General Terms and Conditions 

I. General provisions

These General Terms and Conditions apply exclusively to entrepreneurs. The contractual partner (hereinafter "Buyer") confirms with his order that he is an entrepreneur and is not purchasing the goods for private use.

The entire business relationship, including future business relationships, between J.J. Darboven GmbH & Co. KG (hereinafter "Darboven") and the Buyer shall be governed exclusively by these General Terms and Conditions. The purchaser's general terms and conditions shall only apply insofar as Darboven has expressly agreed to them in writing. Darboven shall be entitled to amend its general terms and conditions with effect for the entire future business relationship with the purchaser following a corresponding written notification. The amendment shall be deemed to have been approved if the purchaser has not sent its written objection within six weeks of notification of the amendment. Darboven shall specifically draw the purchaser's attention to this consequence when announcing the change.

If a framework agreement exists between Darboven and the purchaser, these General Terms and Conditions shall apply to this framework agreement as well as to the individual order.

II Conclusion of contract, written form

Offers made by Darboven are subject to change and non-binding until the contract is concluded.

Orders placed by the buyer shall be binding for the buyer.

The content of orders and agreements shall be governed exclusively by Darboven's confirmation, unless the purchaser immediately objects to the confirmation in writing. This applies in particular to verbal or telephone orders and agreements.

The written objection to Darboven shall in any case no longer be deemed immediate if it is not received by Darboven within seven days of receipt of the confirmation.

Terminations, setting of deadlines, declarations of withdrawal, demands for a reduction in the purchase price or compensation for damages as well as amendments to the contract shall only be effective if they are made in writing. This also applies to changes to the written form clause.

III. severability clause

Should one or more provisions of the contract concluded between Darboven and the purchaser be or become invalid for reasons that are not based on the statutory provisions for general terms and conditions, the validity of the remaining provisions of the contract shall remain unaffected. The invalid provision shall be replaced with retroactive effect by a valid provision that comes closest to the economic purpose intended by the parties when the contract was concluded. The same shall apply in the event of a loophole in the respective contract.

IV. Prices, terms of payment and default

Unless otherwise agreed, the prices in Darboven's current price list are ex works plus the applicable statutory value added tax. The price stated in the order confirmation shall be decisive.

The purchaser waives the right to demand that Darboven take back packaging.

Unless otherwise agreed, payments shall be due immediately and made without deduction within 21 days of receipt of an invoice or other payment schedule at the latest, free Darboven's paying agent and at no cost to Darboven. We grant a 2% discount if full payment is made within 10 days of the invoice date.

The date of receipt in Darboven's bank account shall be decisive for the fulfillment and timeliness of payment.

If any payment terms agreed in writing are exceeded or payment instructions are not complied with, all claims shall become due immediately.

Offsetting by the purchaser with counterclaims shall be excluded unless the purchaser's claims are undisputed or have been legally established. The same applies to the exercise of rights of retention. A further prerequisite for the assertion of rights of retention is that the underlying claims are directly related to the contract from which Darboven's claims are based. The provision in this clause IV.6. shall also apply to the assertion of defects.

The purchaser shall be in default irrespective of a reminder if it fails to make payments due within 21 days of receipt of an invoice or equivalent statement of claims.

If the purchaser is in default, Darboven may, subject to further claims, demand interest on the outstanding amount at a rate of 8 percentage points above the respective base interest rate as well as costs of EUR 5.00 per reminder. The purchaser shall be entitled to provide evidence that Darboven has incurred costs of less than EUR 5.00 per reminder. If the purchaser is a merchant, the claim shall bear interest from the due date at a maturity interest rate of 8 percentage points above the respective base interest rate.

V. Delivery, delays in delivery

Delivery dates and deadlines are approximate dates. If binding delivery dates are agreed in writing in individual cases, the provisions in section V.4, p. 3 and 4 below shall apply accordingly. Delivery dates shall be deemed to have been met upon notification of readiness for dispatch.

Partial deliveries are permissible, provided they do not fall below the minimum reasonable for the Buyer.

The purchaser must check and acknowledge the delivery bill. Any objections must be reported to Darboven in writing without delay. Otherwise, the acknowledged delivery quantity shall be deemed accepted.

Delays in delivery due to operational disruptions for which Darboven is not responsible, official measures, subsequent difficulties in procuring raw materials or force majeure shall lead to a reasonable extension of the delivery period. Force majeure shall also apply in the event of national or international sanctions, labor disputes including strikes and lawful lockouts at Darboven's premises or at Darboven's suppliers. In the event of a delay in delivery, the purchaser may withdraw from the contract after setting a reasonable grace period if performance does not take place within the grace period. Further claims in the event of a delay in delivery, in particular claims for damages, are excluded in accordance with the provisions in Section IX. (Liability) shall be excluded.

Darboven points out that it is dependent on deliveries from its suppliers for the delivery of its products. Darboven's delivery obligation and the delivery period shall be subject to the reservation that Darboven itself is supplied properly, completely and on time. If, despite the conclusion of a congruent hedging transaction, Darboven is not supplied by its supplier with the goods required for the fulfillment of its delivery obligation to the purchaser, or is not supplied on time, without Darboven being responsible for the incorrect or untimely self-delivery, Darboven may withdraw from the contract with the purchaser. Darboven shall not be liable for damages in accordance with the provision in Section IX. (Liability) is excluded. The purchaser shall be notified of incorrect or late self-delivery as soon as Darboven becomes aware of this.

VI Transfer of risk, transportation and impossibility

Unless otherwise agreed, delivery shall be ex works. The risk shall pass to the purchaser as follows, even in the case of carriage paid delivery:

(a) If Darboven arranges for shipment to the purchaser, delivery shall be made in the purchaser's name and at the purchaser's expense and risk. This shall also apply if Darboven bears the costs of transportation and/or insures the transportation on the basis of individual agreements (cf. Section VI. 2.).

b) If delivery by Darboven has been agreed, the transfer of risk shall take place at the latest when the delivery is handed over (start of the loading process) to the forwarding agent, carrier, importer or other third party designated by the purchaser or to the purchaser itself. If the shipment or handover is delayed due to a circumstance caused by the purchaser, the risk shall pass to the purchaser from the day on which the delivery is ready for shipment and Darboven has notified the purchaser of this.

Darboven shall take out transportation insurance at the buyer's request and at the buyer's expense and risk. When selecting the transport insurer, Darboven shall only be liable for its own customary care.

Goods reported as ready for dispatch must be called off immediately when the delivery date is reached. If shipment is delayed as a result of circumstances for which the purchaser is responsible, the purchaser shall be in default from the date of notification of readiness for shipment. § Section 294 BGB is waived. The risk shall then be transferred to the purchaser. In this case, Darboven shall store the goods at the risk and expense of the purchaser.

Obvious losses or damage during transportation shall be noted by the purchaser on the freight receipt with a corresponding reservation. In addition, they must be reported to the carrier in writing without delay. All steps necessary to safeguard the rights of the customer must be initiated immediately by the buyer. Loss or damage during transportation must be reported to Darboven immediately. An exclusion period of seven days shall apply to the notification to Darboven.

Damage or loss due to transportation shall not release the purchaser from full payment of the purchase price to Darboven.

The purchaser shall assign to Darboven in advance all claims against third parties arising from damage or loss during transportation to the extent that Darboven has due payment claims against the purchaser for the transported goods. This shall also apply to claims arising from any transportation insurance. Darboven shall accept the assignment. The assignments under this clause VI.6. shall be subject to the condition subsequent of full payment of the purchase price by the purchaser for the delivered goods.

If Darboven is unable to provide the entire service before the transfer of risk due to circumstances for which Darboven is responsible, the purchaser may withdraw from the contract.

In the event of partial impossibility or partial inability, the above provision shall only apply to the corresponding part. In this case, however, the buyer may withdraw from the entire contract if he can prove a justified interest in rejecting the partial delivery. Further claims of the Buyer, in particular claims for damages, are excluded in accordance with the provisions in Section IX (Liability).

If the impossibility occurs during the delay in acceptance or through the fault of the Buyer, the latter shall remain obliged to fulfill the contract.

VII Quality and warranty

Product descriptions and other information about the quality of the goods are for specification purposes. In this respect, they do not constitute the assurance of properties that are the subject of a guarantee. Any public advertising statements/product specifications made by third parties or by Darboven shall not form part of the contractual product specification, unless Darboven enters into a corresponding written agreement with the purchaser.

The purchaser shall be obliged to properly inspect the delivered goods immediately upon receipt at its own expense and to notify Darboven immediately in writing of any defects, incorrect deliveries or shortages. An exclusion period of seven days from receipt of the delivery shall apply to the notification of obvious defects. Hidden defects must be reported to Darboven in writing without delay, but at the latest within seven days of discovery of the defect. The timely dispatch of the notification shall be sufficient to preserve the rights of the purchaser. Otherwise, the goods shall be deemed to have been approved, even with regard to the defect in question. If the Buyer breaches his obligations under this Section VII.2, he shall no longer be entitled to assert claims for defects in respect of the defects concerned. For merchants, § 377 HGB (German Commercial Code) shall apply additionally.

Any quality defects in a partial delivery shall not entitle the Buyer to reject the remainder of the completed quantity, unless the Buyer can prove that acceptance of only part of the delivery is unreasonable for him in view of the circumstances.

Damage caused by external influence, improper handling or inadequate storage by the Buyer shall be excluded from liability for defects.

Claims for defects do not exist in the case of only insignificant deviations from the agreed quality or usability. The purchaser shall otherwise be entitled to a replacement delivery. Darboven shall be entitled to make a reasonable number of replacement deliveries, but at least three. If the replacement delivery fails, the purchaser shall - without prejudice to any claims for damages in accordance with Section XII (Liability) - have the right to choose between rescission of the contract or a reduction of the remuneration. This right is limited to the delivery concerned, provided that such a restriction is not unreasonable for the Buyer due to the nature of the item.

Statutory warranty claims expire 1 year after delivery. This shall not apply if the law prescribes longer periods in accordance with § 438 para. 1 no. 2 BGB, § 445 b para. 1 BGB and § 634 a para. 1 no. 2 BGB or in accordance with the Product Liability Act, in the event of an intentional or grossly negligent breach of duty by Darboven, in the event of fraudulent concealment of a defect (§ 444 BGB) and in cases of injury to life, limb or health. We shall provide warranty through free supplementary performance in the form of rectification of defects or replacement delivery at our discretion.

The purchaser shall only have a right of recourse against Darboven in accordance with Section 478 BGB insofar as the purchaser has not made any agreements with its customer that go beyond the statutory claims for defects.

Section XII (Liability) shall also apply to claims for damages. Further claims or claims other than those regulated in this clause VII. of the purchaser against Darboven due to a defect are excluded.

VIII Retention of title

The delivered goods (goods subject to retention of title) shall remain the property of Darboven until all of Darboven's claims arising from the business relationship with the purchaser existing at the time of the respective conclusion of the contract have been paid in full. In the event of default of payment or breach of contract by the purchaser, Darboven shall return the goods subject to retention of title immediately upon request, without the need for a declaration of withdrawal by Darboven. The same shall apply in the event of a significant deterioration in the purchaser's financial situation. The request to take back the goods and the taking back of the goods shall not be deemed a withdrawal from the contract.

The purchaser shall be entitled to sell the goods in the ordinary course of business. Other dispositions, such as pledging or transfer by way of security, are not permitted.

The claims arising from the sale of the goods subject to retention of title are hereby assigned to Darboven in full with effect from the time they arise, together with all ancillary and security rights. Darboven hereby accepts the assignment. The third-party debtors shall be informed immediately by the purchaser of the assignment. The purchaser shall provide Darboven with a certificate of assignment upon request. As long as the purchaser meets its payment obligations to Darboven, it may collect the claims from resales for itself in the ordinary course of business. The assignment of the claim is excluded.

The purchaser's right to process and the right to resell the goods subject to retention of title as well as the right to collect the receivables shall expire if the purchaser is in default of payment by more than one month or if the purchaser ceases to make payments, if goods subject to retention of title are seized or if an application is made to open insolvency proceedings or judicial or extrajudicial composition proceedings against the purchaser's assets. The purchaser undertakes to notify Darboven immediately of the occurrence of the aforementioned events.

In the event that the originally delivered goods are exchanged by Darboven - for whatever reason - the exchanged goods shall take the place of the originally delivered goods, with the proviso that these General Terms and Conditions shall apply to the exchanged goods.

After Darboven takes back the goods or Darboven withdraws from the contract or after setting a deadline with a threat of refusal pursuant to Section 323 BGB, Darboven shall be entitled to freely utilize the goods taken back. The amounts obtained from the utilization shall be offset against Darboven's claims or credited within the scope of Darboven's claim for damages.

The purchaser shall be obliged to insure the goods subject to retention of title at its own expense to the usual extent, but in any case against fire, storm, water and theft damage, sufficiently at replacement value and to provide Darboven with proof of insurance cover on request. The customer hereby assigns to Darboven its claims to which it is entitled against the insurance company and/or other third parties in connection with the goods subject to retention of title in the amount of the share attributable to Darboven's goods subject to retention of title. Darboven accepts the assignment. The assignments under this Section VIII.7. shall be subject to the condition subsequent of full payment of the purchase price by the purchaser for the delivered goods. The purchaser must inform the insurance company of the assignment of the claim. The other provisions agreed within the scope of this retention of title shall apply accordingly.

If Darboven's secured claims are not only temporarily secured by more than 110% by goods subject to retention of title and/or assignments or other securities, Darboven shall release security interests up to the above limit at the request of the purchaser. Darboven shall decide at its own discretion which securities shall be released. The purchaser shall immediately provide Darboven with all necessary information in connection with this clause VIII.8. If the retention of title is not effective under the law of the country in which the delivered goods subject to retention of title are located, the buyer shall be obliged to provide Darboven with equivalent security.

IX. Liability

Darboven's liability under the contract and the law is generally excluded, unless otherwise agreed below.

Darboven's exclusion of liability pursuant to the above clause IX.1. shall not apply

• for damages that Darboven has caused intentionally or through gross negligence;
• if and to the extent that Darboven is liable in accordance with the mandatory provisions of the Product Liability Act;
• if and to the extent that Darboven has given a guarantee of quality or durability and damages have arisen from the breach of the guarantee;
• if a breach of duty for which Darboven is responsible leads to injury to life, limb or health of a person. In cases of slight and simple negligence on the part of Darboven, Darboven shall only be liable for the breach of material contractual obligations, unless liability already exists in accordance with Section IX.2. Darboven's liability shall be limited to the damage that is typical for the contract and foreseeable for Darboven at the time the contract is concluded or the breach of duty is committed. Material contractual obligations are all obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the purchaser regularly relies and may rely.

Darboven shall not be liable for damages that are exclusively attributable to the purchaser's sphere of risk. Furthermore, Darboven shall not be liable for any damage caused by the purchaser or its vicarious agents not following instructions for use, for example by storing the delivered products incorrectly, using them improperly or mixing them with products from other suppliers or using unsuitable materials.

Claims for damages by the purchaser due to slight or simple negligence on the part of Darboven in accordance with the above Sections IX.2. and IX.3. shall be excluded in any case if they are not asserted in court within a period of three months after the rejection of the claims with a corresponding notice by Darboven or its insurer.

All possible claims for damages based on negligence on the part of Darboven in accordance with the above Sections IX.2. and IX.3. shall become time-barred in accordance with the provision in Section VII.6. In deviation from this, the statutory provisions shall apply to the commencement of the limitation period for claims that are not claims for defects.

The above exclusions and limitations of liability shall also apply to Darboven's liability for its executive bodies, employees and vicarious agents as well as the personal liability of Darboven's executive bodies, employees and vicarious agents.

X. Prohibition of assignment

The assignment of the purchaser's claims against Darboven to third parties may only take place with Darboven's prior written consent.

XI. Confidentiality

The purchaser undertakes to keep information about Darboven's knowledge regarding the processing, recipe, origin and storage of the goods, which becomes known to it in the course of the business relationship, strictly confidential and to use it only for the contractually intended purposes. This obligation shall apply for the duration of the business relationship. It shall also apply for a period of five years after its termination. It does not apply to knowledge that was demonstrably publicly available at the time of disclosure or became publicly available thereafter, was disclosed to the buyer by a third party without an obligation of confidentiality, was already known to the buyer at the time of disclosure, was developed by the buyer independently of Darboven's knowledge or if and to the extent that the buyer is obliged by law or the decision of a court or administrative authority to disclose and/or inform about the relevant information.

XII. Data protection

Darboven and the Purchaser undertake to comply with the applicable data protection laws and regulations when handling personal data and to take the necessary and, in individual cases, appropriate measures to protect personal data. Personal data that has come to the knowledge of the contracting parties as a result of the contractual cooperation shall be used by the contracting parties exclusively for the purpose of fulfilling the contract and shall at no time be made accessible to third parties or used in any other way than described above, unless the applicable data protection provision expressly permits the corresponding type of use.

German substantive law shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and German private international law. The place of performance for payments and services is Hamburg, Germany.

XIII Place of performance, place of jurisdiction, applicable law

Legal disputes shall be brought exclusively before the ordinary courts in Hamburg. With buyers who are merchants, legal entities under public law or special funds under public law, the registered office of the buyer is agreed as an additional place of jurisdiction.

XIV Special provisions for mail order business via the online store

For commercial customers of J.J. Darboven at www.shop.darboven.com

The following provisions (XIV) shall take precedence over the above General Terms and Conditions (I - XIII of the GTC) in the mail order business via the online store for commercial customers of Darboven at www.shop.darboven.com.

1. group of customers

1.1 Only commercial customers approved by Darboven may order via Darboven's online store for commercial customers.

1.2 The following General Terms and Conditions (GTC) shall only apply to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, are acting in the exercise of their commercial or independent professional activity. Prior to initial orders, we will check your status (e.g. by presenting a trade license or confirmation of freelance activity from the tax office).

2. validity

We deliver in accordance with these General Terms and Conditions, which form the basis of the contracts concluded with us on the basis of the offers on our Internet store site. These terms and conditions shall be deemed to have been accepted at the latest upon receipt of the goods. Deviating or supplementary provisions of the customer shall not apply, even if we carry out the services with knowledge of such provisions. Counter-confirmations by the customer with reference to his terms and conditions of business or purchase are hereby rejected.

3. storage

Contract text, customer account The contract text is stored by us, but cannot be accessed directly by you for security reasons. We offer each customer a password-protected direct access ("customer account"). Here you can manage your data and view order data after registering accordingly. The customer undertakes to treat the personal access data confidentially and not to make it accessible to unauthorized third parties.

4 Contractual partner, language

The contractual partner is J.J. Darboven GmbH & Co KG. In our online store at www.shop.darboven.com, the contract is concluded in accordance with these General Terms and Conditions and conditions in German.

5 Conclusion of contract

5.1 Our advertising offers are non-binding as long as they do not become the content of a contractual agreement.

5.2 Before sending your order, you have the option of checking and correcting the data you have entered.

5.3 By sending your order, you submit a binding contractual declaration.

5.4 A binding contract is concluded when we accept your order. This acceptance by us can take place in the following circumstances:

• we accept your order by means of a separate declaration of acceptance,
• we request payment in advance, we debit your account for credit card payments and notify you of this,
• we inform you of the date of the account debit in the case of a SEPA direct debit,
• You receive the goods or a shipping notification without the contract having already been concluded as a result of one of the above circumstances

5.5 Please note that in the case of advance payment, delivery will only take place after the full amount has been credited to our account.

5.6 The customer is bound to his order for a maximum of 7 working days and can of course cancel his order in whole or in part before we have declared our acceptance.

6 Prices

6.1 All prices are net prices, plus statutory VAT and other price components.

6.2 The prices quoted are our list prices. Discounts agreed individually with a customer will of course be taken into account when the invoice is issued or credited at the agreed time.

7. payment

Payment shall be made using the payment method agreed separately with the customer.