunity for the supplementary performance owed by us and must, in particular, provide us with the rejected Goods for inspection and verification. In the case of replacement delivery, the customer must return the defective Goods to us at our request in accordance with the provisions laid down by law; however, the customer shall have no right of return. Supplementary performance shall include neither the disassembly, removal or deinstallation of the defective item nor the incorporation, attachment or installation of an item free from defects if we were not originally under the obligation to perform these services; any claims of the customer for compensation of the respective costs shall remain unaffected hereby ("dismantling and installation costs").
As soon as the delivered Products are handled, processed, combined or mixed with other items, they shall be deemed approved by the customer as being in accordance with the contract. The same shall apply if the delivered Products are redistributed from the original destination, insofar as this does not correspond to the usual use of the delivered Goods.
Before commencing one of the aforementioned activities or any other use of the Products delivered by us, it shall be incumbent upon the customer to verify appropriately - in terms of scope and methodology - that the delivered Products are suitable for the use intended by the customer.
Defects for which the customer is responsible as well as unjustified complaints will be remedied by us at the customer's expense if the customer is a fully qualified merchant under the German Commercial Code, without the need for a separate order to be placed by the customer.
If the customer or a third party repairs the Products delivered by us without due care and the defect is based on this, we shall not be liable for the resulting consequences. The same shall apply to changes to the Delivery Item made without our prior consent.
The customer shall not be entitled to claims for defects if the customer or a third party has handled our Delivery Item improperly or has used the Delivery Item in spite of being aware of the defect. In these cases, we shall only be liable if the customer provides proof that the defects have not been caused, neither in whole nor in part, by the aforementioned activities.
Claims for defects shall not arise as a result of causes that are not attributable to a fault on our part, for example:
1. if the deliveries have been improperly handled, stored, assembled, used, exposed to unsuitable chemical, electrochemical or electrical influences that have not been contractually specified or have been exposed to undue stress;
2. if the deliveries have been altered in a manner not approved by us;
3. in the event of changes, additions or modifications to the deliveries not agreed with us or if third-party accessories or spare parts are used - unless the customer provides proof that there is no causal link between the asserted defect and such measure;
4. if the customer has not complied with the rules and regulations concerning the treatment, maintenance and care of the deliveries (e.g. operating instructions), unless it can be ruled out that one of these instances has caused the occurrence of the defect.
5. We do not assume any warranty for defects that are due to measures or designs that the customer has expressly requested or that occur in materials or products that the customer has provided or entrusted us with or the use of which has been expressly requested by the customer contrary to our advice.
6. In addition, the customer may not, in particular, assert any claims for defects in the following cases - unless we are answerable for them or such measures have been carried out with our express written consent: in the event of natural wear and tear, excessive stress, unsuitable and improper use - in particular in breach of the information in the operating instructions or manual - faulty assembly or commissioning by our customer or any third party, subsequent wear and tear, incorrect or negligent treatment, improper maintenance, unsuitable operating materials / replacement materials, unsuitable installation site, in particular installation surface, lack of stability or unsuitable securing of the power supply, chemical or electrical influences, harmful environmental conditions unknown to us.
Furthermore, claims for defects shall not arise if the software provided is combined by the customer with third-party software and such third-party software is not compatible with the software, nor if defects are based on non-contractual or improper use of the software by the customer. Neither shall claims for defects arise if the customer does not use the required system configuration, in particular infrastructure, hardware, operating system and database.
Claims for defects by the customer shall be excluded if the systems and other machines of the customer or a third party are not in a technically sound and operational condition or are not compatible with the deliveries, if the customer's technical systems, such as supply lines, wiring and the like, are not in a technically sound and operational condition or are not compatible with the deliveries, insofar as the circumstance is the cause of the defect.
Claims of the customer concerning expenses incurred for the purpose of subsequent performance, in particular transport, travel, labor and material costs, shall be excluded if the expenses increase because the Delivery Item has been subsequently taken to a place other than the customer site designated for delivery, unless this transfer corresponds to its intended use. Section 439 [3] BGB (seller bears assembly and disassembly costs in the event of defective products) shall remain unaffected.
Claims for defects shall not apply in the event of merely insignificant (i.e. hardly visible/perceptible) deviation from the agreed or customary quality or usability.
Any claims of the customer for reimbursement of expenses as under Section 445a [1] BGB shall be excluded, unless the last contract in the supply chain is a contract on the purchase of consumer goods (Sections 478, 474 BGB) or a consumer contract for the provision of digital products (Sections 445c, sentence 2, 327 [5], 327u BGB). Claims of the customer for damages or reimbursement of futile expenses (Section 284 BGB) shall apply only in accordance with the following Sections 11 and 12 even if the Goods are defective.
Furthermore, we shall not assume any warranty in accordance with Sections 478, 445a BGB (recourse in the supply chain – supplier recourse) if the customer has treated or processed or otherwise changed the Products delivered by us under the contract, insofar as this does not correspond to the contractually agreed purpose of the Products.

Section 11 Other Liability

Unless otherwise provided for in these GTC, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the provisions laid down by law.
We shall be liable for damages, irrespective of the legal grounds on which such claims are based, within the scope of liability based on fault in the event of intent and gross negligence. In the event of slight negligence, we shall be liable, subject to statutory limitations of liability (e.g. due diligence in our own affairs; insignificant breach of duty), only
1. for damage resulting from injury to life, limb or health,
2. for damage resulting from the breach of an essential contractual obligation (fundamental obligation going to the root of the contract the fulfilment of which is essential for the proper execution of the contract in the first place and the observance of which the contracting party regularly relies on and may rely on); in this case, however, our liability shall be limited to the compensation of the foreseeable damage that typically occurs.
The limitations of liability resulting from item 2 above shall also apply with respect to third parties and in the event of breaches of duty by persons (also to their benefit) whose fault we are responsible for in accordance with statutory provisions. The limitations of liability shall not apply if we have fraudulently concealed a defect or have furnished a guarantee for the quality of the Goods and for claims of the customer under the Product Liability Act.
The customer may only withdraw from the contract or give notice of termination based on a breach of duty that does not consist of a defect if we are responsible for the breach of duty. Unrestricted right of termination of the customer (in particular pursuant to Sections 650, 648 BGB) shall be excluded. In addition, the statutory requirements and legal consequences shall apply.
Our liability shall be limited to the extent that the customer has effectively limited or excluded liability towards its own customers in relation to the subject matter of the contract. For this purpose, in the event of a dispute, the customer must provide us with any information that may be necessary for the assessment of such limitations of liability, with due regard to data protection and other applicable mandatory legal regulations.
The interface responsibility for the integration of our deliveries and services into any systems shall remain with the customer.
Liability for damage caused by data loss or hardware malfunctions at the customer's site, which are caused by incompatibility of the customer's existing hardware and software components with our deliveries and services, shall be excluded by us due to lack of responsibility. We shall neither be liable for system malfunctions that may result from existing misconfigurations or older driver software that has not been completely removed.
The above provisions shall not give rise to a reversal of the burden of proof.

Section 12 Statute of Limitations

In derogation from Section 438 [1], number 3, BGB, the general limitation period for claims for material defects and defects of title shall be one year from delivery. If acceptance has been agreed, the limitation period shall commence with acceptance.
If the Goods are a building or an object that, in conformity with its customary manner of utilization, has been used for a building and has caused its defectiveness (building material), claims will become statute-barred in 5 years from delivery in accordance with the statutory provision (Section 438 [1], no. 2, BGB). Any additional special provisions on limitation periods laid down by law shall remain unaffected (in particular Section 438 [1], no. 1, [3], Sections 444, 445b BGB).
The aforesaid limitation periods stipulated by sales law shall also apply to contractual and non-contractual claims for damages by the customer based on a defect of the Goods – unless the standard statutory limitation periods (Sections 195, 199 BGB) would, in an individual case, result in shorter limitation periods. However, claims for damages of the customer in accordance with Section 11 [2], sentences 1 and 2 (a), above as well as claims under the Product Liability Act shall become statute-barred in accordance with the statutory limitation periods exclusively.

Section 13 Export Control, Product Approval, Import Regulations

In the absence of any derogating contractual agreements concluded with the customer, the Goods delivered are intended to be placed on the market within the Federal Republic of Germany for the first time, or, in the case of delivery outside the Federal Republic of Germany, to the country of first delivery agreed with us by the customer (country of first delivery).
We would like to point out to the customer that, for fulfilment of the contractual obligations, European and German foreign trade law applies to the transfer/export of goods (goods, software, technology) as well as to the provision of services with cross-border implications (e.g. assembly, servicing, maintenance, repair work, induction/training, etc.) and that the individual deliveries and technical services may be subject to restrictions and bans under export control law. This applies in particular to so-called armaments and dual-use goods. In addition, there are European and other global national embargo regulations against certain countries and persons, companies and organizations that may ban the delivery, provision, transfer, export or sale of goods as well as the provision of services or subject these to approval. For cross-border delivery or provision, we may therefore have to obtain official permits or other certificates. Further details on the rights and obligations in this respect are stipulated in the following provisions. In addition, due to extraterritorial effect, U.S. (re-)export law may apply to specific transactions in connection with U.S. goods or other U.S. codex and result in bans or permit requirements that we must observe and implement in order not to be sanctioned by U.S. authorities ourselves.
The customer itself shall be under the obligation to check the existence of and compliance with export and import control regulations and to strictly observe the export regulations and embargos relevant to these goods, in particular the export regulations and embargos of the European Union (EU), Germany or other EU member states and, wherever applicable, of the United States of America or of Asian or Arab countries and of all third countries concerned, insofar as the customer exports the Products delivered by us or has them exported by us.
If the delivery includes an export by us that is subject to approval, the contract shall only be deemed concluded upon receipt of the respective approval. The customer undertakes to provide all documents required for approval.
The customer agrees to provide where-used lists and/or end-user confirmations upon request, even if these are not officially requested.
If Goods are exported or transferred delivery shall only be exempt from German VAT upon receipt of a legally valid export certificate.
If time periods or deadlines cannot be met due to delays in export control, the delivery period shall be extended and the delivery date shall be adjusted in accordance with the delay.
In addition, if delivery outside the Federal Republic of Germany has been agreed, the customer guarantees at its own expense that as far as the Goods to be delivered by us are concerned all national import regulations of the country of first delivery are complied with in full and in a timely manner, without any cost burden for us.

Section 14 Applicable Law and Place of Jurisdiction

Unless a “Bringschuld” [“obligation to be performed at the creditor’s place of business”] has been assumed or as otherwise agreed, place of performance for all and any contractual obligations shall be the registered office of our company.
Exclusive place of jurisdiction for all and any disputes shall be the registered office of our company, provided that the customer is a merchant under the German Commercial Code, a legal entity under public law or a special fund under public law. For the sake of clarification, the jurisdiction rule stipulated in the sentences 1 and 2 hereof shall also apply to matters between us and the customer that may result in non-contractual claims within the meaning of EC Regulation No. 864 / 2007. However, we shall also be entitled to bring an action against the customer at its general place of jurisdiction.
All legal relationships between the customer and us shall be governed by the law of the Federal Republic of Germany exclusively, to the exclusion of international conflict of laws provisions, in particular to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). It is explicitly stated that this choice of law shall also be considered a choice of law within the meaning of Article 14 [1] b) EC Regulation No. 864 / 2007 and is therefore also intended to apply to non-contractual claims within the meaning of this Regulation. If the application of foreign law is mandatory in individual cases, our GTC shall be interpreted in such a way that the commercial purpose thereby pursued be preserved to the greatest possible extent.