General Terms and Conditions of Sale, Delivery and Payment

Unless expressly agreed otherwise, the following “General Terms and Conditions of Delivery and Payment” (“ALZ”) apply to all current and future business relationships (in particular to contracts, deliveries, and other services, including any consulting services provided in this context that are not the subject of a separate consulting agreement) between GLA-WEL GmbH (hereinafter referred to as the “Seller”) and its customers (hereinafter referred to as the “Buyer”). They do not apply if the Buyer is a consumer within the meaning of Section 13 of the German Civil Code (BGB).

These General Terms and Conditions of Sale and Delivery apply exclusively. General terms and conditions of the Buyer shall under no circumstances become part of the contract. This applies even if the Seller is aware of them or does not expressly object to their application again, unless their application is expressly agreed to in writing. These ALZ shall apply in place of any general terms and conditions of the Buyer (e.g. conditions of purchase) even if the latter stipulate that order acceptance constitutes unconditional acceptance of the Buyer’s general terms and conditions.

In the context of an ongoing business relationship between merchants, the ALZ shall form part of the contract even if the Seller has not expressly referred to their inclusion in individual cases.

The offers contained in the Seller’s catalogues and sales documents, as well as those on the internet – unless expressly designated as binding – are always non-binding, i.e., they are to be understood merely as an invitation to submit an offer, unless they are expressly marked as binding or contain a specific acceptance period. Drawings, illustrations, dimensions, weights, and other performance data are only binding if expressly agreed upon in writing.

The contract is concluded upon the Seller’s order confirmation. This confirmation shall govern the entire content of the contract. The order confirmation by the Seller is generally issued electronically. Furthermore, the order confirmation may be issued by the Seller in text form or in writing. In addition, orders shall be deemed accepted if they are executed without undue delay upon receipt of the order. In such cases, the invoice shall serve as the order confirmation.

The ordering of the goods by the Buyer is deemed a binding contractual offer. Unless otherwise stated in the order, the Seller is entitled to accept this contractual offer within 4 weeks of its receipt.

Unless otherwise specified in the order confirmation, delivery ‘ex warehouse’ is agreed. This also applies to partial deliveries and partial services provided by the Seller, insofar as the Seller is entitled to make partial deliveries and provide partial services. The risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer no later than upon handover. If acceptance has been agreed, this shall be decisive for the passing of risk.

The costs for transport – unless the Seller has assumed these in accordance with the order confirmation –, packaging and dispatch as well as for payment transactions, customs duties, etc., shall be invoiced separately to the Buyer, unless otherwise agreed.

The delivery time is specified in the Seller’s written order confirmation. Compliance with the delivery time presupposes that the Buyer fulfils their contractual obligations and duties in accordance with the agreement. If this is not the case, the delivery time shall be extended by a reasonable period, unless the Seller is responsible for the delay. Binding delivery dates or deadlines require written confirmation by the Seller to be valid. Compliance with the delivery time is subject to correct and timely delivery to the Seller from their own suppliers, provided the Seller has not caused the incorrect or delayed delivery to themselves intentionally or through gross negligence. The Seller shall inform the Buyer without undue delay of the non-availability of the goods. Any consideration already provided shall be refunded, unless the Buyer declares that they agree to delivery after the expiry of the delivery time. This paragraph applies mutatis mutandis to parts to be provided by the Buyer, provided these are specified in the order confirmation.

Partial deliveries are permissible to a reasonable extent.

The delivery period shall be postponed or reasonably extended in the event of force majeure and all unforeseen obstacles occurring after the conclusion of the contract for which the Seller is not responsible (in particular including operational disruptions, strikes, lockouts, or disruptions to transport routes). This also applies if these circumstances affect the Seller’s suppliers or their sub-suppliers. The Seller shall not be liable for any damages arising therefrom on any legal grounds. The Seller shall notify the Buyer of the commencement and end of such obstacles without undue delay. If the hindrance lasts longer than 3 months, the Buyer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the unfulfilled part. Claims for damages are excluded in this case.

Otherwise, the Buyer shall only be entitled to rights and claims due to default if the Seller is responsible for the default. If the Buyer suffers damage as a result of a delay in delivery for which the Seller is responsible, the statutory provisions shall apply. If the Seller is consequently liable to pay damages, this shall amount to 0.5% for each full week of delay, but in total to a maximum of 5% of the value of that part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay. Further claims for damages are excluded. With regard to timely delivery, the Seller is only liable for their own fault and that of their vicarious agents. They are not responsible for the fault of their upstream suppliers. However, the Seller is obliged, upon request, to assign to the Buyer any claims they may have against their upstream suppliers.

In the event of a delay in delivery, the Buyer is obliged, at the Seller’s request, to declare within a reasonable period whether they still insist on delivery or whether they are withdrawing from the contract due to the delay and/or demanding damages in lieu of performance.

Prices apply ex works, excluding transport and any customs duties, in Euros, unless otherwise specified in the order confirmation. Quoted prices are exclusive of any applicable value added tax (VAT) at the respective statutory rate. Regarding other ancillary performance costs, reference is made to the provisions of Section 3.2. The Seller reserves the right to adjust prices accordingly if cost increases (in particular due to collective wage agreements or changes in material prices) occur after the conclusion of the contract.

Payment by bill of exchange is only permitted by special agreement; the Seller is under no obligation to accept such payments. Bills of exchange and cheques are only ever accepted on account of performance and not in lieu of performance. In the event of a cheque or bill of exchange protest, the Seller may demand immediate cash payment concurrently against the return of the cheque or bill of exchange.

Unless otherwise specified in the order confirmation, the invoiced amount is due for payment within 10 days of invoicing and delivery or acceptance of the goods. Upon expiry of the aforementioned payment period, the Buyer shall be in default. The consequences of any default in payment by the Buyer shall be governed by statutory provisions. The right to claim further damages for default remains unaffected. Any agreed cash discounts shall not be granted if the Buyer is in default with the payment of previous deliveries.

If the Buyer falls into arrears following a reminder (Section 286 (1) BGB) or fails to honour a bill of exchange when due, the Seller is entitled to take back the goods, to enter the Buyer’s premises if necessary, and to remove the goods. The Seller may also prohibit the removal of the delivered goods.

A refusal of or retention of payment is excluded if the Buyer was aware of the defect or other reason for complaint at the time the contract was concluded. This also applies if it remained unknown to the Buyer due to gross negligence, unless the Seller fraudulently concealed the defect or other reason for complaint or assumed a guarantee for the quality of the item. Otherwise, payment may only be retained to a reasonable extent on account of defects or other complaints.

A set-off is only possible with counterclaims that have been acknowledged by the Seller, are undisputed, or have been legally established. The Buyer may only exercise a right of retention if their counterclaim is based on the same contractual relationship.

If, after conclusion of the contract, the Seller becomes aware of facts, in particular payment arrears in respect of previous deliveries, which, according to due commercial discretion, suggest that the claim for the purchase price is jeopardised by the Buyer’s lack of ability to perform, the Seller is entitled, after setting a reasonable grace period, to demand from the Buyer, at the Buyer’s discretion, payment concurrently with delivery or appropriate security, and, in the event of refusal, to withdraw from the contract, whereby the invoices for partial deliveries already made shall become immediately due for payment.

The Seller retains ownership and copyright of drawings, sketches, and other operational documents. These documents may only be reproduced, utilised, or made accessible to third parties with the Seller’s written consent. The documents must be returned upon request. The Seller assures that the documents provided by them are not encumbered by the industrial property rights of third parties in the Federal Republic of Germany and indemnifies the Buyer against potential claims by third parties in this respect. However, a prerequisite for this is that the Buyer informs the Seller without undue delay of any claims arising from intellectual property rights asserted against them by third parties, and acts in agreement with the Seller in handling these claims and pursuing their rights. If any of these prerequisites are not met, the Seller shall be released from their statutory obligations or obligations assumed under these terms and conditions. The Seller reserves the right to make design changes at any time. However, they are under no obligation to carry out such changes on products that have already been delivered.

If the Buyer makes modifications to the goods, or mixes the goods with other substances, and this results in the infringement of third-party intellectual property rights, the Seller’s liability shall be excluded.

If an infringement of intellectual property rights occurs for which the Seller is liable under these terms and conditions, and if the Buyer is consequently legally prohibited from using the goods in whole or in part, the Seller shall, at their own expense and at their discretion: a) procure for the Buyer the right to use the goods, or b) modify the goods so that they do not infringe any rights, or c) replace the goods with another item that does not infringe any intellectual property rights, or d) take back the goods against reimbursement of the consideration paid by the Buyer.

The Buyer shall not be entitled to any further or other claims due to the infringement of third-party intellectual property rights. In particular, the Seller shall not compensate for consequential damages such as loss of production, loss of use, or loss of profit. These limitations of liability do not apply in cases of intent or gross negligence, the breach of fundamental contractual obligations, or the absence of guaranteed characteristics, where the Seller is subject to mandatory liability for foreseeable damages typical for this type of contract.

The installation, commissioning, and assembly of machines and equipment are only carried out upon instruction by the Buyer. For any kind of installation, assembly, and commissioning by the Seller, the preceding and following conditions shall apply, unless differing written agreements are made in individual cases.

The Buyer shall, at their own expense, assume and provide in good time prior to the commencement of the Seller’s work:

• necessary auxiliary personnel such as skilled workers and assistants, along with the tools they require, in the necessary numbers;
• the commodities and materials required for assembly and commissioning, as well as scaffolding, lifting equipment, ladders, welding equipment, and all other necessary devices;
• operating power in the required form (in particular electricity, gas, oil, petrol) for the installation, commissioning, and/or assembly, including the necessary connections to the point of use, heating, and general lighting;
• sufficiently large, suitable, dry, and lockable rooms at the assembly site for the storage of machine parts, apparatus, materials, tools, etc., and appropriate working and heated recreation rooms for the assembly personnel, including sanitary facilities appropriate to the circumstances;
• protective clothing and protective equipment which are required for the assembly site due to special circumstances and which are not customary in the Buyer’s industry.

If installation, assembly, or commissioning is delayed by circumstances at the site without any fault on the part of the Seller, the Buyer shall bear all costs for waiting times and any necessary additional travel expenses for the Seller’s assembly personnel.

The Buyer is obliged to accept the assembly as soon as they have been notified of its conclusion and completion. During acceptance, an inspection of the system shall take place. If acceptance is delayed without any fault on the part of the Buyer’s side, acceptance shall be deemed to have taken place upon the conclusion or completion of the assembly. Upon successful acceptance of the assembly work, the risk of performance passes to the Buyer.

The Seller is only liable for the proper installation, commissioning, or assembly of the delivery item; no liability is assumed for the Buyer’s auxiliary personnel in connection with the installation, commissioning, or assembly.

The Buyer must inspect the received goods without undue delay for quantity and quality. Notifications of defects must be made in writing, stating the nature and extent of the deviation from the agreed or customary quality or suitability for use. The customer’s rights concerning defects are subject to the prerequisite that they have properly fulfilled their obligations to inspect and give notice of defects in accordance with Section 377 of the German Commercial Code (HGB).

If the Buyer discovers defects in the goods, they may not dispose of them, i.e., they may not be divided, resold, or further processed until an agreement has been reached on the handling of the complaint.

In the event of justified complaints, the Buyer may demand supplementary performance in accordance with statutory provisions. The Seller is entitled to determine the type of supplementary performance (replacement delivery, rectification of defects) taking into account the nature of the defect and the legitimate interests of the Buyer. If supplementary performance ultimately fails, the Buyer may, at their discretion, demand a reduction of the remuneration (price reduction) or cancellation of the contract (withdrawal) in accordance with statutory provisions. In the case of damages caused by simple negligence, the Seller is only liable for the breach of a fundamental contractual obligation. Fundamental contractual obligations are those whose fulfilment characterises the contract and on which the Buyer may rely.

The Buyer must inform the Seller without undue delay of any warranty case occurring with a consumer.

Claims for defects shall become time-barred 12 months after the passing of risk. This does not apply insofar as the law prescribes longer periods pursuant to Section 438 (1) No. 2 (buildings and items used for buildings), Sections 445b, 478 (right of recourse), and Section 634a (1) No. 2 (construction defects) of the German Civil Code (BGB). Claims for damages based on intent, gross negligence, culpable injury to life, body or health, and claims arising from product liability or guarantees shall also remain unaffected. Supplementary performance measures do not lead to an extension of the period specified in sentence 1 and do not constitute an acknowledgement that triggers a new limitation period.

The aforementioned limitation periods also apply to claims for damages by the Buyer based on a defect in the goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases.

For claims for damages or reimbursement of futile expenses, Section 9 (General Limitation of Liability) shall also apply in the case of defects. Otherwise, they are excluded.

Any liability for damages beyond that provided for in Sections 4, 6 and 8, regardless of the legal grounds, is excluded. Further claims by the Buyer for damages and reimbursement of expenses (hereinafter: claims for damages), regardless of the legal grounds, in particular due to a breach of obligations arising from a contractual relationship and from tort, are therefore excluded. This does not apply in cases involving the assumption of a guarantee or a procurement risk. Furthermore, this does not apply insofar as liability is mandatory, e.g. under the German Product Liability Act (Produkthaftungsgesetz), in cases of gross negligence or intent, due to injury to life, body or health, as well as the breach of fundamental contractual obligations. However, the claim for damages for the breach of fundamental contractual obligations is limited to the foreseeable damage typical for this type of contract, unless there is gross negligence or intent, or liability arises from injury to life, body or health. This does not entail a change in the burden of proof to the detriment of the Buyer.

The Seller retains title to the goods until the purchase price has been paid in full. In the case of goods purchased by the Buyer from the Seller within the scope of an ongoing business relationship, the Seller retains title until all their claims against the Buyer arising from the business relationship, including future claims, even those arising from contracts concluded simultaneously or subsequently, have been settled. This shall also apply if individual or all claims of the Seller have been included in a current account and the balance has been struck and acknowledged. If a liability of the Seller on a bill of exchange is established in connection with the payment of the purchase price by the Buyer, the retention of title shall not expire before the bill of exchange is honoured by the Buyer as the drawee. In the event of default in payment by the Buyer, the Seller is entitled to take back the goods subject to retention of title (reserved goods) after setting a reasonable grace period, and the Buyer is obliged to surrender them. The Buyer shall bear the transport costs incurred for taking back the goods. If the Seller takes back the reserved goods, this shall constitute a withdrawal from the contract. It shall also constitute a withdrawal from the contract if the Seller attaches (seizes) the reserved goods. The Seller may realise (dispose of) reserved goods that they have taken back. The proceeds from the realisation shall be set off against the amounts owed by the Buyer to the Seller, after the Seller has deducted a reasonable amount for the costs of realisation.

If the reserved goods are processed by the Buyer into a new movable item, the processing is carried out on behalf of the Seller, without the Seller being obliged thereby; the new item shall become the property of the Seller. If processed together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods compared to the other goods at the time of processing. If the reserved goods are combined, mixed, or blended with goods not belonging to the Seller in accordance with Sections 947, 948 of the German Civil Code (BGB), the Seller shall become a co-owner in accordance with the statutory provisions. If the Buyer acquires sole ownership through combining, mixing, or blending, they hereby transfer co-ownership to the Seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing, or blending. In these cases, the Buyer must store the item owned or co-owned by the Seller, which is also deemed to be reserved goods within the meaning of the preceding condition, free of charge.

If reserved goods are sold alone or together with goods not belonging to the Seller, the Buyer hereby assigns the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and priority over the rest; the Seller accepts the assignment. The value of the reserved goods is the Seller’s invoice amount, which, however, shall not be taken into account insofar as it conflicts with the rights of third parties. If the resold reserved goods are co-owned by the Seller, the assignment of the claims shall extend to the amount corresponding to the Seller’s proportionate value in the co-ownership.

If reserved goods are installed by the Buyer as an integral part into a property, ship, ship structure, or aircraft of a third party, the Buyer hereby assigns the assignable claims for remuneration arising against the third party or the party concerned in the amount of the value of the reserved goods with all ancillary rights, including the right to the granting of a security mortgage, with priority over the rest; the Seller accepts the assignment. Number 9.3, sentences 2 and 3 shall apply accordingly.

If reserved goods are installed by the Buyer as an integral part into a property, ship, ship structure, or aircraft of the Buyer, the Buyer hereby assigns the claims arising from a sale of the property, property rights, ship, ship structure, or aircraft in the amount of the value of the reserved goods with all ancillary rights and with priority over the rest; the Seller accepts the assignment. Number 9.3, sentences 2 and 3 shall apply accordingly.

The Buyer is only entitled and authorised to resell, use, or install the reserved goods in the customary, ordinary course of business and only on the condition that the claims within the meaning of numbers 10.3 to 10.5 are actually transferred to the Seller. The Buyer is not entitled to make other dispositions regarding the reserved goods, in particular pledging or transferring ownership by way of security. The Buyer may not sell or use the goods if they are in default of payment.

The Seller authorises the Buyer, subject to revocation, to collect the claims assigned in accordance with numbers 10.3 to 10.5. The Seller’s right to collect these claims themselves remains unaffected by this. The Seller shall not exercise their own collection authority as long as the Buyer meets their payment obligations, including those to third parties. Otherwise, upon the Seller’s request, the Buyer must name the debtors of the assigned claims and notify them of the assignment; the Seller is authorised to notify the debtors of the assignment themselves.

The Buyer must notify the Seller without undue delay of any compulsory execution measures (enforcement measures) by third parties against the reserved goods or the assigned claims, handing over the documents necessary for an objection, and must point out the Seller’s ownership so that the Seller can enforce their ownership rights. If the third party does not reimburse the judicial or extrajudicial costs incurred by the Seller in this connection, the Buyer shall be liable for them.

Upon cessation of payments and/or an application to open insolvency proceedings, the right to resell, use, or install the reserved goods or the authorisation to collect the assigned claims shall expire; in the event of a cheque or bill of exchange protest, the collection authorisation shall also expire. This does not apply to the rights of the insolvency administrator.

10.10 If the value of the security interests granted exceeds the claims (if applicable, reduced by down payments and partial payments) by more than 10%, the Seller is obliged, to this extent, to retransfer or release them at their discretion. Upon settlement of all the Seller’s claims arising from the business relationship, title to the reserved goods and the assigned claims shall pass to the Buyer.

For deliveries outside the Federal Republic of Germany which the Seller makes at the behest of the Buyer, if the aforementioned rights in rem of security cannot be validly agreed, the right in rem of security that comes closest to the aforementioned security rights and is permissible and possible under the respective legal system shall be deemed agreed for all outstanding claims arising from the business relationship between the Buyer and the Seller.

The place of performance and place of jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes arising between the parties is Melle, provided the Buyer is a merchant, a legal entity under public law, or a special fund under public law. However, the Seller is also entitled to sue the Buyer at their registered office. If assembly has been agreed, the place of performance for this shall be the place of assembly.

The relationship between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).