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Terms & Conditions (USA)
I. Scope of Application
I.1. All of our deliveries and services are provided exclusively on the basis of these General Terms and Conditions of Sale and Delivery (hereinafter “Terms of Sale”). They form an integral part of all contracts we enter into with our customers regarding the deliveries or services we offer. They apply in their current version to all future deliveries or services as well, even if we do not specifically refer to their inclusion in individual cases. By placing an order or accepting our deliveries and services, the customer acknowledges the validity of these Terms of Sale.
I.2. Any deviating or or conflicting or supplementary terms and conditions of the customer or third parties shall apply only if we have expressly agreed to their validity in writing. This applies even if we refer to a letter to which the customer’s terms and conditions are attached or which refers to them.
I.3. Additions and amendments to these Terms and Conditions of Sale must be in writing to be effective. This requirement may only be waived in writing. To satisfy the written form requirement, transmission via telecommunications—in particular by fax or email—is sufficient, provided that a copy of the signed statement is transmitted.
II. Offer and Conclusion of Contract
II.1. All of our offers are subject to change and non-binding, unless otherwise stated in the respective offer. Orders placed by the customer are considered a binding offer to enter into a contract and may be accepted by us within three (3) weeks of receipt. A contract is concluded only upon our written order confirmation and is governed exclusively by the content of the order confirmation and these Terms of Delivery. To satisfy the written form requirement, transmission of the order confirmation via email or fax is sufficient.
II.2. In the event of any discrepancies between the order confirmation and these Terms of Delivery, the provisions of the order confirmation shall prevail.
II.3. Our specifications regarding the goods to be delivered (e.g., weights, dimensions, performance characteristics, load-bearing capacity, tolerances, and technical data), as well as our representations thereof (e.g., drawings and illustrations), are only approximate unless suitability for the contractually intended purpose requires exact conformity. They do not constitute guaranteed characteristics of the goods, but rather descriptions or identifications of the goods to be delivered. Deviations customary in the trade and deviations resulting from legal requirements or constituting technical improvements, as well as the replacement of components with equivalent parts, are permissible provided they do not impair the suitability of the goods for the contractually intended purpose.
II.4. We reserve ownership and/or copyright in all offers and cost estimates submitted by us, as well as in drawings, illustrations, calculations, brochures, catalogs, models, tools, and other documents and aids made available to the customer. The customer may neither make these items available to third parties nor use or reproduce them for purposes other than purchasing goods from us without our express consent. Upon our request, the customer must return these items and any copies made in their entirety to us or destroy them. This applies even if the customer no longer requires the items in the ordinary course of business or if negotiations do not result in the conclusion of a contract.
III. Prices and Terms of Payment, Set-off
III.1. The prices apply to the scope of delivery and services listed in the order confirmations. Additional or special services will be billed separately. Prices are quoted in euros ex works (“EXW Richter German Warehouse” in accordance with Incoterms 2010), excluding packaging, statutory value-added tax, and any fees and other public charges; for export deliveries, customs duties are added.
III.2. If delivery or performance does not take place until more than four (4) months after the conclusion of the contract, and if, after the conclusion of the contract, unforeseeable cost increases with respect to our deliveries and services—for which we are not responsible—have occurred, we are entitled, at our reasonable discretion, to pass on the higher costs by proportionally increasing the agreed-upon price.
III.3. Invoice amounts are payable within thirty (30) days without deduction, unless otherwise agreed in writing. The date of payment shall be determined by the date of receipt by us. Checks are accepted only on account of performance. If the customer fails to pay when due, the customer shall be in default without the need for a prior reminder. In this case, we are entitled to charge interest on arrears at the statutory rate.
The right to claim further damages resulting from default remains unaffected.
III.4. Set-off against the customer’s counterclaims is permitted only to the extent that such counterclaims have been acknowledged by us, are undisputed, have been legally established, or are ready for a decision. The customer is entitled to exercise a right of retention only if the customer’s counterclaim is based on the same contractual relationship and has been acknowledged by us, is undisputed, or has been legally established. In the event of defects, the customer’s counterclaims remain unaffected.
III.5. If, after the conclusion of the contract, we become aware of a significant deterioration in the customer’s financial circumstances (e.g., because the customer falls into default), we are entitled to provide any outstanding deliveries or services only against advance payment or security; if these are not provided even after the expiration of a reasonable grace period, we may, without prejudice to further rights, withdraw from the contract in whole or in part. In the case of contracts for the manufacture of non- replaceable items (custom-made products), we may declare our withdrawal immediately.
IV. Delivery and Delivery Time
IV.1. Deliveries are made ex works (“EXW German Warehouse Richter” in accordance with Incoterms 2020). All obligations to deliver goods and provide services are subject to correct and timely supply to us, unless we are responsible for the incorrect or delayed supply.
IV.2. Any delivery periods and dates we have indicated for deliveries and services are always approximate, unless we have agreed otherwise. If shipment has been agreed upon, delivery periods and dates refer to the time of handover to the freight forwarder, carrier, or any other third party commissioned with the transport.
IV.3. We may—without prejudice to our other rights—require the customer to extend delivery and performance periods or postpone delivery and performance dates by the period during which the customer fails to fulfill its contractual obligations to us.
IV.4. We shall not be liable for the impossibility or delay of delivery or performance to the extent that such impossibility or delay is caused by force majeure or other events unforeseeable at the time the contract was concluded (e.g., operational disruptions of any kind, difficulties in procuring materials or energy, transportation delays, strikes, lawful lockouts, shortages of labor, energy, or raw materials, difficulties in obtaining necessary official permits, or official measures) that are beyond our control. If such events significantly impede or render delivery or performance impossible and the impediment is not merely temporary, we are entitled to withdraw from the contract. In the event of temporary impediments, the delivery or performance periods shall be extended, or the delivery or performance dates shall be postponed, by the duration of the impediment plus a reasonable ramp-up period. To the extent that the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the customer may withdraw from the contract by immediately notifying us in writing.
IV.5. We are entitled to make partial deliveries or provide partial services, provided that these are reasonable for the customer.
V. Place of Performance, Shipping, Packaging, Transfer of Risk, Acceptance
V.1. The place of performance for all obligations arising from the contractual relationship is our corporate headquarters in 47906 Kempen, unless otherwise specified. If we are also responsible for installation, the place of performance is the location where the installation is to take place.
V.2. If we arrange for the shipment of the goods at the customer’s request, shipment shall be at the customer’s expense and risk. Unless the customer provides us with instructions regarding the method of shipment and packaging, shipment and packaging shall be carried out at our reasonable discretion.
V.3. The risk of accidental loss or accidental deterioration passes to the customer no later than upon handover of the goods (with the start of the loading process being decisive) to the freight forwarder, carrier, or any other third party designated to carry out the shipment. This applies even if partial deliveries are made or if we have undertaken other services (e.g., shipping or installation).
If shipment or handover is delayed due to circumstances beyond our control, or if the customer notifies us in advance of delivery that they will not accept the goods, the risk passes to the customer on the day we notify them that the shipment is ready for delivery.
V.4. To the extent that an acceptance procedure has been agreed upon, it shall determine the transfer of risk. In all other respects, the statutory provisions of the law governing contracts for work and services shall apply mutatis mutandis to an agreed acceptance procedure.
V.5. Storage costs after the transfer of risk shall be borne by the customer. If we store the goods, the storage costs amount to 0.25% of the invoice amount for the goods to be stored per week elapsed. We reserve the right to claim and provide evidence of higher or lower storage costs.
5.6. We will insure the shipment against theft, breakage, transport damage, fire, water damage, or other insurable risks only at the customer’s express request and at the customer’s expense.
VI. Liability for Defects
VI.1. The delivered goods must be carefully inspected immediately upon delivery to the customer or to a third party designated by the customer. The goods shall be deemed accepted by the customer with respect to obvious defects or other defects that would have been detectable during an immediate, careful inspection, unless we receive a written notice of defects within seven (7) business days of delivery. With regard to other defects, the delivered goods shall be deemed accepted by the customer unless we receive a written notice of defects within seven (7) business days after the defect became apparent.
VI.2.We warrant that the delivered goods possess the agreed-upon quality. The agreed-upon quality is determined exclusively by the specific written agreements between us and the customer or by our confirmations regarding the properties, features, and performance characteristics. We assume no liability for public statements made by third parties that have not been authorized by us. The statutory provisions regarding the burden of proof and presentation of evidence in the event of defects remain unaffected. Descriptive or explanatory information regarding the goods or their intended use, as well as public statements, are not to be construed as a guarantee of a particular quality of the goods. A written agreement or a written confirmation from us is decisive for the content of such quality guarantees.
VI.3. In the event of defects in the delivered goods, we are initially obligated and entitled, at our discretion to be exercised within a reasonable period, to repair the goods or provide a replacement (hereinafter “subsequent performance”). Subsequent performance does not include the removal of the defective goods or their reinstallation, unless we were originally obligated to perform the installation. At our request, the customer shall send us goods affected by defects covered by the warranty and grant us the time and opportunity necessary for subsequent performance. We shall bear the costs of materials, transportation, labor, and, if applicable, installation and removal incurred for the purpose of subsequent performance to the extent provided by law, provided that the defects are validly claimed. If a customer’s notice of defect proves to be unjustified and the customer was aware of this or failed to recognize it through negligence, the customer shall be obligated to reimburse us for the expenses incurred as a result. In the event of failure—i.e., impossibility, unreasonableness, refusal, or unreasonable delay in remedying the defect—the customer may rescind the contract with respect to the defective portion of the delivery or reduce the price appropriately. The customer’s claims for damages or reimbursement of futile expenses, even in the case of defects, shall be governed solely by Section VII and are otherwise excluded.
VI.4. Only in urgent cases, to prevent disproportionately great damage, or if we are in default regarding the rectification of the defect, does the customer have the right, after immediately notifying us, to rectify the defect themselves or have it rectified by a third party and to demand reimbursement of the necessary costs from us. We must be notified of such rectification by the customer immediately, if possible in advance. The right to remedy the defect oneself does not apply if we would be entitled to refuse corresponding subsequent performance in accordance with statutory provisions. We assume no liability for damage resulting from unsuitable or improper use, incorrect handling, or natural wear and tear, provided that we are not responsible for such damage.
VI.5. The warranty shall be void if the customer modifies the delivered goods or has them modified by third parties without our consent, and this renders the rectification of defects impossible or unreasonably difficult. In any case, the customer shall bear the additional costs incurred for rectifying the defects as a result of the modification.
VI.6. The statute of limitations for claims under warranty is one (1) year from the transfer of risk. This also applies to goods used in single-shift industrial operations. To the extent that the law mandatorily prescribes a longer statute of limitations (Section 445b of the German Civil Code (BGB)), as well as for claims for damages arising from injury to life, limb, or health, and with regard to the customer’s rights in cases of fraudulently concealed defects or damages caused intentionally or through gross negligence, the statutory limitation periods shall apply.
VII. Liability and Damages
VII.1. Our liability for damages, regardless of the legal basis—in particular arising from impossibility, delay, defective or incorrect delivery, breach of contract, breach of duties during contract negotiations, and tort, is limited in accordance with this Section VII, to the extent that fault is a determining factor in each case.
VII.2. We shall not be liable in the event of simple negligence on the part of our officers, legal representatives, employees, or other agents, provided that such negligence does not constitute a breach of essential contractual obligations. Essential to the contract are the obligation to deliver and install the goods on time, their freedom from defects that impair their functionality or fitness for use more than insignificantly, as well as duties of advice, protection, and care intended to enable the customer to use the goods in accordance with the contract or to protect the life or limb of the customer’s personnel or to protect the customer’s property from significant damage.
VII.3. To the extent that we are liable for damages in principle pursuant to Section VII.2, this liability is limited to foreseeable damages typical for this type of contract, i.e., to damages that we foresaw as a possible consequence of a breach of contract at the time the contract was concluded, or that we should have foreseen had we exercised the care customary in the trade, and which are typically to be expected when the goods are used for their intended purpose.
VII.4. The foregoing exclusions and limitations of liability apply to the same extent in favor of our officers, legal representatives, employees, and other agents.
VII.5. To the extent that we provide technical information or act in an advisory capacity, and such information or advice is not part of the contractually agreed scope of services we are obligated to provide, this is done free of charge and without any liability.
VII.6. The customer is obligated to take reasonable measures to prevent and minimize damage.
VIII. Retention of Title
VIII.1. The goods delivered by us to the customer remain our property until full payment of all existing, current, and future claims against the customer arising from the business relationship between us and the customer (hereinafter the “goods subject to retention of title”). In the case of multiple claims or an open account, the retention of title applies to secure the respective balance claims to which we are entitled.
VIII.2. The customer shall hold the goods subject to retention of title in safekeeping for us free of charge. The customer is obligated to handle the goods subject to retention of title with care for the duration of the retention of title. The customer must insure the goods subject to retention of title at its own expense at replacement value, provide us with the corresponding proof of insurance, and assign the insurance claims to us.
VIII.3. If the goods subject to retention of title are processed by the customer, it is agreed that the processing shall be carried out in our name and for our account as the manufacturer, and we shall immediately acquire ownership or—if the processing involves materials from multiple owners or the value of the processed item exceeds the value of the goods subject to retention of title —co-ownership (fractional ownership) of the newly created item in the ratio of the value of the goods subject to retention of title to the value of the newly created item. In the event that we do not acquire such ownership, the customer hereby assigns to us, as security, its future ownership or—in the aforementioned ratio—co-ownership of the newly created item. If the goods subject to retention of title are combined with other items to form a single item or are inseparably mixed with them, we shall acquire co-ownership of the new item in the ratio of the value of the goods subject to retention of title to the value of the other items at the time of mixing or combination. If the mixing or combination is carried out in such a way that the customer’s item is to be regarded as the principal item, it is hereby agreed that the customer shall transfer proportional co-ownership to us. The customer shall hold the resulting co-ownership in safekeeping for us free of charge.
VIII.4. The customer is entitled to process and sell the goods subject to retention of title in the ordinary course of business until the event triggering realization occurs (Section VIII.8). Pledging, transfer by way of security, or other dispositions that jeopardize our ownership are prohibited. In the event of the resale of the goods subject to retention of title, the customer hereby assigns to us, by way of security, the resulting claim against the purchaser. We accept this assignment. The same applies to other claims that take the place of the goods subject to retention of title or otherwise arise in connection with the goods subject to retention of title, such as insurance claims or claims arising from tort in the event of loss or destruction. If the customer sells the goods subject to retention of title after processing or after combining, mixing, or blending them with other goods, or together with other goods, the assignment of claims shall be deemed agreed only to the extent of the portion corresponding to the purchase price agreed between us and the customer, plus a safety margin of 10% of that price. We revocably authorize the customer to collect the claims assigned to us in its own name. We may revoke this authorization to collect as well as the right to resell in the event of realization (Section VIII.8).
VIII.5. The customer must provide us at any time with all requested information regarding the goods subject to retention of title or our claims that have been assigned to us hereunder.
8.6. If third parties seize the goods subject to retention of title—in particular through attachment—the customer shall immediately notify them of our ownership and inform us thereof to enable us to enforce our ownership rights. If the third party is unable to reimburse us for the judicial or extrajudicial costs incurred in this connection, the customer shall be liable to us for these costs to the extent that enforcement was successful and we have unsuccessfully attempted to collect the costs from the third party.
VIII.7. The customer is entitled to demand release of the goods to the extent that the goods subject to retention of title, as well as any items or claims substituted for them, exceed the amount of the secured claims by more than 10%. The selection of the items to be released thereafter is at our discretion.
VIII.8. If we withdraw from the contract due to the customer’s breach of contract—in particular, default in payment, if enforcement measures are taken against the customer, or if insolvency proceedings are opened against the customer’s assets or their opening is rejected due to lack of assets— (event of realization), we are entitled to demand the return of the goods subject to retention of title or to collect the secured claims ourselves.
IX. Final Provisions
IX.1. Subject to any other exclusive jurisdiction, the exclusive place of jurisdiction for the resolution of all disputes arising from or in connection with the business relationship is Krefeld, Germany. However, we are entitled to sue the customer in any other court of competent jurisdiction.
IX.2. The legal relationships between us and the customer are governed exclusively by the laws of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG) does not apply.
IX.3. Should one or more provisions of these Terms and Conditions of Delivery be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The provision that is wholly or partially invalid shall be replaced by a legally valid provision that most closely approximates the economic purpose of the invalid provision. The same applies in the event of a gap in the provisions.
IX.4. The customer is not entitled to assign claims arising from contracts with us to third parties. Section 354a of the German Commercial Code (HGB) remains unaffected.