Section 1 Scope 

 

(1) All deliveries, services, offers, orders and order acceptances of Construction Tools GmbH, Essen (hereinafter referred to as "Contractor“) shall be governed exclusively by the following General Terms and Conditions of Sale of the Contractor (hereinafter referred to as "GTC“). These GTC are an integral part of all contracts the Contractor concludes with his contractual partners (hereinafter referred to as "Customer“) regarding deliveries, services, offers, orders and order acceptances. These GTC shall also apply to all future deliveries, services, offers, orders and order acceptances of the Contractor to the Customer, even if the Contractor does not expressly refer to them again in the future and/or they are not separately agreed on again.

 

(2) These GTC shall apply exclusively; the Contractor shall not recognise any conflicting, additional or deviating terms and conditions of the Customer or third parties and shall not apply, even if the Contractor does not separately object to their validity in individual cases, unless the Contractor has expressly agreed to their validity in writing (whereby written form within the meaning of the GTC always means written form pursuant to Paragraph 126 German Civil Code [BGB]). The written form requirement can only be waived by a written agreement. These GTC shall also apply if the Contractor carries out the delivery to the Customer without reservation knowing that the Customer's or third parties' terms and conditions conflict with or deviate from these GTC.

 

(3) In the case of works and services (assembly, repair or maintenance works), the Contractor's separate terms and conditions for work assignments shall apply.

 

(4) These GTC only apply to entrepreneurs, a legal entity under public law or a special fund under public law pursuant to Paragraph 310(1) German Civil Code [BGB].

 

Section 2 Offer, Conclusion of Contract and Cancellation

 

(1) The Contractor's offers are non-binding requests to submit orders, contracts or other contractual offers (hereinafter „offers”), unless they are expressly labelled as binding or contain a specific acceptance period. This shall also apply if the Contractor provides the Customer with catalogues, brochures, technical documentation (e.g. drawings, plans, calculations, estimates, references to DIN standards), other product descriptions or documents – including those in electronic form.

 

(2) The legal relationship between Contractor and Customer shall be governed exclusively by the purchase contract concluded by offer and order confirmation, including these GTC. This purchase contract fully reflects all agreements between the contracting parties regarding the matter of the contract. Verbal guarantees made by the Contractor prior to the conclusion of this purchase contract shall not be legally binding and verbal agreements made by the contracting parties shall be replaced by the written contract, unless expressly agreed otherwise between the contracting parties in each case.

 

(3) Offers made by the Customer shall be deemed to be a binding contractual offer. The Contractor is authorised to accept offers from the Customer within 14 days upon receipt. The acceptance of the contractual offer shall be declared by the Contractor in writing or in text form (e.g. by an order confirmation) or by delivery of the goods ordered or commissioned for the Customer. A binding contract shall only be concluded between the parties after the Contractor has accepted an offer made by the Customer.

 

(4) The Customer may amend or cancel offers submitted to the Contractor exclusively in writing by letter or e-mail to kontakt@epiroc.com [KSUP1] within a period of 3 working days after the date on which the order or the contract have been placed. If the Contractor has already accepted or confirmed the offer, the Contractor reserves the right to charge a processing fee of 10% of the goods’ net value for cancellations and changes. The Customer has no legal right to cancel or change orders or commissions already placed.

 

(5) Additions and modifications to agreements made between the parties, including these Terms and Conditions, shall only be valid in writing. Additional verbal agreements are invalid. Amendments to the contract and verbal collateral agreements shall only be effective upon written confirmation.

 

(6) The Contractor’s information about the object of the delivery or service (e.g. weights, dimensions, utility values, technical data) as well as any depictions thereof (e.g. drawings and illustrations) are only approximations, unless the use for the contractually intended purpose requires exact conformity. They are not guaranteed quality features, but descriptions or identifications of the delivery or the service.

 

(7) The Contractor reserves the title and/or copyright to all offers and cost estimates submitted by him as well as to drawings, illustrations, calculations, leaflets, catalogues, models, tools and other documents and aids made available to the Customer. The Customer shall not make these items available to third parties, either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without the Contractor’s explicit approval. At the Contractor’s request, the Customer shall return these items to the Contractor in full and destroy any copies made if no longer needs these in the ordinary course of business or if negotiations do not result in the conclusion of a contract. An exception to this is the storage of electronically provided data for a usual data backup.

 

Section 3 Prices and Payment

 

(1) Unless otherwise agreed in individual cases, the Contractor's current list prices in EUR at the moment of conclusion of the contract shall apply ex works or warehouse („Ex Works“ (EXW) Contractor – Incoterms 2020). The list prices do not include VAT, packaging, freight, postage, customs duties, fees and other public charges, insurance and other shipping costs. If freight/packaging-free delivery has been agreed on, this shall only apply within the Federal Republic of Germany to the Customer's repository, excluding freight charge, including the Contractor's standard packaging. Additional costs due to a special type of dispatch and packaging requested by the Customer (e.g. express goods, urgent goods, air freight/seaworthy packaging, etc.) or transport insurance shall be borne by the Customer. Any additional or special services exceeding the agreed scope of services and delivery, including the costs of taking out transport insurance, shall be invoiced separately.

 

(2) Each payment (net price plus statutory VAT at the respective statutory rate) must be made within 14 days upon receipt of the invoice without any deductions and free of charges and fees, unless otherwise agreed on in writing between the Contractor and the Customer. The date of payment shall be the date on which the Contractor receives the money (account credit). If the Customer does not pay by the due date, the outstanding amounts shall be subject to interest at a rate of 9 percentage points above the base interest rate from the due date pursuant to Paragraph 247 German Civil Code [BGB]. The Contractor reserves the right to assert further claims for damage caused by default.

 

(3) Any discounts require a special written agreement. If a discount has been agreed, a cash discount deduction shall only be allowed if the Customer has previously met all other obligations to the Contractor in full. Cheques and bills of exchange shall only be accepted by the Contractor by special written agreement and on account of payment without discount. Discount and expenses as well as any protest costs shall be borne by the Customer.

 

(4) If, as stipulated by contract, the delivery or parts of the delivery are only to be delivered more than four months after conclusion of the contract or if the service is provided on the basis of a continuing obligation and if the Customer does not, at the same time, act as an intermediary, the following shall apply: The Contractor reserves the right to adjust the prices appropriately should cost changes occur after conclusion of the contract, in particular due to collective labour agreements, price increases by pre-suppliers or exchange rate fluctuations. This shall apply in particular if new taxes, fees, customs duties or other government-imposed charges are payable on products purchased from the Contractor after conclusion of the contract (namely for their production and/or their import or export). The Contractor is entitled to increase the price only if there has actually been an increase in the Contractor's total costs, taking into account all relevant cost elements. An overall cost increase entitling the Contractor to a price increase cannot be justified if and insofar as a cost increase occurring in a specific cost area is offset by cost reductions occurring in other areas. Cost increases not falling within the responsibility of the Contractor himself or resulting from circumstances for which the Contractor himself is responsible shall not be taken into account. If the total costs increase, the price adjustment the Contractor will be entitled to shall be limited by the proportion by which the costs have increased according to the above overall assessment. If, according to the overall assessment, the cost reductions exceed the cost increases, the Contractor must reduce the prices promptly by this proportion. Upon request the Contractor shall name the relevant cost elements to the Customer at any time and also prior to the conclusion of the contract and shall conclusively explain in detail in how far their weighting reflects the price. At the same time as the notification of the price adjustment intended by the Contractor, the Contractor shall conclusively explain the reasons for the price adjustment to the Customer. If the price adjustment leads to an increase of more than 5% of the total price, the Customer shall be entitled to an extraordinary termination of contract.

 

(5) Offsetting against counterclaims of the Customer or withholding payments due to such claims is only permitted if the counterclaims are undisputed or have been legally established or are in a reciprocal relationship with a claim of the Contractor pursuant to Paragraph 320 German Civil Code [BGB].

 

If the Customer does not pay due invoices, exceeds a payment term granted to him or if, after conclusion of the contract, the Customer’s financial situation gives rise to suspicion that it has significantly deteriorated for it to jeopardise the settlement of the Contractor's claims arising from the respective contractual relationship and should this suspicion not be dispelled after a reasonable period of time despite a request to do so, the Contractor shall be entitled to perform or render outstanding deliveries or services only against advance payment or bail and to demand immediate payment of the Customer's entire outstanding debt – provided there is no disproportionality given as defined in Paragraph 320(2) German Civil Code [BGB].

 

Section 4 – Deliveries and Delivery Time

 

(1) Deliveries will be made ex works or warehouse („Ex Works“ (EXW) Contractor – Incoterms 2020) of the Customer. At the Customer’s request and expense, goods will be shipped to another destination („Dispatching Sales“). Unless otherwise agreed, the Contractor shall be entitled to determine the type of shipment (transport companies, shipping route, packaging) at his own dutiful discretion in the case of sale to destination.

 

(2) Deadlines and dates promised by the Contractor are non-binding, unless a fixed deadline or a fixed date has been expressly promised or agreed on. If shipment has been agreed on, delivery periods shall refer to the moment of handover to the forwarder, the freight carrier or other third parties commissioned with the transport, unless expressly stated otherwise by the Contractor. Otherwise, the delivery deadline shall be deemed to have been met if the Customer has been notified that the goods are ready for collection.

 

(3) Unless otherwise specified, the delivery period shall commence upon conclusion of the contract at the earliest upon receipt of all documents and materials to be provided to the Contractor by the Customer for executing the order. If materials are provided by the Customer, they must be delivered to the Contractor in good time and in perfect condition at the Customer's expense and risk.

 

(4)  Insofar as the Contractor is not obliged to perform in advance, he may – without prejudice to the Contractor's rights arising from the Customer's default – demand the Customer for the delivery and performance deadlines to be extended or the delivery and performance dates to be postponed by the period within which the Customer does not fulfil his contractual obligations towards the Contractor. The Contractor retains the right to claim the defence of non-performance of contract pursuant to Paragraph 320 German Civil Code [BGB].

 

(5) If a party is temporarily prevented from rendering performance due to force majeure (e.g. labour disputes, operational disruptions due to fire, water or comparable external circumstances, war or terrorist conflicts, natural disasters, diseases, epidemics, pandemics, measures taken by authorities and other unforeseeable, extraordinary events for which the respective party cannot be held responsible), the mutual performance obligations shall be suspended for this period and neither party shall be in default. If the performance of one or both parties is delayed by more than four months as a result, both, Contractor and Customer, shall be entitled to withdraw from or terminate the respective contract. Each of the parties concerned are obliged to inform the other party immediately as soon as circumstances of force majeure pursuant to Sentence 1 arise. Statutory rights of withdrawal and any claims arising from Paragraph 645 German Civil Code [BGB] remain unaffected.

 

 

(6) The Contractor is entitled to partial deliveries and partial services if:

 

a) the partial delivery or service can be used by the Customer especially within the   scope of the contractually intended use and

 

b) the delivery of the remaining goods or services ordered is guaranteed and

 

c) the Customer does not thereby incur significant overhead or additional costs (unless the Contractor declares that he is prepared to bear such costs).

 

(7) Unless otherwise stipulated above, the occurrence of default in delivery shall be determined pursuant to the statutory provisions. In all cases the Customer must first issue a reminder.

 

(8) If the Contractor falls behind with a delivery or a service or if a delivery or a service cannot be provided for whatever reason, the Contractor's liability for damages shall be limited pursuant to Section 8 of these GTC.

 

Section 5 Place of Fulfilment, Transfer of Risk and Acceptance

 

(1) The place of fulfilment for all obligations arising from the contractual relationship shall be the Contractor's office as registered in Essen (Germany), unless expressly agreed otherwise. This is also the place of delivery as defined in Article 7(1)(b) EuGVVO.

 

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest when the goods are made available for collection and the Customer receives notification that the goods are ready for collection. If shipment of the goods has been agreed on, the risk of accidental loss and accidental deterioration of the goods shall pass to the Customer at the latest upon handover of the goods to the forwarder, the freight carrier or other third parties commissioned with the shipment (the start of the loading process being relevant). If shipping or transfer is delayed due to circumstances the Customer can be held responsible for, the transfer of risks to the Customer takes place on the day when the goods are ready for shipping and the Customer has been informed about this by the Contractor. The Contractor will insure the delivery against theft, breakage, transport, fire and water damage or other insurable risks at the express request of the Customer and at his expense only.

 

(3) Insofar as acceptance has been agreed on, it shall be relevant for the transfer of risk. Otherwise, it is agreed that the statutory provisions of work contract law shall apply for the delivery to be accepted. The handover and/or acceptance shall be deemed effective even if the Customer fails to accept the delivery on time.

 

(4) If the Customer is in default of acceptance, fails to co-operate or if the Contractor's delivery is delayed for other reasons falling within the Customer’s responsibility, the Contractor shall be entitled to a compensation for the resulting damage incurred by the Contractor, including additional expenses (e.g. storage costs). In this case, the Contractor shall charge a lump sum compensation amounting to 0.5 % of the invoice amount for the goods to be delivered per calendar week elapsed, but not more than a total of 5 % of the invoice amount. Proof of higher damages and the Contractor's statutory claims (in particular reimbursement of additional expenses, reasonable compensation, cancellation) shall remain unaffected; however, the lump sum compensation shall be offset against other claims for damages the Contractor is entitled to. The Customer is entitled to prove that the Contractor has incurred no damage at all, or only damage significantly lower than the aforementioned lump sum.

 

(5) Delivered goods must be accepted by the Customer, even if they only have minor defects, without prejudice to his rights arising from Section 7 of the GTC. If the Customer is in default of acceptance of the goods for more than 14 days upon receipt of the notification of readiness, the Contractor shall be entitled to withdraw from the contract and/or claim damages after setting a deadline of 14 more days. In addition to the cases regulated by law, it is also not necessary to set a deadline if the Customer is obviously unable to pay the purchase price within this period.

 

 

 

Section 6 Retention of Title

 

(1) The Contractor shall retain title to all goods delivered by him until full payment of the purchase price and all other current claims to which the Contractor is entitled against the Customer arising from the business relationship. This also applies if the purchase price for certain deliveries of goods as designated by the Customer has been paid, as the retained title serves as security for the Contractor's balance claim. The goods delivered as well as the goods covered by the retention of title taking their place pursuant to the following provisions are hereinafter referred to as „retained goods”.

 

(2) The Customer shall store the retained goods for the Contractor free of charge. The Customer shall treat and maintain the retained goods with care. In particular, the Customer must sufficiently insure the retained goods against loss, damage and destruction, e.g. against fire, water damage and theft at their original value and at his own expense and must prove this on the Contractor’s request. The Customer hereby assigns his claims from insurance contracts to the Contractor. The Contractor will accept this assignment.

 

(3) The Customer may neither pledge nor assign by way of security the goods subject to retention of title owned by the Contractor. However, he is authorised to resell the retained goods in the ordinary course of business. The aforementioned right shall not apply if the Customer is in default of payment of a claim arising from the business relationship with the Contractor and insofar as the Customer has assigned or pledged the claim against his contractual partner arising from the resale of the goods – in each case effectively – to a third party in advance or has agreed a prohibition of assignment with him.

 

(4) In the event of seizure or other interference by third parties with the retained goods, the Customer shall be obliged to inform the third party immediately of the Contractor's ownership and to notify the Contractor in writing immediately. The Contractor may demand reimbursement of any costs of measures to remedy the interference from the Customer against assignment of his cost reimbursement claims against the third party.

 

(5) The processing or transformation of the goods subject to retention of title shall always be carried out by the Customer in the name of the Contractor as manufacturer, without the Contractor incurring any liabilities as a result, and the Contractor shall immediately acquire sole ownership of the newly created item. This is subject to the following provisions. If the retained goods are processed with other items not owned by the Contractor, the Contractor shall acquire co-ownership of the newly created item in the ratio of the value of the goods delivered by the Contractor (final invoice amount, including VAT) in proportion to the other processed items at the time of processing. The same applies for the goods produced by processing as for the retained goods. If the retained goods are inseparably combined or mixed with other items not owned by the Contractor, the Contractor shall acquire co-ownership of the newly created item in the ratio of the value of the goods delivered by the Contractor (final invoice amount, including VAT) in proportion to the other combined or mixed items at the time of combination or mixing. If the combination or mixing take place in such a way that the Customer's item is to be defined as the main item, it is agreed that the Customer shall transfer any ownership/co-ownership to the Contractor. The Customer shall store the property/co-property thus created for the Contractor free of charge. The Customer shall be entitled to dispose of the newly created items through processing or transformation, combination or mixing in the ordinary course of business as long as he fulfils his obligations arising from the business relationship with the Contractor in good time. However, under no circumstances shall the Customer be authorised to resell or otherwise utilise these newly created items by agreeing a prohibition of assignment with his client, or to pledge or assign them as security. The Customer hereby assigns his claims from the sale of these newly created items, to which the Contractor is entitled to ownership rights, to the Contractor as security to the extent of the Contractor's ownership share in the goods sold. If the Customer combines or mixes the retained goods with a main item, he hereby assigns his claims against the third party to the Contractor up to the value of the goods. The Contractor hereby accepts each of these assignments.

 

(6) The Customer also assigns to the Contractor the claims up to the value of the Contractor's goods as security for the Contractor's claims against a third party arising from the combination of the Contractor's goods with a property.

 

(7) To secure the fulfilment of all of the Contractor’s current or future claims arising from the business relationship with the Customer, the Customer shall herewith assign to the Contractor all claims – including future and conditional claims – arising from the resale of the retained goods including all ancillary rights at the value of the retained goods with priority over the remaining part of his claims. In the case of the Contractor’s co-ownership in the retained goods he shall assign the claims in proportion to the co-ownership share. The Contractor will accept this assignment.

 

(8) As long as and to the extent to which the Customer fulfils his payment obligations to the Contractor, he shall be entitled to collect the claims against his Customers assigned to the Contractor (revocable at any time) in the course of proper business management. However, with regard to this claim, he is not entitled to enter into a current account relationship or a non-assignment clause with his client or pledge or assign these to third parties. Should a current account exist between the Customer and the buyer of the retained goods contrary to the aforementioned Sentence 2, the claim assigned beforehand also refers to the pertinent balance and, in the case of insolvency of the purchaser, also to the balance existing at the time.

 

(9) At the Contractor's request, the Customer shall provide evidence of the individual claims assigned to the Contractor and notify his debtors of the assignment, requesting payment to the Contractor up to the amount of the Contractor's claims against the Customer. The Contractor is entitled to inform the Customer’s debtors himself about the assignment and to collect the outstanding debt. The Contractor shall, however, not exercise this right as long as the Customer properly meets his payment obligations on time, the Customer has not applied for insolvency proceedings to be initiated and the Customer does not stop payments. On the other hand, if one of the above events should arise, the Contractor can demand the Customer to inform the Contractor about the assigned claims and their debtors, to provide all details necessary to collect the debt and to hand over the relevant documents.

 

(10) If the realisable value of the securities granted to the Contractor exceeds the claims to be secured by more than 10%, the Contractor shall, at the Customer's request, waive securities of the Contractor's choice.

 

(11) In the event of breach of contract by the Customer, in particular by default in payment, the Contractor shall be entitled – after the unsuccessful expiry of a reasonable deadline for performance set for the Customer and without prejudice to further (compensation) claims the Contractor is entitled to – to label goods delivered under retention of title as the property of the Contractor or to have them labelled, to prohibit further use; he shall as well be entitled to withdraw from the contract and take back the (retained) goods. The Customer is obliged to hand over the goods. The legal provisions on the dispensability for setting a deadline shall remain unaffected. In the event of breaches of duty jeopardising the stock of the retained goods, the Contractor shall be entitled to demand their return, even without withdrawing from the contract.

 

(12) The Contractor is authorized to exploit the (retained) goods after they have been taken back. The realisation proceeds are to be set off against the Customer’s liabilities, less reasonable utilisation costs. The realisation costs amount to 10% of the realisation proceeds, unless the Contractor proves higher costs, or the Customer proves lower costs.

 

(13) Should the retention of title or the assignment not be effective according to the law in which the goods are located, the security corresponding to retention of title or assignment shall be deemed as agreed. Insofar as the co-operation of the Customer is required in this respect, the Customer shall take all necessary measures to establish and maintain these rights.

 

Section 7 Warranty

 

(1) The goods delivered by the Contractor must be carefully inspected by the Customer immediately upon receipt. The goods delivered by the Contractor shall be deemed to have been approved by the Customer if the Contractor does not receive a written notice of defects regarding obvious defects or other defects that would have been recognisable during an immediate, careful inspection immediately upon receipt of the goods. With regard to hidden defects, the goods delivered by the Contractor shall be deemed to have been approved by the Customer if the notice of defects is not received by the Contractor immediately after the moment of the defect becoming apparent; if, however, the defect was already recognisable at an earlier stage without closer inspection during normal use, this earlier moment shall be decisive for the start of the notice period. A notice of defects must always state the defect found as well as the circumstances under which the defect was found, the invoice and/or the delivery number and its date. The Customer shall reimburse the Contractor for any costs caused by unjustified notices of defects.

 

(2) In the event of material defects in the goods delivered by the Contractor, the Contractor shall initially be obliged and entitled, at his discretion and within a reasonable period, to remedy the defect (rectification) or to deliver a defect-free item (replacement delivery). The right of the Contractor to refuse the selected type of supplementary performance under the statutory conditions remains unaffected. The Customer may only withdraw from the contract or reduce the purchase price appropriately if the subsequent fulfilment has failed or if a reasonable deadline to be set by the Customer for the subsequent fulfilment has expired unsuccessfully or is dispensable according to the statutory provisions. Subsequent fulfilment shall be deemed to have failed if two attempts at subsequent fulfilment have been unsuccessful (unless the nature of the item or the defect or other circumstances indicate otherwise) or if subsequent fulfilment is impossible or unacceptable for the Customer.

 

(3) At the Contractor's request, any rejected goods delivered shall be returned to the Contractor carriage paid. If the complaint about defects is justified, the Contractor shall cover the costs of the least expensive delivery route; this does not apply if the costs are higher because the delivered goods are at a place other than the place of contractual use.

 

(4)  In the case of customary, technically unavoidable deviations in quality which do not or but insignificantly reduce the suitability for use, the Customer shall not be entitled to any warranty rights. The same applies to deviations, in particular to dimensions, weights, performance data or colour shades, lying within the scope of applicable DIN standards or tolerances customary in the industry. Defects that are not attributable to the fault of the Contractor, such as natural abrasion, improper use or handling or storage of the goods, excessive strain, incorrect operation, assembly or commissioning by the Customer or third parties, improper maintenance, wear and tear, use of unsuitable operating materials, modifications, repairs or maintenance without the Contractor’s consent, also exclude warranty claims of the Customer, unless the Customer is obliged to carry out maintenance pursuant to Paragraph 6(2), Sentence 1, or if the Customer does not give the Contractor the necessary time and opportunity for maintenance. Warranty claims are equally excluded for errors arising from the documents submitted by the Customer (drawings, samples, etc.). This also applies in particular to the function of objects manufactured according to the design of the Customer or according to design documents submitted by the Customer.

 

(5) The Customer is only entitled to damages or reimbursement of futile expenses due to the Contractor’s fault pursuant to Section 8; these claims are otherwise excluded.

 

(6) A delivery of used items agreed on individually with the Customer is excluded from any warranty. Claims for damages due to culpable injury to life, limb or health, due to the assumption of a guarantee, due to mandatory statutory liability such as pursuant to the Product Liability Act and in the event of gross negligence, intent and/or fraudulent intent remain unaffected by this.

 

(7) Recourse claims of the Customer against the Contractor pursuant to Paragraphs 445a, 478 BGB (recourse of the Contractor) only exist to the extent to which the Customer has not reached an agreement with his buyer beyond the statutory claims for defects. If only entrepreneurs are involved in the supply chain, including the last purchase contract, the rights of the Customer pursuant to Paragraph 445a German Civil Code [BGB] against the Contractor only exist if the contractor is at fault in this respect.

 

Section 8 Liability

 

(1) The Contractor's liability for damages or futile expenses shall – regardless of the legal grounds – only apply if the damage or futile expenses a)  were caused by the Contractor or one of his vicarious Contractors through culpable breach of such an obligation, the fulfilment of which is essential for proper performance of the contract and on the observance of which the Customer may regularly rely (essential contractual obligation), or

 

b) is due to a grossly negligent or wilful breach of duty by the Contractor or one of his vicarious Contractors.

 

(2) Insofar as the Contractor is liable for damages pursuant to the above Section 8, paragraph 1 a) for breaching an essential contractual obligation without wilful intent or gross negligence, the Contractor's liability for damages shall be limited to the foreseeable, typically occurring damage. In this case, the Contractor shall not be liable for the Customer’s unforeseeable, non-typical loss of profit and shall not be liable for unforeseeable indirect consequential damages (such as financial losses, contractual penalties, business interruptions or loss of production).

 

(3) Should the Contractor provide technical information or act as a consultant and if this information or advice do not lie within the contractually agreed scope of services he owes and are not remunerated, and should – pursuant to Paragraph 434 German Civil Code [BGB] – an information or an advice provided in breach of duty not constitute a material defect of the goods delivered by the Contractor, this excludes any liability.

 

(4) The above limitations and exclusions of liability shall not apply if the Contractor's liability is based on intentional or grossly negligent behaviour, is mandatory due to statutory provisions such as the Product Liability Act, if the Contractor has assumed a guarantee or if claims are asserted against the Contractor due to culpable injury to life, limb or health.

 

(5) Further liability for compensation other than those provided for in Section 8 is excluded regardless of the legal status of the claim. This also particularly holds for damage claims arising from fault at conclusion of contract pursuant to Paragraph 311(3) German Civil Code [BGB], from violation of contract pursuant to Paragraph 280 German Civil Code [BGB] or from delinquent claims according to Paragraph 823 German Civil Code [BGB].

 

(6) Insofar as the Contractor's liability for damages against the Customer is excluded or limited pursuant to the above provisions, this shall also apply to the same extent in favour of the Contractor's bodies, legal representatives, employees, workers, representatives and other vicarious Contractors.

 

 

 

 

Section 9 Statute of Limitations

 

(1) Claims of the Customer due to material defects and defects of title with the goods delivered by the Contractor or due to services rendered by the Contractor in breach of duty – including claims for damages and claims for reimbursement of futile expenses – shall become statute-barred within one year from the statutory start of the limitation period or, if acceptance is required or agreed on, from the time of acceptance on, unless arising otherwise from the following provisions.

 

(2)  If the Customer or another client in the supply chain has fulfilled his client’s claims due to defects to newly manufactured goods delivered by the Contractor and if the last transaction in the supply chain is a purchase of consumer goods, the limitation period for the Customer’s claims against the Contractor pursuant to Paragraphs 437, 445a(1) German Civil Code [BGB] shall commence at the earliest two months after the moment when the Customer or the other client in the supply chain have fulfilled the consumer’s claims, unless the Customer could have successfully invoked the defence of limitation against his contractual partner. The limitation period for the Customer's claims due to defective goods delivered by the Contractor shall apply in any case insofar as the claims of the Customer's contractual partner against the Customer due to defects to the goods delivered by the Contractor to the Customer are time-barred.

 

(3) In the case of newly manufactured items delivered by the Contractor which have been used for a building pursuant to their normal use and have caused its defectiveness, the Customer's claims shall become time-barred within five years from the start of the statutory limitation period. Notwithstanding Sentence 1, a limitation period of two years shall apply insofar as the Customer has used the item delivered by the Contractor for the fulfilment of contracts in which Part B of the Construction Tendering and Contract Regulations (VOB/B) has been included in its entirety. The limitation period pursuant to Sentence 2 above shall start at the earliest two months after the moment in which the Customer has fulfilled the claims against his contractual partner arising from the defectiveness of the construction work caused by the item delivered by the Contractor, unless the Customer could have successfully invoked the defence of limitation against his contractual partner. The limitation period for the Customer's claims against the Contractor due to defective goods delivered by the Contractor shall in any case commence as soon as the claims of the Customer's contractual partner against the Customer due to defects with the goods delivered by the Contractor to the Customer have become time barred.

 

(4) If the Contractor has provided consulting and/or information contrary to duty which are not to be remunerated separately without the Contractor having delivered goods in connection with information or consulting or without this consulting or this information provided contrary to duty constituting a material defect pursuant to Paragraph 434 German Civil Code [BGB] of the goods delivered by the Contractor, claims against the Contractor based thereon shall become statute-barred within one year after the start of the statutory limitation period. Claims of the Customer against the Contractor arising from the breach of contractual, pre-contractual or statutory obligations not constituting a material defect pursuant to Paragraph 434 German Civil Code [BGB] of the goods to be delivered or delivered by the Contractor shall also become statute-barred within one year after the start of the statutory limitation period. Insofar as – pursuant to Paragraph 434 German Civil Code [BGB] – the aforementioned breaches of duty constitute a material defect of the goods supplied by the Contractor in connection with the advice or information, the provisions set out in Section 9(1) to (3) and (5) shall apply to the limitation period for claims based thereon.

 

(5) The provisions set out from Section 9(1) to (4) above shall not apply to the limitation period for claims due to injury to life, limb or health nor to the limitation period for mandatory statutory claims such as pursuant to the Product Liability Act and due to defects of title with goods delivered by the Contractor consisting in a right in rem of a third party due to which the return of the goods delivered by the Contractor can be requested. Furthermore, they shall not apply to the limitation period for claims of the Customer based on the fact that the Contractor fraudulently concealed defects on goods delivered by the Contractor or with services provided by the Contractor or that the Contractor breached an obligation intentionally or due to gross negligence. In these cases, the statutory limitation periods shall apply to the limitation of these claims.

 

Section 10 Return of Goods

 

(1) The return of defect-free goods in their original packaging by the Customer shall require the Contractor’s prior consent, at least in writing, and shall be at the expense of the Customer. Defect-free goods returned without the Contractor's consent shall be returned to the Customer by the Contractor at the Customer's expense.

 

(2) The Customer has no legal claim to the return of fault-free goods. The Contractor does not need to justify why he refuses to agree to the return.

 

(3) The Contractor may also consent to take back fault-free goods on condition that he inspects the goods itself before at the Customer's expense or has them inspected by a third-party expert. In particular, consent to take back the goods shall be ruled out if they contain wear parts such as rubber, oils or greases which have a detrimental effect on the reusability of the goods. If, after inspecting the goods, the Contractor does not consent to the return of the goods, he shall return the goods to the Customer at the Customer's expense.

 

(4) The Contractor shall be entitled to consent to taking back faultless goods on condition that the Customer compensates the Contractor with 50% of the agreed purchase price for taking back the goods. The Customer reserves the right to prove that the Contractor has incurred no damage at all or significantly less damage. Should the goods be taken back, the Contractor also reserves the right to prove that he has incurred damages exceeding the aforementioned amount and to assert these damages against the Customer.

 

Section 11

Protective Rights

 

(1) The Contractor vouches pursuant to this Section 11 that the delivered goods are free from industrial property rights or copyrights held by third parties. Each contracting party shall notify the other contracting party in writing without undue delay should claims be asserted against them for the infringement of such rights.

 

(2) In the event that the delivered goods infringe an industrial property right or copyright of a third party, the Contractor shall, at his discretion and at his own expense, modify or replace the goods in such a way that the rights of third parties are no longer infringed, but the goods continue to fulfil the contractually agreed functions; or he can procure the right of use for the Customer by concluding a licence agreement with the third party. If the Contractor fails to do so within an appropriate period, the Customer is entitled to withdraw from the contract or reduce the purchase price appropriately. Any claims for damages by the Customer are subject to the restrictions stated in Section 8 of these GTC.

 

(3)  In case of legal violations by products of other manufacturers delivered by the Contractor, the Contractor shall, at his discretion, assert his claims against the manufacturers and pre-suppliers for the account of the Customer or assign the claims to the Customer.

 

 

Section 12 Final Provisions

 

(1) Assignments of the Customer’s rights and obligations arising from the specific legal relationship into which these GTC are incorporated shall require the prior consent of the Contractor in writing to be effective. Article 354a of the German Commercial Code [HGB] shall remain unaffected.

 

(2) These GTC and the entire legal relationship between the Contractor and the Customer shall be governed exclusively by the Law of the Federal Republic of Germany as it applies between German merchants. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

 

(3) The exclusive place of jurisdiction for any disputes between the Contractor and the Customer arising from the specific legal relationship in which these GTC are incorporated shall be Essen, unless mandatory statutory provisions state otherwise. However, the Contractor shall also have the right to sue the Customer at the Customer's legal place of jurisdiction.