GENERAL TERMS AND CONDITIONS OF BUSINESS AND SALE FOR THE TECHNICAL TRADE   Version 5/2024

I. Scope / Offers
1. These General Terms and Conditions of Sale apply to all contracts, including future contracts, with entrepreneurs, legal entities under public law and special funds under public law concerning deliveries and other services, including contracts for work and contracts for the delivery of fungible and non-fungible goods to be manufactured or produced. The buyer's purchasing terms will not be accepted even if we do not expressly object to them again after receiving them. Even where we conclude contracts on electronic platforms and conclusion of the contract is technically possible only if we declare our agreement to the buyer's terms, this expressly does not constitute consent to the application of those terms.
2. Our offers are subject to change and non-binding. Oral agreements, commitments, assurances, guarantees and statements by our sales employees about the intended use or purpose of use made before or when the contract is concluded are non-binding and become binding only when confirmed by us in text form.
3. Trade terms such as “EXW”, “FOB” and “CIF” are interpreted in accordance with the latest version of the Incoterms® (International Commercial Terms).
 

II. Prices and Packaging
1. Unless otherwise agreed, our prices are ex works, excluding packaging and plus statutory value added tax in each case.
2. If goods are delivered in packaging, we charge the packaging at cost. Within the scope of statutory provisions, we take back packaging supplied by us if the buyer returns it to us within a reasonable period. We do not bear the buyer's costs for return transport or for disposing of the packaging themselves.
 

III. Payment and Set-Off
1. Payment must be made without a cash discount so that the amount is available to us on the due date. The buyer bears the costs of payment transactions. Unless otherwise agreed, our invoices are due 14 days after the invoice date. Payment must be made so that the amount required to settle the invoice is available to us no later than the due date. The buyer is in default on the first day after our claim becomes due, without a reminder being required.
2. Any agreed cash discount periods begin on the invoice date. An agreed cash discount applies only to the invoice value excluding freight and requires full settlement of all the buyer's due liabilities at the time the discount is taken.
3. Invoices for amounts below EUR 50.00 and for installations, repairs, moulds and shares of tooling costs are payable immediately, net.
4. Counterclaims that we dispute or that have not been legally established do not entitle the buyer to withhold payment or set off claims. This does not apply if the buyer's counterclaims arise from the same contractual relationship and/or entitle the buyer to refuse performance under Section 320 of the German Civil Code (BGB).
5. If the payment term is exceeded, and at the latest from the onset of default, we are entitled to charge interest at the prevailing bank rates for overdraft facilities, but at least the statutory default interest. We also charge a default lump sum of EUR 40.00. We reserve the right to claim further damages caused by default.
6. If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardised by the buyer's lack of financial capacity, or if the buyer defaults on a substantial amount, or if other circumstances arise indicating a significant deterioration in the buyer's financial capacity, we may refuse any agreed advance performance and exercise the rights under Section 321 BGB. This also applies where our obligation to perform is not yet due. We are then also entitled to make all claims not yet due from the ongoing business relationship with the buyer immediately due. A lack of financial capacity is also deemed to exist if the buyer defaults on a substantial amount (at least 10% of due claims) for at least three weeks, or if the limit granted to the buyer by our trade credit insurer is substantially reduced.
7. We are entitled to assign claims arising from our business relationship.
8. We are entitled to collect, store, process and use information and data about the buyer and to pass them on to third parties for collection of receivables or outsourced debtor management, for storage, processing and use.
 

IV. Delivery Times and Conditions
1. Delivery periods and dates are met if the item to be delivered has left our premises by their expiry. If the goods cannot be dispatched on time through no fault of our own, the periods and dates are deemed met when readiness for dispatch is notified.
2. Our obligation to deliver is subject to correct, timely and contract-compliant delivery to us by our suppliers and, in the case of imports, additionally to receipt of monitoring documents and import permits, unless incorrect or delayed delivery to us is attributable to us.
3. Events of force majeure entitle us to postpone deliveries for the duration of the impediment plus a reasonable start-up period. This also applies if such events occur during an existing delay. Currency, trade policy and other government measures, strikes, lockouts, operational disruptions for which we are not responsible, pandemics and their effects, obstruction of transport routes, delays in import or customs clearance, and any other circumstances which, without being attributable to us, substantially impede or render deliveries and services impossible are treated in the same way as force majeure. It does not matter whether the circumstances occur at our premises, at the manufacturing plant or at another upstream supplier. If these events make performance unreasonable for either contracting party, that party may withdraw from the contract by giving prompt notice in text form.
4. Deliveries within Germany are made on the following terms:
- up to EUR 350.00 net goods value: EX WORKS; from EUR 350.01 net goods value: CARRIAGE PAID
- minimum order value: EUR 150.00; handling of hazardous substances is charged
Deliveries abroad: minimum order value EUR 1,250.00, duty unpaid, EX WORKS.
If an expressly agreed delivery date is not met, the customer must grant us a reasonable extension in text form. If delivery is not made by the end of that extension, the customer has the right to withdraw from the contract.
 

V. Performance of Deliveries
1. The risk passes to the buyer when the goods are handed over to a freight forwarder or carrier, but no later than when they leave the warehouse or, for direct shipments, the manufacturing plant. This applies to all transactions, including “franco” and “carriage paid” deliveries. The buyer is responsible for unloading and bears its costs. We arrange insurance only on the buyer's instructions and at the buyer's expense.
2. We are entitled to make partial deliveries to a reasonable extent. For custom-made goods, over-deliveries and under-deliveries of up to 10% of the agreed quantity are permitted.
3. For call-off orders, we are entitled to manufacture or have manufactured the entire order quantity in one batch. Requests for changes after the order has been placed cannot be taken into account unless expressly agreed. Unless fixed arrangements have been made, call-off dates and quantities can be met only within our delivery or production capabilities. If the goods are not called off in accordance with the contract, we are entitled to invoice them as delivered after a reasonable additional period has expired.
4. For contracts involving continuous deliveries, call-offs and product specifications must be provided to us for approximately equal monthly quantities. If a call-off or specification is not provided on time, we are entitled, after an additional period has expired without result, to specify the goods ourselves and deliver them, or to withdraw from the outstanding part of the contract and claim damages in lieu of performance. At the end of the contract, our inventory must be accepted.
 

VI. Retention of Title
1. All goods delivered remain our property (goods subject to retention of title) until all claims arising from the business relationship have been satisfied, irrespective of their legal basis, including future or conditional claims (current-account reservation). The current-account reservation does not apply to advance-payment or cash transactions performed concurrently. In that case, the delivered goods remain our property until the purchase price for those goods has been paid in full.
2. Treatment and processing of goods subject to retention of title are carried out for us as manufacturer within the meaning of Section 950 BGB, without placing us under any obligation. The processed goods are deemed goods subject to retention of title within the meaning of clause V/1. If the buyer processes, combines or mixes goods subject to retention of title with other goods, we acquire co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership ends through combination or mixing, the buyer hereby transfers to us the ownership rights to which the buyer is entitled in the new inventory or item to the extent of the invoice value of the goods subject to retention of title, and holds them in safekeeping for us free of charge. The co-ownership rights arising in this way are deemed goods subject to retention of title within the meaning of clause V/1.
3. The buyer may sell goods subject to retention of title only in the ordinary course of business, on the buyer's usual terms and as long as the buyer is not in default, provided that the claims arising from resale pass to us in accordance with clauses V/4 to V/6. The buyer is not entitled to dispose of goods subject to retention of title in any other way.
4. Claims arising from the resale of goods subject to retention of title, together with all securities acquired by the buyer for those claims, are hereby assigned to us. We hereby accept the assignment. The claims serve as security to the same extent as the goods subject to retention of title. If the buyer sells goods subject to retention of title together with other goods not sold by us, the claim arising from the resale is assigned to us in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods sold. If goods in which we hold co-ownership shares under clause V/2 are sold, a corresponding portion of the claim is assigned to us.
5. The buyer is authorised to collect claims arising from resale. This collection authorisation ends if we revoke it, which we may do at any time, and at the latest upon default in payment, failure to honour a bill of exchange or an application to open insolvency proceedings. We will exercise our right of revocation only if, after conclusion of the contract, it becomes apparent that our claim for payment under this or other contracts with the buyer is jeopardised by the buyer's inability to pay. After a reasonable additional period has expired, we are also entitled to demand the return of the goods and prohibit the resale and further processing of delivered goods. Taking back the goods does not constitute withdrawal from the contract. At our request, the buyer must immediately inform their customers of the assignment to us and provide us with the documents needed for collection.
6. The buyer must notify us immediately of any attachment or other interference by third parties.
7. If the invoice value of the existing securities exceeds the secured claims, including ancillary claims (interest, costs and the like), by more than 50% in total, we are obliged, at the buyer's request, to release securities to that extent at our discretion.
8. For the assigned claims, all rights in our favour under the agreed security arrangements, in particular security interests and retention of title in all forms, are transferred to Crédit Agricole Leasing & Factoring S.A.

VII. Liability for Defects
1. The characteristics of the goods, in particular their quality, grade and dimensions, are determined primarily by the agreed characteristics, especially the contractually agreed standards and technical rules. References to standards and similar rules, and statements about the quality, grade, dimensions, weight and usability of the goods, information in drawings and illustrations, and statements in advertising materials do not constitute assurances or guarantees unless they are expressly designated as such in text form. The same applies to declarations of conformity and associated markings such as “CE” and “GS”. Where characteristics have been agreed, the buyer bears the risks concerning suitability and use.
2. If no characteristics have been agreed, the goods are free from material defects if they are suitable for the use assumed under the contract. A use is assumed under the contract only if the buyer informed us of that use in text form no later than conclusion of the purchase contract and we expressly agreed to it in text form.
3. If the goods have the agreed characteristics under clause VII.1 or are suitable for the use assumed under the contract under clause VII.2, the buyer cannot claim that they are unsuitable for ordinary use or lack characteristics usual for goods of this type and expected by the buyer. To that extent, our liability is excluded except in the cases specified in section VIII.2.
4. Inspection of the goods and notification of defects are governed by the provisions of the German Commercial Code (HGB), subject to the following conditions:
- The buyer is obliged to inspect the characteristics of the goods relevant to their intended use without delay after delivery and to notify us of defects without delay in text form. If installation or attachment of the goods is intended, the characteristics relevant to installation or attachment include the internal characteristics of the goods. The duty to inspect applies even if an inspection certificate or another material certificate was supplied. Defects that cannot be discovered immediately after delivery even with the utmost care must be reported in text form without delay after their discovery.
- If, when intending to install or attach the goods, the buyer fails to inspect the characteristics relevant to the intended use at least on a sample basis before installation or attachment (for example, through functional tests or trial installation), this constitutes, in relation to us, a particularly serious failure to exercise the care required in business dealings (gross negligence). In that case, the buyer may assert rights concerning defects in those characteristics only if the defect concerned was fraudulently concealed or a guarantee of the characteristics of the goods was given.
5. If the buyer discovers defects during or after inspection of the goods, the buyer must provide us with the goods complained of or samples of them for examination and permit us to inspect the goods within a reasonable period. Otherwise the buyer cannot rely on defects in the goods.
6. If the goods are defective, the buyer has the rights concerning defects provided by the statutory rules of the BGB, subject to the limitations that the choice between rectification and subsequent performance is ours and that minor (insignificant) defects entitle the buyer only to a reduction of the purchase price.
7. If the buyer has installed the defective goods in or attached them to another item in accordance with their nature and intended purpose, the buyer may claim reimbursement of the necessary costs of removing the defective goods and installing or attaching the repaired or supplied goods free from defects (“removal and installation costs”) only under the following conditions:
- Only removal and installation costs directly relating to the removal or dismantling of the defective goods and installation or attachment of identical goods are necessary, provided they were incurred on customary market terms and the buyer has proved them to us by presenting suitable documents at least in text form.
- Further costs incurred by the buyer for consequential damage caused by defects, such as lost profit, business interruption costs or additional costs of obtaining replacements, are not direct removal and installation costs and are therefore not reimbursable as expenses under Section 439(3) BGB. The same applies to sorting costs and additional expenses arising because the goods sold and delivered are located somewhere other than the agreed place of performance.
- The buyer is not entitled to demand an advance payment for removal and installation costs or other costs of subsequent performance.
8. If the expenses claimed by the buyer for subsequent performance are disproportionate in an individual case, particularly in relation to the purchase price of goods free from defects and taking account of the significance of the breach of contract, we are entitled to refuse reimbursement of those expenses. Expenses are disproportionate in particular if those claimed, especially for removal and installation, exceed 150% of the invoiced value of the goods or 200% of the reduction in the goods' value caused by the defect. If the final contract in the supply chain is a consumer goods sale, reimbursement is limited to a reasonable amount.
9. Further claims are excluded in accordance with clause VIII. This applies in particular to claims for compensation for:
- damage that did not occur to the goods themselves (consequential damage caused by defects);
- costs of remedying a defect independently when the statutory requirements for doing so are not met, and removal and installation costs if the goods supplied by us no longer retained their original physical characteristics at the time of installation or attachment, or if a new product was made from the supplied goods before installation.
10. An unjustified demand to remedy a defect entitles us to damages if the buyer could have recognised through careful inspection that there was no material defect.
 

VIII. General Limitation of Liability and Limitation Periods
1. For breaches of contractual and non-contractual duties, in particular impossibility of performance, delay, faulty advice, fault during contract negotiations and tort, we are liable, including for our senior employees and other persons used to perform our obligations, only in cases of intent and gross negligence. In the latter case, liability is limited to the damage typical for the contract that was foreseeable when the contract was concluded.
2. The limitations in clause VIII.1 do not apply to culpable breaches of essential contractual duties. Essential duties include timely delivery and the absence of defects in the goods that impair their functionality or usability to more than an insignificant degree, as well as duties of advice, protection and care intended to protect the buyer or the buyer's personnel from substantial damage. The limitations also do not apply in cases of mandatory liability under the German Product Liability Act, injury to life, body or health, or if and to the extent that we fraudulently concealed defects in the goods or guaranteed their absence. The rules on the burden of proof remain unaffected.
3. If we are late in making a delivery or providing another service, the buyer may claim compensation for damage caused by the delay in addition to performance; in cases of slight negligence, however, this is limited to a maximum of 10% of the agreed price for the delayed performance. The buyer's right to damages in lieu of performance under clauses VIII.1 and VIII.2 remains unaffected.
4. Unless otherwise agreed, contractual claims that the buyer has against us arising from or in connection with delivery of the goods, in particular claims for damages due to material defects, become time-barred one year after delivery of the goods. Subsequent performance does not restart the limitation period; rather, the period is suspended until three months after subsequent performance has been carried out. Our liability and the limitation of claims remain unaffected in connection with the delivery of goods that have been used for a building in accordance with their usual purpose and have caused the building to be defective, intentional or grossly negligent breaches of duty, culpably caused injury to life, body or health, cases of mandatory liability under the German Product Liability Act, and the limitation of statutory recourse claims. In these cases, the statutory limitation periods apply.
 

IX. Copyright
1. We retain ownership and copyright in cost estimates, designs, drawings and other documents. They may be made available to third parties only with our agreement. Drawings and other documents belonging to offers must be returned on request.
2. If we have supplied items based on drawings, models, samples or other documents provided by the buyer, the buyer warrants that no third-party intellectual property rights are infringed. If third parties prohibit us from manufacturing or supplying such items, in particular by invoking intellectual property rights, we are entitled to cease all further activity in this respect without being obliged to examine the legal position, and to claim damages if the buyer is at fault. The buyer also undertakes to indemnify us immediately against all related third-party claims.
 

X. Trial Parts, Moulds, Tools
1. If the buyer is to provide parts for performance of the order, they must be delivered to the production facility carriage paid, on time, free of charge and free from defects, with the agreed additional quantity or, if none was agreed, a reasonable additional quantity to allow for possible rejects. If this does not happen, the buyer bears the resulting costs and other consequences.
2. The buyer bears the cost of producing trial parts, including the costs of moulds and tools.
3. Our liability for tools, moulds and other production equipment provided by the buyer is limited to the care we exercise in our own affairs. The buyer bears maintenance and upkeep costs. Our duty to retain them expires, irrespective of the buyer's ownership rights, no later than two years after the last production run using the mould or tool.
 

XI. Place of Performance, Jurisdiction, Applicable Law and Data Protection
1. The place of performance for our deliveries, subsequent performance and payments by the buyer is our place of business. The place of jurisdiction is the registered office of our head office. We may also sue the buyer at the buyer's place of jurisdiction. By way of exception, the place of performance and jurisdiction for our assigned claims is the registered office of Crédit Agricole Leasing & Factoring S.A. in 85609 Aschheim, and the place of jurisdiction is Munich.
2. All legal relationships between us and the buyer are governed by German law, excluding the provisions of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods (CISG).
3. We store and process our customers' data in accordance with the requirements of the GDPR.
 

XII. Authoritative Version
In cases of doubt, the German version of these General Terms and Conditions of Sale is authoritative.

Krückemeyer GmbH, Dortmunder Str. 4, 57234 Wilnsdorf. Dated: 1 May 2024