Terms and Conditions of Sale

Our deliveries and other services are made exclusively on the basis of our General Terms and Conditions of Sale set out below.

§ 1 Scope of Application

  1. Our General Terms and Conditions of Sale (hereinafter "Terms of Sale") apply exclusively vis-à-vis entrepreneurs, legal persons under public law, or special funds under public law within the meaning of § 310 paragraph 1 of the German Civil Code (BGB).
  2. We object to the inclusion of the Buyer's general terms and conditions unless we expressly agree in writing to their applicability. Even if we refer to a document that contains or refers to the Buyer's or a third party's general terms and conditions, this does not constitute consent to the applicability of those terms and conditions.
  3. Our Terms of Sale also apply to all future transactions with the Buyer, insofar as they concern the supply of fungible or non-fungible goods from our product range or other services.
  4. Incoterms® referred to by us apply in the version currently in force.

§ 2 Offer and Acceptance, Prices, Price Adjustment Reservation, Ancillary Agreements

  1. Our offers are always subject to change and non-binding unless they are expressly marked as binding or contain a period of acceptance.
  2. Our prices are in Euro ex warehouse in D-58089 Hagen (EXW Incoterms®). In addition, there are, where applicable, costs of packaging, statutory value-added tax, fees, customs duties, and other charges arising from the execution of the contract.
  3. We may accept the Buyer's orders within fourteen days after receipt. Unless otherwise agreed with the Buyer, a contract shall only come into existence upon our written order confirmation. This order confirmation shall be authoritative for the content of the contract.
  4. If, as agreed, we deliver under terms other than EXW Incoterms®, the Buyer shall bear all expenses for shipping and transport insurance at our cost price.
  5. If alloy and/or scrap surcharges of the steel manufacturers contained in the agreed price as cost components change later than four weeks after conclusion of the contract, we shall be entitled to a subsequent price increase corresponding to the share of such surcharges in the agreed total price, and in the event of a price reduction of such surcharges we shall be obliged to a corresponding subsequent price reduction. We may also claim a proportional price change if other external costs included in the agreed price have changed or newly arisen more than four weeks after conclusion of the contract.
  6. Ancillary agreements and amendments to the contract, including amendments to these Terms of Sale, must be in writing to be effective. The written form requirement is met by transmission by fax or e-mail, provided that the sender of the message can be identified.

§ 3 Payments and Default of Payment, Set-Off, Right of Retention

  1. Invoice amounts are to be paid within ten calendar days without any deduction, unless otherwise agreed in writing. The date of receipt by us shall be decisive for the date of payment. The Buyer shall bear the costs of payment transactions.
  2. If the Buyer fails to pay when due, the outstanding amounts shall bear interest at 5% p.a. from the due date. We reserve the right to assert interest of 9% p.a. and further damages in the event of default of payment.
  3. Set-off with counterclaims of the Buyer or the retention of payments due to such claims is only permissible insofar as these counterclaims are undisputed by us or have been finally adjudicated. The Buyer is only entitled to rights of retention if they are based on the same contractual relationship.
  4. We are entitled to perform outstanding deliveries or services only against advance payment or provision of security if, after the conclusion of the contract, circumstances become known to us which are likely to substantially reduce the Buyer's creditworthiness and which jeopardize the payment of our outstanding claims by the Buyer from the respective contractual relationship.
  5. If the Buyer's default of payment is clearly based on his insolvency, we shall be entitled to withdraw from the contract without the need for a prior period of grace.

§ 4 Delivery Time, Extension of Delivery Time, Partial Performance

  1. The delivery time is met if, upon delivery EXW Incoterms® (see § 5 paragraph 1), the goods have been made available for collection and the Buyer has been notified accordingly.
  2. The delivery time shall be extended appropriately if
    1. the Buyer does not make an agreed down payment on time,
    2. events for which we are not responsible or circumstances over which we have no influence occur, such as cases of force majeure, unforeseen operational disruptions in the context of labour disputes (strike and lawful lockout), or delivery delays by our suppliers. We shall notify the Buyer immediately of the beginning and end of such events or circumstances. If, as a result of a delay occurring under paragraph (b), the Buyer cannot reasonably be expected to accept the goods or other service, he may withdraw from the contract by immediate written declaration, insofar as we have not yet fulfilled the contract, and shall pay for the goods already delivered. Insofar as the Buyer has a legitimate interest in refusing partial delivery, he may withdraw from the entire contract by immediate written declaration.
  3. In the event of non-compliance with an agreed delivery date or an agreed delivery period for which we are responsible, we shall be liable in accordance with § 11 of these Terms of Sale.
  4. If the dispatch of goods made available is delayed at the Buyer's request, he shall be charged the costs incurred by the storage of the goods in full, in the case of storage in our own warehouse at least 0.5% of the invoice amount (excluding VAT) for each completed calendar month. The Buyer reserves the right to prove lower storage costs than 0.5% of the invoice amount.
  5. We are entitled to make partial deliveries.

§ 5 Place of Performance, Passing of Risk, Obligation to Notify Transport Damage

  1. The place of performance for all obligations arising from the contractual relationship with the Buyer and the passing of risk for our deliveries shall be our warehouse in D-58097 Hagen (EXW Incoterms®), unless otherwise agreed with the Buyer.
  2. If the delivery is delayed as a result of a circumstance the cause of which lies within the Buyer's sphere, the risk shall pass to the Buyer on the day on which notification of readiness for dispatch or acceptance is given.
  3. The Buyer must immediately notify the transport company of transport damage of any kind. If, at the Buyer's request, we have taken out transport insurance, the Buyer must immediately send us a written report from the transport company on the damage and losses identified in the event of a claim, so that we can assert the claims against the transport insurer.

§ 6 Retention of Title

  1. We retain title to the delivered goods (hereinafter also: "Delivery Item") until receipt of all payments – including for additionally owed ancillary services – from the supply contract.
  2. The Buyer is not entitled to pledge or assign delivered goods as security. The Buyer must immediately notify us of seizures, confiscations, or other dispositions by third parties that impair or could impair our property rights in the delivered goods.
  3. The Buyer is obliged to handle delivered goods with care as long as ownership has not yet passed to him. Furthermore, the Buyer is obliged to adequately insure delivered goods at his own expense against theft, fire, and water damage at replacement value.
  4. In the event of conduct by the Buyer in breach of contract, in particular in the event of default of payment, we shall be entitled, after a reminder, to take back the Delivery Item and the Buyer shall be obliged to surrender it. The assertion of the retention of title and the seizure of the Delivery Item by us shall not be deemed a withdrawal from the contract.
  5. The Buyer is entitled to resell goods subject to our retention of title (hereinafter: "Reserved Goods") in the ordinary course of business. However, he hereby assigns to us all claims accruing to him from the resale of the Reserved Goods against the purchaser. This applies regardless of whether the Reserved Goods are resold without or after processing. The Buyer remains authorized to collect the claim even after the assignment. Our authority to collect the claims ourselves remains unaffected. However, we undertake not to collect the claim as long as the Buyer meets his payment obligations. At our request, the Buyer shall inform us of all data required for collection, hand over the necessary documents to us, and notify his debtor of the assignment. If the Reserved Goods are resold together with other goods belonging to third parties, the Buyer's claim against the customer shall be deemed assigned in the amount of the delivery price agreed between us and the Buyer.
  6. The processing or transformation of Reserved Goods (§ 950 BGB) by the Buyer shall always be carried out for us, without obligating us. If the Reserved Goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in proportion to the value of the Reserved Goods to the other processed items at the time of processing. For the rest, the same shall apply to the new item resulting from processing as to the Reserved Goods.
  7. We shall release securities to which we are entitled insofar as their value exceeds the claims to be secured, to the extent that these have not yet been settled, by more than 20%.

§ 7 Inspection of the Goods, Notice of Defects

  1. The goods delivered by us must be inspected immediately after delivery to the Buyer or to the third party designated by him. They shall be deemed approved if we have not received a written notice of defects immediately after delivery of the Delivery Item with regard to obvious defects.
  2. Defects hidden upon delivery and discovered later must be reported immediately after their discovery; otherwise they shall be deemed approved.
  3. If the Buyer complains about delivered goods, we must be given the opportunity to inspect and examine them without delay. § 9 paragraph (2) remains unaffected.

§ 8 General Liability Provision

  1. Insofar as we limit or exclude our liability in these Terms of Sale, the exclusion or limitation of our liability shall not apply
    1. for damages arising from injury to life, body, or health of persons if the injury is based on a negligent breach of our duties or on an intentional or negligent breach of duty by one of our legal representatives or vicarious agents,
    2. for other damages based on a grossly negligent breach of our duties or on a grossly negligent breach of duties by one of our legal representatives or vicarious agents,
    3. in cases of mandatory statutory liability, e.g. under the Product Liability Act.
  2. Insofar as we do not expressly assume liability for damages in these Terms of Sale, in particular in §§ 10 to 12, our liability is excluded.

§ 9 Liability for Material Defects, Limitation Period

  1. Goods delivered by us are in accordance with the contract if they have the agreed quality at the time of passing of risk. If goods delivered by us are not suitable for a particular purpose of use, the goods are only in breach of contract if the suitability for the purpose of use was expressly agreed between the Buyer and us.
  2. A Delivery Item that has been complained about must, at our request, be returned to us carriage paid. In the case of a justified notice of defects, we shall reimburse the costs of the cheapest shipping route. Insofar as the transport costs are increased because the Delivery Item is located at a place other than the place of intended use, we shall only reimburse the costs of the cheapest transport to the (domestic) seat of the Buyer.
  3. The place of performance for all our warranty obligations is our registered office in D-58089 Hagen. This also applies if the object of purchase is taken with or without our knowledge to a place other than the Buyer's seat.
  4. In the case of material defects in delivered goods, we are obliged and entitled, at our choice to be made within a reasonable period and taking into account the interests of the Buyer, to subsequent performance by way of remedying the defect (repair, rework) or delivery of goods free of defects. The Buyer shall inform us immediately whether he demands subsequent performance or which other rights of defects he asserts.
  5. We may refuse subsequent performance if it is only possible at disproportionately high cost.
  6. If a defect is due to our fault, the Buyer may demand damages under the conditions specified in § 11 of the Terms of Sale.
  7. Claims of the Buyer due to material defects shall become time-barred twelve months after delivery (general warranty period). The general warranty period does not apply in cases of intent or gross negligence and if an item supplied by us has been used in accordance with its customary use for a building and has caused its defectiveness. No new limitation period begins if we remedy defective goods or deliver replacement goods free of defects.
  8. If a notice of defects has been culpably given without justification, we shall be entitled to demand from the Buyer reimbursement of the expenses incurred by us in examining the alleged defect.
  9. Insofar as we do not assume liability for material defects in § 9, our liability for material defects and all damages arising therefrom, in particular financial losses, is excluded.
  10. § 8 remains unaffected.

§ 10 Liability for Defects of Title

  1. We are responsible under this § 10 for ensuring that the Delivery Item is free from industrial property rights or copyrights of third parties.
  2. Each contracting party shall immediately notify the other contracting party in writing if claims are asserted against him on account of the infringement of such rights.

  3. In the event that the Delivery Item infringes an industrial property right or copyright of a third party, we shall, at our choice and at our expense,

    1. modify or replace the Delivery Item in such a way that the rights of third parties are no longer infringed, but the Delivery Item still fulfils the contractually agreed functions, or
    2. procure the right of use for the Buyer by concluding a licence agreement.

    If we do not succeed in this within a reasonable period of time, the Buyer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages by the Buyer shall be subject to the limitations of § 11 of these Terms of Sale.

  4. In the event of infringements of rights by products of our suppliers delivered by us, we shall, at our choice,

    1. assert our claims against the suppliers for the account of the Buyer, or
    2. assign them to the Buyer.

    Claims against us in these cases exist according to this § 11 only if the judicial enforcement of the aforementioned claims against the suppliers has been unsuccessful or is hopeless, for example due to insolvency.

  5. Insofar as we do not assume liability for defects of title in § 10, our liability for defects of title and all damages arising therefrom, in particular financial losses, is excluded.
  6. § 8 remains unaffected.

§ 11 Liability for Damages

  1. Our liability for damages, regardless of the legal grounds, in particular for impossibility, default, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tort, insofar as fault is relevant in each case, is limited in accordance with this § 11.
  2. We shall not be liable in the case of simple negligence of our officers, legal representatives, employees, or other vicarious agents, unless it is a breach of material contractual duties. Material contractual duties are those duties whose fulfilment is essential to the characterization of the contract and on whose compliance the Buyer may rely. These include the obligation to deliver the Delivery Item, free from material defects, in good time, as well as advisory, protective, and custodial duties intended to enable the Buyer to use the Delivery Item in accordance with the contract or to protect the life or limb of the Buyer's personnel or to protect his property from significant damage.
  3. Insofar as we are liable for damages in principle pursuant to § 11 paragraph (2), this liability shall be limited to damages which we foresaw at the conclusion of the contract as a possible consequence of a breach of contract or which we should have foreseen with the application of customary care. Damages resulting from defects in the Delivery Item shall furthermore only be compensable insofar as such damages are typically to be expected in the case of intended use of the Delivery Item.
  4. To the extent that we are liable for simple negligence, our obligation to pay compensation in the case of material defects (§ 9) or for damage to property of the Buyer, including property of third parties, and consequential financial losses, shall be limited to an amount of EUR 10 (ten) million per claim, even in the case of a breach of material contractual duties.
  5. The above exclusions and limitations of liability shall apply to the same extent in favour of our officers, legal representatives, employees, and other vicarious agents.
  6. To the extent that we provide technical information or advisory services and such information or advice does not belong to the contractually agreed scope of services owed by us, this is done free of charge and to the exclusion of any liability. Such information is not owed by us and is therefore non-binding; it must be verified by the Buyer under his specific production conditions and, where appropriate, adapted.
  7. § 8 remains unaffected.

§ 13 Place of Jurisdiction

For all disputes arising from the contractual relationship, if the Buyer is a merchant, a legal person under public law, or a special fund under public law, the action shall be brought exclusively before the court having jurisdiction at our registered office in D-58089 Hagen. We reserve the right to sue the Buyer at his place of business.

§ 14 Severability, Applicable Law, Data Processing

  1. Should any of these Terms of Sale be or become invalid in whole or in part, this shall not lead to the invalidity of the remaining Terms.
  2. The legal relations between us and the Buyer shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and the UN Convention of 14 June 1974 on the Limitation Period in the International Sale of Goods, including its Amending Protocols, is excluded.
  3. We are authorized to collect and store data from or in connection with the contractual relationship for the purposes of data processing pursuant to § 28 BDSG and reserve the right to transmit this data to third parties (e.g. insurance companies) insofar as this is necessary for the performance of the contract.

V-03 As of: 29.01.2018

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