Terms and Conditions & General Delivery Conditions

1. Scope, Exclusion Clause, Written Form

1.1 These conditions apply exclusively to businesspersons (§ 14 BGB), legal entities under public law, and special public funds.

1.2 Our conditions apply exclusively to all – including future – deliveries and services. Deviating or additional conditions of the customer are non-binding for us, even if we do not object in individual cases, unless we explicitly acknowledge them. In this case, they only apply to the respective individual contract.

1.3 Unless otherwise explicitly stated in these conditions, the agreed written form is also maintained by fax or email.

2. Conclusion of Contract

2.1 Our offers are non-binding unless explicitly designated as binding. The customer is bound to their order for two weeks from the date of receipt by us.

2.2 Orders and changes to orders are only accepted by us once confirmed. Receipt of a delivery note or invoice by the customer, as well as the execution of the delivery or service, shall be deemed confirmation.

2.3 The customer is responsible for independently verifying the completeness, accuracy, and suitability of their order and all contract documents for their intended purpose.

2.4 Except for managing directors or authorized signatories, our employees are not authorized to make verbal side agreements or give verbal assurances that deviate from or go beyond these conditions or our written order confirmation.

2.5 The conclusion of the contract is subject to the reservation of correct and timely self-delivery. This does not apply if we are responsible for non-delivery or incorrect delivery, especially if we have not concluded a congruent hedging transaction. We will inform the customer immediately about the unavailability of the goods and promptly refund any payments already made.

2.6 In the case of call-off contracts, we agree with the customer on a delivery quantity, which the customer calls off within the agreed period. Call-offs must reach us at least six weeks before the start of the respective delivery month.

3. Prices, Payment Terms, Electronic Invoicing

3.1 Our prices are based on the list price valid on the day of contract conclusion plus the statutory VAT and are understood to be ex-works, excluding packaging and transport costs. Additional costs will be charged based on proof.

3.2 If our list prices form the basis of the prices, we are entitled to increase prices if delivery is to occur more than four months after contract conclusion or for reasons attributable to the customer. We are also entitled to increase the price if our costs, especially material prices, wage rates, statutory and collectively agreed social benefits, and freight costs increase after contract conclusion, and delivery is to occur more than one month after contract conclusion or for reasons attributable to the customer.

3.3 We are entitled to send an electronic invoice (e.g., as a PDF document) by email.

3.4 Our claims are due immediately and payable within 15 days from the invoice date without deduction in EURO. Discounts are only granted based on a separate agreement. In case of default, we have the statutory rights.

3.5 If the customer is in default with a payment for more than two weeks, has suspended payments, or it becomes apparent after the contract is concluded that our claims are endangered due to the customer’s inability to perform, we may declare all claims from all contracts immediately due. For undelivered goods, we may set a reasonable deadline for advance payment or security; after the deadline expires without success, we may withdraw from the contract and claim damages.

3.6 We are entitled to credit the customer’s payments first to their older debts, regardless of the customer’s contrary instructions.

3.7 The customer is only entitled to offsetting or retention if their counterclaim is legally established, undisputed, or based on the same contractual relationship as our claim.

4. Delivery, Performance, Force Majeure, Transfer of Risk, Acceptance

4.1 Information about dates and deadlines for deliveries and services is non-binding unless a deadline or date has been explicitly agreed as binding.

4.2 Compliance with dates and deadlines always requires that all commercial and technical questions between the parties have been clarified and the customer has fulfilled all obligations, including making any agreed advance payment. Otherwise, dates and deadlines are extended accordingly. We are only in default after a written reminder following the due date.

4.3 In cases of force majeure, which significantly impede or temporarily render performance impossible for us, we may postpone the performance appropriately without being in default. Force majeure includes, for example, events such as natural disasters, strikes, government measures, or pandemics (e.g., at our location, our suppliers, or the customer’s location), which affect us unforeseeably either directly or indirectly. Performance disruptions caused by a pandemic are also considered force majeure if the pandemic is already known. If performance is delayed by more than three months, the parties will negotiate an appropriate adjustment or termination of the contract.

4.4 The customer ensures that all necessary cooperation and support required for deliveries and services are provided completely, accurately, on time, and according to the state of the art. If the customer culpably violates their cooperation obligations and this results in a delay in our delivery, we are entitled to claim damages, including any additional expenses. The customer is primarily liable to third parties for damages arising from a culpable breach of their cooperation obligations.

4.5 Contract fulfillment is subject to the condition that there are no obstacles due to German, US, or other applicable national, EU, or international foreign trade regulations, and no embargos or sanctions oppose it.

4.6 The customer is obliged to provide all information and documents required for export, transfer, or import.

4.7 We are entitled to make partial deliveries and partial performances if this appears advantageous for prompt processing and is reasonable for the customer.

4.8 Our deliveries within Germany are made EX WORKS – EXW from our warehouse at Zeppelinstraße 4, D-61118 Bad Vilbel (Incoterms 2020), and otherwise FREE CARRIER – FCA our warehouse at Zeppelinstraße 4, D-61118 Bad Vilbel (Incoterms 2020), unless otherwise agreed.

4.9 If the shipment of goods is agreed upon, the risk of accidental loss and accidental deterioration of the goods passes to the customer upon dispatch, at the latest upon leaving our factory or warehouse, even if we undertake delivery, have assumed shipping costs, or perform assembly or commissioning. The type, route, and packaging of shipment are chosen at our discretion unless the customer provides written instructions. Transport insurance is only taken out at the customer’s request and in their name. The customer must inspect the goods upon receipt for transport damage. Any transport damage must be reported immediately to the transport personnel, and a damage note must be countersigned on the consignment note, forwarding order, or delivery note. The customer must also inform us immediately with a damage report.

4.10 The customer must inspect the received goods immediately for defects. Obvious defects must be reported in writing without delay, at the latest within ten working days after delivery; non-obvious defects must be reported in writing within five days after discovery. For mutual commercial transactions among merchants, § 377 HGB remains unaffected.

4.11 If the shipment is delayed due to circumstances attributable to the customer, the risk passes to the customer from the day the goods are ready for dispatch. In this case, we are entitled to store the goods at the customer’s expense and risk at our discretion and demand payment of the agreed price. We may charge a flat rate of 1.0% of the invoice amount per month; we reserve the right to prove higher costs, and the customer may prove lower costs.

4.12 Transport and all other packaging under the Packaging Ordinance will not be taken back – except for pallets – and must be disposed of by the customer at their expense.

4.13 Our information on the delivery item (e.g., weights, dimensions, performance values, load capacity, tolerances, and technical data) and its representation (e.g., drawings and illustrations) are only approximately binding unless exact conformity is required for the contractual purpose. Customary deviations and deviations due to legal regulations or technical improvements, as well as the replacement of components with equivalent parts, are permissible as long as they do not impair the usability for the contractual purpose.

5. Usage Guidelines

The specified specifications can only be met if the goods are used by trained personnel and according to our guidelines; otherwise, property damage and personal injury may occur. This particularly applies to our specifications regarding filling materials, surface, temperature range, and other instructions we highlight separately.

6. Retention of Title, Security Rights

6.1 We retain ownership of our goods (“Reserved Goods”) until full payment of all – including future – claims from the entire business relationship, including all ancillary claims. In the case of an open account, the retained ownership serves as security for the balance claim.

6.2 The customer is entitled to sell goods subject to our retention of title in the ordinary course of business. The customer hereby assigns to us all claims arising from the resale, including all ancillary rights. We accept the assignment.

6.3 The retention of title extends to products resulting from processing, mixing, or combining our goods at their full value, whereby we are deemed the manufacturer. If third-party ownership rights remain after processing, mixing, or combining with third-party goods, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the Reserved Goods.

6.4 The customer may not pledge or transfer the Reserved Goods as security. The customer must notify us in writing of third-party access to the Reserved Goods, particularly seizures. The customer is obliged to immediately object to such access by referring to our rights.

6.5 In case of default in payment, we may withdraw from the contract and demand the immediate return of the goods in accordance with statutory provisions.

6.6 We undertake to release Reserved Goods and assigned claims to the extent that the realizable value of the collateral exceeds 110% of the secured claim. Release is effected through transfer of ownership or reassignment.

6.7 The costs of reclaiming and realizing the Reserved Goods are borne by the customer. The costs amount to a flat rate of 5% of the realization proceeds, including VAT, unless we prove higher costs, or the customer proves that no or lower costs were incurred.

7. Claims for Defects

7.1 The agreed quality is determined by our product description and order confirmation.

7.2 We are only obliged to deliver free of industrial property rights and copyrights of third parties (intellectual property rights) in Germany. Customer claims are excluded if the infringement of property rights is caused by specific requirements of the customer, by an application not foreseeable by us, or because the goods were modified or used together with products not supplied by us.

7.3 The customer must allow us – and third parties – to inspect complaints. If a complaint is unfounded and the customer could have recognized this, the customer is obliged to reimburse us for the costs incurred during the inspection.

7.4 In the event of defects, we will, at our discretion, remedy the defect or deliver a new item (subsequent performance). If the subsequent performance fails, is unreasonable, or refused, the customer may reduce the price or – in the case of not insignificant defects – withdraw from the contract and/or claim damages within the limits of Section 8.

7.5 Expenses related to subsequent performance arising from the fact that the sold goods have been taken to a place other than the agreed place of performance will only be borne by us if expressly agreed.

7.6 If the customer has incorporated the goods into another item or attached them to another item, we are not obliged to reimburse the customer for the necessary expenses for removing the defective goods and installing or attaching the remedied or defect-free goods as part of the subsequent performance. Other claims of the customer remain unaffected.

7.7 The customer cannot assign defect claims.

7.8 Recourse claims by the customer against us pursuant to § 478 BGB (entrepreneur’s recourse) and § 445a BGB (seller’s recourse) only exist if the customer has not made agreements with their buyer exceeding the statutory defect claims.

8. Liability for Damages and Reimbursement of Expenses

8.1 Our liability for damages and reimbursement of expenses due to slight negligence is excluded, particularly for breaches of obligations arising from the contractual relationship and from tort, unless we have breached a material contractual obligation, i.e., an obligation whose fulfillment is essential for the proper execution of the contract and on which the customer regularly relies. In this case, our liability is limited to the typical damage foreseeable at the time of contract conclusion, based on the circumstances known to us.

8.2 Typical, foreseeable damages are considered to be those up to the amount of the invoice value of the respective delivery.

8.3 The customer is obligated to expressly and in writing notify us of the risk of unusually high damage with each order; otherwise, we are not liable for such damage. Unusually high damage particularly arises if the customer has committed to a contractual penalty, lump-sum compensation, or other payment to their customers or third parties in the event of defects or delays, which is related to our performance to the customer.

8.4 Our liability for damages resulting from injury to life, body, or health, for intent and gross negligence, for the absence of a guaranteed quality, and under the Product Liability Act remains unlimited.

8.5 The above liability provisions apply equally in favor of our corporate bodies, legal representatives, employees, and other agents.

9. Limitation Period for Defect and Compensation Claims

The limitation period for the customer’s claims due to a defect is reduced to one year. The limitation period for the customer’s claims for damages and reimbursement of expenses that are not based on a defect in the goods is also one year. This does not affect liability for intentional or grossly negligent breaches of duty, nor liability for damages resulting from injury to life, body, or health, or liability under the Product Liability Act.

10. Intellectual Property Rights

We reserve ownership and copyright to illustrations, drawings, calculations, cost estimates, and other documents. These documents may only be made accessible to third parties with our prior consent.

11. Confidentiality

11.1 The customer is obliged to treat all commercial and technical information made known to them through business relations with us as a trade secret and to use it only for the purposes of cooperation with us, as long as and to the extent that this information is not generally known or becomes known. This applies particularly to information marked as “confidential,” “secret,” or similar. The information must be stored securely and protected from unauthorized access by third parties. This applies especially to the customer’s agents (including employees). These persons must be contractually obligated accordingly in writing; the obligations must be provided to us upon request.

11.2 Unless otherwise prohibited by copyright law or other legal regulations, the customer is not permitted to obtain a trade secret by observing, examining, dismantling, or testing products or items provided.

12. Applicable Law and Jurisdiction

12.1 German law applies to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).

12.2 If the customer is based in the European Union, Norway, Iceland, or Switzerland: If the customer is a merchant, a legal entity under public law, or a special fund under public law, the place of jurisdiction for all disputes arising from and in connection with the contractual relationship is our place of business or, at our discretion, the customer’s place of business.

12.3 If the customer is based outside the European Union, Norway, Iceland, or Switzerland: All disputes arising from and in connection with the contractual relationship shall be finally settled under the Arbitration Rules of the German Institution of Arbitration e.V. (DIS), excluding ordinary legal recourse. The number of arbitrators is determined in accordance with Section 10.2 of the DIS Arbitration Rules (2018). The place of arbitration is our place of business. The language of the proceedings is German.

12.4 Should any provision of these conditions be invalid or become invalid, the validity of the remaining provisions shall not be affected.

12.5 In the event of discrepancies or inconsistencies between the German and English versions, the German version shall prevail.

Important Information on Using Our Products

The following guidelines must be strictly observed when using our products:

Filling materials: Only sand or water may be used as filling material. Other filling materials, especially oils, must not be used.

Surface: The surface must be level and clean.

Temperature range: -10°C to +40°C. It is essential to ensure that the products are only used within this temperature range. If filled with water, note that the water may freeze inside the base.

Personnel: We strongly recommend that only appropriately trained personnel assemble the products.

Failure to observe the specified guidelines may result in the products not meeting the specified requirements. Property damage and personal injury may occur. The customer acts at their own risk!